I

Peter Singer initially gained fame by popularizing utilitarian philosopher Jeremy Bentham’s idea that just as race should not be used to exclude humans from the moral community and justify their enslavement, species should not used to justify treating animals as things. Singer borrowed the term “speciesism” from psychologist Richard Ryder and argued that using species to discount or ignore the interests of nonhuman animals was no different from using race, sex, or sexual orientation to justify discrimination against certain groups of humans. And Singer’s position as “father of the animal rights movement” was thereby secured. Gary Varner refers to Singer as “[t]he veritable Moses of the animal rights movement.” (Varner, Personhood, Ethics, and Animal Cognition, 2012, p. 133).

But is that title merited? And does Singer really reject speciesism or does he just promote a different version of speciesism?

Like Bentham, Singer is a utilitarian. He maintains that what is morally right and wrong is determined by consequences. Because rights require that certain interests be protected irrespective of consequences—a human can’t be used as a non-consenting biomedical subject even if the benefits of such use would be great—utilitarians, including Bentham and Singer, categorically reject the idea of rights. Singer categorically rejects the idea of animal rights. Singer claims that he uses the notion of “animal rights” simply as a rhetorical device; he is very clear that he ultimately shares Bentham’s view that rights are nothing but “nonsense upon stilts.” But to say that Singer’s paternity status as father of the animal rights movement is merely “rhetorical” is somewhat odd when we are talking about a rights movement. After all, the notion of a right is a legal and moral concept that by its very nature is irreducible to mere rhetoric.

A possible reply here is that Singer rejects rights for humans as well as for animals, so at least he’s being consistent. Yes and no. Singer does, indeed, reject moral rights for humans as well. But there’s a catch. Even though he rejects the notion of rights as categorical entitlements, he insists that, generally speaking, human beings are morally superior to nonhuman animals. He regards humans, or at least “normal” humans, as being self-aware and having a sense of self over time and hence an interest in continued existence. These characteristics support a presumption against using those humans exclusively as replaceable resources for the satisfaction of others’ needs and desires.

This presumption is rebuttable, of course, which is to say that it can be overridden if utilitarian considerations warrant it. If, for example, using one human as a non-consenting subject in a biomedical experiment would result in saving the lives of a million people, Singer would, other things being equal, have a difficult time as a utilitarian arguing that we should not use the human in the experiment. (This is precisely the kind of use that advocates of rights seek to preclude.) But otherwise, Singer’s presumption functions very much like a right—it protects the interest of humans in not being used exclusively as resources in all but cases where the balance of consequences is clear and significant.

And here’s where Singer’s claim to reject speciesism becomes problematic.

Singer believes that nonhuman animals do not have an interest in continuing to live in the way that “normal” humans do. According to Singer, “normal humans have an interest in continuing to live that is different from the interests that nonhuman animals have.” (New York Times, The Stone, May 27, 2015). That is because beings with the ability to be self-aware over time and plan for the future have a greater interest in living than beings who don’t. And Singer thinks that even if animals, or some animals, are self-aware in some sense, “they are still not self-aware to anything like the extent that humans normally are” (Singer, Practical Ethics, 3d ed. 2011, p. 122). So there is a qualitative distinction between humans and nonhumans, and this leads Singer to conclude that there is a moral difference between humans and nonhumans. Indeed, Singer sketches a moral hierarchy in which “normal” human beings are categorically superior to nonhuman animals.

Nonhumans, on Singer’s view, have no interest in not being used as replaceable resources. Singer thinks that “a being with the ability to think of itself as existing over time, and therefore to plan its life, and to work for future achievements, has a greater interest in continuing to live than a being who lacks such capacities” (New York Times, The Stone, May 27, 2015). For a human being to lose its life, on Singer’s view, is to suffer the loss of all the future opportunities for satisfaction that it is capable of contemplating. For a nonhuman animal to lose its life, in comparison, is essentially like going to sleep and never waking up—an animal cannot be said to “lose” anything by dying because it has no conceptual or linguistic access to its future.

For Singer, this translates into the view that the lives of nonhuman animals are of lesser moral value than the lives of human animals. Unlike humans, nonhumans can be used as replaceable resources, whereas “normal” humans possess a status that, even though Singer would deny it, is inseparable from the notion of inherent dignity that advocates of rights attribute to human beings. This privileging of humans leads Singer to make comments like: “[M]illions of chickens are killed every day. I can’t think of that as a tragedy on the same scale as millions of humans being killed. What is different about humans? Humans are forward-looking beings, and they have hopes and desires for the future. That seems a plausible answer to the question of why it’s so tragic when humans die” (Indystar, March 8, 2009).

Now, how is this not speciesist?

Singer’s response is that speciesism involves treating the interests of nonhumans in a way that is different from the way that we treat similar human interests. According to Singer, animals do not have an interest in not being used as replaceable resources because they are not self-aware. And even if they are self-aware, their self-awareness is, according to Singer, qualitatively inferior to the self-awareness of normal humans. So to treat nonhumans as replaceable resources does not present a problem of speciesism because there is no similar interest involved—humans have an interest in continued existence, whereas nonhuman animals do not. There simply is no arbitrary privileging of human beings here.

According to Singer, animals are not indifferent to how we use and kill them, but they don’t care that we use and kill them. Because animals are not self-aware, “it’s not easy to explain why the loss to the animal killed is not . . . made good by the creation of a new animal who will lead an equally pleasant life” (Singer, Animal Liberation, rev. 1990, p. 229). Animals are utterly indifferent to their futures because they cannot think conceptually about those futures; all that an animal can care about is its immediate circumstances. Thus, for example, an animal caught in a painful trap will certainly want to get out of the trap and have the pain stop, but s/he cannot have any interest in surviving and living even another day.

II

Why would anyone think that a cow, or a pig, or a chicken, or a fish does not care about whether we use and kill him or her but simply about how s/he is used and killed? When one of our dogs or cats gets ill, do we think that, by dying, s/he loses nothing because s/he did not have an interest in continuing to live in the first place? We would venture a guess that most of us would reject as absurd the idea that animals do not have an interest in continuing to live, and would consider it indisputable that animals are harmed when we kill them—however “humanely.”

So how does Singer justify a contrary conclusion?

The answer is found in the work of Bentham. Singer is Bentham’s modern proponent on many issues, and on this issue Singer stands shoulder to shoulder with Bentham. Before the nineteenth century, animals were excluded from the moral community because they were thought to be our cognitive inferiors on the grounds that, unlike humans, they did not reason, use abstract concepts, or engage in symbolic communication. Bentham argued that we could not use cognitive differences to justify excluding animals from the moral community. The only characteristic that was required for membership in the moral community was the ability to suffer. If an animal can suffer, we cannot, on the basis of species alone, ignore or discount that suffering.

But did that mean that Bentham thought that cognitive characteristics were completely irrelevant? No. On the contrary, Bentham thought that although the supposed cognitive inferiority of animals did not mean that we could use them for whatever purpose we wanted and treat them however we wanted, it did mean that animals were not self-aware. And that meant that we could continue to use and kill animals—at least for food—as long as we accorded appropriate consideration to their interests in not suffering.

Bentham objected to human slavery, but he did not object to the institution of animal property because he did not see humans and nonhumans as similarly situated: the former were self-aware; the latter were not. Singer agrees with Bentham: animals are not self-aware so that, other things being equal, we can use them in ways in which we would not use (at least most) humans.

III

We find this idea that animals are not self-aware and that, other things being equal, we do not harm them when we use and kill them, to be quite peculiar. Not only does this idea not accord with our own experience in relating to nonhuman animals; it is problematic on theoretical grounds. Indeed, we think that it’s downright speciesist.

We certainly agree that nonhuman animals think differently from the way that humans think because human cognition is linked with the capacities for conceptual abstraction and language. Humans are the only animals who use symbolic communication. So it’s probably true that only humans have the autobiographical sense of self that humans have. But so what? The question we are faced with is this: is humanlike self-awareness the only sort of awareness that results in having an interest in continued life sufficient to give rise to at least a rebuttable presumption against killing?

Let’s assume with Singer that most nonhuman animals live in a sort of eternal present. Does that mean that they are not self-aware? Consider a human with a total amnesia in which the person is unable to recall memories of the past and form new memories and, therefore, lives in an eternal present. We submit that it would be inaccurate to say that the person is not self-aware. There is certainly awareness of self in the present moment and then the next moment and so on. It is certainly the case that continued existence is in the interest of such a person—she or he prefers, or desires, or wants to get to the next instant of awareness—regardless of the manner in which she or he thinks about self and even if they don’t have an autobiographical sense of self.

The notion that animals are not self-aware is based on nothing more than the unargued assumption that the only way to be self-aware is to have the self-awareness of a normal adult human. That is certainly one way to be self-aware. It’s not the only way. As Donald Griffin, one of the most important cognitive ethologists of the twentieth century, noted in his book Animal Minds, if an animal is conscious of anything, “the animal’s own body and its own actions must fall within the scope of its perceptual consciousness.” In this respect, an animal’s consciousness is comparable to that of a human with transient global amnesia. It is on these grounds that Griffin concludes that “[i]f animals are capable of perceptual awareness, denying them some level of self-awareness would seem to be an arbitrary and unjustified restriction” (Griffin, Animal Minds, 2001, p. 274). The idea that one must be able to think in detached, abstract terms of an “I” who is having these experiences as part of one whole life trajectory is nothing more than a device for depicting human beings as unique and as superior to all other animals.

IV

Moreover, there is something seriously wrong with Singer’s view that we can nevertheless accord equal consideration to the interests of animals. We maintain that we can’t do it except, perhaps, as an abstract matter. And we’re not sure it can be done even then.

Animals are legally classified as property, namely, as things that have no inherent or intrinsic value. They are chattel that are owned by humans. This, combined with the generally accepted view (which Singer promotes) that animals are cognitive inferiors, makes it almost impossible for us to think of animal interests as similar to our own in the first place. And even if we were to think of an animal having an interest that is similar to a human’s, the status of animals as property provides a good reason always to decide in favor of the human interest where there is any sort of conflict between human and nonhuman interests. When we, as owners of animals, balance the interests of animals against our own interests, we will always privilege our own interests and devalue those of animals.

Interestingly, although Bentham was a utilitarian, he opposed human slavery as an institution. Why? The standard explanation is that he thought that slavery would inevitably become the “lot of large numbers” and slaves would invariably be treated badly because such treatment would be justifiable on utilitarian grounds as contributing to the happiness of the majority. But there is another explanation. Bentham recognized that the principle of impartiality, or equal consideration, could not be applied to slaves because the interest of a slave would always count for less than the interest of a slave owner.

Bentham did not recognize this problem in the context of animals. Neither does Singer. Bentham thought that an enlightened utilitarian society could continue to eat and use animals even while according animal interests due consideration: in effect, on Bentham’s view, killing and eating animals did not entail that animals were being “degraded into the class of things.” But the fact is that there is no way to respect the vital interests of animals as long as they are legally classified as things that we are entitled to use. It can’t happen. It’s a simple matter of economics. Animals are property. It costs money to protect their interests. Given the nature of markets, and particularly in light of “free trade” and international markets, we will, for the most part, spend that money only in situations in which we get a direct economic benefit. That is why animal welfare standards mandated by law are and have always been very low and prohibit only gratuitous suffering. For the most part, the owners of animal property are required to change their behavior only when they are arguably acting in economically inefficient ways. So, for example, we require large animals to be stunned before being shackled, hoisted, and butchered not because of any real concern for animals because not doing so increases worker injuries and carcass damage.

Perhaps in recognition of the limitations of animal welfare standards imposed by law, animal advocacy organizations, led by Singer, have in recent years changed their focus from law reform to working with industry to secure voluntary changes to improve animal welfare. In 2005, Singer led an effort involving just about all of the large animal advocacy groups to endorse and promote the efforts of Whole Foods Market to formulate a program of “humane” improvements. But like Bentham, Singer fails to appreciate both the interest that sentient animals have in not being killed in the first place and the reality of economics in light of the property status of nonhuman animals. At the very best, animal welfare efforts can do no more than result in the creation of niche markets for affluent consumers whose consciences can be assuaged by paying a higher amount for animal products that may involve slightly less cruelty than conventional products. This is not consistent with any sort of “animal rights” view.

V

The idea that animal life is of lesser value than human life is one that permeates the welfare position as it has been developed by utilitarian philosophers, such as Bentham and Singer. But this position also surfaces in the work of rights theorist Tom Regan.

Regan rejects both utilitarian moral theory and the theory of animal welfare. He maintains that we have no moral justification for treating at least adult mammals exclusively as means to the ends of humans, so he does not rely on the lesser moral value of nonhumans to justify animal use as did Bentham and as does Singer. Regan does, however, argue that in a situation in which there is a conflict, such as a situation in which we are in a lifeboat and must choose whether to save a dog or a human, we should choose to save the life of the human over the dog because death is a greater harm for the former than for the latter. According to Regan, “the harm that death is, is a function of the opportunities for satisfaction it forecloses,” and death for an animal, “though a harm, is not comparable to the harm that death would be” for humans. Indeed, Regan would argue that we should sacrifice any number of dogs to save one human. (Regan, The Case for Animal Rights, 1983, p. 324).

Regan’s position is problematic because if death is a qualitatively greater harm to humans than to nonhumans, then there is a nonarbitrary way to distinguish humans from nonhumans. Although Regan rejects using animals exclusively as resources, his argument that moral patients (such as nonhuman animals) have equal inherent value is based on his view that there is no nonarbitrary way to separate moral agents from moral patients. So his position on humans having a qualitatively greater interest in their lives seems to undermine that position. At the very least, to the extent that Regan thinks that situations of true conflict ought always to be resolved in favor of humans based on species, his position invites mischief depending on how “conflict” is interpreted.

We do not agree that we can say that death is a lesser harm to nonhumans any more than we can say that death is a lesser harm to a human with amnesia than to one without it, or that death is a lesser harm to a less intelligent person than it is to a more intelligent one. In situations of genuine conflict, we think that choosing a nonhuman over a human is perfectly acceptable. But we also believe that if we took animal rights seriously, we would stop manufacturing conflicts between human and nonhumans that result from bringing nonhumans into existence to use as human resources.

VI

We conclude by noting that Singer says that we should not use animals in situations in which we would not use similarly situated humans. But it is clear that Singer allows for the use of nonhumans in situations in which we would never consider using any human being, be that human being “normal” or mentally disabled. From what we have said here, it should be clear that there are no legitimate reasons for categorically privileging human beings over nonhuman animals, any more than we would privilege a more intelligent human being over a less intelligent one. Thus New York Times columnist Nicholas Kristof is entirely right to acknowledge, as he has done repeatedly in his New York Times op-ed pieces, that he is being a “hypocrite” when he deplores our treatment of food animals but resists the call for veganism.

Singer advocates precisely the kind of speciesism that he purports to decry. Until we find the courage and honesty to acknowledge the unjustifiable violence against animals that Singer’s ideas sanction, we will continue to read articles in the pages of major newspapers with titles, such as “Saving the Cows, Starving the Children” (New York Times, June 26, 2015), whose authors insist, entirely speciously, that conflicts between animal and human interests are irreducible and that the life of a nonhuman animal comes at the cost of a human life.

Gary L. Francione, Board of Governors Distinguished Professor of Law and Katzenbach Scholar of Law and Philosophy, Rutgers University School of Law.

Gary Steiner, Professor of Philosophy, Bucknell University.

© 2016 by Gary L. Francione & Gary Steiner