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Thesis Statement for Animals Deserve Rights, and Their Rights

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Article Contents

1. introduction: the need for legal animal rights theory, 2. can animals have legal rights, 3. do animals have (simple) legal rights, 4. should animals have (fundamental) legal rights, 5. conclusion.

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Towards a Theory of Legal Animal Rights: Simple and Fundamental Rights

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Saskia Stucki, Towards a Theory of Legal Animal Rights: Simple and Fundamental Rights, Oxford Journal of Legal Studies , Volume 40, Issue 3, Autumn 2020, Pages 533–560, https://doi.org/10.1093/ojls/gqaa007

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With legal animal rights on the horizon, there is a need for a more systematic theorisation of animal rights as legal rights. This article addresses conceptual, doctrinal and normative issues relating to the nature and foundations of legal animal rights by examining three key questions: can, do and should animals have legal rights? It will show that animals are conceptually possible candidates for rights ascriptions. Moreover, certain ‘animal welfare rights’ could arguably be extracted from existing animal welfare laws, even though these are currently imperfect and weak legal rights at best. Finally, this article introduces the new conceptual vocabulary of simple and fundamental animal rights, in order to distinguish the weak legal rights that animals may be said to have as a matter of positive law from the kind of strong legal rights that animals ought to have as a matter of future law.

Legal animal rights are on the horizon, and there is a need for a legal theory of animal rights—that is, a theory of animal rights as legal rights. While there is a diverse body of moral and political theories of animal rights, 1 the nature and conceptual foundations of legal animal rights remain remarkably underexplored. As yet, only few and fragmented legal analyses of isolated aspects of animal rights exist. 2 Other than that, most legal writing in this field operates with a hazily assumed, rudimentary and undifferentiated conception of animal rights—one largely informed by extralegal notions of moral animal rights—which tends to obscure rather than illuminate the distinctive nature and features of legal animal rights. 3 A more systematic and nuanced theorisation of legal animal rights is, however, necessary and overdue for two reasons: first, a gradual turn to legal rights in animal rights discourse; and, secondly, the incipient emergence of legal animal rights.

First, while animal rights have originally been framed as moral rights, they are increasingly articulated as potential legal rights. That is, animals’ moral rights are asserted in an ‘ought to be legal rights’-sense (or ‘manifesto sense’) 4 that demands legal institutionalisation and refers to the corresponding legal rights which animals should ideally have. 5 A salient reason for transforming moral into legal animal rights is that purely moral rights (which exist prior to and independently of legal validation) do not provide animals with sufficient practical protection, whereas legally recognised rights would be reinforced by the law’s more stringent protection and enforcement mechanisms. 6 With a view to their (potential) juridification, it seems advisable to rethink and reconstruct animal rights as specifically legal rights, rather than simply importing moral animal rights into the legal domain. 7

Secondly, and adding urgency to the need for theorisation, legal animal rights are beginning to emerge from existing law. Recently, a few pioneering courts have embarked on a path of judicial creation of animal rights, arriving at them either through a rights-based interpretation of animal welfare legislation or a dynamic interpretation of constitutional (human) rights. Most notably, the Supreme Court of India has extracted a range of animal rights from the Prevention of Cruelty to Animals Act and, by reading them in the light of the Constitution, elevated those statutory rights to the status of fundamental rights. 8 Furthermore, courts in Argentina 9 and Colombia 10 have extended the fundamental right of habeas corpus , along with the underlying right to liberty, to captive animals. 11 These (so far isolated) acts of judicial recognition of animal rights may be read as early manifestations of an incipient formation of legal animal rights. Against this backdrop, there is a pressing practical need for legal animal rights theory, in order to explain and guide the as yet still nascent—and somewhat haphazard—evolution of legal animal rights.

This article seeks to take the first steps towards building a more systematic and nuanced theory of legal animal rights. Navigating the existing theoretical patchwork, the article revisits and connects relevant themes that have so far been addressed only in a scattered or cursory manner, and consolidates them into an overarching framework for legal animal rights. Moreover, tackling the well-known problem of ambiguity and obscurity involved in the generally vague, inconsistent and undifferentiated use of the umbrella term ‘animal rights’, this article brings analytical clarity into the debate by disentangling and unveiling different meanings and facets of legal animal rights. 12 To this end, the analysis identifies and separates three relevant sets of issues: (i) conceptual issues concerning the nature and foundations of legal animal rights, and, more generally, whether animals are the kind of beings who can potentially hold legal rights; (ii) doctrinal issues pertaining to existing animal welfare law and whether it confers some legal rights on animals—and, if so, what kind of rights; and (iii) normative issues as to why and what kind of legal rights animals ought ideally to have as a matter of future law. These thematic clusters will be addressed through three simple yet key questions: can , do and should animals have legal rights?

Section 2 will show that it is conceptually possible for animals to hold legal rights, and will clarify the formal structure and normative grounds of legal animal rights. Moreover, as section 3 will demonstrate, unwritten animal rights could arguably be extracted from existing animal welfare laws, even though such ‘animal welfare rights’ are currently imperfect and weak legal rights at best. In order to distinguish between these weak legal rights that animals may be said to have as a matter of positive law and the kind of strong legal rights that animals ought to have potentially or ideally, the new conceptual categories of ‘ simple animal rights’ and ‘ fundamental animal rights’ will be introduced. Finally, section 4 will explore a range of functional reasons why animals need such strong, fundamental rights as a matter of future law.

As a preliminary matter, it seems necessary to first address the conceptual issue whether animals potentially can have legal rights, irrespective of doctrinal and normative issues as to whether animals do in fact have, or should have, legal rights. Whether animals are possible or potential right holders—that is, the kind of beings to whom legal rights can be ascribed ‘without conceptual absurdity’ 13 —must be determined based on the general nature of rights, which is typically characterised in terms of the structure (or form) and grounds (or ultimate purpose) of rights. 14 Looking at the idea of animal rights through the lens of general rights theories helps clarify the conceptual foundations of legal animal rights by identifying their possible forms and grounds. The first subsection (A) focusses on two particular forms of conceptually basic rights—claims and liberties—and examines their structural compatibility with animal rights. The second subsection (B) considers the two main competing theories of rights—the will theory and interest theory—and whether, and on what grounds, they can accommodate animals as potential right holders.

A. The Structure of Legal Animal Rights

The formal structure of rights is generally explicated based on the Hohfeldian typology of rights. 15 Hohfeld famously noted that the generic term ‘right’ tends to be used indiscriminately to cover ‘any sort of legal advantage’, and distinguished four different types of conceptually basic rights: claims (rights stricto sensu ), liberties, powers and immunities. 16 In the following, I will show on the basis of first-order rights 17 —claims and liberties—that legal animal rights are structurally possible, and what such legal relations would consist of. 18

(i) Animal claim rights

To have a right in the strictest sense is ‘to have a claim to something and against someone’, the claim right necessarily corresponding with that person’s correlative duty towards the right holder to do or not to do something. 19 This type of right would take the form of animals holding a claim to something against, for example, humans or the state who bear correlative duties to refrain from or perform certain actions. Such legal animal rights could be either negative rights (correlative to negative duties) to non-interference or positive rights (correlative to positive duties) to the provision of some good or service. 20 The structure of claim rights seems especially suitable for animals, because these are passive rights that concern the conduct of others (the duty bearers) and are simply enjoyed rather than exercised by the right holder. 21 Claim rights would therefore assign to animals a purely passive position that is specified by the presence and performance of others’ duties towards animals, and would not require any actions by the animals themselves.

(ii) Animal liberties

Liberties, by contrast, are active rights that concern the right holder’s own conduct. A liberty to engage in or refrain from a certain action is one’s freedom of any contrary duty towards another to eschew or undertake that action, correlative to the no right of another. 22 On the face of it, the structure of liberties appears to lend itself to animal rights. A liberty right would indicate that an animal is free to engage in or avoid certain behaviours, in the sense of being free from a specific duty to do otherwise. Yet, an obvious objection is that animals are generally incapable of having any legal duties. 23 Given that animals are inevitably in a constant state of ‘no duty’ and thus ‘liberty’, 24 this seems to render the notion of liberty rights somewhat pointless and redundant in the case of animals, as it would do nothing more than affirm an already and invariably existing natural condition of dutylessness. However, this sort of ‘natural liberty’ is, in and of itself, only a naked liberty, one wholly unprotected against interferences by others. 25 That is, while animals may have the ‘natural liberty’ of, for example, freedom of movement in the sense of not having (and not being capable of having) a duty not to move around, others do not have a duty vis-à-vis the animals not to interfere with the exercise of this liberty by, for example, capturing and caging them.

The added value of turning the ‘natural liberties’ of animals into liberty rights thus lies in the act of transforming unprotected, naked liberties into protected, vested liberties that are shielded from certain modes of interference. Indeed, it seems sensible to think of ‘natural liberties’ as constituting legal rights only when embedded in a ‘protective perimeter’ of claim rights and correlative duties within which such liberties may meaningfully exist and be exercised. 26 This protective perimeter consists of some general duties (arising not from the liberty right itself, but from other claim rights, such as the right to life and physical integrity) not to engage in ‘at least the cruder forms of interference’, like physical assault or killing, which will preclude most forms of effective interference. 27 Moreover, liberties may be fortified by specific claim rights and correlative duties strictly designed to protect a particular liberty, such as if the state had a (negative) duty not to build highways that cut across wildlife habitat, or a (positive) duty to build wildlife corridors for such highways, in order to facilitate safe and effective freedom of movement for the animals who live in these fragmented habitats.

(iii) Animal rights and duties: correlativity and reciprocity

Lastly, some remarks on the relation between animal rights and duties seem in order. Some commentators hold that animals are unable to possess legal rights based on the influential idea that the capacity for holding rights is inextricably linked with the capacity for bearing duties. 28 Insofar as animals are not capable of bearing legal duties in any meaningful sense, it follows that animals cannot have legal (claim) rights against other animals, given that those other animals would be incapable of holding the correlative duties. But does this disqualify animals from having legal rights altogether, for instance, against legally competent humans or the state?

While duties are a key component of (first-order) rights—with claim rights necessarily implying the presence of a legal duty in others and liberties necessarily implying the absence of a legal duty in the right holder 29 —neither of them logically entails that the right holder bear duties herself . As Kramer aptly puts it:

Except in the very unusual circumstances where someone holds a right against himself, X’s possession of a legal right does not entail X’s bearing of a legal duty; rather, it entails the bearing of a legal duty by somebody else. 30

This underscores an important distinction between the conceptually axiomatic correlativity of rights and duties—the notion that every claim right necessarily implies a duty—and the idea of a reciprocity of rights and duties—the notion that (the capacity for) right holding is conditioned on (the capacity for) duty bearing. While correlativity refers to an existential nexus between a right and a duty held by separate persons within one and the same legal relation , reciprocity posits a normative nexus between the right holding and duty bearing of one and the same person within separate, logically unrelated legal relations.

The claim that the capacity for right holding is somehow contingent on the right holder’s (logically unrelated) capacity for duty bearing is thus, as Kramer puts it, ‘straightforwardly false’ from a Hohfeldian point of view. 31 Nevertheless, there may be other, normative reasons (notably underpinned by social contract theory) for asserting that the class of appropriate right holders should be limited to those entities that, in addition to being structurally possible right holders, are also capable of reciprocating, that is, of being their duty bearers’ duty bearers. 32 However, such a narrow contractarian framing of right holding should be rejected, not least because it misses the current legal reality. 33 With a view to legally incompetent humans (eg infants and the mentally incapacitated), contemporary legal systems have manifestly cut the connection between right holding and the capacity for duty bearing. 34 As Wenar notes, the ‘class of potential right holders has expanded to include duty-less entities’. 35 Similarly, it would be neither conceptually nor legally apposite to infer from the mere fact that animals do not belong to the class of possible duty bearers that they cannot belong to the class of possible right holders. 36

B. The Grounds of Legal Animal Rights

While Hohfeld’s analytical framework is useful to outline the possible forms and composition of legal animal rights, Kelch rightly points out that it remains agnostic as to the normative grounds of potential animal rights. 37 In this respect, the two dominant theories of rights advance vastly differing accounts of the ultimate purpose of rights and who can potentially have them. 38 Whereas the idea of animal rights does not resonate well with the will theory, the interest theory quite readily provides a conceptual home for it.

(i) Will theory

According to the will theory, the ultimate purpose of rights is to promote and protect some aspect of an individual’s autonomy and self-realisation. A legal right is essentially a ‘legally respected choice’, and the right holder a ‘small scale sovereign’ whose exercise of choice is facilitated by giving her discretionary ‘legal powers of control’ over others’ duties. 39 The class of potential right holders thus includes only those entities that possess agency and legal competence, which effectively rules out the possibility of animals as right holders, insofar as they lack the sort or degree of agency necessary for the will-theory conception of rights. 40

However, the fact that animals are not potential right holders under the will theory does not necessarily mean that animals cannot have legal rights altogether. The will theory has attracted abundant criticism for its under-inclusiveness as regards both the class of possible right holders 41 and the types of rights it can plausibly account for, and thus seems to advance too narrow a conception of rights for it to provide a theoretical foundation for all rights. 42 In particular, it may be noted that the kinds of rights typically contemplated as animal rights are precisely of the sort that generally exceed the explanatory power of the will theory, namely inalienable, 43 passive, 44 public-law 45 rights that protect basic aspects of animals’ (partially historically and socially mediated) vulnerable corporeal existence. 46 Such rights, then, are best explained on an interest-theoretical basis.

(ii) Interest theory

Animal rights theories most commonly ground animal rights in animal interests, and thus naturally gravitate to the interest theory of rights. 47 According to the interest theory, the ultimate purpose of rights is the protection and advancement of some aspect(s) of an individual’s well-being and interests. 48 Legal rights are essentially ‘legally-protected interests’ that are of special importance and concern. 49 With its emphasis on well-being rather than on agency, the interest theory seems more open to the possibility of animal rights from the outset. Indeed, as regards the class of possible right holders, the interest theory does little conceptual filtering beyond requiring that right holders be capable of having interests. 50 Given that, depending on the underlying definition of ‘interest’, this may cover all animals, plants and, according to some, even inanimate objects, the fairly modest and potentially over-inclusive conceptual criterion of ‘having interests’ is typically complemented by the additional, more restrictive moral criterion of ‘having moral status’. 51 Pursuant to this limitation, not just any being capable of having interests can have rights, but only those whose well-being is not merely of instrumental, but of intrinsic or ‘ultimate value’. 52

Accordingly, under the interest theory, two conditions must be met for animals to qualify as potential right holders: (i) animals must have interests, (ii) the protection of which is required not merely for ulterior reasons, but for the animals’ own sake, because their well-being is intrinsically valuable. Now, whether animals are capable of having interests in the sense relevant to having rights and whether they have moral status in the sense of inherent or ultimate value is still subject to debate. For example, some have denied that animals possess interests based on an understanding of interests as wants and desires that require complex cognitive abilities such as having beliefs and language. 53 However, most interest theories opt for a broader understanding of interests in the sense of ‘being in someone’s interest’, meaning that an interest holder can be ‘made better or worse off’ and is able to benefit in some way from protective action. 54 Typically, though not invariably, the capacity for having interests in this broad sense is bound up with sentience—the capacity for conscious and subjective experiences of pain, suffering and pleasure. 55 Thus, most interest theorists quite readily accept (sentient) animals as potential right holders, that is, as the kind of beings that are capable of holding legal rights. 56

More importantly yet for legal purposes, the law already firmly rests on the recognition of (some) animals as beings who possess intrinsically valuable interests. Modern animal welfare legislation cannot be intelligibly explained other than as acknowledging that the animals it protects (i) have morally and legally relevant goods and interests, notably in their welfare, life and physical or mental integrity. 57 Moreover, it rests on an (implicit or explicit) recognition of those animals as (ii) having moral status in the sense of having intrinsic value. The underlying rationale of modern, non-anthropocentric, ethically motivated animal protection laws is the protection of animals qua animals, for their own sake, rather than for instrumental reasons. 58 Some laws go even further by directly referencing the ‘dignity’ or ‘intrinsic value’ of animals. 59

It follows that existing animal welfare laws already treat animals as intrinsically valuable holders of some legally relevant interests—and thus as precisely the sorts of beings who possess the qualities that are, under an interest theory of rights, necessary and sufficient for having rights. This, then, prompts the question whether those very laws do not only conceptually allow for potential animal rights, but might also give rise to actual legal rights for animals.

Notwithstanding that animals could have legal rights conceptually, the predominant doctrinal opinion is that, as a matter of positive law, animals do not have any, at least not in the sense of proper, legally recognised and claimable rights. 60 Yet, there is a certain inclination, especially in Anglo-American parlance, to speak—in a rather vague manner—of ‘animal rights’ as if they already exist under current animal welfare legislation. Such talk of existing animal rights is, however, rarely backed up with further substantiations of the underlying claim that animal welfare laws do in fact confer legal rights on animals. In the following, I will examine whether animals’ existing legal protections may be classified as legal rights and, if so, what kind of rights these constitute. The analysis will show (A) that implicit animal rights (hereinafter referred to as ‘animal welfare rights’) 61 can be extracted from animal welfare laws as correlatives of explicit animal welfare duties, but that this reading remains largely theoretical so far, given that such unwritten animal rights are hardly legally recognised in practice. Moreover, (B) the kind of rights derivable from animal welfare laws are currently at best imperfect and weak rights that do not provide animals with the sort of robust normative protection that is generally associated with legal rights, and typically also expected from legal animal rights qua institutionalised moral animal rights. Finally, (C) the new conceptual categories of ‘ simple animal rights’ and ‘ fundamental animal rights’ are introduced in order to distinguish, and account for the qualitative differences, between such current, imperfect, weak animal rights and potential, ideal, strong animal rights.

A. Extracting ‘Animal Welfare Rights’ from Animal Welfare Laws

(i) the simple argument from correlativity.

Existing animal welfare laws are not framed in the language of rights and do not codify any explicit animal rights. They do, however, impose on people legal duties designed to protect animals—duties that demand some behaviour that is beneficial to the welfare of animals. Some commentators contend that correlative (claim) rights are thereby conferred upon animals as the beneficiaries of such duties. 62 This view is consistent with, and, indeed, the logical conclusion of, an interest-theoretical analysis. 63 Recall that rights are essentially legally protected interests of intrinsically valuable individuals, and that a claim right is the ‘position of normative protectedness that consists in being owed a … legal duty’. 64 Under existing animal welfare laws, some goods of animals are legally protected interests in exactly this sense of ultimately valuable interests that are protected through the imposition of duties on others. However, the inference from existing animal welfare duties to the existence of correlative ‘animal welfare rights’ appears to rely on a somewhat simplistic notion of correlativity, along the lines of ‘where there is a duty there is a right’. 65 Two objections in particular may be raised against the view that beneficial duties imposed by animal welfare laws are sufficient for creating corresponding legal rights in animals.

First, not every kind of duty entails a correlative right. 66 While some duties are of an unspecific and general nature, only relational, directed duties which are owed to rather than merely regarding someone are the correlatives of (claim) rights. Closely related, not everyone who stands to benefit from the performance of another’s duty has a correlative right. According to a standard delimiting criterion, beneficial duties generate rights only in the intended beneficiaries of such duties, that is, those who are supposed to benefit from duties designed to protect their interests. 67 Yet, animal welfare duties, in a contemporary reading, are predominantly understood not as indirect duties regarding animals—duties imposed to protect, for example, an owner’s interest in her animal, public sensibilities or the moral character of humans—but as direct duties owed to the protected animals themselves. 68 Moreover, the constitutive purpose of modern animal welfare laws is to protect animals for their own sake. Animals are therefore clearly beneficiaries in a qualified sense, that is, they are not merely accidental or incidental, but the direct and intended primary beneficiaries of animal welfare duties. 69

Secondly, one may object that an analysis of animal rights as originating from intentionally beneficial duties rests on a conception of rights precisely of the sort which has the stigma of redundancy attached to it. Drawing on Hart, this would appear to cast rights as mere ‘alternative formulation of duties’ and thus ‘no more than a redundant translation of duties … into a terminology of rights’. 70 Admittedly, as MacCormick aptly puts it:

[To] rest an account of claim rights solely on the notion that they exist whenever a legal duty is imposed by a law intended to benefit assignable individuals … is to treat rights as being simply the ‘reflex’ of logically prior duties. 71

One way of responding to this redundancy problem is to reverse the logical order of rights and duties. On this account, rights are not simply created by (and thus logically posterior to) beneficial duties, but rather the converse: such duties are derived from and generated by (logically antecedent) rights. For example, according to Raz, ‘Rights are grounds of duties in others’ and thus justificationally prior to duties. 72 However, if rights are understood not just as existentially correlative, but as justificationally prior to duties, identifying intentionally beneficial animal welfare duties as the source of (logically posterior) animal rights will not suffice. In order to accommodate the view that rights are grounds of duties, the aforementioned argument from correlativity needs to be reconsidered and refined.

(ii) A qualified argument from correlativity

A refined, and reversed, argument from correlativity must show that animal rights are not merely reflexes created by animal welfare duties, but rather the grounds for such duties. In other words, positive animal welfare duties must be plausibly explained as some kind of codified reflection, or visible manifestation, of ‘invisible’ background animal rights that give rise to those duties.

This requires further clarification of the notion of a justificational priority of rights over duties. On the face of it, the idea that rights are somehow antecedent to duties appears to be at odds with the Hohfeldian correlativity axiom, which stipulates an existential nexus of mutual entailment between rights and duties—one cannot exist without the other. 73 Viewed in this light, it seems paradoxical to suggest that rights are causal for the very duties that are simultaneously constitutive of those rights—cause and effect seem to be mutually dependent. Gewirth offers a plausible explanation for this seemingly circular understanding of the relation between rights and duties. He illustrates that the ‘priority of claim rights over duties in the order of justifying purpose or final causality is not antithetical to their being correlative to each other’ by means of an analogy:

Parents are prior to their children in the order of efficient causality, yet the (past or present) existence of parents can be inferred from the existence of children, as well as conversely. Hence, the causal priority of parents to children is compatible with the two groups’ being causally as well as conceptually correlative. The case is similar with rights and duties, except that the ordering relation between them is one of final rather than efficient causality, of justifying purpose rather than bringing-into-existence. 74

Upon closer examination, this point may be specified even further. To stay with the analogy of (biological) 75 parents and their children: it is actually the content of ‘parents’—a male and a female (who at some point procreate together)—that exists prior to and independently of possibly ensuing ‘children’, whereas this content turns into ‘parents’ only in conjunction with ‘children’. That is, the concepts of ‘parents’ and ‘children’ are mutually entailing, whilst, strictly speaking, it is not ‘parents’, but rather that which will later be called ‘parents’ only once the ‘child’ comes into existence—the pre-existing content—which is antecedent to and causal for ‘children’.

Applied to the issue of rights and duties, this means that it is actually the content of a ‘right’—an interest—that exists prior to and independently of, and is (justificationally) causal for the creation of, a ‘duty’, which, in turn, is constitutive of a ‘right’. The distinction between ‘right’ and its content—an interest—allows the pinpointing of the latter as the reason for, and the former as the concomitant correlative of, a duty imposed to protect the pre-existing interest. It may thus be restated, more precisely, that it is not rights, but the protected interests which are grounds of duties. Incidentally, this specification is consistent with Raz’s definition of rights, according to which ‘having a right’ means that an aspect of the right holder’s well-being (her interest) ‘is a sufficient reason for holding some other person(s) to be under a duty’. 76 Now, the enactment of modern animal welfare laws is in and of itself evidence of the fact that some aspects of animals’ well-being (their interests) are—both temporally and justificationally—causal and a sufficient reason for imposing duties on others. Put differently: animal interests are grounds of animal welfare duties , and this, in turn, is conceptually constitutive of animal rights .

In conclusion, existing animal welfare laws could indeed be analysed as comprising unwritten ‘animal welfare rights’ as implicit correlatives of the explicit animal welfare duties imposed on others. The essential feature of legal rules conferring rights is that they specifically aim at protecting individual interests or goods—whether they do so expressis verbis or not is irrelevant. 77 Even so, in order for a right to be an actual (rather than a potential or merely postulated) legal right, it should at least be legally recognised (if not claimable and enforceable), 78 which is determined by the applicable legal rules. In the absence of unequivocal wording, whether a legal norm confers unwritten rights on animals becomes a matter of legal interpretation. While theorists can show that a rights-based approach lies within the bounds of a justifiable interpretation of the law, an actual, valid legal right hardly comes to exist by the mere fact that some theorists claim it exists. For that to happen, it seems instrumental that some public authoritative body, notably a court, recognises it as such. That is, while animals’ existing legal protections may already provide for all the ingredients constitutive of rights, it takes a court to actualise this potential , by authoritatively interpreting those legal rules as constituting rights of animals. However, because courts, with a few exceptions, have not done so thus far, it seems fair to say that unwritten animal rights are not (yet) legally recognised in practice and remain a mostly theoretical possibility for now. 79

B. The Weakness of Current ‘Animal Welfare Rights’

Besides the formal issue of legal recognition, there are substantive reasons for questioning whether the kind of rights extractable from animal welfare laws are really rights at all. This is because current ‘animal welfare rights’ are unusually weak rights that do not afford the sort of strong normative protection that is ordinarily associated with legal rights. 80 Classifying animals’ existing legal protections as ‘rights’ may thus conflict with the deeply held view that, because they protect interests of special importance, legal rights carry special normative force . 81 This quality is expressed in metaphors of rights as ‘trumps’, 82 ‘protective fences’, 83 protective shields or ‘No Trespassing’ signs, 84 or ‘suits of armor’. 85 Rights bestow upon individuals and their important interests a particularly robust kind of legal protection against conflicting individual or collective interests, by singling out ‘those interests that are not to be sacrificed to the utilitarian calculus ’ and ‘whose promotion or protection is to be given qualitative precedence over the social calculus of interests generally’. 86 Current ‘animal welfare rights’, by contrast, provide an atypically weak form of legal protection, notably for two reasons: because they protect interests of secondary importance or because they are easily overridden.

In order to illustrate this, consider the kind of rights that can be extracted from current animal welfare laws. Given that these are the correlatives of existing animal welfare duties, the substance of these rights must mirror the content laid down in the respective legal norms. This extraction method produces, first, a rather odd subgroup of ‘animal welfare rights’ that have a narrow substantive scope protecting highly specific, secondary interests, such as a (relative) right to be slaughtered with prior stunning, 87 an (absolute) right that experiments involving ‘serious injuries that may cause severe pain shall not be carried out without anaesthesia’ 88 or a right of chicks to be killed by fast-acting methods, such as homogenisation or gassing, and to not be stacked on top of each other. 89 The weak and subsidiary character of such rights becomes clearer when placed within the permissive institutional context in which they operate, and when taking into account the more basic interests that are left unprotected. 90 While these rights may protect certain secondary, derivative interests (such as the interest in being killed in a painless manner ), they are simultaneously premised on the permissibility of harming the more primary interests at stake (such as the interest in not being killed at all). Juxtaposed with the preponderance of suffering and killing that is legally allowed in the first place, phrasing the residual legal protections that animals do receive as ‘rights’ may strike us as misleading. 91

But then there is a second subgroup of ‘animal welfare rights’, extractable from general animal welfare provisions, that have a broader scope, protecting more basic, primary interests, such as a right to well-being, life, 92 dignity, 93 to not suffer unnecessarily, 94 or against torture and cruel treatment. 95 Although the object of such rights is of a more fundamental nature, the substantive guarantee of these facially fundamental rights is, to a great extent, eroded by a conspicuously low threshold for permissible infringements. 96 That is, these rights suffer from a lack of normative force, which manifests in their characteristically high infringeability (ie their low resistance to being overridden). Certainly, most rights (whether human or animal) are relative prima facie rights that allow for being balanced against conflicting interests and whose infringement constitutes a violation only when it is not justified, notably in terms of necessity and proportionality. 97 Taking rights seriously does, however, require certain safeguards ensuring that rights are only overridden by sufficiently important considerations whose weight is proportionate to the interests at stake. As pointed out by Waldron, the idea of rights is seized on as a way of resisting, or at least restricting, the sorts of trade-offs that would be acceptable in an unqualified utilitarian calculus, where ‘important individual interests may end up being traded off against considerations which are intrinsically less important’. 98 Yet, this is precisely what happens to animals’ prima facie protected interests, any of which—irrespective of how important or fundamental they are—may enter the utilitarian calculus, where they typically end up being outweighed by human interests that are comparatively less important or even trivial, notably dietary and fashion preferences, economic profitability, recreation or virtually any other conceivable human interest. 99

Any ‘animal welfare rights’ that animals may presently be said to have are thus either of the substantively oddly specific, yet rather secondary, kind or, in the case of more fundamental prima facie rights, such that are highly infringeable and ‘evaporate in the face of consequential considerations’. 100 The remaining question is whether these features render animals’ existing legal protections non-rights or just particularly unfit or weak rights , but rights nonetheless. The answer will depend on whether the quality of special strength, weight or force is considered a conceptually constitutive or merely typical but not essential feature of rights. On the first view, a certain normative force would function as a threshold criterion for determining what counts as a right and for disqualifying those legal protections that may structurally resemble rights but do not meet a minimum weight. 101 On the second view, the normative force of rights would serve as a variable that defines the particular weight of different types of rights on a spectrum from weak to strong. 102 To illustrate the intricacies of drawing a clear line between paradigmatically strong rights, weak rights or non-rights based on this criterion, let us return to the analogy with (biological) ‘parents’. In a minimal sense, the concept of ‘parents’ may be essentially defined as ‘biological creators of a child’. Typically, however, a special role as nurturer and caregiver is associated with the concept of ‘parent’. Now, is someone who merely meets the minimal conceptual criterion (by being the biological creator), but not the basic functions attached to the concept (by not giving care), still a ‘parent’? And, if so, to what extent? Are they a full and proper ‘parent’, or merely an imperfect, dysfunctional form of ‘parent’, a bad ‘parent’, but a ‘parent’ nonetheless? Maybe current animal rights are ‘rights’ in a similar sense as an absent, negligent, indifferent biological mother or father who does not assume the role and responsibilities that go along with parenthood is still a ‘parent’. That is, animals’ current legal protections may meet the minimal conceptual criteria for rights, but they do not perform the characteristic normative function of rights. They are, therefore, at best atypically weak and imperfect rights.

C. The Distinction between Simple and Fundamental Animal Rights

In the light of the aforesaid, if one adopts the view that animals’ existing legal protections constitute legal rights—that is, if one concludes that existing animal welfare laws confer legal rights on animals despite a lack of explicit legal enactment or of any coherent judicial recognition of unwritten animal rights, and that the kind of rights extractable from animal welfare law retain their rights character regardless of how weak they are—then an important qualification needs to be made regarding the nature and limits of such ‘animal welfare rights’. In particular, it must be emphasised that this type of legal animal rights falls short of (i) our ordinary understanding of legal rights as particularly robust protections of important interests and (ii) institutionalising the sort of inviolable, basic moral animal rights (along the lines of human rights) that animal rights theorists typically envisage. 103 It thus seems warranted to separate the kind of imperfect and weak legal rights that animals may be said to have as a matter of positive law from the kind of ideal, 104 proper, strong fundamental rights that animals potentially ought to have as a matter of future law.

In order to denote and account for the qualitative difference between these two types of legal animal rights, and drawing on similar distinctions as regards the rights of individuals under public and international law, 105 I propose to use the conceptual categories of fundamental animal rights and other, simple animal rights. As to the demarcating criteria, we can distinguish between simple and fundamental animal rights based on a combination of two factors: (i) substance (fundamentality or non-fundamentality of the protected interests) and (ii) normative force (degree of infringeability). Accordingly, simple animal rights can be defined as weak legal rights whose substantive content is of a non-fundamental, ancillary character and/or that lack normative force due to their high infringeability. In contradistinction, fundamental animal rights are strong legal rights along the lines of human rights that are characterised by the cumulative features of substantive fundamentality and normative robustness due to their reduced infringeability.

The ‘animal welfare rights’ derivable from current animal welfare laws are simple animal rights. However, it is worth noting that while the first subtype of substantively non-fundamental ‘animal welfare rights’ belongs to this category irrespective of their infringeability, 106 the second subtype of substantively fundamental ‘animal welfare rights’ presently falls in this category purely in respect of their characteristically high infringeability. Yet, the latter is a dynamic and changeable feature, insofar as these rights could be dealt with, in case of conflict, in a manner whereby they would prove to be more robust. In other words, while the simple animal rights of the second subtype currently lack the normative force of legal rights, they do have the potential to become fundamental animal rights. Why animals need such fundamental rights will be explored in the final section.

Beyond the imperfect, weak, simple rights that animals may be said to have based on existing animal welfare laws, a final normative question remains with a view to the future law: whether animals ought to have strong legal rights proper. I will focus on fundamental animal rights—such as the right to life, bodily integrity, liberty and freedom from torture—as these correspond best with the kind of ‘ought to be legal rights’ typically alluded to in animal rights discourse. Given the general appeal of rights language, it is not surprising that among animal advocates there is an overall presumption in favour of basic human rights-like animal rights. 107 However, it is often simply assumed that, rather than elucidated why, legal rights would benefit animals and how this would strengthen their protection. In order to undergird the normative claim that animals should have strong legal rights, the following subsections will look at functional reasons why animals need such rights. 108 I will do so through a non-exhaustive exploration of the potential legal advantages and political utility of fundamental animal rights over animals’ current legal protections (be they animal welfare laws or ‘animal welfare rights’).

A. Procedural Aspect: Standing and Enforceability

Against the backdrop of today’s well-established ‘enforcement gap’ and ‘standing dilemma’, 109 one of the most practical benefits typically associated with, or expected from, legal animal rights is the facilitation of standing for animals in their own right and, closely related, the availability of more efficient mechanisms for the judicial enforcement of animals’ legal protections. 110 This is because legal rights usually include the procedural element of having standing to sue, the right to seek redress and powers of enforcement—which would enable animals (represented by legal guardians) to institute legal proceedings in their own right and to assert injuries of their own. 111 This would also ‘decentralise’ enforcement, that is, it would not be concentrated in the hands (and at the sole discretion) of public authorities, but supplemented by private standing of animals to demand enforcement. Ultimately, such an expanded enforceability could also facilitate incremental legal change by feeding animal rights questions into courts as fora for public deliberation.

However, while standing and enforceability constitute crucial procedural components of any effective legal protection of animals, for present purposes, it should be noted that fundamental animal rights (or any legal animal rights) are—albeit maybe conducive—neither necessary nor sufficient to this end. On the one hand, not all legal rights (eg some socio-economic human rights) are necessarily enforceable. Merely conferring legal rights on animals will therefore, in itself, not guarantee sufficient legal protection from a procedural point of view. Rather, fundamental animal rights must encompass certain procedural rights, such as the right to access to justice, in order to make them effectively enforceable. On the other hand, animals or designated animal advocates could simply be granted standing auxiliary to today’s animal welfare laws, which would certainly contribute towards narrowing the enforcement gap. 112 Yet, standing as such merely offers the purely procedural benefit of being able to legally assert and effectively enforce any given legal protections that animals may have, but has no bearing on the substantive content of those enforceable protections. Given that the issue is not just one of improving the enforcement of animals’ existing legal protections, but also of substantially improving them, standing alone cannot substitute for strong substantive animal rights. Therefore, animals will ultimately need both strong substantive and enforceable rights, which may be best achieved through an interplay of fundamental rights and accompanying procedural guarantees.

B. Substantive Aspect: Stronger Legal Protection for Important Interests

The aforesaid suggests that the critical function of fundamental animal rights is not procedural in nature; rather, it is to substantively improve and fortify the protection of important animal interests. In particular, fundamental animal rights would strengthen the legal protection of animals on three levels: by establishing an abstract equality of arms, by broadening the scope of protection to include more fundamental substantive guarantees and by raising the burden of justification for infringements.

First of all, fundamental animal rights would create the structural preconditions for a level playing field where human and animal interests are both reinforced by equivalent rights, and can thus collide on equal terms. Generally speaking, not all legally recognised interests count equally when balanced against each other, and rights-empowered interests typically take precedence over or are accorded more weight than unqualified competing interests. 113 At present, the structural makeup of the balancing process governing human–animal conflicts is predisposed towards a prioritisation of human over animal interests. Whereas human interests are buttressed by strong, often fundamental rights (such as economic, religious or property rights), the interests at stake on the animal side, if legally protected at all, enter the utilitarian calculus as unqualified interests that are merely shielded by simple animal welfare laws, or simple rights that evaporate quickly in situations of conflict and do not compare to the sorts of strong rights that reinforce contrary human interests. 114 In order to achieve some form of abstract equality of arms, animals’ interests need to be shielded by strong legal rights that are a match to humans’ rights. Fundamental animal rights would correct this structural imbalance and set the stage for an equal consideration of interests that is not a priori biased in favour of humans’ rights.

Furthermore, as defined above, fundamental animal rights are characterised by both their substantive fundamentality and normative force, and would thus strengthen animals’ legal protection in two crucial respects. On a substantive level , fundamental animal rights are grounded in especially important, fundamental interests. Compared to substantively non-fundamental simple animal rights, which provide for narrow substantive guarantees that protect secondary interests, fundamental animal rights would expand the scope of protection to cover a wider array of basic and primary interests. As a result, harming fundamentally important interests of animals—while readily permissible today insofar as such interests are often not legally protected in the first place 115 —would trigger a justification requirement that initially allows those animal interests to enter into a balancing process. For even with fundamental animal rights in play, conflicts between human and animal interests will inevitably continue to exist—albeit at the elevated and abstractly equal level of conflicts of rights—and therefore require some sort of balancing mechanism. 116

On this justificatory level , fundamental animal rights would then demand a special kind and higher burden of justification for infringements. 117 As demonstrated above, substantively fundamental yet highly infringeable simple animal rights are marked by a conspicuously low threshold for justifiable infringements, and are regularly outweighed by inferior or even trivial human interests. By contrast, the normative force of fundamental animal rights rests on their ability to raise the ‘level of the minimally sufficient justification’. 118 Modelling these more stringent justification requirements on established principles of fundamental (human) rights adjudication, this would, first, limit the sorts of considerations that constitute a ‘legitimate aim’ which can be balanced against fundamental animal rights. Furthermore, the balancing process must encompass a strict proportionality analysis, comprised of the elements of suitability, necessity and proportionality stricto sensu , which would preclude the bulk of the sorts of low-level justifications that are currently sufficient. 119 This heightened threshold for justifiable infringements, in turn, translates into a decreased infringeability of fundamental animal rights and an increased immunisation of animals’ prima facie protected interests against being overridden by conflicting considerations and interests of lesser importance.

Overall, considering this three-layered strengthening of the legal protection of animals’ important interests, fundamental animal rights are likely to set robust limits to the violability and disposability of animals as means to human ends, and to insulate animals from many of the unnecessary and disproportionate inflictions of harm that are presently allowed by law.

C. Fallback Function: The Role of Rights in Non-ideal Societies

Because contemporary human–animal interactions are, for the most part, detrimental to animals, the latter appear to be in particular need of robust legal protections against humans and society. 120 Legal rights, as strong (but not impenetrable) shields, provide an instrument well suited for this task, as they operate in a way that singles out and protects important individual goods against others and the political community as a whole. For this reason, rights are generally considered an important counter-majoritarian institution, but have also been criticised for their overly individualistic, antagonistic and anti-communitarian framing. 121 Certainly, it may be debated whether there is a place for the institution of rights in an ideal society—after all, rights are not decrees of nature, but human inventions that are historically and socially contingent. 122 However, rights are often born from imperfect social conditions, as a ‘response to a failure of social responsibility’ 123 and as corrections of experiences of injustice, or, as Dershowitz puts it: ‘ rights come from wrongs ’. 124 Historical experience suggests that, at least in non-ideal societies, there is a practical need for rights as a safety net—a ‘position of fall-back and security’ 125 —that guarantees individuals a minimum degree of protection, in case or because other, less coercive social or moral mechanisms fail to do so.

Yet, as Edmundson rightly points out, this view of rights as backup guarantees does not quite capture the particular need for rights in the case of animals. 126 It is premised on the existence of a functioning overall social structure that can in some cases, and maybe in the ideal case, substitute for rights. However, unlike many humans, most animals are not embedded in a web of caring, affectionate, benevolent relations with humans to begin with, but rather are caught up in a system of exploitative, instrumental and harmful relations. For the vast majority of animals, it is not enough to say that rights would serve them as fallbacks, because there is nowhere to fall from—by default, animals are already at (or near) the bottom. Accordingly, the concrete need for rights may be more acute in the case of animals, as their function is not merely to complement, but rather to compensate for social and moral responsibility, which is lacking in the first place. 127 To give a (somewhat exaggerated) example: from the perspective of a critical legal scholar, meta-theorising from his office in the ivory tower, it may seem easier, and even desirable, to intellectually dispense with the abstract notion of rights, whereas for an elephant who is actually hunted down for his ivory tusks, concrete rights may make a very real difference, literally between life and death. Therefore, under the prevailing social conditions, animals need a set of basic rights as a primary ‘pull-up’ rather than as a subsidiary backup—that is, as compensatory baseline guarantees rather than as complementary background guarantees.

D. Transformative Function: Rights as ‘Bridges’ between Non-ideal Realities and Normative Ideals

Notwithstanding that animals need fundamental rights, we should not fail to recognise that even the minimum standards such rights are designed to establish and safeguard seem highly ambitious and hardly politically feasible at present. Even a rudimentary protection of fundamental animal rights would require far-ranging changes in our treatment of animals, and may ultimately rule out ‘virtually all existing practices of the animal-use industries’. 128 Considering how deeply the instrumental and inherently harmful use of animals is woven into the economic and cultural fabric of contemporary societies, and how pervasive animal cruelty is on both an individual and a collective level, the implications of fundamental animal rights indeed seem far removed from present social practices. 129 This chasm between normative aspirations and the deeply imperfect empirical realities they collide with is not, however, a problem unique to fundamental animal rights; rather, it is generally in the nature of fundamental rights—human or animal—to postulate normative goals that remain, to some extent, aspirational and unattainable. 130 Aspirational rights express commitments to ideals that, even if they may not be fully realisable at the time of their formal recognition, act as a continuous reminder and impulse that stimulates social and legal change towards a more expansive implementation. 131 In a similar vein, Bilchitz understands fundamental rights as moral ideals that create the pressure for legal institutionalisation and as ‘bridging concepts’ that facilitate the transition from past and present imperfect social realities towards more just societies. 132

This, then, provides a useful lens for thinking about the aspirational nature and transformative function of fundamental animal rights. Surely, the mere formal recognition of fundamental animal rights will not, by any realistic measure, bring about an instant practical achievement of the ultimate goal of ‘abolishing exploitation and liberating animals from enslavement’. 133 They do, however, create the legal infrastructure for moving from a non-ideal reality towards more ideal social conditions in which animal rights can be respected. For example, a strong animal right to life would (at least in industrialised societies) preclude most forms of killing animals for food, and would thus certainly conflict with the entrenched practice of eating meat. Yet, while the current social normality of eating animals may make an immediate prohibition of meat production and consumption unrealistic, it is also precisely the reason why animals need a right to life (ie a right not to be eaten), as fundamental rights help to denormalise (formerly) accepted social practices and to establish, internalise and habituate normative boundaries. 134 Moreover, due to their dynamic nature, fundamental rights can generate successive waves of more stringent and expansive duties over time. 135 Drawing on Bilchitz, the established concept of ‘progressive realisation’ (originally developed in the context of socio-economic human rights) may offer a helpful legal framework for the gradual practical implementation of animal rights. Accordingly, each fundamental animal right could be seen as comprising a minimum core that has to be ensured immediately, coupled with a general prohibition of retrogressive measures , and an obligation to progressively move towards a fuller realisation . 136 Therefore, even if fundamental animal rights may currently not be fully realisable, the very act of introducing them into law and committing to them as normative ideals places animals on the ‘legal map’ 137 and will provide a powerful generative basis—a starting point rather than an endpoint 138 —from which a dynamic process towards their more expansive realisation can unfold.

The question of animal rights has been of long-standing moral concern. More recently, the matter of institutionalising moral animal rights has come to the fore, and attaining legal rights for animals has become an important practical goal of animal advocates. This article started out from the prefatory observation that the process of juridification may already be in its early stages, as judicially recognised animal rights are beginning to emerge from both animal welfare law and human rights law. With legal animal rights on the horizon, the analysis set out to systematically address the arising conceptual, doctrinal and normative issues, in order to provide a theoretical underpinning for this legal development. The article showed that the idea of legal animal rights has a sound basis in both legal theory as well as in existing law. That is, legal animal rights are both conceptually possible and already derivable from current animal welfare laws. However, the analysis has also revealed that the ‘animal welfare rights’ which animals may be said to have as a matter of positive law fall short of providing the sort of strong normative protection that is typically associated with legal rights and that is furthermore expected from legal animal rights qua institutionalised moral animal rights. This discrepancy gave rise to a new conceptual distinction between two types of legal animal rights: simple and fundamental animal rights.

While the umbrella term ‘animal rights’ is often used loosely to refer to a wide range of legal protections that the law may grant to animals, distinguishing between simple and fundamental animal rights helps to unveil important differences between what we may currently call ‘legal animal rights’ based on existing animal welfare laws, which are weak legal rights at best, and the kind of strong, fundamental legal rights that animals should have as a matter of future law. This distinction is further conducive to curbing the trivialisation of the language of animal rights, as it allows us to preserve the normative force of fundamental animal rights by separating out weaker rights and classifying them as other, simple animal rights. Lastly, it is interesting to note that, with courts deriving legal animal rights from both animal welfare law and from constitutional, fundamental or human rights law, first prototypes of simple and fundamental animal rights are already discernible in emerging case law. Whereas Christopher Stone once noted that ‘each successive extension of rights to some new entity has been … a bit unthinkable’ throughout legal history, 139 the findings of this article suggest that we may presently be witnessing a new generation of legal rights in the making—legal animal rights, simple and fundamental.

This article is the first part of my postdoctoral research project ‘Trilogy on a Legal Theory of Animal Rights’, funded by the Swiss National Science Foundation. For helpful comments on earlier versions of this article, I am indebted to William Edmundson, Raffael Fasel, Chris Green, Christoph Krenn, Visa Kurki, Will Kymlicka, Nico Müller, Anne Peters, Kristen Stilt, MH Tse, Steven White, Derek Williams and the anonymous reviewers for the Oxford Journal of Legal Studies.

Seminally, Tom Regan, The Case for Animal Rights (University of California Press 1983); Sue Donaldson and Will Kymlicka, Zoopolis: A Political Theory of Animal Rights (OUP 2011).

See, notably, Matthew H Kramer, ‘Do Animals and Dead People Have Legal Rights?’ (2001) 14 CJLJ 29; Tom L Beauchamp, ‘Rights Theory and Animal Rights’ in Tom L Beauchamp and RG Frey (eds), The Oxford Handbook of Animal Ethics (OUP 2011); William A Edmundson, ‘Do Animals Need Rights?’ (2015) 23 Journal of Political Philosophy 345; Gary L Francione, Animals, Property, and the Law (first printed 1995, Temple UP 2007) 91ff; Steven M Wise, ‘Hardly a Revolution—The Eligibility of Nonhuman Animals for Dignity-Rights in a Liberal Democracy’ (1998) 22 Vt L Rev 793; Anne Peters, ‘Liberté, Égalité, Animalité: Human-Animal Comparisons in Law’ (2016) 5 TEL 25; Thomas G Kelch, ‘The Role of the Rational and the Emotive in a Theory of Animal Rights’ (1999) 27 BC Envtl Aff L Rev 1.

Much legal scholarship deals with animal rights in a rather cursory and incidental manner, because it typically focusses on parallel debates that are closely related to, but seen as preceding, the issue of rights. For example, much has been written about the systemic shortcomings of animal welfare legislation, which—within the entrenched animal welfare/rights-dualism—has served to undergird calls for shifting towards a rights -paradigm for legal protection of animals. Another focal point of legal scholars has been to change the legal status of animals from property to person , which is taken to be a prerequisite for right holding. Yet, even though legal rights for animals may be the ultimate goal informing these debates, surprisingly little detailed attention has been given to such envisaged legal animal rights per se.

Joel Feinberg, Social Philosophy (Prentice-Hall 1973) 67.

See eg Alasdair Cochrane, Animal Rights Without Liberation: Applied Ethics and Human Obligations (Columbia UP 2012) 14–15, 207 (whose ‘account of the moral rights of animals … proposes what the legal rights of animals ought to be ’); cf Joel Feinberg, ‘In Defence of Moral Rights’ (1992) 12 OJLS 149 (describing this indirect way of referencing legal rights as the ‘“There ought to be a law” theory of moral rights’, 156).

As noted by Favre, what is required is ‘that the legal system intervene when personal morals or ethics do not adequately protect animals from human abuse’. David Favre, ‘Integrating Animal Interests into Our Legal System’ (2004) 10 Animal Law Review 87, 88.

Even though moral and legal rights are intimately connected (see HLA Hart, ‘Are There Any Natural Rights?’ (1955) 64 Philosophical Review 175, 177), a somewhat distinct (or at least modified and refined) theorisation is warranted because, unlike moral animal rights, legal animal rights are constituted by legal systems, and their existence and scope have to be determined based on the applicable legal rules. As Wise puts it: ‘philosophers argue moral rights; judges decide legal rights’. Steven M Wise, Drawing the Line: Science and the Case for Animal Rights (Perseus 2002) 34.

Supreme Court of India 7 May 2014, civil appeal no 5387 of 2014 [27] [56] [62ff]; see further Kerala High Court 6 June 2000, AIR 2000 KER 340 (expressing the opinion that ‘legal rights shall not be the exclusive preserve of the humans’, [13]); Delhi High Court 15 May 2015, CRL MC no 2051/2015 [3] [5] (recognizing birds’ ‘fundamental rights to fly in the sky’).

Tercer Juzgado de Garantías de Mendoza 3 November 2016, Expte Nro P-72.254/15; this landmark decision was preceded by an obiter dictum in Cámara Federal de Casación Penal Buenos Aires, 18 December 2014, SAIJ NV9953 [2] (expressing the view that animals are right holders and should be recognized as legal subjects).

Corte Suprema de Justicia 26 July 2017, AHC4806-2017 (MP: Luis Armando Tolosa Villabona). This ruling was later reversed in Corte Suprema de Justicia 16 August 2017, STL12651-2017 (MP: Fernando Castillo Cadena). In January 2020, the Constitutional Court of Colombia decided against granting habeas corpus to the animal in question.

Similar habeas corpus claims on behalf of chimpanzees and elephants, brought by the Nonhuman Rights Project, have not been accepted by US courts. See, notably, Tommy v Lavery NY App Div 4 December 2014, Case No 518336.

On the ambiguity of the term ‘animal rights’, see eg Will Kymlicka and Sue Donaldson, ‘Rights’ in Lori Gruen (ed), Critical Terms for Animal Studies (University of Chicago Press 2018) 320; in using the umbrella term ‘animal rights’ without further specifications, it is often left unclear what exactly is meant by ‘rights’. For example, the term may refer to either moral or legal animal rights—or both. Furthermore, in a broad sense, ‘animal rights’ sometimes refers to any kind of normative protection for animals, whereas in a narrow sense, it is often reserved for particularly important and inviolable, human rights-like animal rights. Moreover, some speak of ‘animal rights’ as if they already existed as a matter of positive law, while others use the same term in a ‘manifesto sense’, to refer to potential, ideal rights.

Joel Feinberg, ‘Human Duties and Animal Rights’ in Clare Palmer (ed), Animal Rights (Routledge 2008) 409; the class of potential right holders comprises ‘any being that is capable of holding legal rights, whether or not he/she/it actually holds such rights’. Kramer, ‘Do Animals and Dead People Have Legal Rights?’ (n 2) 29.

See generally Alon Harel, ‘Theories of Rights’ in Martin P Golding and William A Edmundson (eds), Philosophy of Law and Legal Theory (Blackwell 2005) 191ff.

Wesley Newcomb Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale LJ 16; Wesley Newcomb Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26 Yale LJ 710.

See Hohfeld, ‘Fundamental Legal Conceptions’ (n 15) 717; these Hohfeldian incidents of rights are merely ‘atomic’ units, whereas many common rights are complex aggregates, clusters or ‘molecular rights’ consisting of combinations thereof. ibid 746; Leif Wenar, ‘The Nature of Rights’ (2005) 33 Philosophy & Public Affairs 223, 225, 234.

First-order rights (claims and liberties) directly concern someone’s actual rather than normative conduct, whereas powers and immunities are second-order rights (‘meta-rights’) that concern other legal relations; by prioritising, for the sake of this analysis, first-order rights regarding (in)actions of and towards animals, this is not to say that second-order rights are not important to accompany and bolster the first-order rights of animals. For instance, just as many complex (eg fundamental) rights contain immunities, that is, the freedom from the legal power of another (the disability bearer) to change the immunity holder’s rights, animals’ claims and liberties may be bolstered by immunity rights that protect those first-order rights from being altered, notably voided, by others. For example, one of the most basic rights frequently discussed for animals, the ‘right not to be property’ (Gary L Francione, Introduction to Animal Rights: Your Child or the Dog? (first printed 2000, Temple UP 2007) 93ff), may be explained as an immunity that would strip away the legal powers that currently go along with the state of legal disposability entailed by animals’ property status, and would thus disable human ‘owners’ to decide over animals’ rights. As passive rights, immunities are quite easily conceivable as animal rights, because they are specified by reference to the correlative position, that is, by what the person disabled by the animal’s immunity right cannot legally do (see generally Matthew H Kramer, ‘Rights Without Trimmings’ in Matthew H Kramer, NE Simmonds and Hillel Steiner, A Debate Over Rights: Philosophical Enquiries (OUP 1998) 22). By contrast, a power refers to one’s control over a given legal relation and entails one’s normative ability to alter another’s legal position (see Hohfeld, ‘Some Fundamental Legal Conceptions’ (n 15) 55). Prima facie , powers may thus seem ill-suited for animals. This is because, unlike passive second-order rights (immunities), powers are active rights that have to be exercised rather than merely enjoyed and, unlike first-order active rights (liberties), powers concern the exercise of legal rather than factual actions and thus require legal rather than mere practical or behavioural agency. Notwithstanding, it may be argued that animals, not unlike children, could hold legal powers (eg powers of enforcement) that are exercisable through human proxies (cf Visa AJ Kurki, ‘Legal Competence and Legal Power’ in Mark McBride (ed), New Essays on the Nature of Rights (Hart Publishing 2017) 46).

For a discussion of Hohfeldian theory in the context of animal rights, see also Wise, ‘Hardly a Revolution’ (n 2) 799ff; Francione, Animals, Property, and the Law (n 2) 96–7; Kelch, ‘The Role of the Rational’ (n 2) 6ff.

Joel Feinberg, ‘The Rights of Animals and Unborn Generations’ in Joel Feinberg, Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton UP 1980) 159; Hohfeld, ‘Some Fundamental Legal Conceptions’ (n 15) 55.

So far, animal rights theory has largely focussed on negative rights. See critically Donaldson and Kymlicka (n 1) 5ff, 49ff.

cf Wenar, ‘The Nature of Rights’ (n 16) 233.

See Hohfeld, ‘Some Fundamental Legal Conceptions’ (n 15) 55; Kramer, ‘Rights Without Trimmings’ (n 17) 10.

See eg Feinberg, ‘The Rights of Animals and Unborn Generations’ (n 19) 162; but see Kramer, ‘Do Animals and Dead People Have Legal Rights?’ (n 2) 41–2 (arguing that it would not be impossible, though ‘cruel and perhaps silly’, to impose legal duties on animals).

A ‘liberty’ is the negation of ‘duty’ and may thus be redescribed as ‘no-duty’.

On the distinction between naked and vested liberties, see HLA Hart, ‘Legal Rights’ in HLA Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (OUP 1982) 172.

Hart, ‘Legal Rights’ (n 25) 171, 173.

Hart, ‘Legal Rights’ (n 25) 171.

eg Richard L Cupp, ‘Children, Chimps, and Rights: Arguments from “Marginal” Cases’ (2013) 45 Ariz St LJ 1; see also Christine M Korsgaard, Fellow Creatures: Our Obligations to the Other Animals (OUP 2018) 116ff.

See David Lyons, ‘Rights, Claimants, and Beneficiaries’ (1969) 6 American Philosophical Quarterly 173, 173–4.

Kramer, ‘Do Animals and Dead People Have Legal Rights?’ (n 2) 42.

In this vein, Tommy v Lavery NY App Div 4 December 2014, Case No 518336, p 4, 6; but see critically New York Court of Appeals, Tommy v Lavery and Kiko v Presti decision of 8 May 2018, motion no 2018-268, concurring opinion Judge Fahey.

For example, the Supreme Court of Colombia explicitly departed from this reciprocity paradigm and held that animals are right holders but not duty bearers. Corte Suprema de Justicia 26 July 2017, AHC4806-2017 (MP: Luis Armando Tolosa Villabona), 14ff; for a refutation of the contractarian reciprocity argument, see also Brief for Philosophers as Amici Curiae Supporting Petitioner-Appellant, Nonhuman Rights Project v Lavery 2018 NY Slip Op 03309 (2018) (Nos 162358/15 and 150149/16), 14ff.

See Peters (n 2) 45–6; David Bilchitz, ‘Moving Beyond Arbitrariness: The Legal Personhood and Dignity of Non-Human Animals’ (2009) 25 SAJHR 38, 42–3; Feinberg, ‘The Rights of Animals and Unborn Generations’ (n 19) 163; but see Tommy v Lavery NY App Div 4 December 2014, Case No 518336, 5.

Leif Wenar, ‘The Nature of Claim Rights’ (2013) 123 Ethics 202, 207.

See Kramer, ‘Do Animals and Dead People Have Legal Rights?’ (n 2) 43.

See Kelch, ‘The Role of the Rational’ (n 2) 9.

For an overview, see generally Matthew H Kramer, NE Simmonds and Hillel Steiner, A Debate Over Rights: Philosophical Enquiries (OUP 1998).

Hart, ‘Legal Rights’ (n 25) 183, 188–9.

See Kramer, ‘Do Animals and Dead People Have Legal Rights?’ (n 2) 30; Hart, ‘Legal Rights’ (n 25) 185.

A problematic corollary of the will theory is its conceptual awkwardness, or inability, to accommodate as right holders not just non-human but also human non-agents, such as infants and the mentally incapacitated. As noted by Hart, ‘Are There Any Natural Rights?’ (n 7) 181, the will conception of rights ‘should incline us not to extend to animals and babies … the notion of a right’; see also Kramer, ‘Rights Without Trimmings’ (n 17) 69.

As pointed out by van Duffel, neither the will theory nor the interest theory may be a ‘plausible candidate for a comprehensive theory of rights’, and it may be best to assume that both theories simply attempt to capture the essence of different kinds of rights. See Siegfried van Duffel, ‘The Nature of Rights Debate Rests on a Mistake’ (2012) 93 Pacific Philosophical Quarterly 104, 105, 117 et passim .

Under the will theory, inalienable rights are not ‘rights’ by definition, as they precisely preclude the right holder’s power to waive the correlative duties. See DN MacCormick, ‘Rights in Legislation’ in PMS Hacker and J Raz (eds), Law, Morality, and Society: Essays in Honour of HLA Hart (OUP 1977) 198f; Kramer, ‘Rights Without Trimmings’ (n 17) 73.

The will theory is primarily modelled on active rights (liberties and powers) that directly facilitate individual autonomy and choice, but is less conclusive with regard to passive rights (claims and immunities) which do not involve any action or exercise of choice by the right holder herself. cf Harel (n 14) 194–5.

Hart, ‘Legal Rights’ (n 25) 190, conceded that the will theory does not provide a sufficient analysis of constitutionally guaranteed fundamental rights; legal animal rights, by contrast, are most intelligibly explained as public-law rights held primarily against the state which has correlative duties to respect and protect.

The will theory appears to limit the purpose of rights protection to a narrow aspect of human nature—the active, engaging and self-determining side—while ignoring the passive, vulnerable and needy side. Autonomy is certainly an important good deserving of normative protection, but it is hardly the only such good. See Jeremy Waldron, ‘Introduction’ in Jeremy Waldron (ed), Theories of Rights (OUP 1984) 11; MacCormick, ‘Rights in Legislation’ (n 43) 197, 208.

See Kelch, ‘The Role of the Rational’ (n 2) 10ff; for an interest-based approach to animal rights, see eg Feinberg, ‘The Rights of Animals and Unborn Generations’ (n 19); Cochrane (n 5) 19ff.

Kramer, ‘Do Animals and Dead People Have Legal Rights?’ (n 2) 29; MacCormick, ‘Rights in Legislation’ (n 43) 192.

J Raz, ‘Legal Rights’ (1984) 4 OJLS 1, 12; Waldron, ‘Introduction’ (n 46) 12, 14.

See William A Edmundson, An Introduction to Rights (2nd edn, CUP 2012) 97; Joseph Raz, The Morality of Freedom (Clarendon Press 1986) 176; Feinberg, ‘The Rights of Animals and Unborn Generations’ (n 19) 167.

See Kramer, ‘Do Animals and Dead People Have Legal Rights?’ (n 2) 33ff, 39.

Raz, The Morality of Freedom (n 50) 166, 177ff; see also Neil MacCormick, ‘Children’s Rights: A Test-Case for Theories of Right’ in Neil MacCormick, Legal Right and Social Democracy: Essays in Legal and Political Philosophy (OUP 1982) 159–60.

See RG Frey, Interests and Rights: The Case Against Animals (OUP 1980) 78ff; HJ McCloskey, ‘Rights’ (1965) 15 The Philosophical Quarterly 115, 126; but see Tom Regan, ‘McCloskey on Why Animals Cannot Have Rights’ (1976) 26 The Philosophical Quarterly 251.

Harel (n 14) 195; Kramer, ‘Do Animals and Dead People Have Legal Rights?’ (n 2) 33.

See eg Feinberg, ‘The Rights of Animals and Unborn Generations’ (n 19) 166; Kramer, ‘Do Animals and Dead People Have Legal Rights?’ (n 2) 39–40; Visa AJ Kurki, ‘Why Things Can Hold Rights: Reconceptualizing the Legal Person’ in Visa AJ Kurki and Tomasz Pietrzykowski (eds), Legal Personhood: Animals, Artificial Intelligence and the Unborn (Springer 2017) 79–80.

See eg Wenar, ‘The Nature of Claim Rights’ (n 35) 207, 227; Kramer, ‘Do Animals and Dead People Have Legal Rights?’ (n 2) 54; Feinberg, ‘The Rights of Animals and Unborn Generations’ (n 19) 166.

See also Kurki, ‘Why Things Can Hold Rights’ (n 55) 80.

See Thomas G Kelch, ‘A Short History of (Mostly) Western Animal Law: Part II’ (2013) 19 Animal Law Review 347, 348ff; Bilchitz, ‘Moving Beyond Arbitrariness’ (n 34) 44ff; in this vein, the Constitutional Court of South Africa (8 December 2016, CCT 1/16 [57]) noted that ‘the rationale behind protecting animal welfare has shifted from merely safeguarding the moral status of humans to placing intrinsic value on animals as individuals ’ (emphasis added); the well-established German concept of ‘ethischer Tierschutz’ expresses this non-anthropocentric, ethical thrust of animal welfare law. See Margot Michel, ‘Law and Animals: An Introduction to Current European Animal Protection Legislation’ in Anne Peters, Saskia Stucki and Livia Boscardin (eds), Animal Law: Reform or Revolution? (Schulthess 2015) 91–2.

1999 Federal Constitution (Bundesverfassung) (CH), Article 120(2) and 2005 Animal Welfare Act (Tierschutzgesetz) (CH), Article 1 and 3(a); 2010 Animal Welfare Act (Tierschutzgesetz) (LI), Article 1; 2018 Animal Welfare Act (Loi sur la protection des animaux) (LU), Article 1; 1977 Experiments on Animals Act (Wet op de dierproeven) (NL), Article 1a; European Parliament and Council Directive 2010/63/EU of 22 September 2010 on the protection of animals used for scientific purposes [2010] OJ L276/33, Recital 12.

See eg Steven M Wise, ‘Legal Rights for Nonhuman Animals: The Case for Chimpanzees and Bonobos’ (1996) 2 Animal Law Review 179, 179; Richard A Epstein, ‘Animals as Objects, or Subjects, of Rights’ in Cass R Sunstein and Martha C Nussbaum (eds), Animal Rights: Current Debates and New Directions (OUP 2005) 144ff; Francione, Animals, Property, and the Law (n 2) 91ff; Kelch, ‘The Role of the Rational’ (n 2) 18; Court of Appeal of Alberta, Reece v Edmonton (City) , 2011 ABCA 238 [6]; Herrmann v Germany App no 9300/07 (ECtHR, 26 June 2012), separate opinion of Judge Pinto de Albuquerque, 38; Noah v Attorney General HCJ 9232/01 [2002–2003] IsrLR 215, 225, 232, 253.

This type of current legal animal rights will be called ‘animal welfare rights’ in order to indicate their origin in current animal welfare laws.

See eg Cass R Sunstein, ‘Standing for Animals (with Notes on Animal Rights)’ (2000) 47 UCLA Law Review 1333 (claiming that current animal welfare law creates ‘a robust set of animal rights’ or even ‘an incipient bill of rights for animals’. ibid 1334, 1336); Bilchitz, ‘Moving Beyond Arbitrariness’ (n 34) 43ff, 48–9 (concluding that ‘the existing statutory framework can already be seen to confer certain legal rights upon animals’: 50 fn 61); Jerrold Tannenbaum, ‘Animals and the Law: Property, Cruelty, Rights’ (1995) 62 Social Research 539, 581; Beauchamp (n 2) 207; Wise, ‘Hardly a Revolution’ (n 2) 910ff; this view was endorsed by the Supreme Court of India 7 May 2014, civil appeal no 5387 of 2014 [27] (stating that the Prevention of Cruelty to Animals Act ‘deals with duties of persons having charge of animals, which is mandatory in nature and hence confer corresponding rights on animals’).

See eg Joel Feinberg, ‘Human Duties and Animal Rights’ in Feinberg, Rights, Justice, and the Bounds of Liberty (n 19) 193–4 et passim ; Kramer, ‘Do Animals and Dead People Have Legal Rights?’ (n 2) 54; Wenar, ‘The Nature of Claim Rights’ (n 35) 218, 220; Visa AJ Kurki, A Theory of Legal Personhood (OUP 2019) 62–5.

Matthew H Kramer, ‘Legal and Moral Obligation’ in Martin P Golding and William A Edmundson (eds), The Blackwell Guide to the Philosophy of Law and Legal Theory (Blackwell 2005) 188.

eg, for Sunstein correlativity seems to run both ways: ‘Not only do rights create duties, but the imposition of a duty also serves to create a right.’ Cass R Sunstein, ‘Rights and Their Critics’ (1995) 70 Notre Dame L Rev 727, 746.

On this objection, see also Kelch, ‘The Role of the Rational’ (n 2) 8–9.

See Lyons (n 29) 176; Waldron, ‘Introduction’ (n 46) 10; critically Kramer, ‘Rights Without Trimmings’ (n 17) 85ff; Visa AJ Kurki, ‘Rights, Harming and Wronging: A Restatement of the Interest Theory’ (2018) 38 OJLS 430, 436ff.

See eg Beauchamp (n 2) 207; Feinberg, ‘The Rights of Animals and Unborn Generations’ (n 19) 161–2, 166; Bilchitz, ‘Moving Beyond Arbitrariness’ (n 34) 45–6; in this vein, a German high court held that, based on the criminal law justification of necessity (‘rechtfertigender Notstand’), private persons may be authorised to defend the legally protected goods of animals on behalf of the animals, independently of or even against the interests of their owners. OLG Naumburg, judgment of 22 February 2018, case no 2 Rv 157/17, recital II; on why animals need directed rather than indirect duties, see Edmundson, ‘Do Animals Need Rights?’ (n 2) 350ff.

See also Francione, Animals, Property, and the Law (n 2) 100.

Hart, ‘Legal Rights’ (n 25) 181–2, 190.

MacCormick, ‘Rights in Legislation’ (n 43) 199.

Raz, The Morality of Freedom (n 50) 167, 170f; see also Alan Gewirth, ‘Introduction’ in Alan Gewirth, Human Rights: Essays on Justification and Applications (University of Chicago Press 1982) 14.

See Kramer, ‘Rights Without Trimmings’ (n 17) 40.

Gewirth (n 72) 14.

For the sake of the argument, I am only referring to biological parents.

Raz, The Morality of Freedom (n 50) 166, 180–1.

See MacCormick, ‘Rights in Legislation’ (n 43) 191–2; Raz, ‘Legal Rights’ (n 49) 13–14.

According to some scholars, legal rights exist only when they are enforceable. See eg Ronald Dworkin, Justice for Hedgehogs (Harvard UP 2011) 405–6 (stating that legal rights are only those that the right holder is entitled to enforce on demand in directly available adjudicative processes).

A significant practical hurdle to the legal recognition of animal rights is that in virtually any legal order, animals are legal objects rather than legal persons. Because legal personhood and right holding are generally thought to be inextricably linked, many jurists refrain from calling the existing legal protections of animals ‘rights’. See critically Kurki, ‘Why Things Can Hold Rights’ (n 55) 71, 85–6.

See generally Francione, Animals, Property, and the Law (n 2) 91ff.

On this, see Kai Möller, ‘Proportionality and Rights Inflation’ in Grant Huscroft, Bradley W Miller and Grégoire Webber, Proportionality and the Rule of Law: Rights, Justification, Reasoning (CUP 2014) 166; Harel (n 14) 197ff; Waldron, ‘Introduction’ (n 46) 14ff.

Ronald Dworkin, ‘Rights as Trumps’ in Waldron, Theories of Rights (n 46) 153.

Bernard E Rollin, ‘The Legal and Moral Bases of Animal Rights’ in HB Miller and WH Willliams (eds), Ethics and Animals (Humana Press 1983) 106.

Tom Regan, ‘The Day May Come: Legal Rights for Animals’ (2004) 10 Animal Law Review 11, 15–16.

Frederick Schauer, ‘A Comment on the Structure of Rights’ (1993) 27 Ga L Rev 415, 429 et passim .

Jeremy Waldron, ‘Rights in Conflict’ in Jeremy Waldron, Liberal Rights: Collected Papers 1981–1991 (CUP 1993) 209, 215–16 (emphasis added); see also Frederick Schauer, ‘Rights, Constitutions and the Perils of Panglossianism’ (2018) 38 OJLS 635, 637.

Correlative to Council Regulation (EC) 1099/2009 of 24 September 2009 on the protection of animals at the time of killing [2009] OJ L303/1, Article 4 and Annex I.

Correlative to European Parliament and Council Directive 2010/63/EU of 22 September 2010 on the protection of animals used for scientific purposes [2010] OJ L276/33, Article 14(1)(2).

Correlative to 2008 Animal Welfare Ordinance (Tierschutzverordnung) (CH), Article 178a(3).

The permissive character of animal welfare law was highlighted by the Israeli High Court of Justice in a case concerning the force-feeding of geese. Commenting on the ‘problematic’ regulatory language, it noted that the stated ‘purpose of the Regulations is “to prevent the geese’s suffering.” Clearly these regulations do not prevent suffering; at best they minimize, to some extent, the suffering caused’. Noah v Attorney General (n 60) 234–5. See also Shai Lavi, ‘Humane Killing and the Ethics of the Secular: Regulating the Death Penalty, Euthanasia, and Animal Slaughter’ (2014) 4 UC Irvine Law Review 297, 321 (noting the disparity between ‘the resolution to overcome pain and suffering, which exists side-by-side with inhumane conditions that remain unchallenged and are often taken for granted’).

As MacCormick, ‘Children’s Rights’ (n 52) 159, has succinctly put it: ‘Consider the oddity of saying that turkeys have a right to be well fed in order to be fat for the Christmas table’; this is not to minimise the importance of existing animal welfare protections. Even though they are insufficient and weak compared to proper legal rights, that does not mean that they are insignificant. See, on this point, Regina Binder, ‘Animal Welfare Regulation: Shortcomings, Requirements, Perspectives’ in Anne Peters, Saskia Stucki and Livia Boscardin (eds), Animal Law: Reform or Revolution? (Schulthess 2015) 83.

eg correlative to 1972 Animal Welfare Act (Tierschutzgesetz) (DE), § 1 and 17(1).

eg correlative to 2005 Animal Welfare Act (Tierschutzgesetz) (CH), Article 1 and 26(1)(a).

eg derived from Animal Welfare Act 2006 (UK), s 4.

See eg Supreme Court of India 7 May 2014, civil appeal no 5387 of 2014 [62] (extracting from animal welfare law, inter alia , the right to life, to food and shelter, to dignity and fair treatment, and against torture); similarly, Court of Appeal of Alberta, Reece v Edmonton (City) , 2011 ABCA 238, dissenting opinion Justice Fraser [43].

For example, the prima facie right to be free from unnecessary pain and suffering is, in effect, rendered void if virtually any kind of instrumental interest in using animals is deemed necessary and a sufficient justification for its infringement.

See Edmundson, ‘Do Animals Need Rights?’ (n 2) 346; Harel (n 14) 198; Laurence H Tribe, ‘Ten Lessons Our Constitutional Experience Can Teach Us About the Puzzle of Animal Rights: The Work of Steven M Wise’ (2001) 7 Animal Law Review 1, 2.

See Waldron, ‘Rights in Conflict’ (n 86) 209–11.

See Francione, Animals, Property, and the Law (n 2) 17ff, 109.

Francione, Animals, Property, and the Law (n 2) 114.

For Schauer, a certain normative force seems to be constitutive of the concept of rights. He argues that a right exists only insofar as an interest is protected against the sorts of low-level justifications that would otherwise be sufficient to restrict the interest if it were not protected by the right. See Schauer, ‘A Comment on the Structure of Rights’ (n 85) 430 et passim .

In this vein, Sunstein holds that animal welfare laws ‘protect a form of animal rights, and there is nothing in the notion of rights or welfare that calls for much, or little, protection of the relevant interests’. Sunstein, ‘Standing for Animals’ (n 62) 1335.

On the universal basic rights of animals, see eg Donaldson and Kymlicka (n 1) 19ff.

‘Ideal right’ in the sense of ‘what ought to be a positive … right, and would be so in a better or ideal legal system’. Feinberg, Social Philosophy (n 4) 84.

In domestic public law, fundamental or constitutional rights are distinguished from other, simple public (eg administrative) law rights. Likewise, in international law, human rights can be distinguished from other, simple or ordinary international individual rights. See Anne Peters, Beyond Human Rights: The Legal Status of the Individual in International Law (CUP 2016) 436ff.

Indeed, substantively non-fundamental simple animal rights may be quite resistant to being overridden, and may sometimes even be absolute (non-infringeable) rights.

Nonetheless, the usefulness of legal rights is not undisputed within the animal advocacy movement. For an overview of some pragmatic and principled objections against animal rights , see Kymlicka and Donaldson (n 12) 325ff.

See generally Edmundson, ‘Do Animals Need Rights?’ (n 2); Peters (n 2) 46ff.

Today, animals’ legal protections remain pervasively under-enforced by the competent public authorities as well as practically unenforceable by the affected animals or their human representatives for lack of standing. See eg Sunstein, ‘Standing for Animals’ (n 62) 1334ff; Tribe (n 97) 3.

The link between rights and the legal-operational advantage of standing was famously highlighted by Christopher D Stone, ‘Should Trees Have Standing? Toward Legal Rights for Natural Objects’ (1972) 45 S Cal L Rev 450; see further Cass R Sunstein, ‘Can Animals Sue?’ in Cass R Sunstein and Martha C Nussbaum (eds), Animal Rights: Current Debates and New Directions (OUP 2005); Peters (n 2) 47–8.

See Stone (n 110) 458ff; Tribe (n 97) 3.

See eg Constitutional Court of South Africa 8 December 2016, CCT 1/16 (affirming the National Council of Societies for the Prevention of Cruelty to Animals’ statutory power of private prosecution and to institute legal proceedings in case of animal cruelty offences).

See Frederick Schauer, ‘Proportionality and the Question of Weight’ in Grant Huscroft, Bradley W Miller and Grégoire Webber (eds), Proportionality and the Rule of Law: Rights, Justification, Reasoning (CUP 2014) 177–8.

See generally Saskia Stucki, Grundrechte für Tiere (Nomos 2016) 151ff.

For example, under the Swiss 2005 Animal Welfare Act (Tierschutzgesetz), life itself is not a legally protected good, and the (painless, non-arbitrary) killing of an animal does not therefore require any justification.

See also Noah v Attorney General (n 60) 253–4 (pointing out that balancing different interests is ‘part and parcel of our legal system’).

See generally Edmundson, ‘Do Animals Need Rights?’ (n 2) 346; Sunstein, ‘Rights and Their Critics’ (n 65) 736–7.

On this threshold-raising conception of rights, see generally Schauer, ‘A Comment on the Structure of Rights’ (n 85) 430; Ronald Dworkin, Taking Rights Seriously (Harvard UP 1978) 191–2 (noting that a right cannot justifiably be overridden ‘on the minimal grounds that would be sufficient if no such right existed’).

At present, the overwhelming portion of permissible interferences with animals’ interests can hardly be said to be necessary or proportionate in any real sense of the word. See Francione, Introduction to Animal Rights (n 17) 9, 55.

As noted by Teubner, animal rights ‘create basically defensive institutions. Paradoxically, they incorporate animals into human society in order to create defences against the destructive tendencies of human society against animals’. Gunther Teubner, ‘Rights of Non-Humans? Electronic Agents and Animals as New Actors in Politics and Law’ (2006) 33 Journal of Law and Society 497, 521.

See eg Mark Tushnet, ‘An Essay on Rights’ (1984) 62 Tex L Rev 1363; Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (Free Press 1991); for a modern reformulation of the rights critique, see eg Robin L West, ‘Tragic Rights: The Rights Critique in the Age of Obama’ (2011) 53 Wm & Mary L Rev 713.

See generally Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights (Basic Books 2004) 59ff.

See Sunstein, ‘Rights and Their Critics’ (n 65) 754.

Dershowitz (n 122) 9.

Jeremy Waldron, ‘When Justice Replaces Affection: The Need for Rights’ (1988) 11 Harv JL & Pub Pol’y 625, 629.

See Edmundson, ‘Do Animals Need Rights?’ (n 2) 358.

More generally, the practical need for rights as complementary or compensatory guarantees will vary depending on social context, and may be more immediate and pressing for the disempowered, disenfranchised, marginalised, victimised, vulnerable, disadvantaged or even oppressed portions of society. See generally Patricia J Williams, ‘Alchemical Notes: Reconstructing Ideals from Deconstructed Rights’ (1987) 22 Harvard Civil Rights-Civil Liberties Law Review 401.

Donaldson and Kymlicka (n 1) 40, 49; see further Tom Regan, The Case for Animal Rights (University of California Press 2004) 330ff, 348–9; Bilchitz, ‘Moving Beyond Arbitrariness’ (n 34) 69.

See Bilchitz, ‘Moving Beyond Arbitrariness’ (n 34) 69.

On the aspirational dimension of human rights, see generally Philip Harvey, ‘Aspirational Law’ (2004) 52 Buff L Rev 701.

ibid 717–18; Raz, ‘Legal Rights’ (n 49) 14–15, 19; ‘rights are to law what conscious commitments are to the psyche’. Williams (n 127) 424.

See David Bilchitz, ‘Fundamental Rights as Bridging Concepts: Straddling the Boundary Between Ideal Justice and an Imperfect Reality’ (2018) 40 Hum Rts Q 119, 121ff.

Donaldson and Kymlicka (n 1) 49; see also Gary L Francione, Rain Without Thunder: The Ideology of the Animal Rights Movement (Temple UP 2007) 2.

cf Kymlicka and Donaldson (n 12) 331–2.

On the dynamic nature of rights and their generative power, see Raz, The Morality of Freedom (n 50) 171; Waldron, ‘Rights in Conflict’ (n 86) 212, 214.

See David Bilchitz, ‘Does Transformative Constitutionalism Require the Recognition of Animal Rights?’ (2010) 25 Southern African Public Law 267, 291ff.

Bilchitz, ‘Moving Beyond Arbitrariness’ (n 34) 71.

cf Harvey (n 130) 723 (noting that human rights will always remain a ‘work in progress rather than a finished project’); similarly, Kymlicka and Donaldson (n 12) 333.

Stone (n 110) 453.

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Rights of Nature, Rights of Animals

Kristen Stilt
See full issue

The fields of animal law and environmental law have an uneasy relationship. At a basic level, they are intertwined by the fundamental observation that animals, human and nonhuman, exist in the environment. Environmental law is generally concerned with animals at the level of species (and specifically endangered or threatened species), whereas animal law is concerned with all animals, regardless of particular characteristics. The issue of wild horses in the western United States illustrates this tension. Some environmentalists view the horses as “feral pests” that damage the fragile ecosystem and compete with wildlife — and privately owned cattle — for resources. 1 They argue that the horses should be gathered through helicopter-led “roundups” and euthanized or sold. 2 Animal protection advocates argue that these roundups are cruel and note that the millions of cattle also grazing on these lands are far more damaging to the environment than the horses. 3 They insist that these wild horses should not be killed — the life of each individual animal matters and should be protected. 4

Environmental law is the older and more established field of law. There are many ways to measure this, such as at the constitutional level, which shows environmental law’s seniority and success. Most constitutions address the environment, and the typical phrasing is anthropocentric: a human right to a healthy environment as seen, for example, in article 42 of the Constitution of Kenya: “Every person has the right to a clean and healthy environment . . . .” 5 Newer trends adopt ecocentric or biocentric approaches and grant rights to nature (or its component parts, such as a river) at the constitutional or legislative level or through judicial decisions. 6

In contrast to environmental rights, it is only a fairly recent phenomenon that assigns “constitutional significance to the experiences of individual nonhuman animals.” 7 Animals are protected in just a handful of constitutions with no clear adoption trend: Switzerland (1973), 8 India (1976), 9 Brazil (1988), 10 Slovenia (1991), 11 Germany (2002), 12 Luxembourg (2007), 13 Austria (2013), 14 Egypt (2014), 15 and Russia (2020). 16 ) (Russ.), translated in World Constitutions Illustrated ( HeinOnline, 2020) . The year accompanying each country listed above indicates when the provision was added to an existing constitution or when a new constitution with the provision was adopted. These provisions use terms such as the “welfare” of animals, 17 the “dignity” of animals, 18 animal “protection,” 19 “compassion” toward animals, 20 and animal “cruelty” 21 — all of which follow a general animal welfare approach. In contrast to the environmental context, none of the provisions uses the term “rights.” 22

In this Essay, I show how developments and achievements in the field of environmental rights and specifically rights of nature can be instructive, intellectually and practically, to the cause of animal protection and animal rights. 23 That instruction includes not only positive examples but also notes of caution, where animal law may face different and more formidable challenges. The Essay first assesses the role that a human right to a healthy environment has played in the development of environmental rights and rights of nature, and then it discusses the relevance of this experience for animal rights. In Part II, it turns to how rights of nature have been interpreted and applied in several prominent court decisions and suggests insights that animal rights can take from this jurisprudence. Given the brevity of Forum essays, I cannot be comprehensive. Rather, I chart out the range of my arguments and support them with some notable examples, with the intention to treat this topic more fully in a future work.

I. A Human Right to a Healthy Environment, A Human Right to Animal Protection

The anthropocentric formulation of a human right to a healthy environment initially may not seem like a helpful framing for the cause of animal rights, but it is actually very instructive. “Rights of Nature” have roots in two sources. First, these rights emerged from a recent recognition that current environmental law, including the human right to a healthy environment, has failed to address the global ecological crisis and notably climate change. 24 Second, indigenous traditions and jurisprudence “that have always treated humans as part of nature, rather than distinct from it,” have long provided a rights of nature framework and approach. 25 The widespread acceptance of a human right to a healthy environment served as part of the foundation for the development of a stronger rights of nature approach, which synergistically connected with indigenous approaches to nature.

In an animal context, an analogous formulation would be a human right to animal protection, a right of humans to have all animals adequately protected. This may sound like awkward phrasing, but such an approach does closely match how, in general, legal systems currently treat animals. 26 That is, animal interests are protected to the extent that humans want them to be and benefit from those protections and limitations.

An anthropocentric approach to animal protection along these lines is likely politically more acceptable than an animal rights–based approach. If it were widely adopted, however, it could serve merely to entrench the status quo in animal law. Alternatively, a human right to animal protection could offer the possibility of far more robust protection than currently exists under animal welfare laws. Because different humans will have different ideas about what the protection of animals should involve, a human right could allow more protective views to be recognized. It could also provide an intermediate step to animal rights, laying a foundation for future expansion. More needs to be known about the evolution from the right to a healthy environment to rights of nature, and how animal rights might be able to follow a similar path.

II. Rights of Nature, Rights of Animals

Ecocentric or biocentric approaches that lodge a right in nature or its component parts also may be promising for the development of legally recognized animal rights. Rights of nature are not widespread, but they have potential for growth and impact. At the constitutional level, Ecuador was the first to recognize the rights of nature. Article 71 begins: “Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.” 27 Bolivia adopted this approach through the Law on the Rights of Mother Earth (2010); 28 the enumerated rights are the rights to life, diversity of life, water, clean air, equilibrium, restoration, and pollution-free living. 29 Other countries have recognized the right in judicial opinions. 30

A. Animals as Part of Nature

At the most fundamental level, if nature has rights, and if nature includes animals, then rights-based claims could be made on behalf of animals using existing rights of nature doctrine and strategy. A 2008 case from the Superior Court of Justice in Brazil, known as the Wild Parrot case, illustrates this possibility. 31 The case involved an individual who had kept a single wild animal, a blue-fronted parrot, in custody for more than two decades and in inadequate living conditions. 32 This parrot was considered a wild species; this no doubt facilitated the connection to nature, but the court engaged in language that stretched beyond concern for a wild species. The court cited article 225 of the constitution as evidence for Brazil’s “ecological approach.” 33 Article 225 is an anthropocentric human right to an “ecologically balanced environment,” not a rights of nature provision, and the constitutional framing of animal protection comes through an environmental, “fauna and . . . flora” framework. 34 What is remarkable is that the court took this limited language as a starting point to reach a discussion of rights of nature and recognition of sentient beings in general.

The court called for a rethinking of the “Kantian, anthropocentric and individualistic concept of human dignity.” 35 Dignity should be reformulated to recognize “an intrinsic value conferred to non-human sensitive beings, whose moral status would be recognized and would share with the human beings the same moral community.” 36 The treatment of animals “must be based no longer on human dignity or human compassion, but on the very dignity inherent in the existence of nonhuman animals.” 37 The court brought together two strands of jurisprudence: the protection of animals in the German and Swiss Constitutions 38 and the rights of nature language in the Ecuadorean Constitution and Bolivian Law on the Rights of Mother Earth. By doing so, it reached a language of rights: “This view of nature as an expression of life in its entirety enables the Constitutional Law and other areas of law to recognize the environment and non-human animals as beings of their own value, therefore deserving respect and care, so that the legal system grants them the ownership of rights and dignity.” 39 The court conceptually moved nonhuman animals out of the environmental constraints of article 225 to attain their own independent status, for which the court advocated both rights and dignity.

B. Nonhuman Rights

Even if the concept of nature is not currently understood to include individual animals, provisions recognizing the rights of nature still implicitly acknowledge that a nonhuman can have rights. This may seem obvious since corporations and other nonhuman entities are legal persons and have rights, but entities such as rivers or ecosystems traditionally have not been extended the same recognition by legal systems worldwide. Rivers have been treated as legal persons in some jurisdictions, notably in Bangladesh, 40 Colombia, 41 Ecuador, 42 India, 43 New Zealand, 44 and the United States. 45

One of the most significant cases involving river rights was decided by the Constitutional Court of Colombia in 2016 (the Atrato River Case). 46 The plaintiffs challenged the pollution and degradation that industrial and illegal mining and logging had caused to the Atrato River basin, the tributaries, and surrounding territories. 47 They showed that the Atrato banks were the ancestral home to Afro-Colombian and indigenous communities such as themselves. 48 The river provided a subsistence means of living based on agriculture, hunting, fishing, and artisanal mining. 49 The plaintiffs asked the court to protect their fundamental rights to life, health, water, food security, a healthy environment, and the culture and territory of their ethnic communities. 50 They also asked the court to impose measures to address the crisis in the Atrato River basin resulting from the environmental pollution and degradation. 51

While the plaintiffs framed their claims as rights of the individuals living in the Atrato River basin, the court did not limit itself to a consideration of anthropocentric rights. For the court, the importance of nature “[was] established, of course, in reference to the humans that inhabit it and the need to count on a healthy environment to live a dignified life in conditions of well-being; but [nature’s importance was founded] also in connection with the other living organisms with whom the planet is shared, understood as entities deserving of protection in and of themselves .” 52 Nature was a subject of rights. 53

Thus, theoretically, the rights of nature may be violated even in the absence of any injury to humans. A decision from the Inter-American Court of Human Rights made this point clearly: “The Court consider[ed] it important to stress that, as an autonomous right, the right to a healthy environment, unlike other rights, protects the components of the environment, such as forests, rivers, and seas, as legal interests in themselves, even in the absence of the certainty or evidence of a risk to individuals.” 54

An excellent example of an approach that leads with the rights of nature is the Turag River case, decided by the Supreme Court of Bangladesh in 2019. 55 Through time-sequenced photographs, a news article that the court relied on in its decision showed the encroachment on the Turag River due to “river-grabbers,” pollutants, and the failure to keep the river navigable through dredging. 56 Despite laws and many judicial decisions, encroachers walled off land in the river and deployed bulldozers and excavators to fill their newly claimed territory, expanding the reach of dry land at the river’s expense. 57 The same actions were taking place in other rivers in the capital of this “riverine country.” 58 The NGO Human Rights and Peace for Bangladesh brought the case to eject all the illegal occupiers and stop landfilling and construction activities on the river’s territory. 59

The Turag River itself was at the center of the case from the outset. But the river for its own sake? The court echoed the language of the Daily Star article, speaking in terms of the Turag becoming a “dead river” 60 or facing “extinction” if the activity was not stopped. 61 The court also acknowledged that the occupation and pollution had caused a “major shortage of potable water, for which people are constantly facing health risks.” 62 And given the centrality of waterways to Bangladesh, “[d]estroying the rivers is . . . the same as our collective suicide.” 63 As a last resort to save the river, the court declared the Turag and indeed all rivers in the country legal persons. 64 It also ordered the removal of all unlawful pollution and construction and issued seventeen other wide-ranging orders. 65 The Turag River case and others show that rights can be lodged in a nonhuman, but in practice the human rights are also significant components.

C. Nonhuman Remedies and Enforcement

Finally, the remedies discussion in rights of nature cases demonstrates that there are adequate ways for humans to assess and implement the desires and needs of nonhuman entities. In what is known as the Deforestation Case, the Superior Court of Justice in Brazil held that in addition to the requirement to restore the damage caused to the environment, a defendant may also be required to pay monetary damages, or “pure ecological damage,” for “degrading nature in itself, an asset that is not and cannot be owned.” 66 Applied to the animal context, it could stand for the principle that wrongful treatment of an animal, for example, could require the payment of compensation without any particular showing of physical harm. The payment would presumably go into a trust established to support the needs of the animal or her ecosystem.

In the animal context, the idea that humans are capable of making such an assessment has been questioned. In Naruto v. Slater , 67 the Ninth Circuit took a generally irritated tone toward the organization that brought the case on behalf of Naruto, a crested macaque. 68 Concurring in part, Judge Smith stated: “But the interests of animals? We are really asking what another species desires. . . . We have millennia of experience understanding the interests and desires of humankind. That is not necessarily true of animals.” 69 If so — and without conceding the point — that is also not necessarily true of rivers, forests, or ecosystems, but courts that grant rights to nature routinely appoint guardianship bodies to make these determinations. 70

There is a limit to the analogy between nature and nonhuman animals that appears at the stage of remedies in some cases and goes to the heart of the comparison. For a river, the component of nature for which there is the most extensive case law, courts typically speak in terms of “rights that imply its protection, conservation, maintenance” and “restoration,” as in the Atrato River Case. 71 That court sought to have the conditions of the river improved so that the human communities could again make full use of the river for agriculture, hunting, fishing, and artisanal mining. The remedy raises a deeper question, one that the court did not ask: What is the intrinsic purpose of a river? The implication of rights of river judgments is not that a river simply seeks to be left alone. The purpose of a river in these decisions is to serve humans, through access to water, transportation, and the animals who live in them.

The rights that advocates seek for animals are far more robust and categorically reject that the inherent purpose of an animal is to serve human interests and uses. In the habeas corpus cases, the animals are in captivity, such as in a zoo or research facility. 72 The plaintiffs seek release of these animals to a setting in which they can live more natural lives, such as a sanctuary, given that these animals generally cannot be placed in a fully natural, wild environment. 73 While the presumption is that the transfer to better environments would aid in the protection, conservation, maintenance, and restoration of these animals, the point was not that the animals will look and feel better for any kind of human benefit. The remedy of habeas corpus seeks to release the animals from a human environment so that they could be, to the extent possible, left alone to be animals.

This difference in the issue of remedies and their enforcement may be significant and may project back onto the fundamental question of whether humans will recognize animal rights at all. Rights of nature call for some major changes in the way that humans live in the world, as seen in the above cases. Viewed from the remedy angle, the rights of animals are an even greater challenge to the behavior of humans. Rights of animals impact fundamental questions such as what humans eat and drink, what they wear, and what kinds of entertainment they engage in, to name just a few. A judge may seek to avoid remedies that would alter human behavior in dramatic ways, and the mere possibility of these remedies may also work to undermine the cause of action itself. 74

Rights of nature approaches are instructive to the cause of animal rights, intellectually and practically. They do not offer a model to be copied wholesale, but instead call for careful study of the parallels and points of disconnection, of the commonalities and the conflicts, with the potential for significant results.

* Professor of Law, Harvard Law School; Faculty Director, Harvard Animal Law & Policy Program. I thank Sam Bookman, Doug Kysar, Justin Marceau, Kathy Meyer, and Steve Wise for insightful comments on this Essay. I thank the editors of the Harvard Law Review for their thoughtful engagement and editorial assistance. Andy Stawasz, J.D. ’21, provided outstanding research assistance. I also thank the translators who assisted with translations of the cases cited in the Essay: Cibele Maria Melendez Texeira Bandeira and Harvard Law School S.J.D. candidates Beatriz Botero Arcila, Sannoy Das, and Nicolás Parra-Herrera.

^ Karin Brulliard, The Battle over Wild Horses , WASH. POST (Sept. 18, 2019), https://www.washingtonpost.com/science/2019/09/18/wild-horses-have-long-kicked-up-controversy-now-foes-say-they-have-solution [ https://perma.cc/L9BW-GJP7 ].

^ The constitution of Kenya , 2010, art. 42, in World Constitutions Illustrated ( HeinOnline , 2010) .

^ James R. May & Erin Daly, Global Environmental Constitutionalism 255–56 (2015). A biocentric approach places humans on the same level as all living beings, whereas an ecocentric approach considers all that is in the natural world — living beings and nonliving entities — to all be equally valued. Int’l Rivers et al., Rights of Rivers 10 (2020), https://3waryu2g9363hdvii1ci666p-wpengine.netdna-ssl.com/wp-content/uploads/sites/86/2020/09/Right-of-Rivers-Report-V3-Digital-compressed.pdf [ https://perma.cc/JLG7-4QD5 ].

^ Jessica Eisen & Kristen Stilt, Protection and Status of Animals , in Max Planck Encyclopedia of Comparative Constitutional Law ¶ 1 (Rainer Grote, Frauke Lachenmann & Rüdiger Wolfrum eds., 2016), Oxford Constitutional Law (article updated Dec. 2016).

^ Id . ¶¶ 26–35.

^ Id . ¶¶ 11–17.

^ Id . ¶¶ 36–38.

^ Id . ¶¶ 39–41.

^ Id . ¶¶ 18–25.

^ Id . ¶¶ 47–56.

^ Id . ¶¶ 42–46.

^ Id . ¶¶ 63–65.

^ See Konstitutsiia Rossiĭskoĭ Federatsii [Konst. RF] [Constitution] art. 114(1)(e 5

^ Eisen & Stilt, supra note 7, ¶ 45.

^ Id . ¶ 31.

^ Id . ¶ 23.

^ Id . ¶ 12.

^ Id . ¶ 36.

^ Id . ¶ 69.

^ The desire for more rights is not an unqualified positive, as some have argued. While an important question, this Essay does not engage in that debate.

^ Int’l Rivers et al ., supra note 6, at 6.

^ Id . In the animal law context, more research is needed on the alignment of beliefs in indigenous communities with animal rights approaches — a partnership that has been important in the contemporary rights of nature movement. Due to issues such as whaling and seal hunting, this alignment has proven difficult, but with thoughtful engagement, it is within reach. See generally Maneesha Deckha, Unsettling Anthropocentric Legal Systems: Reconciliation, Indigenous Laws, and Animal Personhood , 41 J. Intercultural Stud . 77 (2020).

^ There is a long line of thinking in animal protection that preventing cruelty to animals is also beneficial for humans. One strand of this thinking focuses on a connection between violence against animals and violence against humans, referred to as the “link” theory. For a discussion and critique of this theory, see Justin Marceau , Beyond Cages 193–250 (2019).

^ Constitución de la República del Ecuador [Constitution] 2008 , art. 71, translated in World Constitutions Illustrated ( HeinOnline, Jefri Jay Ruchti, ed., Maria Del Carmen Gress & J.J. Ruchti, trans., 2018 ) .

^ Ley de Derechos de la Madre Tierra [Law of the Rights of Mother Earth], Ley 071 (2010) ( Bol .) .

^ See Int’l Rivers et al ., supra note 6, at 15–49.

^ S.T.J., No. 1.797.175/SP, Relator: Ministro OG Fernandes, 21.03.2019, Revista Eletrônica da Jurisprudência [R.S.T.J.], 13.05.2019 (Braz.), https://processo.stj.jus.br/processo/revista/documento/mediado/?componente=ITA&sequencial=1806039&num_registro=201800312300&data=20190513&peticao_numero=-1&formato=PDF [ https://perma.cc/TZ76-P4E3 ] (translation on file with the Harvard Law School Library) [hereinafter Wild Parrot Case].

^ Id . at 2–3.

^ Id . at 9.

^ Constitução Federal [C.F.] [Constitution] art. 225 (Braz.), translated in World Constitutions Illustrated ( HeinOnline, Jefri Jay Ruchi, ed., Keith S. Rosenn, trans., 2020) .

^ Wild Parrot Case, supra note 31, at 10.

^ Id . at 12.

^ See Eisen & Stilt, supra note 7, ¶¶ 22–24, 28–29.

^ Wild Parrot Case, supra note 31, at 14.

^ See Int’l Rivers et al ., supra note 6, at 47.

^ See id . at 23.

^ See id . at 33.

^ See id . at 44.

^ See id . at 17.

^ See id . at 39. In India, the decisions have been stayed by the Supreme Court. Id . at 46. In the U.S. context, Native American tribal jurisdictions have led the way in recognizing rights of nature. The Navajo Nation Code Annotated, tit. I, § 205 (2014), states that “[a]ll creation, from Mother Earth and Father Sky to the animals, those who live in water, those who fly and plant life have their own laws and have rights and freedoms to exist.” The publication of Christopher D. Stone’s Should Trees Have Standing? — Toward Legal Rights for Natural Objects , 45 S. Cal. L. Rev . 450 (1972), was influential for Justice Douglas, dissenting in Sierra Club v. Morton , 405 U.S. 727, 741–42 (1972) (“Contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation.”). Recently, some local governments in the United States have attempted to declare that natural communities and ecosystems have rights. For a discussion of these efforts, see David R. Boyd, The Rights of Nature 109–30 (2017).

^ Corte Constitucional [C.C.] [Constitutional Court], noviembre 10, 2016, Sentencia T-622/16 (Colom.), https://www.corteconstitucional.gov.co/relatoria/2016/t-622-16.htm [ https://perma.cc/CP7X-3NCJ ], translated in Center for Social Justice Studies v. Presidency of the Republic, Judgment T-622/16, Constitutional Court of Colombia (Nov. 10, 2016), The Atrato River Case , Dignity Rts. Project , http://files.harmonywithnatureun.org/uploads/upload838.pdf [ https://perma.cc/SF8R-W8EC ] [hereinafter Atrato River Case].

^ Id . § I.2.1.

^ Id . § I.1.

^ Id . § I.2.10.

^ Id . § IV.9.27.

^ Id . § IV.9.31.

^ The Environment and Human Rights (Arts. 4(1) and 5(1) in Relation to Arts. 1(1) and 2 American Convention on Human Rights), Advisory Opinion OC-23/17, Inter-Am. Ct. H.R. (ser. A) No. 23, ¶ 62 (Nov. 15, 2017), https://www.corteidh.or.cr/docs/opiniones/seriea_23_ing.pdf [ https://perma.cc/W3HZ-LPX9 ].

^ Bangladesh Supreme Court, High Court Division, Writ Petition No. 13898/2016 (2019) (official translation on file with the Harvard Law School Library) [hereinafter Turag River Case].

^ See id . at 3; Tawfique Ali, Time to Declare Turag Dead , Daily Star (Nov. 6, 2016), https://www.thedailystar.net/frontpage/time-declare-turag-dead-1310182 [ https://perma.cc/R5NL-WA6M ].

^ See Ali, supra note 56.

^ See Turag River Case, supra note 55, at 3.

^ Id . at 4.

^ Id . at 54.

^ Id . at 449.

^ Id . at 449–50.

^ S.T.J., No. 1.145.083/MG, Relator: Ministro Heman Benjamin, 27.09.2011, Revista Eletrônica da Jurisprudência [R.S.T.J.], 04.09.2012, 10 (Braz.), https://processo.stj.jus.br/processo/revista/documento/mediado/?componente=ITA&sequencial=975073&num_registro=200901152629&data=20120904&formato=PDF [ https://perma.cc/FW7S-C6Q8 ] (translation on file with the Harvard Law School Library).

^ 888 F.3d 418 (9th Cir. 2018).

^ Id . at 420.

^ Id . at 432 (Smith, J., concurring in part).

^ Int’l Rivers et al ., supra note 6, at 8.

^ Atrato River Case, supra note 46, § IV.9.32.

^ See, e.g ., Cámara del Fuero Contencioso Administrativo y Tributario [CABA] [Chamber of Appeals in Contentious Administrative and Tax Matters], Buenos Aires, sala 1, 14/06/2016, “Asociación de Funcionarios y Abogados por los Derechos de los Animales y Otros c. GCBA s/ Amparo,” (Arg.), 3, https://www.animallaw.info/sites/default/files/1%20%E2%80%9CASOCIACIO%CC%81N%20DE%20FUNCIONARIOS%20Y%20ABOGADOS%20POR%20LOS%20DERECHOS%20DE%20LOS%20ANIMALES%20Y%20OTROS%20C%3A%20GCBA%20S%3A%20AMPARO%E2%80%9D%20.pdf [ https://perma.cc/7LD3-XCDG ] (translation on file with the Harvard Law School Library); Corte Constitucional [C.C.] [Constitutional Court], enero 23, 2020, Sentencia SU-016/20 (§§ I.1 to .3) (Colom.), https://www.corteconstitucional.gov.co/comunicados/Comunicado%20No.%2003%20del%2023%20de%20enero%20de%202020.pdf [ https://perma.cc/9EX8-UCYL ] (translation on file with the Harvard Law School Library). For an overview of habeas corpus cases brought in the United States on behalf of nonhuman animals, see Challenging the Legal Thinghood of Autonomous Nonhuman Animals , Nonhuman Rts. Project , https://www.nonhumanrights.org/litigation [ https://perma.cc/69P9-UU7M ].

^ CABA, 14/06/2016, “Asociación de Funcionarios y Abogados por los Derechos de los Animales y Otros c. GCBA s/ Amparo,” 2, 14; C.C., enero 23, 2020, Sentencia SU-016/20 (§§ I.1 to .3).

^ I thank Doug Kysar for the point that this also works in reverse; a judge in a jurisdiction with weak enforcement might be willing to go further with a finding of animal rights, knowing that the implications are unlikely to be seen as a practical matter.

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March 20, 2021

Animal Rights and Human Responsibilities: Towards a Relational Capabilities Approach in Animal Ethics

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In this thesis, I analyze some of the most important contributions concerning the inclusion of animals in the moral and political sphere. Moving from these positions, I suggest that a meaningful consideration of animals' sentience demands a profound, radical political theory which considers animals as moral patients endowed with specific capabilities whose actualization needs to be allowed and/or promoted. Such theory would take human-animal different types of relationships into account to decide what kind of ethical and political responsibilities humans have towards animals. It would be also based on the assumption that animals' sentience is the necessary and sufficient feature for assigning moral status. I start from the consideration that in the history of political philosophy, most theorists have excluded animals from the realm of justice. I then propose an examination of utilitarianism, capabilities approach, and relational-based theories of animal rights (in particular the works by Kymlicka and Donaldson, and Clare Palmer) and borrow essential elements from each of these approaches to build my theory. I claim that a political theory which attaches high importance to individual capabilities, as well as to the various types of relationships we have with animals, is the most appropriate to tackle the puzzle of human responsibilities to animals.

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Animal Rights: Ashgate International Library of Essays on Rights. Edited collection. 582p.

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The Animal Rights Thesis (ART) entails that nonhuman animals like pigs and cows have moral rights, including rights not to be unjustly harmed. If ART is true, it appears to imply the permissibility of killing ranchers, farmers, and zookeepers in defense of animals who will otherwise be unjustly killed. This is the Militancy Objection (MO) to ART. I consider four replies to MO and reject three of them. First, MO fails because animals lack rights, or lack rights of sufficient strength to justify other-defensive killing. Second, MO fails because those who unjustly threaten animals aren't liable or, if they are liable, their liability is outweighed by other considerations (e.g., a strong presumption against vigilante killing). I then argue both of these fail. Third, MO succeeds because animal militancy is permissible. Fourth, MO fails because there aren't liability justifications for defensive killing in general (i.e., pacifism is true). I argue that there's thoroughgoing epistemic parity between the Militancy View (MV) and the Pacifist View (PV), and that two considerations favor PV over MV. First, because under conditions of uncertainty, we should believe rights-bearers retain rather than lose their rights, which PV affirms and MV denies. Second, because PV is intrinsically likelier than MV to be true since PV at worst affirms wrongful letting die and MV at worst affirms wrongful killing, the latter of which is intrinsically harder to justify than the former.

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Medical Ethics

Though as Abbate ( 2015a ) powerfully shows, the nature of the justification for defensively harming nonhuman animals isn’t clear.

My argument, which I lack the space to develop fully here, is that mere failure to assist can make one liable to defensive harm. Here’s why: If you fail to help someone under threat of unjust harm H when you could reasonably do so (i.e., when it’s feasible and at little cost to you), then you share responsibility for the fact that H isn’t no longer a threat to that person, which entails that you are responsible for the fact that H is still a threat to that person, which entails that you bear some responsibility for the fact that the threat imposed by H is maintained . Since the threatened person has a reasonable claim against you that you not maintain threats, you are liable to defensive harm if you fail to help them when you reasonably could. Moreover, since you can’t be liable for acting permissibly and since every act is either permissible or impermissible, it follows that you acted impermissibly. Thus, you have an obligation to assist them resulting from a claim they have against you—which is identical to a right to assistance. For similar views, see Aas ( 2021 ) and Hanser ( 1999 ).

For more on a Militancy-Objection-style argument for the permissibility of abortion, see Tollefsen ( 1997 ). See also Kaczor ( 2015 : 220). For a powerful reply, see Williams (2021).

The full story can be viewed here: https://abc13.com/man-arrested-after-doorbell-cam-captures-dog-being-choked/6182160/ .

For an extended defense of this view, see Gunasekera ( 2018 ): 93–102.

An anonymous reviewer objects that the necessity condition isn’t satisfied. After all, the activists might discharge their obligation to rescue nonhuman animals by pursuing effective forms of nonviolent activism. This reveals two applications of the necessity condition: whether violence is necessary to save some animals and whether it’s necessary to save these animals. I have stipulated that violence is necessary to save these animals in the Zookeeper case and cases like it, but perhaps this misfocuses the moral problem (and its solution). I disagree. Suppose I encounter a human child about to be brutally murdered. I can either kill the unjust aggressor and save the child, or I can donate to Oxfam and save one child’s life, but I can’t do both. (Perhaps the donation window is closing at Oxfam and ‘rushed funds’ are needed to save a child by day’s end.) Surely I am at least permitted to save the child about to be brutally murdered, which is all the permission thesis requires. The necessity condition is satisfied for the same reason under the assistance thesis , though then we must adjudicate between competing rights to assistance. If donating to the Animal Legal Defense Fund saves some animals whereas killing Nour saves these animals, we might look to lesser-evil considerations to resolve the impasse. If the impasse is theoretically unresolvable and our obligation to assist can be discharged equally well under either action, then there’s no obligation to save some animals over these animals (or vice-versa), thereby ensuring that the necessity condition is satisfied under either course of action under the assistance thesis .

Think, for example, of naval personnel who utilize dolphins to identify mines, or ground forces which utilize canines and other animals to detect explosives. Similar arrangements are made by police personnel (e.g., K-9 units).

I say “perhaps” since poachers are less likely to be viewed favorably under commonsense moral views.

Abbate considers a case in which a human man hikes on a wilderness trail where grizzlies are known to roam. He comes across a grizzly, the grizzly growls, and the man fatally shoots the grizzly. Abbate describes this case as one in which the hiker engaged in and is responsible for risk-taking activities which resulted in a foreseeable violent conflict. Because the risk-imposition is non-reciprocal—that is, because “the hiker could have stayed home” and “the bear cannot be expected to just ‘stay in his den’”—the hiker is liable to defensive harm to an extent that the grizzly is not. Thus, the hiker, and not the grizzly, should bear the brunt of the ensuing harm. See Abbate ( 2015a : 122–124).

Cf. Ebert & Machan ( 2012 ). Ebert and Machan focus on a distinct objection, which they call the Predation Objection. According to this objection, the animal rights thesis implies that agents have a duty to defend animals from predation by other animals, which they claim is absurd. In the course of defending this objection, they note that since Regan denies that there is a duty to defend animals from such predation on the grounds that animals are ‘moral patients’ and therefore cannot violate rights, it follows that it is impermissible to harm or kill animals in defense of humans. They then claim such a view also implies that if, for example, a wolf attacks a human and the human responds with violent self-defense, it is permissible to harm or kill the human in defense of the wolf’s rights. This is notable for two reasons. First, it shows that the animal rights thesis pro tanto justifies animal rights militancy. Second, it portrays this implication as problematic. Under my formulation of the Militancy Objection, however, the assistance thesis explicitly restricts the scope of the right to defensive assistance to averting unjustified harms, which excludes the harms posed by nonhuman animals (and, for that matter, even human animals) who lack moral agency. For a fresh revisitation of this topic, see Abbate ( 2020 ). Notably, Abbate claims there is sometimes a moral obligation to harm some animals to prevent intolerable injustices to other animals.

See also McMahan’s objection to Judith Jarvis Thomson in McMahan ( 2002 : 398-421). Thomson assumes for argument’s sake that fetuses have strong rights and argues that abortion is nevertheless often permissible. McMahan replies that such a strong view of rights implies that a third party can permissibly defend fetuses under immediate threat of abortion.

Speciesists will doubtlessly defend an asymmetry here, contending that human slaves are importantly different from animals, such that ascriptions of rights are not undermined by the permitting of widespread violence in the case of slaves but are undermined in the case of animals. But that’s just to offer a distinct objection to the animal rights thesis .

I assume internalism about defensive liability merely for the sake of argument. According to internalism, Threat is liable to be harmed only if harming Threat would be necessary to avert some harm, narrowly proportionate, etc. In other words, these requirements are ‘internal’ to liability; someone isn’t liable without meeting the requirements. For more on this distinction, see Frowe ( 2014 : 88–89 and 91–94).

For an insightful critique of Regan’s conclusions about the Lifeboat Dogs case, see Abbate ( 2015b ).

Cf. McMahan ( 2016 ).

Notably, McMahan ( 2002 : 420) condemns animal rights militancy for these reasons.

This example is a more described variant of an example given in McMahan ( 2005 ).

For those keeping track of the math, that’s a combined 40 years for the elderly pedestrians and another 80 years for Driver. Since imposing 80 years of lost life is twice as bad as imposing 40 years of lost life, preventing the latter by causing the former appears to violate narrow proportionality.

Gordon-Solmon ( 2017 : 127, fn. 8) suggests that responsibility is internal to, or necessary for, narrow proportionality. I’m assuming the same is true of degrees of responsibility with respect to what counts as narrowly proportionate (or disproportionate) in a given case.

Nozick ( 2013 : 41) claims it’s impermissible to inflict slight discomfort on a human in order to spare 10,000 animals from extreme suffering. Nozick makes this claim as an example of what we’re forbidden to do to non-liable parties. He makes no claim about what we may do to liable parties, such as Nour. The same is true of Regan in his comments on the Lifeboat Dogs case: He claims no amount of animal sacrifice is disproportionate, but he fails to consider liable parties like Nour whose interests are discounted.

There may be other ways of denying or weakening the animal rights thesis . I lack the space to explore them here.

Any plausible moral theory on which the animal rights thesis is true will condemn Nour’s actions, since her actions would be morally comparable to someone guarding a prison filled with humans who will shortly be unjustly killed.

It’s thus an assumption of the diminished liability approach that it’s impermissible to defend human slaves even if pacifism is false. As I argue below, this is false. Slaves are permitted to defend themselves with violence, if anyone is.

Kaufman ( 2010 ) develops a similar case against the view that it’s impermissible to harm innocent aggressors in self-defense. Cf. Kaufman ( 2009 : 78-9).

A stronger variation of the vigilante principle might be that such violence is permissible only if it would be unlikely to bring about worse injustices. On this interpretation of the moral requirement, a mere lack of a positive likelihood is insufficient. What’s needed is a negative likelihood (i.e., an unlikelihood). Thus, in cases where the probability of bringing about greater injustices hovers at 0.5, or where there is no better reason to believe that greater injustices will be brought about than that they won’t be, it’s wrong (on the stronger vigilante principle ) for third parties to engage in defensive violence.

Or, per the above footnote, it’s unlikely to bring about worse injustices.

Might B mistakenly believe that employing x will prevent z ? No, because (per Uniacke’s stipulation) B knows that x won’t prevent z . Imagine that B used something else he believed wouldn’t help him successfully defend against z , like singing opera. If B sang opera, would he be employing it as a defensive measure? The answer, it seems to me, is that he obviously wouldn’t be.

This implication, too, strikes me as counterintuitive. John Brown fought in defense of slaves, acting more or less precisely as Rowlands envisions. It seems to me that if pacifism is false, then Brown surely acted permissibly.

A war in defense of mistreated animals might in some ways be easier to wage permissibly than a war in defense of slaves. Concerns about wide proportionality, for example, would be less of a concern, since there were millions of slaves but billions of abused animals. This will effectively permit a larger number of non-liable persons to be (unintentionally) killed, since the number of animals who would be saved would be considerably larger.

If the vigilante principle did condemn animal rights warfare in Canadian War , it would also condemn the war waged by the Northern States in American Civil War , which is implausible.

Kagan ( 2019 : 255) signals an openness to this view. For the fuller discussion, see 252–258.

Perhaps we should distinguish between posing a threat and aiding a threat. But even if we do, aiding a threat is surely going to entail liability to defensive harm, at least when one aids a threat in a morally responsible way, as Nour does. For example, perhaps only Assassin threatens to kill you with a gun, but I hold you in place for the kill shot. Moreover, perhaps I am unaware that Assassin is acting wrongly in doing so—for example, perhaps I mistake Assassin for a police officer doing their duty.

See, for example, section 3.2 where the solipsist and the person uneducated about human rights provide examples of appeals to ignorance. It seems to me that both persons are culpably ignorant because two reasonable pro tanto reasonable expectations are that individuals recognize that there are sentient individuals distinct from themselves and that it’s impermissible to harm such individuals without a sufficiently good reason. It also seems to me that neo-Cartesian views of animals are false and obviously so, or at the very least that it’s reasonable to expect most humans to recognize animal sentience since we think it’s reasonable to hold most humans morally and legally responsible for animal abuse. However, I can’t defend these positions at length here. These disputes are somewhat peripheral, however, since it seems permissible to harm the convinced solipsist whether or not they are culpably ignorant. The same, therefore, will be true of the lookout, Nour, certain animal researchers, and so on.

Someone is liable to harm just in case you would not wrong them by harming them. Thus, even if you harm a liable individual and thus don’t wrong them, you might in doing so still wrong someone else , and thus it might be impermissible to harm the liable individual. Moreover, even if it’s permissible to harm someone, it doesn’t follow that they’re liable to be harmed. For example, it might be permissible to harm them as an unintended side effect of preventing some immense harm. For more on distinction between liability and permissibility, see Frowe ( 2014 : 188).

Hadley’s appeal to factors like contributory causation appear to commit him to the view that it is the number of liable individuals that generates the counterintuitive nature of the Militancy Objection. Indeed, in his abstract, he refers to the problem as the Multiple Inappropriate Targets Problem. Whereas Hadley and I differ in our interpretation of the problematic nature of the Militancy Objection, our interpretations are not incompatible. Moreover, Hadley’s concerns appear to overlap with a similar problem in the broader literature on the ethics of self-defense. See Hadley ( 2009a : 168). For more on the more general problem, see McMahan ( 2011 : 24).

Here’s an objection: Militancy doesn’t permit us to kill all of these people (or people in comparable professions), since doing so would in many cases be disproportionate to the harms they threaten to impose on animals. For example, some animal researchers neither kill nor physically injure animals. At most, they imprison animals. Killing those animal researchers to free the imprisoned animals, then, would be objectionably disproportionate. But this objection fails for two reasons. First, the objection relies on the dubious assumption that killing (for example) kidnappers is objectionably disproportionate. It isn’t at all obvious that human abductees aren’t permitted to kill their kidnappers if doing so is necessary to escape. Second, the objection assumes that the intuitive implausibility of the militancy view is restricted to its moral implications for killing, but that’s false. Suppose that Nour was guarding not animals who will soon be killed but animals who will soon be tortured, and that in order to rescue them it’s necessary to torture Nour. The view that Nour is liable to such harm is again counterintuitive.

If pacifism is true, is anyone liable to defensive harm? As I pointed out in footnote 59, liability doesn’t entail actual permissibility (and nor does actual permissibility entail liability). By implication, impermissibility does not entail non-liability. Thus, even if pacifism entails that assault is always impermissible, it doesn’t follow that no one is liable to defensive assault.

Does pacifism falsify the Permission Thesis? As stated, the Permission Thesis merely claims that there’s a third-party permission to defend animals. Typically, invoking a permission to other-defense is a way of invoking a permission to other-defensive assault . On that reading, pacifism falsifies the Permission Thesis. However, since there are substantive ways of defending others that do not involve assault, it seems that pacifism does not rule out every form of other-defense, and thus is compatible with a broader interpretation of the Permission Thesis.

F.B.I. (2014). URL:

https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/offenses-known-to-law-enforcement/violent-crime

The number also reflects only crimes that actually occurred , and thus excludes attempted but unsuccessful violent crimes.

This criticism is from Narveson ( 2003 ), who argues that pacifists “have too many friends” and “terrorists” (which I’m calling “militants”) “have too many enemies.” On Narveson’s view, terrorism is wrong as a conceptual matter, since it condones the targeting of noncombatants who are not liable to defensive (or offensive) harm. Again, the worry here is not that the sheer number of persons liable to be defensively harmed is too many, as if there were some numerical threshold above which there is no liability to defensive harm. Rather, the worry is that these people don’t seem to be liable to defensive harm at all, and since the militancy view implies otherwise in so many cases, it gets the wrong judgment in an immense number of cases.

Helen Frowe (in conversation) objects that the epistemic par isn’t apparent. She concedes that there might be epistemic parity ‘downstream’, at the level of applied cases, but denies that there’s epistemic parity ‘upstream’, at the level of broad principles and ethical theory. Sometimes we use the independent plausibility of cases to determine the plausibility of moral theories and principles, and sometimes we use the independent plausibility of moral theories and principles to guide us through hard cases. Frowe claims we should rely on the independent plausibility of liability, like we did with the Burning Barn case in section §2, to guide us through hard cases like Zookeeper . Once we do, militancy will be the more plausible view. I can’t offer an extensive reply here, but I’ll offer one reply. Where militancy and pacifism part ways is at the crossroads of liability, and so (unless we’re to beg the question against either view) we need to look elsewhere for an independently plausible moral theory or principle that advantages militancy. Where might it be? So far as I can tell, the sort of ‘pre-liability’ moral story of the militancy view is the very same moral story as pacifism: Both accept that Nour and the pigs have rights, that there’s a pro tanto obligation against transgressing them, and so on. But if that’s true, then the epistemic parity appears thoroughgoing : There’s intuitive parity downstream with liability, and there’s parity upstream due to identical background moral assumptions.

For her reply to the Taxpayer Objection, see Frowe ( 2014 : 209–212).

That is, assuming my arguments in Sect. 3.1 are successful.

Here’s another objection: Our background knowledge also tells us that the human aggressor is aggressing unjustly , which is reason enough to prefer militancy over pacifism. But the objection fails because knowing that someone acts unjustly isn’t sufficient to know they’re liable to defensive harm or that it’s permissible to kill them. For example, I might know that you acted unjustly by failing to pay someone what you owed them, but I don’t thereby know that you’re liable to defensive harm or that it’s permissible to kill you.

It’s unclear to me whether this is logically distinct from the claim that killing is intrinsically worse than letting die. Rachels ( 1986 ) compares two examples in which you either drown your cousin or let him drown. He affirms both are impermissible but denies one violation is intrinsically worse than the other. Quinn ( 1989 : 289) argues that even if Rachels is right that neither violation is worse than the other, it doesn’t follow that the permissibility thresholds are the same.

This is a modified version of Singer’s ( 1972 : 231) classic case.

Cf. Tadros (2011: 252). Thomson (1971: 52) defends the stronger view that if even your bodily liberty is at stake, such that it’s necessary for you to remain plugged into a violinist for nine months to save his life, that’s sufficient to justify not saving his life because the cost to you is too great.

For similar cases and discussion, see Frowe ( 2014 : 51–71).

The distinction has been defended extensively elsewhere. For defenses, see Hill ( 2018 ), McMahan (2009: 94), Kamm ( 2007 : 17), and Quinn ( 1989 ).

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This paper was graciously awarded the 2019 Frank Chapman Sharp Memorial Prize for the best essay on the ethics of war and peace. My thanks to Helen Frowe, Seth Lazar, Suzanne Uniacke, Holly Lawford-Smith, Jeff Sebo, Nathan Nobis, Mylan Engel Jr., Cheryl Abbate, John Hadley, Chris Cuomo, Paul Tubig, Karen Emmerman, Michael Blake, my students at the Washington Corrections Center for Women, and an anonymous reviewer at this journal for feedback and helpful conversation. Thanks also to those present at the 2017 Society for the Study of Ethics and Animals Inaugural Workshop at the University of Colorado, the Stockholm Center for the Ethics of War and Peace Graduate Reading Retreat at the Australian National University (Kioloa campus), and the invited symposium “Animal Rights Terrorism and Pacifism” at the 2017 APA Eastern Division Meeting in Savannah, Georgia. Shortly thereafter, on 22 February 2018, the paper was featured on the Blog of the APA. My thanks to the APA for featuring it and for those who commented.

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Hereth, B. Animal rights Pacifism. Philos Stud 178 , 4053–4082 (2021). https://doi.org/10.1007/s11098-021-01636-x

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Animal Rights Essay: Topics, Outline, & Writing Tips

🐇 Animal Rights Essay: the Basics
💡 Animal Rights Essay Topics
📑 Outlining Your Essay
✍️ Sample Essay (200 Words)

🔗 References

🐇 animal rights essay: what is it about.

Animal rights supporters advocate for the idea that animals should have the same freedom to live as they wish, just as humans do. They should not be exploited or used in meat , fur, and other production. At long last, we should distinguish animals from inanimate objects and resources like coal, timber, or oil.

The picture contains an animal rights essay definition.

Interdisciplinary research has shown that animals are emotional and sensitive, just like we are.

Their array of emotions includes joy, happiness, embarrassment, resentment, jealousy, anger, love, compassion, respect, disgust, despair, and even grief.

However, animal rights legislation does not extend human rights to animals. It establishes their right to have their fundamental needs and interests respected while people decide how to treat them. This right changes the status of animals from being property to being legal entities.

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Animals should not be killed by hunting.
Animals’ habitats should allow them to live in freedom.
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Animals should not be used for food by industries or households.

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The pros and cons of animal rights.
Can humanity exist without meat production?
Do animals have souls?
Should society become vegan to protect animal rights?

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Animal Rights Persuasive Essay

An animal rights persuasive essay should clearly state your opinion on the topic without analyzing different points of view. Still, the purpose of your article is to persuade the reader that your position is not only reasonable but the only correct one. For this purpose, select topics relating to your opinion or formulated in questionary form.

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What is your idea about wearing fur?
Do you think people would ever ban animal exploitation?
Is having pets a harmful practice?
Animal factories hinder the development of civilization .

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Animal rights have been suppressed for ages because people disregard their mental abilities .
Cosmetic and medical animal testing .
Laws preventing unnecessary suffering of animals mean that there is some necessary suffering.
Red fluorescent protein transgenic dogs experiment.
Do you believe animals should have legal rights?
Genetically modified animals and implications.
Why is animal welfare important?
Neutering animals to prevent overpopulation: Pros and cons.
Animal testing: Arguments for and against.
What is our impact on marine life?
Some animals cannot stay wild.
Animal testing for medical purposes .
We are not the ones to choose which species to preserve.
Pavlov’s dog experiment .
Keeping dogs chained outdoors is animal neglect.
The use of animals for research .
Animal dissection as a learning tool: Alternatives?
More people beat their pets than we think.
Duties to non-human animals.
If we do not control the population of some animals, they will control ours.
Animals in entertainment: Not entertaining at all.
Animals in research, education, and teaching.
Which non-animal production endangers the species?
Is animal testing really needed?
Why do some people think that buying a new pet is cheaper than paying for medical treatment of the old one?
Animal experiments: benefits, ethics, and defenders.
Can people still be carnivorous if they stop eating animals?
Animal testing role.
Marine aquariums and zoos are animal prisons.
Animal experimentation: justification arguments .
What would happen if we replace animals in circuses with people, keeping the same living conditions?
The ethics of animal use in scientific research .
Animal sports: Relics of the past.
Animal testing ban: counterargument and rebuttal .
Denial to purchase animal-tested cosmetics will not change anything.
Animal research, its ineffectiveness and amorality.
Animal rights protection based on their intellect level: It tells a lot about humanity.
Debates of using animals in scientific analysis .
How can we ban tests on rats and kill them in our homes at the same time?
Animal testing in experiments .
What is the level of tissue engineering development in leather and meat production?
Equal consideration of interests to non-human animals .
Animals should not have to be our servants.
Zoos as an example of humans’ immorality.
We should feed wild animals to help them survive.
Animal testing in biomedical research.
Abolitionism: The right not to be owned.
Do you support the Prima facie rights theory?
Psychologist perspective on research involving animal and human subjects.
Ecofeminism: What is the link between animals’ and women’s rights?
No philosophy could rationalize cruelty against animals.
Qualities that humans and animals share.
Ancient Buddhist societies and vegetarianism: A research paper.

Need more ideas? You are welcome to use our free research topic generator !

📑 Animal Rights Essay Outline

An animal rights essay should be constructed as a standard 5-paragraph essay (if not required otherwise in the assignment). The three following sections provide a comprehensive outline.

The picture lists the structural parts of an animal rights essay.

Animal Rights Essay: Introduction

An introduction consists of:

Background information,
A thesis statement .

In other words, here you need to explain why you decided to write about the given topic and which position you will take. The background part should comprise a couple of sentences highlighting the topicality of the issue. The thesis statement expresses your plans in the essay.

For example: In this essay, I will explain why animal-based production harms the ecology.

Animal Rights Essay: Main Body

The main body is a place for you to argue your position . One paragraph equals one argument. In informative essays, replace argumentation with facts.

Start each section with a topical sentence consisting of a general truth. Then give some explanation and more specific points. By the way, at the end of this article, you’ll find a bonus! It is a priceless selection of statistics and facts about animal rights.

Animal Rights Essay: Conclusion

A conclusion restates your central ideas and thesis statement. Approach it as a summary of your essay, avoid providing new facts or arguments.

✍️ Animal Rights Essay Example (200 Words)

Why is animal welfare important? The term “animal welfare” evokes the pictures of happy cows from a milk advertisement. But the reality has nothing to do with these bright videos. Humane treatment of animals is a relative concept. This essay explains why animal welfare is important, despite that it does not prevent farms from killing or confining animals.

The best way to approach animal welfare is by thinking of it as a temporary measure. We all agree that the current state of the economy does not allow humanity to abandon animal-based production. Moreover, such quick decisions could make farm animals suffer even more. But ensuring the minimum possible pain is the best solution as of the moment.

The current legislation on animal welfare is far from perfect. The Animal Welfare Act of 1966 prevents cruelty against animals in labs and zoos. Meanwhile, the majority of suffering animals do not fall under its purview. For example, it says nothing about the vivisection of rats and mice for educational and research purposes, although the procedure is extremely painful for the creature. Neither does it protect farm animals.

Unfortunately, the principles of animal welfare leave too much room for interpretation. Animals should be free from fear and stress, but how can we measure that? They should be allowed to engage in natural behaviors, but no confined space would let them do so. Thus, the legislation is imprecise.

The problem of animal welfare is almost unresolvable because it is a temporary measure to prevent any suffering of domesticated animals. It has its drawbacks but allows us to ensure at least some comfort for those we unjustifiably use for food. They have the same right to live on this planet as we do, and animal farming will be stopped one day.

📊 Bonus: Statistics & Facts for Your Animal Rights Essay Introduction

Improve the quality of your essay on animal rights by working in the following statistics and facts about animals.

According to USDA, National Agricultural Statistics Service , about 4.6 billion animals — including hogs, sheep, cattle, chickens, ducks, lambs, and turkey — were killed and used for food in the United States last year (2015).
People in the U.S. kill over 100 million animals for laboratory experiments every year, according to PETA .
More than 40 million animals are killed for fur worldwide every year. About 30 million animals are raised and killed on fur farms, and nearly 10 million wild animals are hunted and killed for the same reasons — for their valuable fur.
According to a report by In Defense of Animals , hunters kill more than 200 million animals in the United States yearly.
The Humane Society of the United States notes that a huge number of cats and dogs — between 3 and 4 million each year — are killed in the country’s animal shelters. Sadly, this number does not include dogs or cats killed in animal cruelty cases.
According to the ASPCA , about 7.6 million companion animals enter animal shelters in the United States yearly. Of this number, 3.9 Mil of dogs, and 3.4 Mil of cats.
About 2.7 million animals are euthanized in shelters every year (1.4 million cats and 1.2 million dogs).
About 2.7 million shelter animals are adopted every year (1.3 million cats and 1.4 million dogs).
In total, there are approximately 70-80 million dogs and 74-96 million cats living as pets in the United States.
It’s impossible to determine the exact number of stray cats and dogs living in the United States, but the number of cats is estimated to be up to 70 million.
Many stray cats and dogs were once family pets — but they were not kept securely indoors or provided with proper identification.

Each essay on animals rights makes humanity closer to a better and more civilized world. Please share any thoughts and experience in creating such texts in the comments below. And if you would like to hear how your essay would sound in someone’s mind, use our Text-To-Speech tool .

Why Animal Rights? | PETA
Animal Rights – Encyclopedia Britannica
Animal ethics: Animal rights – BBC
Animal Health and Welfare – National Agricultural Library
The Top 10 Animal Rights Issues – Treehugger
Animal welfare – European Commission

Research Paper Analysis: How to Analyze a Research Article + Example

Film analysis: example, format, and outline + topics & prompts.

101 Animal Rights Essay Topic Ideas & Examples

🏆 best animal rights topic ideas & essay examples, 📑 interesting topics to write about animal rights, 🎓 good research topics about animal rights, ❓research questions about animal rights.

The Importance of Animal Rights Overall, animals should have rights as they contribute to the world economy and improve people’s lives by providing favorable socializing conditions, and there is no reason to believe that animals are different from humans.
An Ethical Analysis of Animal Rights Animal rights advocates state that the interests of animals are of vital importance to them and they should not be limited by human beings. Animal activism requires the person to concede that animals have rights […]
Animal Rights: A Practical Approach If the principles of animal rights are followed to the letter, then, it is illegal and immoral to find cures using animals as research subjects.
Communication Activities by Animal Rights Advocates Another reason animal rights supporters may fail to persuade others is because they often take an aggressive stance.”Animal rights is the view that the interests of animals should be given the same consideration as the […]
Rights of Animals: Peter Singer’ and Bonnie Steinbock’ Views The objection to the idea of ‘animal rights’ arises from the thinking that animals and human beings are different and thus cannot have ‘rights’ in the same sense as applied to people.
Animal Rights and the Importance of Their Protection In conclusion, while animals may not have the same mental and intellectual capacities as humans, it is very important to persecute any possible animal rights violations.
Circus as the Central Place of Animal Rights Violation There should be a thoroughgoing prohibition on the exploitation of animals in circuses, as this issue is contrary to humane treatment and is a direct violation of their rights.
Fight for Animal Rights in Modern Realities In describing the basic theoretical attitudes of the movement, two main models should be distinguished according to which the ideology of the activists of this movement is built.
Animal Rights and Ethics of Duty In the article “The Edge of Animal Rights” of Sun Yajun, the Journal of Agricultural and Environmental Ethics argues that the moral culture is made up of all things worthy of moral concern.
Human and Animal Rights on Board In this essay, the goal is to compare the conditions when people have to use animals to improve their quality of life, and when people want to use animals for their benefit.
Animal Rights in Whistler, British Columbia: A Case Study of 100 Slaughtered Sledge Dogs The slump of business after the Winter Olympics proved to be a challenge for the tour operator to maintain the pack of dogs.
Tom Reagan’s Speech: A Case for Animal Rights Tom Reagan gave this speech as a contribution to the answer to the question of whether there is a need for the animal kingdom to have a bill of rights.
Environmental Ethics Concerning Animal Rights As far as the latter is a traditional worldview for the numerous generations of people, it is the task of the environmental philosophy and environmental ethics to overcome the stereotype that nature is the raw […]
Animal Rights Movement: Global Impact on Businesses and Their Marketing Moreover, international animal rights organizations, such as the People for the Ethical Treatment of Animals, the Society for the Prevention of Cruelty to Animals and the British Union for the Abolition of Vivisection, have largely […]
Animal Rights: Definition, Goals, the Future The objectives and goals of the animal rights advocators and what they believe in has gained popularity in the United States of America and people are now aggressively prohibiting the various cruelty that some people […]
Equal Rights for All Animals The application of philosophical theories and principles to the issue of animals’ rights is becoming increasingly important in the modern world, where the interests of all species are being considered as ethically relevant.
The Vancouver Principles of Animal Rights Protection Nevertheless, Mary’s case can be helped if the emphasis is put on the fact that the owner of the condor did not keep the bird in the conditions required by the law.
Agricultural Products vs. Animal Rights Dilemma A while back I was looking for a summer job and I was able to get one in the farms that rear chicken for their eggs and meat.
Environmental Ethics and Animal Rights The question that arises is whether humans are the only valuing agents in the world that are full of values. Although the environment is composed of humans and other millions of species, humans are the […]
Animal Rights Protection in the United States The U.S.and the U.K.are among the pioneers of animal rights protection and currently have some of the most elaborate laws that guard against the mistreatment and abuse of animals.
Bullfighting in Spain: Animal Rights vs. Tradition Despite heavy criticism concerning animal rights activists as well as other groups, corrida, the Spanish name for bullfighting, is still one of the symbols of Spain, but will we and our children watch mouth-opened the […]
The Animal Rights and Welfare Debates The traditional attitude towards animals was based on the assertion that animals have no rights, and therefore it is not the subject of moral concerns.
“Animal Rights, Human Wrongs” by Tom Regan Moreover, Regans decision to become a vegetarian to a great extant has been predetermined by his reading of Gandhi, from which he has known that a cow is a sacred animal in India.
Arguments for Animal Rights Instead of using shared pain and pleasure to show the similarities between people and animals, he strives to elevate animals to human status.
Animal Rights: Speciesism Therefore, the interests of animals should not be ignored simply because they belong to species that are considered inferior to human beings.
“You Have the Right to Remain Silent”: Animal Rights vs. the Need for Natural Products Therefore, the key reasoning provided by the opponents of the animal rights crusaders is that a) the concept of morals is inapplicable to animal world and 2) there is little to no alternative for the […]
Human Wrongs Animal Rights: Introduction to Moral Philosophy He narrates the sad story of the whale,the rabbit and the higher, how workers on board the mother ship of a whaling fleet are disassembling the carcass of a whale, that although the species is […]
An Exploration of the Application of Environmental Ethical Thought to Animal Rights A good example to illustrate the scope of hunting as an environmental problem that is associated with the polar bear is to look at its nature in Canada and the United States of America.
‘Animal Rights’ Activists and Racism Nevertheless, while being thoroughly comfortable with the idea that it is fully appropriate to exploit the ‘eatable’ representatives of the animal kingdom, the ‘animal rights’ activists deny the same right to those, who due to […]
Do Non-Human Animals Have Rights? Animals cannot be said to have rights since the idea of rights is inherently human, and its foundations relate to the concept of a moral world.
Do Animals Possess Moral Rights? These arguments can only be addressed to a satisfactory level by analyzing the aspects of humans that elevates humanity to a higher moral status that supersedes that of other animals.
Definition of Animal Rights and Its Problems It is not that animals are thought to be of less importance than the progressive mankind or the other elements of the Earth, but the whole idea is that wildlife cannot fit the idea of […]
The Debate About Animal Rights Some people oppose the use of animals in medical research because they say that violates the rights of the animals and amounts to animal cruelty.
The Controversial Issues Surrounding Animal Rights
Animal Abuse and Animal Rights Nowadays
Non-western Views on the Animal Rights
Animal Research and the Issue of Animal Rights Over the Globe
The Debates of Animal Rights and the Health Benefits of Meat
Animal Rights Activists and the Controversial Issue of Animal Testing
The Relationships Between Animal Rights and the Human Rights Movement
Animal Rights Activists: Overdoing Their Advocacy
Correlation of Animal Rights and the Rights Theory of Robert Nozick
Animal Rights and How America Treats Animals
Three Classical Philosophies Views on Animal Rights
Animal Rights and Its Effects on Society and the Environment
Applying Animal Rights for Marine Mammals
Animal Rights and the Dominant Worldview Toward Animals
Building and Aiding Animal Rights in the U.S.
Animal Rights and the Ethical Treatment of Animals
Christian and Muslim Viewpoints on Animal Rights
Animal Rights and the Tragedies of Factory Farming
Current Controversies and Issues About Animal Rights
Animal Rights: Comparing the Views of Hasselstrom and Regan
Early Philosophers Did Not Favor the Idea of Animal Rights
Animal Rights: Laws That Protect Animals
The Parallels Between Ecofeminism and Animal Rights
Animal Rights Movement and the Two Sides of Issue
Establishing and Upholding Animal Rights in the Us
Animal Rights: Need, Importance, and FAQs
Ethical and Moral Problems With Argument Against Animal Rights
Animal Rights, Preference Utilitarianism, and Peter Singer’s Theory of Rights
Explaining Animal Rights and Effects of Ignoring Them
Animal Rights: Pros and Cons of Animal Experiments
Controversy Around P.E.T.A.: Animal Rights, Human Abuse
Animal Rights Activists: Who Is the Most Effective
Should Animal Rights Activists Be Held Accountable for Abuse Videos
Animal Rights: Runs From Animal Liberation to Animal Exploitation
Importance of Teaching Children About Animal Rights
Animal Rights Should Not Be Introduced to Law
The Animal Rights Activism in the United States of America
Animal Rights, the Environment, and Social Welfare
The Animal Rights Protests Against the Fur Trade
The Growing Concerns Over Animal Rights
Why Are Animal Rights Important to Society?
Are Animal Rights Violated in U.S. Rodeos?
What Is the Main Difference Between Animal Rights and Animal Welfare?
How Can We Promote Animal Rights?
What Are the Major Animal Rights Issues?
Is Animal Rights a Social Problem?
What Are the Most Important Animal Rights?
How Do Animal Rights Benefit Humans?
Who Is in Control of Animal Rights?
Should Animals Have Moral or Legal Rights?
When Did Animal Rights Become a Problem?
Are Animal Rights Protected?
What Was the First Country to Have Animal Rights?
Does the UN Protect Animal Rights?
Is the Animal Rights Movement Growing?
Are Animal Rights Equal to Human Rights?
What Is the Animal Rights Movement Today?
Why Is Animal Rights a Moral Issue?
How Is Regan’s Position on Animal Rights Different From Singer’s Explain?
What Ethical Theory Supports Animal Rights?
Do Animals Deserve the Same Rights as Humans?
What Is the Relationship Between Vegetarians and Animal Rights Activists?
How Do Animal Rights Affect the World?
What Is the Utilitarian View on Animal Rights?
When Did People Start Protesting for Animal Rights?
Vegetarianism Essay Ideas
Animal Farm Research Topics
Biomedicine Essay Topics
Cloning Questions
Dog Essay Ideas
Veganism Essay Ideas
Wildlife Ideas
Zoo Research Ideas
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COMMENTS

PDF Animal Rights and Human Responsibilities: Towards a Relational
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Thesis Statement. Animals deserve rights because they are sentient beings capable of feeling pain and suffering, and it is our moral duty to protect and respect their rights. History and Debates. The concept of animal rights can be traced back to ancient civilizations such as India, where animals were considered sacred and were protected from ...
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(PDF) Animal Matters: A Critical Theory of Animal Rights and Justice
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(PDF) The Rights of Animals
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PDF The Rights of Animals
The legal protection to be accorded to animals does, of course, depend on the kind of creatures that they are. Dogs and horses should not have the right to vote; but they should have a right to good lives for dogs and horses. Animals with less developed cognitive capacities deserve rights of a different sort.
Animal Rights and Human Responsibilities: Towards a Relational
In this thesis, I analyze some of the most important contributions concerning the inclusion of animals in the moral and political sphere. Moving from these positions, I suggest that a meaningful consideration of animals' sentience demands a profound, radical political theory which considers animals as moral patients endowed with specific capabilities whose actualization needs to be allowed and ...
PDF Animal Rights and the Values of Nonhuman Life
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The Animal Rights Struggle: An Essay in Historical Sociology
The animal rights movement is much older than one might imagine. As long ago as the beginning of the 19th century British pioneers were campaigning for animal welfare and working to internationalise their struggle. This book is not of exclusively historic interest, however. A review of the development of animal protection
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The Animal Rights Thesis (ART) entails that nonhuman animals like pigs and cows have moral rights, including rights not to be unjustly harmed. If ART is true, it appears to imply the permissibility of killing ranchers, farmers, and zookeepers in defense of animals who will otherwise be unjustly killed. This is the Militancy Objection (MO) to ART. I consider four replies to MO and reject three ...
PDF Animal rights Pacifism
Accepted: 26 March 2021/Published online: 25 May 2021 The Author(s), under exclusive licence to Springer Nature B.V. 2021. Abstract The Animal Rights Thesis (ART) entails that nonhuman animals like pigs and cows have moral rights, including rights not to be unjustly harmed. If ART is true, it appears to imply the permissibility of killing ...
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Animal Rights: Definition, Issues, and Examples
Animal Rights: Definition, Issues, and Examples. THL. Jul 08, 2022 (Originally Published: Dec 17, 2020) Animal rights advocates believe that non-human animals should be free to live as they wish, without being used, exploited, or otherwise interfered with by humans. T he idea of giving rights to animals has long been contentious, but a deeper ...
101 Animal Rights Essay Topic Ideas & Examples
Human and Animal Rights on Board. In this essay, the goal is to compare the conditions when people have to use animals to improve their quality of life, and when people want to use animals for their benefit. Animal Rights in Whistler, British Columbia: A Case Study of 100 Slaughtered Sledge Dogs.
PDF Animal Rights- Protection Against Animal Testing and Exploitation: a
3 | P a g e DECLARATION I declare that this dissertation titled, "Animal Rights- Protection Against Animal Testing And Exploitation: A Critical Study" researched and submitted by me to the National University of Advanced Legal Studies in partial fulfilment of the requirement for the award of Degree of
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The Case for Animal Rights is a 1983 book by the American philosopher Tom Regan, in which the author argues that at least some kinds of non-human animals have moral rights because they are the "subjects-of-a-life", and that these rights adhere to them whether or not they are recognized. [1] The work is considered an important text within animal rights theory.
Animal Rights Essay
Animal Rights "Nearly as many, 68 percent, were concerned or very concerned about the well-being of animals used in 'sports' or contests as well as animals in laboratories (67 percent) (Kretzer, 1).". Many people question whether an animal is capable of thought and emotions. Others feel as though animals are the equivalent of humans and ...
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Thesis Statement For Animals Deserve Rights, And Their Rights
Thesis Statement. Animals deserve rights, and these rights should annihilate the problems with animal abuse, abandonment, and animal experimentation. Purpose Statement. The purpose of this research paper is to discuss animal rights and what animals right activist ideology fight for which includes animal abuse, abandonment, experimentation, and ...