In chapter 5 it was argued that human beings have duties towards other living things, but the duties described were prima facie rather than absolute. In this chapter, I have attempted to develop two ethical principles (TPP and TPHP) affirming that people are entitled to perform certain actions in pursuit of basic human goods, while limiting the harms they may inflict on other creatures in pursuit of these goods. However, because TPHP is an avowedly "self-loving" ethical principle, it is open to the criticism that it is too susceptible to abuse to provide animals and other living things with reliable protection against the depredations of human beings. Only a robust affirmation of the rights of other living things, it might be argued, can offer this kind of protection.
At first blush, TPHP and the "rights" approach might appear mutually antagonistic. On the contrary, I hope to show that the naturalistic ethic I have been defending actually entails that all organisms have moral rights. Angus Taylor (1999, p. 47) defines a right broadly as "an entitlement to have, use or do something". My position is that all living things have rights in this sense, and that these rights are natural but not absolute. The thrust of the preceding chapter was that we have a prima facie duty towards each and every living thing: the duty to respect its interests. This is equivalent to the assertion that a living thing is entitled to have its interests respected by us. This entitlement is grounded in its possession of a telos. The range of goods which comprise an individual's telos is defined by its nature. Thus if we call the prima facie entitlements of a living thing rights, then these rights must be natural rights.
Additionally, TPHP is compatible with legal recognition of rights for animals and other living things, whether these rights are regarded as qualified claims that they have on us, or (for animals capable of intentional agency) liberties to pursue basic animal goods. I also argue that our legal system should allow lawyers to act as advocates for organisms harmed by proposed human developments (e.g. the construction of a highway), in order to offset any biases inherent in TPHP.
Certain distinctions relating to rights need to be drawn at the outset of any discussion of rights. As it is not my intention to develop a "theory of rights" in this thesis, I shall address them briefly.
Moral vs. legal rights
The rights that philosophers generally concern themselves with are moral rights rather than legal rights: although the laws of countries such as Germany may accord certain legal rights to animals, advocates for animal rights argue for their position precisely because they believe on moral grounds that animals at all times and places should be accorded the same respect.
Nevertheless, legal rights are of practical importance: bestowing them upon a group may bring about due recognition of its members' interests and remove biases against the group within the legal system. For instance, proposed developments are often evaluated by a committee that decides whether they bring about a measurable improvement in social welfare despite the harm they will inflict on other living things. It might be fairer to give these organisms a legal advocate who can argue their case against a legal promoter of human interests, and let a jury decide whether the harm done to these organisms can be justified under the terms of TPHP.
Claim vs. liberty rights
Human rights scholars distinguish between what they call claim rights and liberty rights (Fagan, 2003). (Hohfeld (1919) identified two further categories of rights - power rights and immunity rights - but many scholars, including Jones (1994), have argued that these kinds of rights can be reduced to claim and liberty rights.)
Jones (1994) defines a claim right as being owed a duty. A claim right is a right one holds against another person or persons who owe a corresponding duty to the right holder. The definition put forward by Joel Feinberg (1974) in his now-famous defence of rights for animals, is essentially identical:
To have a right is to have a claim to something and against someone, the recognition of which is called for by legal rules or, in the case of moral rights, by the principles of an enlightened conscience.
A claim right imposes on others the duty to respect that claim. Claim rights may be positive rights to some specific good or service, which some other has a duty to provide, or negative rights against others' interfering in or trespassing upon one's life or property in some way. Claim rights may be held in personam against some specifically identified person who has the duty holder, or in rem against no one in particular, in which case they apply to everyone (Jones, 1994).
In the previous chapter, I argued that human beings have duties towards animals and other organisms. This is equivalent to saying that they have claim rights against us. For instance, a pet's right to be fed and looked after by its owner is a positive claim right, held in personam. An animal's right not to be treated cruelly is a negative right held in rem. Jon Lowry (1975) argues that natural rights are claims to conditions necessary for living the good life, and that the concept of natural rights is applicable to animals as well as human beings. If the argument I advanced in the previous chapter is correct, all living things possess these natural claim rights, which should be construed as negative rights held in rem.
These natural claim rights of other organisms may sometimes be legitimately over-ridden by those of human beings. TPP affirms that human beings, too, have a natural right to promote each of the basic goods comprising their telos. Natural human rights can be regarded both as negative claim rights held in rem against any individual who would prevent them from doing so, and as liberty rights (see below). TPHP can be read as a statement of the conditions under which our natural rights over-ride those of other organisms.
Liberty rights can be defined as actions that may be freely chosen and that one is not prohibited from performing. As Fagan (2003) puts it, a liberty right is "a right to do as one pleases precisely because one is not under an obligation, grounded in others' claim rights, to refrain from so acting".
Some animal liberationists accord liberty rights to animals as well as human beings. For instance, Regan (1988, pp. 78, 84-85) believes that all normal mammals aged one year or more possess preference autonomy: they have preferences and are capable of initiating actions with a view to satisfying them. According to Regan, this kind of autonomy entails that they have lives that they have matter to them, so they qualify as subjects-of-a-life and thereby acquire claim rights against moral agents, as well as liberty rights to act on their intentions. However, because Regan's preference autonomy presupposes self-consciousness and a sense of the future (1988, p. 81), relatively few animals appear to qualify for the rights he proposes.
Other defenders of animal rights lower the bar, grounding them in their possession of sentience (Rollin, 1992; Warren, 1997; Francione, 1996) or the possession of beliefs and desires (Feinberg, 1996). As well as ascribing claim rights to animals, some of these authors regard them as having liberty rights to act in pursuit of their interests.
From a biocentric perspective, the question of whether animals can have liberty rights turns on how narrowly one defines "freedom". Aristotle's remark that "children and animals have a share in voluntary action, but not in choice" (Nicomachean Ethics 3.2, 1111b8-9) suggests that animals are small "a" agents who could be eligible for liberty rights in a qualified sense. The account of basic animal goods that I proposed in chapter 5 narrows the object of these rights: it implies that animals have liberty rights to pursue only those ends that are actually in their interests, rather than ends in which they happen to take an interest (e.g. the pleasure of an addictive drug).
Consistency demands that if we grant animals liberty rights to pursue the goods that comprise their telos then we must acknowledge that human beings have these rights too. Accordingly, TPHP affirms that human beings have liberty rights to perform acts that promote basic human goods. These rights are, however, limited by the ethical constraints within TPHP.
A naturalistic argument against animal rights?
The argument from marginal cases (Dombrowski, 1997) is often advanced in support of extending rights from human moral patients to animals. Cohen (1986, pp. 865-866) has challenged this argument, on the grounds that rights-talk can only be meaningfully applied to creatures that are naturally capable of making claims:
A right, properly understood, is a claim, or potential claim, that one party may exercise against another. The target against whom such a claim may be registered can be a single person, a group, a community, or (perhaps) all humankind.
...[T]his much is clear about rights in general: they are in every case claims, or potential claims, within a community of moral agents. Rights arise, and can be intelligibly defended, only among beings who actually do, or can, make moral claims against one another. Whatever else rights may be, therefore, they are necessarily human; their possessors are persons, human beings.
Persons who are unable, because of some disability, to perform the full moral functions natural to human beings are certainly not for that reason ejected from the moral community. The issue is one of kind ... Animals are of such a kind that it is impossible for them, in principle, ... to make a moral choice. What humans retain when disabled, animals have never had.
Cohen seems to be arguing that to have a right to X, you need to be the sort of being that can make a claim to X. Human moral patients qualify because they have a rational nature (which allows lawyers to make claims on their behalf which they presumably would make, if they had the full use of their natural faculties), but animals are naturally incapable of claim-making, which means we cannot do it for them either. To make a claim on behalf of an animal is to do for it what it would do if it were a moral agent - in other words, if it were not itself.
Cohen's reasoning can be faulted on two grounds. First, he appears to overlook the distinction between making a claim and having a claim. Feinberg's (1974, pp. 43-44) definition of "claim right", cited above, uses the term "have a claim", not "make a claim". It can also be argued that the notion of having a claim is epistemologically more fundamental, as it sets bounds on the kinds of things that an agent can meaningfully make a claim to.
Second, making a proxy claim on behalf of an animal need not be construed as doing for it what it would do if it were a moral agent. It could also be reasonably construed as an attempt to secure some basic good that the animal has a claim to, simply because it has an interest in realising it.
I conclude that there is no reason in principle for excluding animals from the domain of natural rights. (I will touch upon contractual rights below.)
Two theories of rights
Broadly, there are two approaches to the question of how rights can be philosophically justified. These are variously referred to as: (i) the welfare or interest theory and (ii) the will or choice theory. According to the first theory, rights are required to secure, protect and promote important interests of the rights-bearer. (One representative of this theory is Finnis (1980), who argues that human rights are justifiable on the grounds of their instrumental value for securing the necessary conditions of human well-being: the basic human goods.) On the interest account, there is no problem in principle with the idea of extending rights to human moral patients, as they have their own interests and welfare. Indeed, any non-human individuals with interests could be regarded as having rights. On the account I am proposing, that would include all organisms.
The second and more exclusive theory makes choice central to the concept of a right. Rights are grounded in the rights-bearer's capacity for freedom. This theory easily accounts for active rights, but it has been criticised for being incompatible with rights for moral patients such as children. It is, however, possible on the 'will' theory for children to have proxy rights, exercised by trustees or representatives (Archard, 2002).
Most defenders of animal rights have focused their attention on the interest theory of rights, as it does not require moral agency for the exercise of a right, but only the possession of interests. For example, Feinberg (1974) rejects the view that moral agency is required for possessing rights, but contends, reasonably, that only beings with interests qualify as rights-bearers, on the grounds that (i) beings that have no interests cannot be represented by legal proxies, and (ii) rights-bearers must be capable of benefiting from something, and beings that have no interests cannot be said to benefit from anything. The point where Feinberg parts company with biocentrists is that he envisages interests in subjective terms, arguing that they presuppose the possession of beliefs and desires. Hence sentient animals qualify as possible rights-bearers, but plants do not. Plants have no interests; they merely have needs.
Feinberg's argument appears to blur three distinct senses (described in chapter 4, section 4.A.3) in which interests can be ascribed to creatures): first, things may be in their interests if they serve the creatures' intrinsic ends; second, creatures can (if they possess minimal minds) take an interest in things; and finally, phenomenally conscious creatures can feel interested in things that they like. To say that non-sentient creatures merely have needs - in the same way as a car needs petrol, for instance - is to gloss over a fundamental ethical distinction between having and lacking intrinsic finality.
If, then, we wish to uphold a concept of "interest-based" rights for animals, logical consistency requires us to extend it to every living thing.
A few philosophical defenders of animal rights (Melden, 1988; Watson, 1979) have adopted the choice theory of rights, arguing that animals such as chimps, dogs and whales are candidates for rights because they exhibit some degree of moral agency. However, even these authors would concede that the vast majority of animals do not qualify as moral agents.
Philosophical attacks on the notion of animal rights usually focus on their lack of a capacity for language and moral agency. Such attacks on animal rights presuppose a choice theory of rights.
The difference between the interest and choice theories may appear relatively inconsequential if rights alone are being considered, but it becomes much more serious if a creature lacking rights is denied moral status. This would imply that we have no direct moral duties towards animals and other organisms. For instance, contractarians such as Narveson (1977), Carruthers (1992) and Leahy (1994) have argued that because animals cannot enter into moral contracts, they have no moral status of their own, and hence no rights:
The contractualist tends to limit one's obligations to the various groups with whom one interacts; family, friends, village, and so on. One's interests will be respected ... by being a paid-up member of the particular moral club involved. Those incapable of appreciating the importance of obeying the rules will lose moral status (Leahy, 1994, p. 18).
An evaluation of the merits of a contractarian account of rights would be beyond the scope of this thesis. Suffice to say that its ethical starting point appears to neglect a morally relevant fact about organisms: they have interests. In chapter 5, I argued that all ethical argumentation has to start somewhere, and proposed that the proper sphere of moral action is the promotion of the welfare of individuals, by acting in their interests. (The alternative notion that behaving ethically is about respecting the choices of individuals, or more broadly letting them pursue whatever they take an interest in, was rejected in chapter 1 as too inherently subjective to ground objective moral claims, especially when the "good" being sought turned out to be something harmful to the individual.) I concluded that any individual possessing interests - including biological interests - was worthy of respect. Thus even non-sentient organisms qualify as morally significant others, towards whom we have (prima facie) duties.
Even contractarian accounts are not totally hostile to the notion of animal rights: if rational human agents can choose to award proxy rights to human moral patients, there is nothing to prevent them, if they choose, from assigning proxy rights to animals and other organisms. Legal enactment of proxy rights for non-human organisms (e.g. the right to legal defence of their interests by a court-appointed lawyer; the administration of a trust fund for the purpose of protecting and maintaining their habitat) would serve a practical purpose, as a counter-balance to our all-too-human tendency to overlook the interests of other life-forms - often to our own long-term detriment.
Is the notion of "rights" redundant?
Surprisingly, not all proponents of sentientism or biocentric individualism consider "rights-talk" to be philosophically helpful. The long-standing view that "rights" can be re-expressed as duties is widely influential:
One argument in particular has meant that the language of rights is difficult to use straightforwardly: it is the famous argument stemming ultimately... from Samuel Pufendorf, though generally associated with Bentham, that to have a right is merely to be a beneficiary of someone else's duty... If this is true, then the language of rights is irrelevant, and ...[cannot] provide us with any independent moral insights (Tuck, 1993, p. 1).
Thus some philosophers who support animal liberation, such as Singer (1987), affirm the inherent value of sentient beings but deny the usefulness of ascribing them rights, preferring to treat of their interests. Others (Midgley, 1984) eschew the concept of "right" as too obscure and too closely tied to a legal context to be usefully applied to animals.
If we accept that our duties towards others are grounded in their interests, then from a moral standpoint the ascription of rights to other organisms may appear redundant. On the other hand, the legal recognition of rights can confer a massive practical advantage in the real world, as the status of animals and other organisms requires a substantive defence against the encroachments of human beings, who are all too ready to put their own interests first. The legal affirmation of qualified rights for other creatures, coupled with a system whereby a legal advocate could make proxy claims on their behalf against any proposed developments adversely affecting their interests, could serve to redress this imbalance on a practical level.
Curiously, some philosophers advocate the granting of legal rights for organisms as a way of protecting their interests, but deny them moral rights. Paul Taylor (1986, chapter 6) regards moral rights as claims made by moral agents who can make choices, have respect for themselves and for others, observe moral norms, assert their rights, and complain if these rights are being violated - criteria which would exclude non-human life-forms. Sztybel (2001) considers Taylor's arguments to be question-begging, insofar as they stem from an anthropocentric, agent-centred model of how rights are exercised, and argues that mammals, at least, qualify as "autonomous self-managers" and hence rights-bearers. Additionally, he criticises the choice theory of rights (whose shortcomings I examined above) for its narrow focus on autonomy as the supreme good.
Finally, other writers (Donovan, 1990), while not rejecting the rights perspective, consider it too thin to ground our moral duties towards animals, and appeal instead to our capacity to sympathise and emotionally bond with animals as a proper basis for argumentation about the moral status of animals. On epistemic grounds, Donovan is generally correct: we do not acquire the knowledge that beating an animal is wrong from being told that its rights are violated, but by witnessing the mistreatment of animals and identifying with them.
There are, however, certain kinds of mistreatment whose wrongfulness may be more appropriately expressed in the language of "rights-talk". For instance, the frustration of animals' first-order desires is often condemned using the language of "animal rights", and the "liberation" of oppressed animals such as battery hens is frequently advocated. The ascription of rights to animals is thus philosophically useful if it makes us more clearly aware of ways in which we may wrong them.
Absolute vs. qualified rights
Defenders of rights for animals and other organisms may regard these rights as either absolute or qualified. However, general agreement exists that these rights may not be over-ridden simply because of beneficial social consequences for human beings. Francione (1996) differentiates between what he calls animal welfare theories and animal rights theories on this basis:
Animal welfare theories all accept that animals have interests, but that these interests may be sacrificed or traded away as long as there are some expected results that are thought to justify that sacrifice... Some welfarists will ignore animal interests for the sake of human amusement and financial gain; others require more "serious" benefits...
The central and distinguishing tenet shared by rights theorists is that animals (like humans) have interests that cannot be sacrificed or traded away simply because good consequences will result. The rights position does not hold that rights are absolute. Indeed, rights must be limited, and they often conflict... We do not, however, allow ... rights to be abrogated simply because depriving one person ... might increase overall social welfare.
I have argued that TPHP is compatible with limited animal rights. It is not vulnerable to Francione's criticisms of animal welfare theory, because it justifies actions not in terms of their consequences but in terms of their intrinsic "whatness": the harm-inflicting act must inherently tend to promote a basic human good for some individual. Merely having good consequences that "outweigh" the bad ones does not suffice to make an act morally justifiable.
Although TPHP is compatible with animal rights theories, its built-in axiom of self-preference principle entails that these rights are qualified rather than absolute: human beings have a right to promote their telos too. Thus TPHP condones certain human practices that other animal rights theorists would object to.
TPHP has two advantages over other rights theories: it offers clearer moral guidelines about the circumstances in which human beings may put their own interests first, and it strikes a via media between self-denying moral rigour and excessive laxity.
Regan's (1988) theory tends towards rigour. It would allow subjects-of-a-life (mentally normal mammals aged one year or more) to over-ride each other's prima facie rights for three reasons: to prevent comparable harm from being inflicted on a greater number of individuals (the mini-ride principle); to prevent a considerably greater harm from being visited upon a few individuals (the worse-off principle); and to avoid being made worse-off by other individuals, provided that we do not treat them as mere resources when inflicting harm on them (the liberty principle). Despite these concessions to human interests, Regan's animal rights position could be criticised for being too strong, insofar as he envisages all subjects-of-a-life as having equal inherent value (although he admits that some are harmed more by death than others) and his theory does not guarantee the right of human beings to pursue certain kinds of goods (e.g. basic human goods).
Mary Anne Warren (1987) extends the concept of a right to all sentient individuals, but denies Regan's assertion that all animals have equal rights. Instead, she advocates a "weak animal rights" position which accords greater rights to human beings and allows them to over-ride the rights of animals. On her "sliding scale of moral status", some sentient animals (e.g. apes and dolphins) would have relatively strong rights that could only be over-ridden for very grave reasons, while others (e.g. insects) would have much weaker rights that could be over-ridden for a variety of social considerations. For these lower animals, Warren's notion of rights appears to be ethically impotent. Rights, as Angus Taylor puts it, are supposed to function as "a protective shield around an individual" (1999, pp. 18-19). Because it offers so little protection to simple-minded animals, Warren's account seems closer to what Francione calls a "welfare" theory than a rights theory.
Neither Regan's approach nor Warren's can tell us which kinds of human goods we are legitimately entitled to pursue when over-riding the rights of non-human individuals (animals and other organisms). One philosophical advantage of TPHP is that it not only affirms people's right to pursue basic human goods, but also allows them to over-ride the claim rights of other organisms when pursuing these goods, if certain conditions are satisfied. People's rights to promote basic human goods are both negative claim rights held in rem (against anyone who would prevent them from doing so) and liberty rights (as actions that they may not be prohibited from performing).
The content of rights for animals and other organisms
For Francione (1996), the fundamental right animals possess is the right not to be used as a means to human ends. Similarly, Regan (1988, pp. 258-263) contends that animals have a basic right to be treated respectfully, which in turn entails a general, prima facie right not to be harmed. Rollin (1992, p. 83) argues that animals have but one "absolute, invariable and inalienable right" - the right to be considered morally.
I would argue that these proposed "fundamental rights" are better construed as definitions of the status of animals, for two reasons. First, these "fundamental rights" appear to be neither claim rights nor liberty rights. They cannot be liberty rights, as they do not describe actions that may be freely chosen. Nor can they be claims, because claims require some specific content: one has a claim "to something", as Feinberg (1974, pp. 43-44) puts it. Typically one has a claim to a good such as food or land, or the unimpeded pursuit of a good. Claims to "respect", "moral consideration" and immunity from being "used as a means to human ends" seem too nebulous to qualify as proper claims.
Second, if the natural law account of ethics being defended in this thesis is correct, we should define the most fundamental claims of morally significant individuals in relation to their telos. Generally, the fundamental claim right of animals and other living creatures should be their right to seek or pursue the basic goods that comprise their telos. Although this right is negative insofar as it does not entitle them to anything from us, it has a specific content which is determined by an organism's telos.
The proposals of Francione, Regan and Rollin contain merit, but they make more sense if they are viewed as definitions of animals' moral status. Animals are not in the same category as "things": they are not mere resources. (Neither, I would argue, are other organisms.) Because they have interests, they (and other living things) warrant moral consideration.
So far, we have only discussed telos rights, which pertain to the realisation of basic goods, but other rights have also been proposed for animals. I will examine two plausible candidates here: the right to the use of their own bodies, and the right not to be intentionally made to suffer.
Do animals have special rights relating to their own bodies?
Suconik (2000) proposes that nonhuman animals have a right to the "property", i.e., the physical bodies, that are their own. As he puts it, "Everything that constitutes the cat is the cat's own property." However, the notion that one's body can be regarded as one's property seems to create more ethical problems than it solves: it implies that one may trade away one's life and/or liberty, if one so chooses. Additionally, one important difference between one's property and one's body is that the former is alienable from oneself, while the latter is not.
There is a way to rescue Suconik's proposal. Instead of saying that animals own their bodies, it would be better to say that animals have a right to have their bodily integrity respected, while they are still alive. This kind of claim right has a certain plausibility: it accords well with traditional moral norms regarding animals, e.g. the Noachide Code of Judaism, which absolutely prohibits tearing the limbs from a living animal.
Pace Suconik, giving animals this right would not make it immoral for us to slaughter them for food. What it would entail is that animals, while they are alive, have a prior claim to the integrity of their own body parts and so may not be dismembered or deliberately subjected to irreparable bodily injury while alive. (I have added the word "irreparable" to exclude cases where animals lose body parts that they can grow back later.) There seems to be no good philosophical reason why this right could not be extended to plants too.
The right to bodily integrity need not be absolute: if it were, the neutering or spaying of companion animals would be unjustifiable. However, this right could be regarded as a very strong prima facie right, along the lines of a priority claim: no other individual has a greater claim to an animal's body parts than the animal itself. In the Baby Fae case, a baboon was cruelly mutilated - its beating heart was literally ripped out - to save a child's life, but the intuition that the baboon had a prior claim to its heart remains a strong one. The case of neutering a companion animal is different, as no other individual is claiming the animal's reproductive organs. Rather, the concern is to protect the community and the local ecosystem from uncontrolled breeding. (I shall discuss this below in relation to the Justifiable Defence of Ecosystems Principle, or JDEP.)
Recognising this kind of priority claim would also entail that any individual who killed an animal in order to harvest its body parts would be violating its rights under clause (vi)(c) of TPHP. I shall say more about this below in the section on xenotransplantation.
Would recognition of such a priority claim be compatible with a self-loving, telos-promoting ethic, such as TPHP? I believe so. While the killing of animals has at times been historically necessary for human survival, the same could never be said for animal mutilation. On the other hand, Note 2 in clause (vi), which says that other organisms' basic interests can never take precedence over ours, now requires an exception for cases where the notion of a prior claim applies.
Suffering and animal rights
Another right that is often urged for animals is the right to not be intentionally made to suffer. Here, we need to distinguish between deliberately making animals suffer as an end in itself and making them suffer as a means to an end. In chapter 5, I argued that an act of the former kind contravenes our most basic obligations to sentient creatures and can never be justified. TPHP can accommodate this moral insight by granting animals an absolute right not to be subjected to cruel treatment for its own sake, under clause (vi) part (iii).
On the other hand, making animals suffer as a means to an end is clearly justified in some circumstances, as the case of the man-eating predator (whose eye I must gouge in order to dissuade it from eating me) shows. Thus the right not to be intentionally subjected to cruel treatment cannot be absolute, but it could be viewed as a strong prima facie claim right. As we saw in the above section on TPHP and cruelty to animals, TPHP does not give a definitive answer of how strong this claim right is, but it can set upper and lower bounds on its strength. The right not to be subjected to cruel treatment is not trivial: it is strong enough to over-ride cruel human practices that do not promote a basic human good, as well as practices for which there is an alternative, practicable, cruelty-free way of realising the basic good. On the other hand, the right cannot be legitimately invoked against cruel past or present practices that have contributed in a significant way to human survival (e.g. hunting for food). I will discuss its application to vivisection in Appendix B to chapter 6.