Gary L. Francione's theory of nonhuman animal rights, or "the rights position," is based on the "humane treatment principle," in combination with the "principle of equal consideration." The humane-treatment principle is, according to Francione, the moral principle that it is wrong to impose unnecessary suffering on other animals. In the "Introduction" to his book, Introduction to Animal Rights, Francione says that granting other animals one right, the right not to be property,
would mean that we could no longer justify our institutional exploitation of animals for food, clothing, amusement, or experiments. If we mean what we say and regard animals as having morally significant interests, then we really have no choice: we are simply committed to the abolition of animal exploitation, and not merely to its regulation.
This position that I am proposing in this book is radical in the sense that it would force us to stop using animals in many of the ways that we now take for granted. In another sense, however, my argument is quite conservative in that it follows from a moral principle that we already claim to accept – that it is wrong to impose unnecessary suffering on animals. If the interest of animals in not suffering is truly a morally significant interest, and if animals are not merely things that are morally indistinguishable from inanimate objects, then we must interpret the prohibition against unnecessary animal suffering in a way similar to the way that we interpret the prohibition against unnecessary human suffering. In both cases, suffering cannot be justified because it facilitates the amusement, convenience, or pleasure of others. Humans and animals ought to be protected from suffering at all as the result of their use as the property or resources of others.
In some important ways Francione's theory is very similar to those he calls "New Welfarist," people like Peter Singer, author of Animal Liberation. Francione traces the humane-treatment principle back to Jeremy Bentham, a utilitarian philosopher who also influenced Peter Singer. And both Singer and Francione rely on the principle of equal consideration. However, what makes Francione's position distinct is that one right not to be property.
I agree with Francione that his argument, based as it is in the principle of humane treatment, is "quite conservative." I admire his ability to reframe such a conservative standpoint for the radical purpose of abolishing the institutional exploitation of other animals. But I also believe there are significant limitations to the rights position he promotes.
For instance, consider Francione's assertion that "we must interpret the prohibition against unnecessary animal suffering in a way similar to the way that we interpret the prohibition against unnecessary human suffering." If we honestly consider how the humane-treatment principle is applied in our world after the abolition of human slavery we find it rarely applied to human animals – unless we're discussing a group of humans whose oppression is taken for granted. We hear the calls for humane treatment of people in war zones, refugees, noncitizens, im/migrants, detainees, prisoners, small children, disabled people (particularly those with mental disabilities), people living in poverty, and so on. But we don't hear calls for the humane treatment of legal scholars and law professors because these are not oppressed group.
The status of human prisoners in the United States gives us good cause to doubt that simply abolishing the property status of other animals will radically reframe the humane-treatment principle. For instance, reforms that oppose torture, overcrowding, and neglect, as well as calls for adequate food, water, and shelter are all considered in "the way that we interpret the prohibition against unnecessary human suffering" in the context of the prison-industrial complex. However, under the humane-treatment principle the imprisonment of other humans is also taken for granted.
Abolishing the property status and insisting on equal consideration in applying the humane-treatment principle does not mean the structure of oppression will be eliminated. For instance, the abolition of human slavery in the United States led to the creation of Black Codes, which specifically criminalized Black people and fueled the with the growth of the prison-industrial complex. Furthermore, Douglas Blackmon explains in Slavery By Another Name: The Re-enslavement of Black Americans from the Civil War to World War II how ending the legal property status of Black Americans failed to bring about an end to the enslavement of Black people.
Similarly, Francione assures us that human supremacy can still exist under the rights position. In the essay "Animals – Property or Persons?" in Animals as Persons: Essays on the Abolition of Animal Exploitation, he writes, "Moreover, recognition of this right [not to be treated as property] would not preclude our choosing humans over animals in situations of genuine conflict."
The property status of other animals, however, is just one piece of the structure of human supremacy, just as human slavery was just one piece of the structure of White supremacy. If we consider criminalization in the US after the Emancipation Proclamation, we see the abolition of human slavery has not precluded choosing Whites citizens over people of color and noncitizens in situations defined by the system of criminalization as genuine conflicts. Likewise, under the rights position, the structure of human supremacy can still exist.
Consider how free-living animals are likely be affected by the rights position. In "Animals – Property or Persons?," Francione concludes the essay by saying:
If we stopped treating animals as resources, the only remaining human animal conflicts would involve animals in the wild. Deer may nibble our ornamental shrubs; rabbits may eat the vegetables we grow. The occasional wild animal may attack us. In such situations, we should, despite the difficulty inherent in making interspecies comparisons, try our best to apply the principle of equal consideration and to treat similar interests in a similar way. This will generally require at the very least a good-faith effort to avoid the intentional killing of animals to resolve these conflicts, where lethal means would be prohibited if the conflicts involved only humans. I am, however, not suggesting that the recognition that animals interests have moral significance requires that a motorist who unintentionally strikes an animal be prosecuted for an animal equivalent of manslaughter.
This is cause for real concern. Francione leaves the door wide open for controlling deer for as little as nibbling on ornamental shrubs. There is no suggestion that these ornamental shrubs are part of the colonization of land inhabited by deer. So it important that we consider the subtext of Francione's concluding paragraph on the rights position.
Counter to Francione, I would also argue that the system of transportation needs to be considered an issue. Not a criminal issue as he suggested whereby motorists are charged with manslaughter, but as an anti-oppression issue. The system of transportation does great damage to other animal populations by colonizing, fragmenting, polluting, and otherwise harming the land, air, and water that they depend on. The rights position seems to favor the status quo on these issues.
Along these lines, it's worth noting that Francione has featured writings by himself and Priscilla Cohn on the now defunct Rutgers Animal Rights Law Clinic's website endorsing the use of reproductive controls against free-living animals. Priscilla Cohn, who endorsed Francione's book Animals, Property and the Law, is one of the foremost proponents of forcing reproductive controls on free-living animal populations. After all, such controls are rooted in the humane-treatment principle and they do not require treating other animals as property. However, as discuss at greater length in the article "Putting Other Animals on the Pill," these reproductive controls are very oppressive.
Furthermore, the rights position is likely to bolster human oppression under the prison-industrial complex. In "Animals – Property or Persons?," Francione cites Bentham's humane-treatment principle as the basis of anticruelty laws. He then argues that the anticruelty laws fail because of the property status of other animals. That is, we cannot be expected to fairly apply the equal-consideration principle when we interpret the humane-treatment principle that these laws are based on as long as other animals are legally considered property.
No doubt under the rights position it will be easier to convict people under anticruelty laws when other animals are no longer considered property. However, given the oppression inherent in the existing criminal punishment system is this really an improvement? Radical feminists of color in the antiviolence movement question the effectiveness of criminalization in ending violence against women, how can we expect increasing criminalization suggested under the rights position to do any better for other animals?