Animal Rights Versus Animal Welfare; What's the Difference? Harvard Law Breaks it Down

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Although animal protection in the US dates back to the 1600s, animal law is a relatively recent concept, especially as it applies to university law school programs. There are now over 150 schools that offer at least one animal law class, but full-fledged law programs - those that cover animal rights and welfare - really only evolved in the last five to 10 years. And if you think animal law is just about saving the whales, think again. Animal law - which includes both rights and welfare - covers wildlife, companion animals, animals used in entertainment, animals used in research and animals raised for food.

For lawyer Christopher Green, animal law means fighting to improve the welfare of animals (yes, including whales), and as Executive Director of the Animal Law & Policy Program at Harvard Law School, Green not only has the ability to fight those fights, he also has an extraordinary opportunity to train new legal minds to fight them too. Green came full circle to Harvard - after taking Harvard's first ever Animal Rights Law class, he worked with the Animal Legal Defense Fund and then with the American Bar Association as the Chair of the Animal Law Committee and finally as ED of the Harvard program. Along with the program's Faculty Director Kristen Stilt, they've built a robust program that "is dedicated to the academic study of the myriad ways animals are impacted by the legal system, both in the US and abroad."

Green and I spoke about the program, the students that attend it and the concepts of animal rights and animal welfare.

What is the Harvard Animal Law & Policy Program all about?

We offer three courses - Animal Law, Wildlife Law, and our newest course, Farmed Animal Law & Policy - that examine the broad range of contexts in which animals are affected by the law, including larger definitional and philosophical questions about our treatment of animals.

The three primary objectives of the Program are:

  • Expanding educational and professional opportunities for students;
  • Increasing both the quantity and quality of academic research in the field; and
  • Educating broader audiences about animal protection issues.

To further familiarize students with the practice of animal law and policy and help get them integrated into the practitioner network, we help organize and sponsor an annual "Animal Law Student Trip" to Washington, DC.

Has the administration been supportive?

It's astounding to Kristen and me that, as recently as five years ago, it was a battle with law school administrations to even offer an animal law course. It's only just this year that Yale and Michigan - two top-five schools - are teaching their first courses in animal law. Yet here we are at Harvard having the dean herself [Martha Minow] push us to be more provocative. This year is the Harvard Law School's bicentennial year - they're doing a big event and the dean gave us an incredible platform at that event to do a panel. We were calling it "The End of Factory Farming," and she said, "Perhaps you [could] be more headline grabbing?" We quickly got to "The Death of Factory Farming," and she was like, "Perfect! That's it."

What is the focus of a panel called "The Death of Factory Farming"?

It's an hour and half presentation about the various means available to fight against factory farming.

There are new legislative initiatives such as the ballot measures that have been passed. Here in Massachusetts we passed Ballot Question 3 which not only banned using battery cages for egg laying hens, gestation crates for pregnant sows and tethered veal calves, but it also was the first law that banned the sale of any products [in Massachusetts] that are produced that way in other states. So, if any egg producer or pork producer in Iowa wants to sell their product in Massachusetts, they have to raise their animals as cage free. California is just now embarking on doing the same thing in a ballot measure next year.

There's an investment angle. In Britain, Jeremy Coller is a billionaire investor who has started a group called Farm Animal Investment Risk and Return (FAIRR). He's basically taken it upon himself to educate other investors about the various risks and problems associated with factory farming and is trying to get them to divest, with climate change being a huge factor in that.

What is the current state of farm animal welfare across the US? Is it getting better or worse every year?

There is no question that the conditions for farmed animals are improving in the US. Over the past decade, several states have passed ballot measures restricting the use of certain cruel types of confinement, and advocacy groups have convinced hundreds of retailers, restaurant chains and food service providers to make commitments to specific welfare improvements, such as eliminating battery cages for egg-laying hens, keeping pregnant sows in gestation crates and tethering veal calves.

The animal advocacy community has turned its focus to improving the lives of the nine billion broiler chickens raised and killed each year in the US alone (globally the number is roughly 54 billion per year). These improvements include: raising only breeds that that have higher welfare outcomes (slower growing and able to support their own weight) such as those approved by the Global Animal Partnership; increasing available space to the birds; [providing] enhanced environments (lighting, litter, enrichment); and slaughtering the chickens in a more humane manner through multi-step, controlled atmosphere systems that ensure the animals are not conscious.

These welfare improvements are being adopted directly by many poultry producers themselves, such as Perdue Farms. That said, there is an enormous way to go toward improving the welfare of animals raised for food, and the vast majority still live terrible lives in abysmal conditions, enduring a tremendous amount of suffering. 

There are many who believe that the real answer lies in certain technological improvements. History has shown that to be the case in other examples. In the whaling industry, for example - it wasn't that everyone just woke up one day and started treating whales better. It's the fact that we found a cheaper petroleum substitute for the whale oil everybody was using to power their lamps. And with that, there was an almost instantaneous switch and we no longer needed to slaughter whales like we did.

Is there a link between meat reduction and increased animal welfare? Is there "a chicken and an egg" to this or are they on parallel tracks?

I don't know that it's necessarily that meat reduction itself improves welfare, but what it does do is eliminate the number of animals that have to go through a terrible system. It is true that a lot of the reasons that people are reducing - concerns about their own personal health, concerns about the environment, concerns about animal welfare - a lot of those underlying drivers are themselves having substantial impacts on both retailers and producers.

Do animals - specifically farm animals - have rights in the US? What's driving any change in their standing?

Rights can be a difficult concept to quantify. US legal jurisdictions currently do not recognize animals as formal rights bearers.  At the same time, [there are] many protections afforded through various laws that do amount to something akin to having rights.

Regardless of where one comes down on that debate, it is undeniable that animals raised for food in this country are completely beyond the law in most regards.

At the Federal level, since farmed animals are categorically excluded from the Animal Welfare Act, the sole regulations or restrictions on the treatment of farmed animals begin only once the animal arrives at a slaughter facility. Technically, there is a Federal law from 1873 regarding treatment during transport, but it does not apply to poultry and has never been applied to travel by truck (thereby eliminating nearly all US farmed animals). There is absolutely no Federal law that governs the lives of farmed animals up until that point.

The majority of US states categorically exclude animals raised for food from their anti-cruelty laws. Thus, most farmed animals are left with absolutely zero legal protections during almost the entirety of the lives.

Arizona is one of the few states that currently does include farmed animals under its state anti-cruelty laws. Recently, when legislators tried to remove animals raised for food from those protections and put them in their own, separate category, 87 percent of Arizona voters polled said they opposed the move.  When the legislature passed the bill anyway, 19,248 citizens contacted Governor Ducey's office demanding that he veto the measure. In contrast, only three voters contacted him asking him to sign.  Within a few short days, he vetoed the bill and issued a strong statement saying that all animals in Arizona deserve to be protected, regardless of species.

I read a Harvard Magazine article that went into the differences between animal rights and animal welfare and I realized that, like most people, I conflate rights and welfare for animals. Do we push to get animals rights? Or do we work with the existing laws and strengthen them so that animal welfare is better?

I don't think they're mutually exclusive. While certain segments of the advocacy community are working towards developing rights, there's still a ton of immediate suffering that can be addressed and improved during that process.

To those who try to pigeonhole it as "rights versus welfare" - like some early schisms in the animal protection community - I just feel like it's a false dichotomy. It doesn't have to be one or the other. People who are promoting welfare certainly welcome there being some sort of recognition of rights and those members that are working on the rights issues certainly applaud all the various victories that improve the condition of animals in the meantime.

It's harder to see that in farm animals. I see where people embrace pets and say "Maybe they should have rights?" But it seems like that stops for a lot of people at farm animals.

One of the things I studied for a long time was the civil value of companion animals - cats and dogs. In the vast majority of jurisdictions in this country, if someone kills or harms your pet - your cat or dog - you can only be compensated for the "market value" of that cat or dog. So...veterinarians - they're profiting immensely from all the additional money that people are willing to spend to care for their animals, yet, when they make a mistake and accidentally kill an animal, it's like, "Whelp, here's 50 bucks...market value."

I would get some friendly flak from colleagues of mine saying, "American cats and dogs are the most pampered four-legged beings on the planet. Why are you spending your time and energy focusing on that?" And my response is, "If we're still legally treating cats and dogs like tables and chairs, pigs and chickens don't stand a chance."

There's no way [farm animal rights] is going to leap frog over our most beloved companions and we'll just all of a sudden confer rights or value or protections on these animals that people tend to care less about. I also believe that, for people who have lived their lives around companion animals - cats and dogs - that bond that develops deepens their emotional well and their sense of empathy for all animals.

When California Proposition 2 passed - that was a public referendum that banned gestation crates, battery cages for hens and veal calves - they did all this really intensive exit polling trying to determine what arguments were most successful and what helped get the measure passed. The single biggest determinant of whether someone was likely to vote "Yes" on Proposition 2 was whether or not they were a pet owner. More than being a vegetarian, more than anything else, pet ownership was the single biggest factor that would make someone more likely to vote "Yes" on Proposition 2.

That does underscore that it isn't a zero sum game, and you'll hear that even in that animal protection community... that because there are nine billion farmed animals being slaughtered for food and leading horrible lives each year in this country alone, that that's the only issue people should be working on. I don't necessarily think that. I think it's a movement and a community that can walk and chew gum at the same time.

How does that play out with farm animals? Is it ballot initiatives? Regulations? Consumer Campaigns?

I view regulation as a floor, and then the consumer corporate campaigning as the thing that pushes the ceiling. Regulation says what you absolutely must adhere to. The most progressive strides have all been made through negotiating directly, not only with restaurants and retailers, but with food service providers like Compass Group and Sodexo and Aramark - they're essentially like super consumers. They provide food service to all sorts of corporations and universities and institutional settings. And as a result, they have an immense buying power.

Here at the law school, our food service is provided by a company called Restaurant Associates, which is a subsidiary of Compass Group. Every single cookie sold at Harvard Law School is a vegan Hampton Creek cookie and everyone is like "Oh, it's just a cookie." The same is true for a lot of salad dressings and things like that.

With the question "should animals have fundamental rights" - what would happen to farming if animals got fundamental rights?

Rights mean so many different things to different people and can be defined in so many ways that I don't even really know how that would actually work. There is absolutely no justification for treating sentient beings differently when it comes to the suffering that's inflicted upon them and all sentient animals should be able to be free at the very least from pain and suffering.

Even talking about rights automatically, immediately complicates the process.

Polls show that 94 percent of Americans say that animals raised for food should not endure any cruelty or suffering. How do you go about achieving that objective that the vast majority of Americans care about? I have a really good graph that shows all these human social issues and how awareness slowly, slowly increases and then "Boom!" It hits a tipping point and you see the amount of laws passed regarding something increases. It's pretty astounding to see that once society truly gets wind of something, changes can happen really rapidly.

For a lot of [animal protection activists], the goal [for farm animals] is for people to be eating meat that either doesn't come from a live animal or that tastes almost identical but is made using a plant-based substrate. In the meantime, there is an incredibly severe and huge quantity of suffering that's happening on a daily basis that needs to be alleviated as much as we can. Again, it doesn't require some massive ethical enlightenment to occur within society. People just need to find a cheaper and better replacement, just like with whales and lamp oil.

Where are we headed nationally with factory farming and animal welfare?

I believe it's best to focus on the larger structural issues. You can oppose a plant here and a plant there, but when you have companies like McDonald's or Wal-Mart saying they will only sell cage-free eggs...15 years ago, the animal protection community was battling directly with the producers and the producers were like, "You know, even if it cost me 1/100 of one penny more per egg, that's still real money to me. And I've got absolutely no incentive to change."

Now it's come full circle. Since then, the advocacy community changed tactics and started targeting the retailers. They would do these undercover investigations that would unearth these horrific conditions at a producer that supplied some well-known retail brands. They would go to that brand and say, "We're going to put this video everywhere and have your logo plastered all over it, unless you agree to make these certain changes."

That's the stick part, but the carrot part is also going to companies and saying, "You know what? You're not really a producer, you're essentially just a marketing and delivery vehicle. So, not only do you have a lot to lose by not doing the right thing - 'being embarrassed by an undercover investigation' - but you actually have a lot to gain. You can use it as something to show your consumers, that you're hearing their concerns." That's what's really driving it.

Do you think consumer pressure on companies is more effective than regulations?

The only real regulations that have passed have been done by a popular ballot initiative vote. So, the ballot initiatives are actually more similar to the consumer pressure than they are to traditional regulation because the laws that do exist are woefully under-enforced by the USDA. Trying to get any new law passed at the federal or state level that protects animals raised for food is very difficult, because each of them has to first be approved by an agriculture committee that is usually staffed with those who are sympathetic to agribusiness.

For example, with the Question 3 ballot initiative that passed by 78 percent [in Massachusetts] - which is not only the single largest margin of any ballot initiative law ever passed in Massachusetts, but also the highest margin of victory for any animal protection measure passed by ballot initiative in this country -activists tried to pass that very same measure through the traditional means in the Massachusetts legislature for eight years straight and it kept getting stymied by agriculture committees. So finally, they said okay, this legislature is not doing its job; it's not actually representing the will of the citizens of Massachusetts. So we're just going to circumvent that and go directly to the people.

Where is the US headed with ag gag/free speech cases?

There is no question that many of the strides made in improving farmed animal welfare are due to the plethora of undercover investigations that expose the harsh reality of the ways animals are raised for food. In fact, as the result of one such investigation at a single dairy in Wisconsin, the world's largest food company, Nestle, mandated across the board improvements throughout its 7,300 member global supply chain that impacted hundreds of thousands of farms worldwide.

In response many states have tried to pass ag-gag laws criminalizing such undercover investigations. The outright Ag-Gag laws that directly target investigations at agricultural facilities are doomed. In the past couple years, the Ag-Gag laws in both Idaho and Utah have been struck down by Federal courts as unconstitutional. The Idaho ruling is under appeal to the Ninth Circuit, but the State of Utah recently waived its right to appeal and that Ag-Gag law is now gone for good. 

This interview has been edited for length and clarity.