By Mike Dorf
Today, Cornell Law School hosts a panel on Prof. Colb's book, Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans. As is customary with these faculty book celebrations, we will hear from three panelists, followed by a response from the author. The panelists are: UCLA Law Professor Taimie Bryant; Cornell Law Professor (and occasional DoL contributor) Bob Hockett; and lawyer, activist/author/podcaster and adjunct law professor (at Brooklyn, Cardozo and Columbia Law Schools) Mariann Sullivan. I'll be the moderator. It's also customary at these events that the guest speakers do not give the honoree advance warning of what they're going to say and, because this is an academic forum, speakers almost invariably find that in addition to praising the book, they offer points of disagreement and criticism. (For an illustrative, albeit lengthy, example, you can watch the celebration of my last book here.)
Given the ground rules, it's hard for me to predict how the various panelists will disagree with Prof. Colb, but I would not be surprised if at least some of the disagreement focuses on the role of law as part of an activist reform strategy, in the context of animal rights and more broadly. Both Professors Bryant and Sullivan teach animal law--courses that focus on the legal regulation of human use and treatment of animals--whereas Prof. Colb teaches a course in animal rights--which focuses on the moral and philosophical presuppositions of law and behavior regarding animals. Accordingly, Prof. Colb views law as currently playing a more limited role in reducing the harm humans do to animals, relative to campaigns that aim to change hearts and minds.
That's an oversimplification, no doubt. Bryant and Sullivan both believe strongly in, and make substantial efforts to, change hearts and minds. Even focusing just on the courses, I'm sure that in their treatment of the current legal framework, Professors Bryant and Sullivan frequently take a critical perspective; and I know that Prof. Colb's course includes (critical) discussion of various laws, regulations and cases. Nonetheless, I suspect that the difference in focus reflects different assessments of the efficacy of law as a tactic of social reform at the current stage of the animal rights movement. Although Bryant, Sullivan and Colb largely share long-term goals, they probably disagree at least a little bit about how to achieve those goals. (I've omitted Hockett from this assessment because he hasn't written in this area, but as a bit of a polymath, he made sense as someone to include on the panel.)
The disagreement I've flagged touches on a longstanding debate within the animal rights and animal welfare movements: Should activists devote their energy to ameliorative measures (e.g., banning veal crates or gestation crates, banning foie gras production, etc.) or should they focus all of their energy on measures (like promoting vegan products and restaurants) that do not cooperate with existing animal exploitation industries? For an excellent statement of the pros and cons of the respective positions, readers might consider a fairly recent debate between Bruce Friedrich (formerly of PETA, now of Farm Sanctuary) and Rutgers Law Professor Gary Francione.
Part of the debate between the likes of Friedrich and the likes of Francione concerns the magnitude of harm reduction that animal welfare laws accomplish. Friedrich says that the move from horrible to even-slightly-less-horrible conditions is a move worth supporting because it's better to reduce suffering at least a little. Francione counters that the changes are so tiny as to be insignificant and that the animal exploitation industries would be implementing most of these changes anyway as a means of buying good P.R. He likens welfarist legislation to opponents of torture working hard to ensure that people who are waterboarded are provided with padding on the waterboards.
Here I want to put aside that aspect of the debate in order to focus on a different piece. As Francione and Friedrich repeatedly emphasized during their debate, they agree on their goal. Friedrich is what Francione calls a "new welfarist." New welfarists argue that in addition to reducing suffering for animals in the here and now, support for welfarist measures ultimately serves abolitionist goals because such measures raise consciousness. According to this view, people begin by purchasing "free-range" chicken parts and eventually they come to regard their consumption of chickens as itself problematic. Friedrich and other new welfarists argue that empirical evidence supports their claim, both with respect to animal welfare measures and in other areas of social reform.
I haven't examined the relevant empirical evidence closely, but I'm at least mildly skeptical of the possibility of broad generalizations. Sometimes ameliorative measures might serve as a gateway to abolition (or whatever the long-term goal is), but sometimes they might entrench the status quo. And much will depend on the goal. Bismarckian cooptation of the democratic socialist program probably did save capitalism in Germany, so a committed communist would have been right to oppose it, but actual democratic socialists might have welcomed it.
In any event, here I also want to bracket the complex (and in some sense unanswerable) empirical question of whether animal welfare campaigns will move us closer to a world in which sentient animals are not treated as commodities faster than will the sort of alternative Francione favors. I want to close by noting a separate problem for the new welfarist claim: It requires a kind of dishonesty.
If you think that animal welfare campaigns don't do much to improve the lives of farmed (or other) animals but you support them as a path to consciousness raising, then you could say that openly. You might say something like "the conditions under which laying hens are kept are horrific, but with the passage of this new welfare measure, those conditions will be slightly less horrific." If you said that, however, you probably would not persuade many people to support your measure. Accordingly, you will find yourself pressured to exaggerate the welfare benefits of the particular measures.
Meanwhile, if your goal is to use ameliorative measures as a means to raise consciousness to move people away from animal consumption entirely, you will find yourself under fire from your supporters and the industries you are trying to reform. Many of the people who staff and even run large animal welfare organizations (like the Humane Society of the United States) are themselves vegans, but they can't publicly say that they are merely using issues like cage sizes and slaughter methods as a means of raising consciousness, because donors who are not themselves vegan don't want to think that their donations are going to raise their own consciousnesses; they want to think that they are doing good now. As a consequence, people who run and work in such organizations end up either falsely stating that they are not simply trying to raise consciousness or they become co-opted, and end up actually believing that the ameliorative measures are much more substantial than they used to believe.
Because of the topic of the book panel and because of my own interest in the subject, I have given the example of animal welfare, veganism and animal rights, but the same phenomenon can occur whenever an organization or movement pursues measures it regards as highly sub-optimal in themselves with the aim of bringing about much more radical change. Finally, I want to be clear that the analysis I've offered here is my own--influenced in substantial measure by Prof. Colb's book and our numerous discussions of the issues, to be sure--but offered here as a solo effort.