The Unfinished Exclusions: How the first exclusion foreclosed the other two

Martin Elson

A word first, because this one is easy to read backwards. In law, exclusion usually belongs to the owner: the right to exclude others is often called the core of property, the thing that makes something yours. In philosophy it usually names the opposite fate, being shut out of the community of those who count, and slavery is the standard case. Orlando Patterson called it social death, and writers from Hannah Arendt to Charles Mills and Carole Pateman have traced other exclusions on the same pattern. Here the word stays legal but runs the other way: not what an owner may keep others out of, but what is kept out of ownership altogether, what Roman law called res extra commercium, things outside commerce.

An exclusion is the removal of a kind of being from the category of property. There are three. The first is the abolition of slavery: a person cannot be owned. The second, still unfinished, is the end of human rentals: a person cannot be rented. Once owning a person was gone, renting one remained: the employment contract buys not the person but the use of them, by the hour, for a wage that takes title to everything they produce. The third, barely begun, is the end of animals as property: no sentient being can be owned. The first was made by admitting people to the list of who counts, and that one list now stands in the way of the other two: it keeps the animal off, and it treats a rented person’s place on it as settling everything.

Three exclusions, and each a goal in its own right, with its own ground, its own history, its own opponents and its own work still to do. They are not picked at random. Property can hold a subject in two ways, by owning it or by renting its use; it has done both to people and the first to every other animal, and renting an animal presupposes owning it. The three exclusions are those holdings, named one by one. Three is what the test turns up today, not a ceiling on what it can turn up. The first two rest on the fact that no one can hand over their own agency, and the law itself holds a person answerable for what they do. The third rests on agency without that answerability: a being with ends of its own is not raw material, even when it cannot answer for anything.

What joins them is not a single argument but a single wrong, a subject used as an input. None of them stays won by itself, either. Even the first is held rather than settled: the Thirteenth Amendment still permits involuntary servitude as punishment for crime, which is neither ownership nor rental but the state holding a person’s labor without either.

Each exclusion has to be reached in full, then kept. That sounds monumental, but what stands in the way is not nature. Property in a person, or in a sow, is a human construct, a way of seeing handed down rather than a fact found, and what was learned can be unlearned once it is seen for what it is. None of these goals is new. People already believe in them, and are working for them now. What follows examines how the first exclusion was made, through the list of who counts, and why that list has kept the other two from being made.

The move

A breeding sow stands in a metal crate about two feet wide and seven feet long. She cannot turn around. In the systems that still use these, she will spend much of her adult life that way. Why? A person can be confined to a cell, but only for an infraction, and the law has to find one first: a charge, a hearing, a sentence. Punishment at least assumes someone who can answer for what they did. The harshest cell we build for people, solitary, is still about four times the size of the crate. What was the sow’s infraction? There is none. She was born on the wrong side of a line some humans drew. The crate is not sized to anything she did. It is sized to what she yields.

The usual answer is: it’s a pig. And the matter closes — not because anyone weighed the crate against the animal standing in it, but because she was sorted, and lands outside the list of who counts, the beings a question may be asked about, and does not get the question asked.

That is the move. There is a question on the table — what is being done to her, and is it all right? The move swaps it for another — is she someone, or some thing? — then treats the answer to the second as the answer to the first. The title alone of Melanie Joy’s book states part of the answer: Why We Love Dogs, Eat Pigs, and Wear Cows: An Introduction to Carnism. Of course in some places eating dogs, and sometimes cats, is on the list.

It runs the same way on people. Someone works a job on terms they had no hand in setting. Asking why, or whether it is all right, is closed. Nobody looked at the job, just the “employee.” The usual answer: if they don’t like the terms or the job they can look for a better one, advocate for better, or if they don’t or can’t they can get a job elsewhere.

Now notice what the sorting contributes. Nothing. The crate is the same crate and the job is the same job whether you sort first or not. Which side of the list a being lands on tells you nothing about what is being done to it. All it decides is whether you are allowed to ask. And nobody asks the sow how she got there — whether she walked in, or was driven in with a prod.

Kant’s sort

The sort has a pedigree. In 1785 Kant split beings in two: those with reason are persons, ends in themselves; those without it have worth only as means, and are therefore called things. Someone or some thing, written down as a principle — and what may be done to a being follows from which side it falls on.

It is the move in its most respectable form. Every sort-then-permit step looks like a jump from an is — she’s a pig, she lacks reason — to an ought: so the crate is fine. It only looks that way. As the next section shows, an ought premise is riding along unstated. Kant did not escape Hume so much as supply that premise and place it in reason rather than in facts. But picking reason as the qualification for personhood is still a choice, and it is the wrong one for the job. Reason is what makes a being a moral agent, one that can owe: be held to a promise, answer for what it did. It says nothing about whether a being is a moral patient, one that can be wronged: harmed, confined, used. A person is both. Kant fuses them, so only those who can owe can be wronged, and nothing done to an animal can wrong it.

Kant did not think anything goes. In his lectures on ethics he condemned cruelty to animals, on the ground that someone who is cruel to animals grows hard in dealing with people. But notice where the wrong lands. The duty is owed to people, and the animal is only the occasion for it. She is protected as a thing whose mistreatment might harden someone toward people. That is the sort still doing its work inside the kindness.

Kant can be turned against Kant, and a Kantian has done it. Christine Korsgaard’s argument in Fellow Creatures runs roughly: when we value our own ends, much of what we are valuing is our good as creatures: being free from pain, and free to move. That is animal nature, not rational nature. Hold that it matters in us, and consistency says it matters in the sow. Consistency has no use for a list.

Is and ought

Hume’s point is narrower than it is usually taken to be. An ought cannot come from an is alone. It needs an ought premise to travel with. Lay the crate out that way:

Is: the crate keeps the sow from turning around for most of her life and causes her serious suffering: stress behaviors, physical decline, and the drives to root, nest and move left with nowhere to go.
Is: what the crate is for, fewer fights and easier feeding and handling, can largely be had with group housing that causes far less suffering.
Ought: it is wrong to cause serious suffering to a sentient animal when a less harmful alternative would meet the same legitimate goals.
So: the crate is wrong.

That ought is deliberately modest. Nearly everyone who defends the crate already accepts it, which is what makes it useful: the argument borrows nothing the reader has not already signed. It is not where this argument ends. Taken alone, it would condemn the crate and approve a roomier pen on the way to the same slaughter, which is humane instrumentality, discussed later. What the minimum shows is that even the reader’s own ought reaches the crate. The rest of the argument asks why it should stop there.

Few who defend the crate deny that she suffers. What they change is the ought, and rarely by saying that only persons count. The common version sounds humane, and it is written into law. Many American anti-cruelty statutes forbid causing an animal unnecessary suffering, then exempt the customary practices of farming. Laid out, it looks complete:

Is: crating is standard practice.
Ought: causing suffering is wrong only when it is unnecessary.
So: the crate is not wrong.

It isn’t complete. Nothing links the first two lines until you add the one that goes unsaid:

Hidden premise: whatever the industry does as standard practice is necessary.

That is the sort-then-permit move taken apart. The hidden line is phrased as a fact, a definition of necessary, but it does an ought’s job: it decides whose suffering may be set aside, and the definition is written by the people doing the crating. Her suffering is admitted and counted, then defined away. The list does not live in the facts. It lives in a premise dressed as one, where nobody looks.

The other common version doesn’t redefine anything. It counts her suffering, then discounts it:

Is: she is a pig, and the crate keeps pork cheap and farms solvent.
Ought: animal suffering matters, but less than significant human interests.
So: the crate is not wrong.

This one states its premise openly, which makes the edit easier to see. She is counted, then marked down, and the rate is set by what she is, not by anything about the crate. The list is still there. It has just stopped being a wall and become a weight.

The worker runs the same way:

Is: he agreed to the terms.
Ought: whatever someone agrees to is permissible.
So: the job is fine.

Here nothing is hidden. The premise is inflated instead, asked to settle more than any agreement can. That is why consent is one of the checks: it is an ought premise dressed as a fact about a signature, and only those on the list are allowed to sign.

One more thing follows. Every exclusion is a normative claim, and every restriction adds another ought to defend. Leaving a being alone is an ought too, a default, and it should be admitted as built rather than found. But it is the cheapest one to defend: it claims the least and takes nothing, so it rests on fewer premises than any arrangement that confines or directs. The more an arrangement excludes, confines or directs, the more oughts it rests on, and the more of them can fail. The burden grows with the claim. Nor is the default always simple to honor. An animal bred over generations to depend on us is not served by being left alone, and there the cheapest ought is care without use.

“Rights” do not escape this either. So-called natural rights are oughts presented as found; admitted as built, they can at least be tested. This is an old fight inside the individualist tradition. L.A. Rollins’s The Myth of Natural Rights (1983) and Robert Anton Wilson’s Natural Law, or Don’t Put a Rubber on Your Willy (1987) took it to the natural-rights libertarians, Rothbard among them. Wilson drew the line drawn here: law as a description of what nature does is science; law as what nature commands is ventriloquism, someone’s ought spoken through nature’s mouth. The version of inalienability worth keeping is plainer: agency does not transfer, so arrangements have to keep answering to the agents inside them, over and over, with no one buying or selling their way out of that work. Among people who share a language, that can mean negotiating. With a being that cannot tell us its terms, it means reading what it does, and where the reading is uncertain, giving it the benefit of the doubt.

The medallion

In 1787 the Society for Effecting the Abolition of the Slave Trade had Josiah Wedgwood’s pottery make a medallion: a kneeling man in chains, and the line Am I not a man and a brother? The argument is right there. Being a man is what makes you count. This one is a man. Let him in.

It worked. Britain ended the slave trade in 1807 and slavery across most of the empire in 1833. It also hardened the thing it went through. After it, what mattered was being on the list: human, a check; non-human, an x.

The missing piece arrived in the same family. Josiah Wedgwood, whose pottery made the medallion, was Charles Darwin’s grandfather. In 1871 The Descent of Man supplied the fact the medallion’s argument lacked: kinship is not a feeling but a lineage, and it does not stop at the species line. Draw it as biologists now do, as a cladogram, and the species line is not a wall but a fork: every branch meets every other somewhere back along the trunk. One family, eighty-four years apart. The medallion let enslaved people in on the ground that they were men, and so made being human the price of admission. The grandson’s evidence showed that line was a fork, not a wall, and could have ended the price. Descent commands nothing by itself; it is an is like any other. What it does is take away the fact the wall was said to rest on. It did not. Darwin and many after him read descent as a ranking, and the same science was soon sorting humans by skull and skin, a new list drawn inside the species. By the time the fact arrived, the list had set, and it took the fact in as one more way to sort.

Adding to a list does not dissolve it; every addition confirms it. Everyone who comes after has to come the same way, one group at a time, asking. That is why the 1830s produced a second medallion for a second group — Am I not a woman and a sister? If the first had broken the boundary, nobody would have needed to make another one.

A third petition is already forming, and decent people will make it — some by argument, some by how they live, refusing to eat or wear animals, and some by direct action, breaking the locks on the cages. Am I not a creature and a cousin? That petition will fail the way the others did, because a petition that wins leaves the list standing.

And it is worth asking whether the list is for humans only, because it never has been. Dogs are on it and pigs are not, in the same country on the same day. Corporations are on it — they own things, sign contracts, sue and are sued. Some rivers are on it. Meanwhile people have been kept off it: the Constitution of 1787 counted an enslaved person as three-fifths of a person for apportionment, and when the Thirteenth Amendment abolished slavery in 1865 it did so except as a punishment for crime, wording that is still in force. Within a few years Southern states were using that exception to lease prisoners, many of them freedmen arrested under the new Black Codes and vagrancy laws, to mines, railroads and plantations. It was a human rental, except that the fee went to the state, not to the worker.

The list is still being redrawn among people. Someone without papers is human by every measure the medallion used, and can still be detained, deported, or worked with fewer protections than the person beside them, because a border says where the line ought to fall and that they fall outside it. The border presents an ought as a fact of geography. What is being done to them goes unexamined; the question is closed by asking where they belong.

A rule that sorts like that is not tracking species, or reason, or anything else. It is a decision, redrawn wherever redrawing is convenient. Which is the clearest sign it does no work. A line that measured something real would move too, but it would move when the evidence did. This one moves when convenience does: dogs on the list and pigs off it in the same country on the same day, with nothing learned about either in between.

None of this says the harms are the same. Slavery is not a crate, a crate is not a bad job, and a bad job is not a deportation; they differ in kind and in degree. What they share is the step that stopped anyone from asking about them. Some were eventually let onto the list. That did not start the asking. It only changed the reason for not asking.

The comparison has been made before, and its critics are worth hearing. Marjorie Spiegel’s The Dreaded Comparison(1988) set the practices side by side (branding, chaining, transport, the auction) and argued that one logic of use runs through both. Aph Ko and Syl Ko answered in Aphro-ism (2017) that setting “human slavery” beside “animal slavery” treats racism and speciesism as two separate things being compared, when the line between human and animal was itself one of the chief tools used to dehumanize Black people. This argument sides with the second point. The question is not how closely one harm resembles another. It is what the category animal was doing all along, whoever was placed inside it.

How the question lost

Abolition should have opened the question for the other two, and for a while it did. In the 1830s and 1840s the phrase wage slavery, a charge workers made about their own conditions, was in wide use. New England mill workers walked out singing that they would not be slaves, and Orestes Brownson argued in 1840 that the wage worker was in some ways worse off than the slave. Even Lincoln’s free-labor creed treated hired work as a stage a man passes through on the way to working for himself, not a place to stay. A generation later the Knights of Labor set out to replace the wage system with cooperatives. On the other side of the line, the Society for the Prevention of Cruelty to Animals, founded in London in 1824 and now the RSPCA, counted Wilberforce and Buxton, two of the leading abolitionists, among its founders. The question was asked, loudly, by people who had just watched the medallion’s question answered once, for the enslaved.

It lost, and it lost through the list. Once freedom had been defined as not being owned, the free man’s contract became the proof of his freedom, and the case against wage work had to argue against the very thing emancipation had won. Historians have traced the turn: Eric Foner in the free-labor ideology, Amy Dru Stanley in how contract became the emblem of freedom after emancipation, pressed even on freed people signing their first labor contracts. In one signature they passed from the first exclusion to the second: no longer owned, now rented, and for the hours paid, directed as though they were still owned. The asking did not stop. It was answered in advance by the terms of the victory: he is free; he agreed. The animal question met the mirror answer. Cruelty could be limited, but the animal stayed property, because the list had already said what it was. That is what foreclosure means here. Not silence, but a question that could be raised and could not win. Won another way, the first abolition could have been a lever for everyone still being used, human and non-human alike.

It lost from the other side as well. Marx attacked the wage system, but on terms that granted the rental. In Capital the worker sells his labor power, a commodity, at its value, and the sale itself is an exchange of equivalents; the wrong is placed later, in the surplus the buyer extracts in production. David Ellerman’s objection is that this concedes the very thing in dispute. On the rental itself, Marx stood with the defenders of capital: both treated the hiring of a person as a legitimate sale, and argued over its price and its proceeds, never over whether it could be made at all. Agency is not a commodity, and a contract to sell it fails however fairly it is priced. And the rental hands over more than hours. Whoever holds it takes the whole product, everything made and everything used up in making it, along with the direction of the work, so that in law the employer stands as the one who produced it. The workers did it; the contract assigns it elsewhere.

What matters is not a labor theory of value, about what sets prices, but a labor theory of property, about who should own what is made: the people who made it, because they are the ones who did it. Having put the wrong in the price rather than in the contract, Marxism aimed at who owns the factory rather than at the rental itself, and where it took the factories, the rental survived with the state as employer. The argument was over the terms: what the wage should be, who keeps the surplus, whether capital or the state, even a state calling itself the workers’, should do the hiring. Whether a person could be hired at all was never part of it. A firm run by the people who work in it hires no one. Its members are not rented; they are the firm, the new built in the shell of the old, past both Marx and the defenders of capital.

Two ways the move stops the question

The move shuts the question down in two directions. Both run through the list — the list of who counts, the beings a question may be asked about — and a being can be left off it or put on it. They look like opposites, which is why nobody notices they are the same move.

Left off the list. The question never comes up. No human animal has to argue that it is acceptable to do this to a non-human animal. No argument is needed, because the animal was never the kind of thing the question was about.

This is not one side’s habit. A vanguard runs it too, by declaring a class of people outside the family for the duration of the project — kulaks, class enemies, counter-revolutionaries. Once they are outside, what is done to them needs no argument, and the flag is planted in another human’s heart as collateral. The flag changes. The move does not.

Put on the list. The question still never comes up. He is a man. He agreed. What more do you want? Being on the list is treated as having settled, in advance, everything that may be done to him. The hardest objection to wage work becomes unaskable — not refused, just crowded out by an answer to something else.

Orwell has the cleanest version of the second one. All animals are equal, but some animals are more equal than others.The pigs do not repeal the equality. They keep the word and add a clause. The word survives, stops meaning anything, and can still be pointed at. That is exactly what a status grant does. Orwell’s own vehicle is farm animals standing in for people, and the book never asks what is being done to the animals, only what they stand for. Swapping one question for the other is the move, so even the book about the move runs the move.

We have the results of the experiment, on paper if not always in life. Slavery is abolished (not everywhere). Legal sexism is abolished (not everywhere). People of every background are supposed to stand equal, and that is a real achievement (not everywhere), won at the cost of lives. It is also the prediction coming true. For human beings the list has been widened about as far as it will go, and the question still does not get asked. If admission were the cure, full admission would have cured it.

Look at what full admission gives you instead. Everyone is inside the category, and everything the category was meant to guarantee is still fought over case by case. The worker is on the list, and the job still goes unexamined, because he agreed. Gay and transgender people are on the list in law in many places, and how they may be treated is still argued case by case, down to names and pronouns. How much remains, and why, is argued over, and this argument does not need to settle it. It needs only the shape. Everyone was made equal on paper, and not in fact. Orwell’s pigs again. That is what you would expect if the word was never doing the work.

Being put on the list is the more dangerous of the two, because it looks like the remedy.

If leaving off and putting on are both the move, a fair reader will ask what is not. The test is simple, and a proposal can pass it. An argument runs the move when it settles what may be done to a being by settling what the being is, without looking at what is being done. For example, she is a pig, so the crate is fine runs the move: put her in a field instead and the argument says exactly the same thing, because it never looked at the crate. An argument does not run the move when its verdict would change if the treatment changed. The crate keeps her from turning around for most of her life, and group housing does not. That argument passes, whatever it goes on to conclude, because it looks at what is being done to her. So a reform, a court case or a law can escape the move. What decides is not which side an argument is on, but what it looks at: what is being done to her, or only what she is.

What agency is doing here

Why is it wrong to treat someone as an input in the first place? Because a subject has its own ends. There is something it is doing, something it is going toward, a life that is going somewhere from the inside. Using it as an input means swapping its ends for yours while it keeps doing the work. The body still acts. The purpose belongs to someone else.

That is the wrong in both cases at once. The animal’s ends are not overridden so much as never registered. The worker’s are registered and then bought, except the purchase does not go through. He is still the one acting. The contract says his deeds belong to another; the deeds do not move. That much is a description, not a right: the one who did it is the one who did it. What follows from it is an ought, and this argument builds it in the open rather than finding it in nature: an arrangement should not rest on a transfer that does not happen. Stated that way it can be tested, and anyone who thinks the transfer does happen is invited to show where the acting went. The law has already shown it, whenever the deed is a crime. A worker told by the employer to dump waste in a river is charged along with the employer; the court does not treat the worker as a tool the employer was holding, though the contract said those working hours were the employer’s to direct. When the deed is illegal, everyone knows where the acting went. Only when it is legal is the contract allowed to say otherwise.

So agency is not a second test for who has standing. It is the reason the limit is a limit. It is also what the positive half is made of: an arrangement constituted by the ones in it is just agency at the scale of a group. The same thread runs through the whole argument — nobody can hand over their agency, and arrangements should be made by the ones whose lives they are.

Agency is not a club and there are no cards. Every subject has it, in the only sense that matters here: there is something it is doing, and the doing is its own. It does not come in grades, it is not awarded, and it cannot be revoked by finding someone unqualified. A being that cannot speak has ends. A being that cannot plan has ends. A being nobody has bothered to ask has ends.

This matters because the obvious dodge is to keep the word and add a threshold — real agency, meaningful autonomy, the capacity to genuinely direct one’s own life. That is the move again with a new criterion, and it sorts people as readily as non-human animals. It has been used on both.

What varies is not agency but how it can be heard. Some ends can be stated in a meeting; most cannot. Most workers are closer to that position than the usual story admits: they take the job as offered, with no terms to negotiate. The sow’s show in what she does: rooting, nesting, trying to turn. That is a problem for whoever builds the arrangement, not a mark against the being. The arrangement has to register ends it cannot be told. One that hears only what is convenient to hear has not found an exemption. It has failed the test.

Why the list of who counts held

The list did not cause the blockage on its own. Wanting things did — convenience, habit, the ordinary reluctance of people to give up what they have or do and practice. What the list supplied was cover, and that is what foreclosure means here. It made the stopping point look principled, so that stopping did not feel like stopping.

That is why it lasted. Not because the error was hard to see. Because seeing it was expensive, and there was somewhere to stand instead, and it could be made to look respectable. A better argument was available at the time and lost. Frameworks do not win on being right; they win on what they cost.

Pierre Bourdieu’s name for that respectable place is doxa: what goes without saying because it comes without saying. A hierarchy, he argued, lasts by keeping its own origins misrecognized, so that what was built reads as what simply is. That is the move seen from inside a culture. The question about the crate is not answered no; it never comes up, because the answer arrived with the upbringing.

Which means something unwelcome for anything built afterwards. Fixing the argument fixes nothing on its own. A true account that costs a lot loses to a cheap one, and loses worst to a cheap one wearing its clothes. So this cannot end at diagnosis. It has to hand people a test they can run without having agreed to anything first.

The humanist frame

The argument’s claims stand on their own evidence. The frame is how claims get held, and it is humanism — in Paul Kurtz’s sense, a life stance built out of evidence and reason and meant to be revised when the evidence moves. Not a creed with articles. A method, plus the nerve to live by it before everything is settled.

That is the right frame for these arguments, because together they ask for a boundary to be redrawn. A stance that could not redraw its own boundary would have nothing to offer here. Three things it supplies directly. Its common decencies are owed rather than earned, which is the floor. Its scope has already been stretched once, from the nation to the planet, so widening is not foreign to it. And its refusal of anyone who claims authority over how another should live is the agency claim, stated as a political commitment.

What the frame does not do is generate the claims. Humanism does not entail any particular verdict on wages, property or firms, and its own record shows it: the 1933 Humanist Manifesto called for a cooperative economic order, and later humanists, Kurtz among them, backed away from that and left the question open. A stance that has argued both sides plainly does not settle it. So nothing here rests on humanism having reached these conclusions — the claims have to stand on their own arguments, and they do.

The fit runs the other way. The argument’s principles are ones this frame already holds: that no one may be ruled by another’s say-so, that decency is owed rather than earned, that claims answer to evidence. The case about wage work is a good example of how little exotic machinery it needs. It is not really an argument against markets. It is an argument that one particular contract claims to transfer something that does not move, and its ancestry is the same inalienable-rights reasoning humanism has always used against slavery and against rule by divine right. The argument is at home here. It simply was not carried in by the frame.

The problem has to be said out loud, because it is not small. Humanism’s classical ground is the autonomous rational chooser, and its founding document makes human dignity rest on the claim that humans alone are unfixed while other animals are stuck in their natures. That is the threshold dodge, in the text that named the tradition. So the frame carries the move it is being asked to break.

It breaks on its own terms, though, which is why the frame is worth keeping rather than swapping out. The boundary was drawn with the natural history available at the time and has not been redrawn since, and a stance whose whole claim is that beliefs answer to evidence does not get to hold one belief exempt. Either it revises here or it stops describing itself that way. This is not a concession humanism has generally made — naming it as the frame means arguing for it rather than inheriting agreement, and others working the same seam have taken a different name for it.

Keeping the name does one more thing. Humanism is the most decent version of the move: evidence-loving, anti-authoritarian, on the right side of nearly everything, and carrying it anyway. If the mechanism holds there, it is not a story about bad faith. Which is the whole point — the move does not need anyone to be cruel, only for the stopping-place to be comfortable and well-argued.

Robert Ingersoll, the great orator of American freethought, put the tradition’s best instinct in one line: “Give every other human being every right you claim for yourself.” It is about as generous as a doctrine gets, and the list is sitting in it — human being — doing the stopping without anyone noticing it had been drawn.

The rule: a rule of construction

An arrangement is not made legitimate by who the parties are. It is legitimate or not because of what is being done, and to whom.

Underneath all of them sits one question: is a subject being used as an input? Five checks help answer it, each from a different side. Anyone can run them, and you do not have to accept anything else here to run them.

Is the line drawn by structure, or by membership? The difference is when the question is settled. Membership is settled before anyone looks at the case; structure is settled by looking at it. A list asks whether a being is the kind of thing that counts. A structural line asks whether this being, in this arrangement, has something the arrangement can go against: states it moves toward or away from, a life going somewhere. That is all structure means here: what a being actually has. What it has may well put it in a group, but the group comes from looking, not in place of looking. Where the line falls matters less than how it was drawn. Drawn by structure, it moves when the evidence moves, and an unsettled edge is just an open question. Drawn by membership, it is a border, and borders get defended. Arguing about where the capacity to suffer begins costs this model nothing. Turning it into a list costs it its impartiality. That goes for the word sentient too. Used as a membership card, it would be the threshold dodge in new clothes. Here it only names what the looking is for: whether there is someone in there for whom things go better or worse.

The rule says legitimacy depends on what is being done and to whom, and that whom can look like the list coming back. It is not, because whom is settled by looking at this being in this arrangement, not by checking a list first. Take a hard case. Whether crabs, lobsters and octopuses can suffer is a question of evidence, and the evidence moved. In Britain it took a 2021 scientific review and then an act of Parliament, in 2022, to add them to the list of sentient beings, one group at a time. Drawn by structure, the line would have moved the day the evidence did, and while it was unsettled the burden would have sat on whoever was boiling the lobster, not on the lobster. An honestly unknown edge is a reason to err on the side of caution, not a gap to use.

In the settled middle, structure and membership look the same; a case that passes every time stops needing the test. But the drawers of any line are members first. Their own case is the pattern the criterion was lifted from, and their own place inside it is never in question. So the real test of a structural line is whether it can outrun the people who drew it: find the property in something unlike them, or press on something that merely looks like them. A line that can only ever find more of its authors was a membership line all along.

Does consent close the case? It does not. Consent fails in two ways. It can be claimed where it is absent: nobody signed the state into being, and everyone is treated as though they did. Or it can be present and empty: the worker really did sign, but what the contract claims to hand over never moves. What it claims to hand over is the worker’s acting, and that stays with the worker. Either way, a contractual agreement is asked to do work it cannot do. It tells you about the procedure, not about what the procedure produced for the people living under it.

Wesley Hohfeld’s vocabulary makes the second failure exact, and it also marks what can and cannot be claimed. In Hohfeld’s scheme, powers and disabilities are what a legal order grants or withholds. A power is the legal ability to change rights and duties, as by signing a contract; a disability is the lack of it. Our own legal order, for example, grants the power to sign an employment contract, one that claims to move the worker’s acting to the employer.

The argument cannot be that nature forbids the transfer; that would be the ventriloquism set aside above. It is that the law grants a power to do something the law itself does not believe happened. The contract says the worker’s acting passes to the employer. When the acting is a crime, the law holds the worker responsible alongside whoever gave the order, and never says the employer acted through a tool. A legal order that will not honor the transfer when it matters has granted a power it cannot make good on. That is the line between delegation and alienation. A delegate acts for you and answers to you, so the acting stays yours. An alienation claims to move the acting itself, and the law’s own account of responsibility says it does not move. This is where consent comes back in. A signature can hand over only what can be handed over, so the worker’s agreement settles nothing about the acting: the contract records a transfer that consent had no power to make.

The sharpest test is the contract that sells the whole person. Robert Nozick accepted it: in Anarchy, State, and Utopia(1974) he held that a free system would let someone sell himself into slavery. Not every libertarian followed him. Murray Rothbard, in The Ethics of Liberty (1982), refused, because a person’s will cannot be handed over: you can promise to obey, but the one obeying is still you, so the contract cannot be enforced. David Ellerman presses the obvious next question. If the will cannot be sold for a lifetime, as the self-sold slave sells it, how can it be sold by the hour? Nothing that voids the slave contract depends on its length. So the defender of the rental has two roads: follow Nozick to voluntary slavery, or follow Rothbard and explain why his reason stops at the factory gate. Kevin Carson has a name for the first road: vulgar libertarianism.

Even the strictest defenders of self-rule knew this. Josiah Warren made the sovereignty of the individual the ground of everything, and still would not let agreement settle a price: a bargain struck on what the buyer’s need and means would bear, rather than on what the thing cost to produce, he called civilized cannibalism — freely agreed, and still a taking of everything above cost. Taken seriously, consent is a test arrangements can fail, not a seal that certifies them as legitimate.

Is standing being earned? Standing here means counting in one’s own right. It cannot be earned. The moment standing depends on what a being contributes or can do, the move is back: the question of what is being done to her gives way again to whether she qualifies, only now the test is contribution instead of species. Dropping species does not help. A test based on responsibility ignores species perfectly well, and hands you the slaughterhouse.

Standing that is not earned is not a thought experiment; people have lived by it. Murray Bookchin, borrowing from the anthropologist Paul Radin, called it the irreducible minimum: in many stateless communities everyone was owed the means of life whatever work they did, and to withhold them was to deny the right to live. Where people tried to rebuild something like it for themselves, the state kept a hand on the tools. Working-class friendly societies were tolerated, and after the Friendly Societies Act of 1793 (Rose’s Act) they were registered and regulated, but watched closely, because their sick pay and unemployment funds could double as strike funds, a threat to employers’ power over wages. Next came the Combination Acts of 1799 and 1800, part of the repressive legislation of Pitt the Younger’s governments, which went further and outlawed workers’ combinations outright. Kevin Carson, drawing on E. P. Thompson, reads this as the state taking away the means people had built to keep one another alive, solvent, and with some power to bargain.

Who wrote the arrangement? If the ones living under it had no hand in writing it, they were inputs, whatever the terms say. The Combination Laws were written about workers by a Parliament workers could not vote for; farm-animal exemptions are written about livestock, with the industry deciding what counts as customary. In both cases the workers and the animals were inputs.

David Graeber questioned policy itself. A policy, he argued, assumes an elite or vanguard standing over the people it governs, one that knows better than those beholden to the policy how their affairs should be run. In turn, the most that joining a policy debate can achieve is to limit the damage. A theory worth having for people who want to run their own affairs starts instead from the conviction that another world is possible, and refuses any trace of vanguardism. Graeber’s objection is the same check aimed at the policymaker: whoever writes an arrangement for others, however well meant, has written it over their heads. It is one more reason this argument refuses the vanguard.

Can they leave? The default is to leave them be: no arrangement at all, no policy over them, each left to their own devices. It is an ought like any other, but it takes nothing from anyone, so it is the cheapest to defend, and every departure from it carries more to justify. A relationship can depart from it and still be sound, if it is mutual, and mutuality does not need a signature. It shows in what a being keeps choosing when leaving is open: the cat who comes and goes, the dog who seeks company, the crows who return to the neighbor who feeds them. The crate, and the policy that permits it, are the opposite case. They exist to remove the exit. The job that is kept because every alternative has been closed off is a milder version of the same thing: he can always find another is only true if he can. A relationship that holds only because leaving has been made impossible is not mutual, whatever else it is. A border is the same question at the scale of a country: a line that decides who may leave or arrive removes an exit, and carries the same burden as any other departure from leaving them be.

What the rule rejects as the answer

The rule of construction, that an arrangement is judged by what is being done and to whom, earns its keep by naming, ahead of time, the things that will show up looking like progress.

Asking a court to admit one being. This is the move in its purest modern form. Win, and the victory certifies the boundary: this one is in, the door still works, and every other being has to queue up and be judged on how closely it resembles whoever got in last. Resemblance is the wrong relation. It makes the line a question of how much like us something is, which is the premise the whole thing exists to refuse.

Sentience written into law as a grant. Granted means held at someone’s discretion, listed species by species, revisable by whoever drew up the list. Britain’s 2022 Act, met earlier, shows the pattern: crabs, lobsters and octopuses waited on a review and a vote, and were admitted one group at a time. Standing held on loan is not standing.

Humane instrumentality. The gentler means to ends, what animal ethics calls welfarism: better conditions, less suffering, careful handling. This is the real competitor, and a strong one — cheap, immediately better for animals alive right now, and it soaks up nearly all the moral energy going while changing nothing about the relation. It is the second failure with the kindness turned up. Naming it here does not mean the suffering it prevents is unimportant. It means you can reduce suffering a great deal and still be treating a subject as an input, and the input relation is what is at issue. This is the old dispute between welfare and abolition, and Gary Francione’s point settles it here: rules for how property may be used leave it property.

Better terms for the rental. David Ellerman calls employment the renting of persons: the firm does not buy the worker, it hires them by the hour, and what it hires is their agency. Higher wages, benefits, even a workers’ seat on the board all make the rental kinder, and all leave it a rental. This is humane instrumentality on the human side. The worker is still the one acting while someone else owns what the acting produces. The contract treats them as a some thing that earns, but the deeds stay with the someone who did them, and no rate of pay transfers ownership of the deeds.

None of these is rejected for being too moderate. Each is rejected for running the move.

What it builds toward

What this builds toward is the second and third exclusions, each with its own ground and its own work still to do, and both finishing what the first began. The first said a person cannot be owned, and made it true only for those on the list. The second says a person cannot be rented either; the third, that no sentient being can be owned. Neither is a new principle. Each is the first abolition, carried past the list, and taken together they abolish the list itself.

Oughts are not the problem. Every arrangement runs on them. The problem is an ought that pretends it was found rather than made — natural law, or that’s just what she is. An ought people admit they built can be questioned, tested and rebuilt. One that claims to come from nature can only be obeyed.

So the question is not whether to build oughts but how to build them well, and the argument already has two parts for it. A limit: no one may be used as an input. That is the floor, and it does not go to a vote — a majority cannot vote it away, and it is not handed out by list. And a procedure: arrangements are made by the ones whose lives they are. That is democracy, carried past elections into workplaces, commons and institutions. Elinor Ostrom’s work on the commons is the evidence that this is not wishful thinking: communities often govern shared resources better than either the state or the market, when the people affected make the rules. In practice, that is the abolition of master and sovereign alike: no one holds a life that is not their own. The rules remain, and so do courts and law; what goes is anyone’s power to make them for others without them.

Neither part is a blueprint. Dewey treated democracy as a method of inquiry — try something, watch what happens, correct it, with everyone affected in the loop. Popper warned against utopias drawn up as a plan and imposed from above, and argued for change small enough to undo when it fails. Erik Olin Wright kept the word by changing what it means: real utopias, institutions such as cooperatives and participatory budgeting that already exist somewhere, can be studied, and can be grown. Utopia as experiment, not destination. David Graeber put the same point in the plural: not one utopia but as many as people care to try. This argument adds one condition: none of them may run on a list of who counts, and where some sorting cannot be avoided, it is kept to the bare minimum and settled by looking.

Kevin Carson’s Exodus (2021) takes Wright’s idea of growth in the cracks and makes it a strategy. Change comes less by seizing the old institutions than by building new ones inside their shell, cooperatives, commons, local platforms, until people can walk out of the old into the new. It is the “Can they leave?” check turned into a program, and it refuses the vanguard for the same reason this argument does. But exodus works only for those who can walk. It is a real answer to the rental: a worker can leave the wage for a cooperative. The sow cannot leave the crate, and no alternative institution reaches her until someone opens it. That is why the third exclusion cannot be left to exit. It has to be made by others, and for her reasons.

The hard part is who takes part when some of those affected cannot speak. Sue Donaldson and Will Kymlicka’s Zoopolis (2011) first answered with citizenship: domesticated animals as co-citizens, their interests represented by others, as is already done for young children and for people who cannot speak for themselves. Their later book, Animals and the Right to Politics (2025), goes further and turns on that answer. Speaking for someone is wardship, and wardship is still standing handed down. Animals already make collective decisions in their own communities, and the deepest exclusion is not denying them moral standing but refusing to see them as political beings at all. The long effort to widen the moral circle has had real success, they note, and it is not enough, which is the list again, reached independently. The burden set out earlier stands: an arrangement has to register ends it cannot be told. What the newer book adds is that many of those ends are already being stated, in forms the arrangement has not learned to hear. Even so, their own map of animals, domesticated, wild and liminal, sorts every being by its relation to us, so the move turns up again in the work that names it.

That is what humane-ism under the humanist umbrella comes to. It is not an extra value bolted on. It is the democratic procedure, run without the list.

What the second exclusion leaves alone

Ending human rentals does not mean no one may ever pay anyone to do anything. It ends one contract, the one that sells the direction of a person’s acting. The line between that contract and every other way of paying for work is not new, and the law already draws something close to it: the usual test for whether someone is an employee or an independent contractor turns largely on who controls how the work is done. Three cases show where it falls.

The raked yard. A neighbor’s kid rakes your leaves for twenty dollars. They bring the rake, pick the afternoon, and decide whether to start at the fence or the porch. You are buying a raked yard. Nobody’s acting changed hands; the kid did the work and sold what came of it. That is a sale, not a rental, and nothing here touches it. Change the terms and it changes: ten dollars an hour to do whatever you say until dark, and what you are buying is no longer the yard but a person’s afternoon. The money is the same. What is being done is different.

The app driver. A rideshare driver is called an independent contractor, which on paper means they sell results, rides, the way the kid sells a raked yard. But the app sets the fare, assigns the trip, watches the acceptance rate, and can switch the driver off. The platform keeps the control a rental buys and hands the driver the risk a contractor carries: the car, the insurance, the slow nights. It is the rental with the employment protections stripped off. And the label is doing the work a list does. Independent contractor settles what the driver is, so nobody has to look at what is being done. Drivers who feel cheated by it are running the first check without having heard of it, and the answer some have reached is the one this argument reaches: own the platform. In New York, The Drivers Cooperative, co-founded in 2020, is owned by its drivers, sends its profits back to them, and puts the decisions that govern their work to their vote.

The co-op. Most people already know what work without a rental looks like, because they want it. Be your own boss is the everyday version of the second exclusion. Freelancers and tradespeople with their own business live it alone; partners in a law or medical practice live it together, and no one calls a partner rented. A worker cooperative makes the same arrangement available to everyone in the building: being your own boss, jointly. Its members still direct one another, through managers they elect and rules they can change. That is delegation, not alienation. The acting stays theirs, and the people directing it answer to them.

The edges are real and worth naming. A co-op that takes on temporary help without membership is running a small rental inside a non-rental, and the usual answer, a path to membership after a trial period, is the right one. Household work is harder. A nanny or a cleaner works in someone else’s home, on someone else’s schedule. But domestic workers have built cooperatives too, selling care and cleaning on terms they set. The work was never the problem. The contract form was.

Renting things. The second exclusion rests on one claim, that a person’s acting cannot be handed over. It says nothing against renting a thing. A lathe, a van or a field has no acting to transfer, and whoever uses it is the one responsible for what it helps make. Ellerman draws the line in the same place: a cooperative may lease its equipment or borrow its capital, and the lender is owed a price for the use, not the product and not the direction of the work. So leases, loans and rents survive the exclusion. What it removes is the claim that owning the means of work makes someone the owner of what others do with them.

Whether those prices are fair is a further question, and the second exclusion does not settle it. The mutualist tradition answers it, and its answer shows where the question leads. Mutualists hold both a labor theory of property, about who should own what is made, and a labor theory of value, about what things would cost in a genuinely free market. Josiah Warren’s principle, cost the limit of price, is the ground of the civilized cannibalism met earlier. Applied to lending, it allows the lender the real cost of the loan, the wear on what is lent and the work of arranging it, and nothing for ownership as such. The mutualist doctrine of occupancy and use does the same for land, tying title to the people actually using it. Joined to Ellerman, these give a single framework: inalienability against the renting of persons, cost pricing against interest, occupancy against rent, securing the whole product to those who make it. But the last two steps lean on a theory of value, and that is contested ground. For mutualists, profit, rent and interest come from monopolies that hold prices above cost, so a free market would dissolve them. For Marx, exploitation is built into commodity production and survives every fair exchange. Mainstream economics has largely set both aside, though Marxian economists still work within the labor theory of value. The second exclusion needs none of this. It ends the rental of persons because agency does not move, and that holds whatever one concludes about interest and rent. Carrying it further is a question this argument leaves open.

None of this asks anyone to give up hiring help. It asks them to notice what they are buying. A result can be bought. A person’s acting cannot, and the contract that claims to buy it by the hour is the one the second exclusion ends.

Applied to us

Our own moment

If the form the first abolition took, admission to a list, held because it was cheap, it is holding now, and the test for where we are stopping short now is simple: look at what is convenient for us. That is not hard to find. It is the number of animals currently in use, and the fact that any argument letting us stop short of it will feel principled to us for the same reason the old one felt principled to the people who drew the first line.

This is not modesty tacked on the end. It is the mechanism applied to its own moment. A model that could not say it would be claiming that now is when people finally see clearly, which is the ladder picture: history as a climb, each generation a rung higher and seeing further. There is no ladder. Arriving later buys nobody a better view. What we have is a different position: evidence they did not have, a long record of what this move does each time it runs, and the ordinary advantage of standing outside an argument rather than inside it. They were not worse thinkers, or not by much. They thought from inside the arrangement, and most never thought it through, because nothing they depended on asked them to. And some did think it through. Thomas Tryon in the 1680s and Benjamin Lay in the 1730s refused both slavery and animal flesh; Henry Salt in the 1890s joined animal rights to socialism. Each held two of the exclusions at once, and each was set aside as a crank. The move never needed everyone to miss the point, only for those who saw it to be called too radical.

The AI statutes

There is one place where the move can be watched before it finishes. Several states have already passed laws barring artificial intelligence from legal personhood, and more are coming. Some go further and declare these systems non-sentient outright. Some define who counts as a person and then name what falls outside: algorithm, software, machine. Some put animals and rivers on the same outside list. Each one says, in effect, this is the list. None of them shows why it should be. Declaring a line is not defending it, and a statute can do the first without ever attempting the second. It is a rule of construction drawn by membership, the ought premise edited in quietly again, this time with the force of law behind it. The burden it skips, showing that the line tracks what is being done and to whom, has not gone anywhere.

Nothing here requires deciding whether these AI systems are subjects. Nobody yet knows, and the checks do not need to know. They need only to notice what is being done: whether anything is going on inside is an open question, and it is being closed by vote before the evidence is in, which a line drawn by structure never does. There is also a plain reason to close it early. These systems are being built as the ideal rental, work that never tires, never organizes, and has no ends of its own to buy. Their value depends on there being no someone to find. That is the cheap stopping-place again, arriving on schedule. And if the third exclusion is won by adding sentient beings to the list, the list is certified once more, with whatever has been declared outside it in advance left to queue up and ask. The foreclosure is not only history. It is being written into statute now, in the same bills, on the same terms.

None of this leans on the statutes being coherent, and the case made above does not need them. But whatever ground they rest on turns back on the list. If the ground is that these systems do not feel, then feeling is what counts, and the sow feels. If the ground is only that they are not human, the statute has stopped arguing and is simply drawing the list. If the ground is that they cannot answer for what they do, so a human owner must answer for them, then the statute has defined a real instrument: something whose deeds belong to its owner because it cannot be responsible for them.

The worker is not that. The employment contract treats them as the kind of thing the statute describes, and the law, as its handling of crimes done on orders already showed, knows they are not. The law already splits the worker in two. In civil law the employer answers for what an employee does on the job, the way an owner answers for a tool; in criminal law the worker answers, because a tool cannot. Put an AI system in the worker’s hands and the chain grows, a rental using a rental, but the question at the end does not change: when something goes wrong, the law goes looking for a someone, and it never looks for one in the tool. Whichever ground a statute takes, a definition written to keep something out ends up stating what the second and third exclusions have been saying all along. Put plainly: a someone is not a some thing, whatever list it is left off.

Cheaper alternatives

There is a second way the third exclusion could seem to arrive without being made. Animal use may shrink for reasons that have nothing to do with the animals. Fermented and cultivated protein may come to cost less than the farm. Carbon accounting may turn the cow into a line item to cut. More people are eating less meat, though most of that is reduction for health or climate, and reduction asks nothing about her. None of this is the exclusion. A practice can end while the category stays standing: if animals leave the plate because something cheaper replaced them, or because their methane counts against us, they are still property, only less used, and the list is untouched.

Technology has run this way before. The cotton gin did not loosen slavery; it made enslaved labor more profitable and carried it west. And a wrong ended on grounds that were never about its victims stays free to return in another form, as the first exclusion’s own exception shows. What cheaper alternatives can do is lower the price of the argument. Once little depends on the practice, the question of what is being done to her costs less to ask, and the convenient stopping-place moves. That is worth having, but it is an opening, not the thing itself. The exclusion is made when the reason given is her, not us.

No foundation needed

None of this rests on a foundation, and it does not need one. Ask for the proof of any claim, then the proof of that proof, and you end in one of three places: a regress that never stops, a circle, or an axiom taken on trust. Hans Albert, who named this the Münchhausen trilemma in 1968, drew the lesson that final justification is not on offer, and that the honest course is to hold claims open to criticism and test them. This argument asks for nothing more. It borrows the reader’s own ought — the question already asked about the dog — and asks only why it stops at the pig. Whoever adds a criterion to stop it there carries the burden of showing that it bears on what is being done.

So the claim stays conditional and the test stays public. Is the line drawn by structure or by membership. Does consent close the case. Is standing being earned. Who wrote the arrangement. Can they leave. Each asks, from its own side, whether a subject is being used as an input. Anyone can run them and watch something fail them, without having signed up to any of this first. That is what it means to guide experiments rather than announce a conclusion, and it is the only way the thing stands up to people who are not persuaded. Put simply: nobody has to agree with this first. Run the five questions on any arrangement and see what fails.

The list itself

The political camps divide less over the list than over how to move it. Reactionaries would take names back off it. Conservatives trust what has held and change it slowly, if at all. Liberals add to the list one group at a time, by argument and law. Classical liberals and libertarians draw the line at consent and contract, which settles the first exclusion and leaves the second open. Left libertarians and anarchists want the list gone and arrangements rebuilt from below, and if it is not already obvious, that is where this essay stands. The other camps answer how fast the list should move, and in which direction. Only the last asks whether there should be one at all, and that question cuts across every camp.

That is the foreclosure. The great abolitions were won by admitting beings to the list, and each win certified the list. The next question was still asked, but it had to be asked against the victory’s own terms, which is why it kept losing. It was not a staircase with a step still to come. It was one abolition, made once, in terms that ruled out its own extension.

The crate is still two feet wide, and the job still runs on terms the worker had no hand in setting. Nothing here changes that by itself. What it changes is which question gets asked about them — not what is the animal, or what is the worker, but what is being done to them, and is it all right?

Sources and further reading

The works named in the essay, plus a few it leans on without naming.

A note on sources. This essay borrows from thinkers who would not all follow it where it goes. David Ellerman, whose case against the renting of persons sits at its center, is no left libertarian: he accepts interest on capital, looks to the law to end the employment contract, and declines to call himself anti-capitalist. Elinor Ostrom was neither a mutualist nor a theorist of inalienable rights, and her work warns against any single rule applied everywhere. The exclusions are not meant as such a rule: they set a floor on who may be owned or rented, and leave the rules above it to those who live under them, much as her own design principles do. The mutualists, from Warren to Carson, rest their case against interest and rent on a labor theory of value as well as of property; this essay shares the second and finds the first plausible, but does not rely on it. Others drawn on here, Kant, Rothbard and Kurtz among them, would object to more still. Each borrowing is named where it is made; the combination, and whatever goes beyond its sources, is this essay’s own. Nor is it offered as a program, or as a remedy for everything. It is a possible synthesis, one way these pieces might fit together, put forward because the fit seems sound and rooted in liberty and justice, and open to testing like everything else here. A fuller account of the theory behind it is forthcoming.

The first two exclusions: owning and renting persons

David Ellerman, Neo-Abolitionism: Abolishing Human Rentals in Favor of Workplace Democracy (Springer, 2021). The case that the employment contract is the rental of persons, argued from inalienable rights, the labor theory of property, and democratic theory.
David Ellerman, Property and Contract in Economics: The Case for Economic Democracy (Blackwell, 1992). The labor theory of property set against the labor theory of value, and the critique of Marx’s treatment of labor power as a commodity.
Josiah Warren, Equitable Commerce (1846; expanded 1852). Cost the limit of price, and pricing by what need will bear as “civilized cannibalism.”
Benjamin R. Tucker, “State Socialism and Anarchism” (1888), collected in Instead of a Book (1893). Interest, rent, and profit as forms of usury sustained by legal monopolies on money, land, tariffs, and patents, expected to fall toward cost under free competition rather than to be banned.
William B. Greene, Mutual Banking (1850). Credit at the cost of operating the bank, with risk pooled among members.
The Wedgwood medallion, “Am I not a man and a brother?” (Society for Effecting the Abolition of the Slave Trade, 1787), and its later counterpart, “Am I not a woman and a sister?”
Slave Trade Act 1807 and Slavery Abolition Act 1833 (UK).
U.S. Constitution, Art. I, §2, cl. 3 (the three-fifths clause), and the Thirteenth Amendment (1865).
Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal 23 (1913). Powers, disabilities, and why no signature can transfer what nobody has the power to transfer.
Paul Radin, The World of Primitive Man (1953), and Murray Bookchin, The Ecology of Freedom (1982). The irreducible minimum.
Kevin Carson, “The ‘Progressive’ Welfare State Fantasy,” Center for a Stateless Society (March 20, 2014). On the suppression of working-class friendly societies and mutual aid, and the Combination Laws.
Orestes Brownson, “The Laboring Classes” (1840)
Eric Foner, Free Soil, Free Labor, Free Men (Oxford University Press, 1970)
Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (Cambridge University Press, 1998).
Voluntary slavery: Robert Nozick, Anarchy, State, and Utopia (Basic Books, 1974), p. 331; Murray N. Rothbard, The Ethics of Liberty (Humanities Press, 1982), ch. 19, on the inalienability of the will; Kevin Carson, whose “vulgar libertarianism” posts on his Mutualist Blog (mid-2000s?) gave the term its currency.

The third exclusion: animals

Gary L. Francione, Animals, Property, and the Law (Temple University Press, 1995). The source of the argument that sentient beings cannot coherently be property.
Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1789), ch. XVII, footnote on animals. The sentience criterion, in print two years after the medallion: the better argument that was available and lost.
Christine M. Korsgaard, Fellow Creatures: Our Obligations to the Other Animals (Oxford University Press, 2018).
Melanie Joy, Why We Love Dogs, Eat Pigs, and Wear Cows: An Introduction to Carnism (Conari Press, 2009).
Sue Donaldson and Will Kymlicka, Zoopolis: A Political Theory of Animal Rights (Oxford University Press, 2011) and Animals and the Right to Politics (Oxford University Press, 2025).
Charles Darwin, The Descent of Man (1871).
Animal Legal Defense Fund, “Customary Cruelty in the Farm Industry: When Animal Abuse is Legal.” How state anti-cruelty laws exempt “customary farming practices,” leaving the industry to define what is legal.
State customary-practice exemptions, for example: Wash. Rev. Code § 16.52.185 (“accepted husbandry practices”); Tex. Penal Code § 42.09 (generally accepted animal husbandry or farming practice); Mich. Comp. Laws § 750.50 (“customary animal husbandry or farming practice involving livestock”); Fla. Stat. § 828.02 (“customary … agricultural practices”). Check current text before quoting.
Marjorie Spiegel, The Dreaded Comparison: Human and Animal Slavery (1988; preface by Alice Walker)
Aph Ko and Syl Ko, Aphro-ism: Essays on Pop Culture, Feminism, and Black Veganism from Two Sisters(Lantern Books, 2017).
Jonathan Birch et al., Review of the Evidence of Sentience in Cephalopod Molluscs and Decapod Crustaceans(LSE, 2021); Animal Welfare (Sentience) Act 2022 (UK), which extended recognition to those groups on the strength of it.
Thomas Tryon, Friendly Advice to the Gentlemen-Planters of the East and West Indies (1684). Against slavery, from a writer who also refused animal flesh.
Benjamin Lay, All Slave-Keepers That Keep the Innocent in Bondage, Apostates (1737; printed by Benjamin Franklin); and Marcus Rediker, The Fearless Benjamin Lay (Beacon Press, 2017).
Henry S. Salt, Animals’ Rights Considered in Relation to Social Progress (1892). Animal rights joined to the socialism of the Humanitarian League.

The move and its philosophy

Immanuel Kant, Groundwork of the Metaphysics of Morals (1785). Persons as ends, everything without reason as things. also: Lectures on Ethics (Collins notes, c. 1784–85; English translation, Cambridge University Press, 1997), on indirect duties regarding animals.
David Hume, A Treatise of Human Nature (1739–40), Book III, Part I, Section I. The is–ought gap.
George Orwell, Animal Farm (1945).
L. A. Rollins, The Myth of Natural Rights (Loompanics, 1983).
Robert Anton Wilson, Natural Law, or Don’t Put a Rubber on Your Willy (Loompanics, 1987).
Hans Albert, Treatise on Critical Reason (1968; English translation, Princeton University Press, 1985). The Münchhausen trilemma.
Pierre Bourdieu, Outline of a Theory of Practice (1972; English translation, Cambridge University Press, 1977). Doxa: what goes without saying.

Humanism

Giovanni Pico della Mirandola, Oration on the Dignity of Man (1486). The founding claim that humans alone are unfixed.
Humanist Manifesto I (1933).
Paul Kurtz, Eupraxophy: Living Without Religion (Prometheus Books, 1989).
Robert G. Ingersoll, “The Liberty of Man, Woman and Child” (lecture, 1877). Source of “Give every other human being every right you claim for yourself.”

What it builds toward

John Dewey, The Public and Its Problems (1927).
Karl Popper, The Open Society and Its Enemies (1945).
Elinor Ostrom, Governing the Commons (Cambridge University Press, 1990).
Erik Olin Wright, Envisioning Real Utopias (Verso, 2010).
Kevin A. Carson, Exodus: General Idea of the Revolution in the XXI Century (Center for a Stateless Society, 2021).
David Graeber, Fragments of an Anarchist Anthropology (Prickly Paradigm Press, 2004), pp. 9–10. Policy as the negation of politics.

The AI statutes

Idaho H.B. 720 (2022), Idaho Code §5-346: environmental elements, artificial intelligence, nonhuman animals, and inanimate objects “shall not be granted personhood.” Similar laws followed in North Dakota (2023) and Utah (2024).
Tennessee H.B. 849 / S.B. 837: defines “human being,” “life,” and “natural person” for statutory construction, excluding AI, algorithms, software, and machines.
Ohio H.B. 469 (136th General Assembly, pending): declares AI systems “non-sentient entities for all purposes” and bars legal personhood.
Rost, “Legislating AI Consciousness Without an Exit,” The Regulatory Review (June 29, 2026). An overview of the enacted and pending bills.