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I. Animals have rights
Bo Winegard is an essayist and holds a PhD in social psychology. You can follow him on Twitter @EPoe187.
What do we mean by “rights”? For the purposes of this discussion, my answer to this complex question will be pragmatic: Rights are like rules in a sport. They forbid some practices and behaviors and encourage or demand others. In basketball, if you step on the out-of-bounds line with the ball, you must turn the ball over to the other team. The rule is real in the sense that all parties agree to it, and it is enforced by the relevant authorities. In the social world, to say that humans have “a right to life” means that people are forbidden from killing other people under (almost) any circumstances. This right is real in the same sense that most parties have agreed to it, and it is enforced by the state’s criminal justice system. If we treat rights in this pragmatic way, we do not need to wrestle with abstruse metaphysical questions about their ontological status.
We do, however, need to acknowledge a fundamental difference between rights and rules. Rights appear to exist prior to social arrangements, whereas rules are arbitrary and exist only after parties have agreed to them. We readily accept, for example, that basketball was once played without a three-point shot or that baseball players were once out if a fielder caught a fly ball after a bounce. We do not believe these rules were immoral, even if we now think they were unwise. On the other hand, we believe it to be egregiously immoral that slavery used to be a nearly universal feature of human societies. So, while rights may be similar to rules in a sport, they do not seem to be as arbitrary. This may reflect a feature of human psychology more than a feature of the universe, but I will not press the point here. I will only contend that we should think of rights as rules so that we can avoid thornier philosophical disputes.
The claim that animals have rights, therefore, amounts to a claim that any morally tolerable society should regulate the way that humans interact with animals in such a way that certain behaviors (cruelty) are forbidden and others (care) are encouraged. Consequently, any morally responsible human should behave in these ways in his own interactions with animals, regardless of whether other humans are monitoring or capable of punishing him. If animals have rights, they are a part of our moral world, and our treatment of them should reflect that. The rules of any decent society should proscribe some behaviors toward animals and encourage others, and these rules should be internalized.
It is hard to imagine somebody reasonably arguing that a society in which animals are gratuitously tortured is morally equal to a society in which animal torture is prohibited. If we grant that our moral intuitions cause us to recoil from gratuitous cruelty, then societies that prohibit and punish the torture of animals must be morally superior—on that point, at least—to those that do not. This suggests that these rights are not arbitrary since they are based on human moral intuitions. And these intuitions, like other moral intuitions, are not entirely socially determined. They are part of the hardware of the human mind (though this hardware interacts with the environment in complicated and often unpredictable ways).
This intuitive and pragmatic approach is very different from the utilitarian approach to animal welfare championed most prominently by the philosopher Peter Singer. Although he has changed his mind about exactly which variation of utilitarianism is more plausible, Singer’s ethical approach begins from the premise that sentience is what matters morally. Creatures capable of experiencing pain and pleasure have moral significance, even if they are not capable of higher level reasoning. This is because pain is ceteris paribus bad, and pleasure is ceteris paribus good. I have two (and a half) objections to this approach.
The half-objection is simply that utilitarianism, like the pragmatism I’m advocating here, is also based on a moral intuition—that sentience is what matters most. Many utilitarians would readily acknowledge this (although some would claim that utilitarianism is objectively true in a non-trivial way). But they would also argue that it is the most important and primitive moral intuition that we have, and that it should therefore guide our moral norms and trump other intuitions when it conflicts with them. This is a plausible claim but it is not self-evident.
The first objection is that sentience is impossible to ascertain. We simply do not know if other animals have conscious experiences. Even quite complicated animals, such as rabbits or squirrels or dogs, do not appear to be capable of propositional thought, and it is therefore unlikely that they have second-order cognition. It could reasonably be argued that second-order cognitions are necessary for conscious experience (as opposed to mere consciousness), and this does not require a retreat to Cartesian dualism because the mind is caused by the brain. But brains that are capable of symbolic thought are surely different from those that are not, and it is more plausible than not that only symbolic minds have a phenomenological reality—a world that they experience.
But this should not be a problem for those who wish to defend the existence of animal rights. Sentience per se is not the only important variable in our moral calculus. If I were to find out tomorrow that dogs do not have conscious experiences, I would still maintain that dogs have moral value and dignity and that it is wrong to treat them with cruelty. Nevertheless, for some utilitarians, this is a serious (albeit surmountable) challenge, and many philosophers, biologists, neuroscientists, and other intellectuals have written intelligently about these issues.
A second objection is that sentience-based approaches to animal rights/welfare do not deal effectively with the ethics of painless killing. Let us suppose—to take an extreme example—that a man is delighted by killing frogs in his backyard by smashing them with a hundred-pound mallet. He does this about 40 times a day and discards the crushed carcasses in the garbage can. Is this wrong? My intuitive response is that it is not just wrong, but egregiously and obviously so. From a (hedonic) utilitarian perspective, the act of smashing with the hammer itself is not wrong because instantaneous death does not cause the animal pain (and, in fact, it provides the sadistic person doing it with a lot of pleasure). The hedonic utilitarian could (and probably would) assert that although the act is painless, the killing of a frog is wrong because it eliminates future pleasures that the frog might have experienced otherwise. But this raises the problem of moralizing potential life—if it is wrong to extinguish future pleasures, is it not equally wrong not to create them? This leads to all kinds of complicated philosophical issues, which I cannot possibly address here, but which are easily avoidable if one simply rejects the utilitarian framework and approaches the issue of animal rights from a more pragmatic perspective: Killing frogs gratuitously is wrong because it violates more powerful intuitions for no good reason.
Against my pragmatic proposal that animals have rights comparable to non-arbitrary rules in a sport, the late philosopher Sir Roger Scruton contended that rights are necessarily reciprocal and imply obligations, which animals cannot fulfill. The notion of animal rights is therefore an illegitimate expansion of the concept of rights, which are necessarily and properly limited to rational (or potentially rational) persons. But this objection is almost entirely definitional. If one defines rights in this way, then of course it does not make sense to extend rights to a cow or a chicken. But there is no compelling reason to accept this definition of rights, and it is quite reasonable to contend that, say, dogs have rights in almost all the relevant ways that infants have rights.
Animals have moral significance because our moral intuitions reveal that they do. Moral realists can argue that our intuitions reveal this moral significance because it exists objectively; pragmatists can remain agnostic about the ontological status of morality, because they do not think it matters much. Most of us behave as moral realists in our daily lives. Because we believe that animals have moral significance, we would prefer some societies to others because of their treatment of animals. Those that treat animals well are preferable to those that do not. Rights are like rules; they proscribe certain behaviors and encourage others. Animals therefore have rights because we want to create a society that regulates, to some degree, human interactions with animals, and that prohibits some behaviors. The exact nature of these rights is always debatable and complicated, as it is for humans. But some of the most basic rights are, as Thomas Jefferson wrote, self-evident.
Animals deserve some rights, but not the same rights as humans, and it is ethical to use animals for food and experimentation, so long as certain criteria are met.
Prior to the modern period, concern for animal welfare largely revolved around issues of human character and the promotion of virtue. Because European Christians at that time believed that animals did not have souls, or at least the same type of souls as humans, the concern for their wellbeing came from the duty of biblical stewardship. Prominent philosophers such as Immanuel Kant argued that the cruel treatment of animals was not bad because it violated the rights of animals, but rather because it degraded the self.
The first animal welfare campaign in America can be traced all the way back to the 1600s, but the contemporary movement of animal rights really began in the 1960s and ’70s. Inspired by the successes of earlier movements, and by the civil rights campaigns of that time, the modern animal rights movement has been successful, but it is still wrestling with massive technological changes that have made the exploitation of animals easier and more profitable.
Two major technological advances led to mass animal exploitation—the development of antibiotics and the rapid growth of molecular and cell biology as academic fields after World War II. Antibiotics made it possible for farm animals to survive in Concentrated Animal Feeding Operations (CAFOs), and molecular and cell biology made it possible for animal experimentation to yield medical and veterinary breakthroughs through extensive animal testing.
Of course, farmers of the last 70 years were not less (or more) moral than their ancestors, but prior to the development of these technologies, animals kept in such conditions would have died, bankrupting the farmer. Animal death is a huge cost to farmers, and prior to the modern medical era, there existed traditions in animal husbandry that kept the animals in good health, because that was in the farmer’s best interests.
The early days of animal experimentation were unsavory and replete with experiments that induced incredible amounts of needless suffering, often for little or no benefit. Some of those experiments did lead to tremendous gains in human welfare (for example, advances in skin grafts and space travel), but many merely led to discoveries that catered to more trivial human needs (such as cosmetics).
During this period, people began to develop formal theories of animal rights. The first two major philosophers in this area were Peter Singer, who wrote Animal Liberation in 1975, and Tom Regan, who wrote The Case for Animal Rights in 1986. Singer defended the notion of animal rights on utilitarian grounds, arguing that the capacity for suffering made them worthy of moral consideration. Regan, on the other hand, argued that animals have inherent moral rights because they are the “subjects of lives” who have conscious experiences (awareness of surroundings, relationships, preferences, etc.). In this respect, Regan argued, animals are like humans, especially young and developmentally disabled humans, and thus deserving of moral recognition. Both Singer and Regan advocated for vegetarianism on account of the harm suffered by animals in industrial farming.
Bernard Rollin, the father of veterinary medical ethics, took a different approach to animal rights to that of Singer or Regan. He argued that because humans and animals had been in a symbiotic relationship prior to World War II, we could develop a system of rights aimed at taking good care of the animals we use. According to Rollin, the problem isn’t that we eat meat or use animals in experiments, it’s that industry abandoned the concept of animal husbandry, which farmers had employed for thousands of years. From this position he developed the first ethics protocols that animal researchers must follow to conduct animal experimentation, and helped to develop technologies that reduced animal suffering. He believed that we could use animals, but not abuse them, and I agree with this position.
On utilitarian grounds, a cow raised from birth to slaughter in factory-farm conditions has suffered much more pain than the pleasure that consuming meat gives humans. However, a cow living in a field with acres in which to roam, free to eat grass and protected from predators and diseases, is able to enjoy a pretty good cow life. And if that cow is ethically slaughtered with the infliction of minimal suffering and distress, the pleasure produced for humans by the consumption of its meat outweighs the pain of the cow’s premature death. Cows have consciousness and instinctually avoid pain and death, but they’re also getting a good deal from the non-industrial farmer who practices good animal husbandry and keeps them safe from the harms they would face in the wild. So long as animals are treated ethically, a utilitarian calculation does not morally prohibit the raising and slaughtering of livestock.
John Rawls offers a similar logic and conception of justice in his “Veil of Ignorance” argument. The veil of ignorance asks us what types of lives we’d be willing to live if we jumped into the world without knowing which individual we’d get to be. This thought experiment was formulated to encourage support of welfare capitalism, but it is useful here as well. If you were going to have to live as a cow, what kind of cow life would you opt for? No one would pick the life of a factory-farm cow, or the life of a lab animal prior to the introduction of ethics board oversight. But if people had to choose between life as a well-cared-for cow on a ranch and life as a wild cow, it’s not immediately obvious which is preferable.
Many farmers have been amendable to animal husbandry practices that benefit the animals, even if it costs them a little extra or gives them less space because each animal gets more room. Industrial factory farming of course resists this logic, but they tacitly acknowledge it by the amount of effort they expend concealing their operations from the public. I used to show my students the 2008 documentary Food, Inc., and it would make them feel guilty for supporting the production of meat from factory farms. People want to be happy, but not at the expense of someone or something else suffering like that.
Ethics guidelines for lab researchers have come a long way since they were first introduced. Originally, animal experimentation that leads to suffering and death was considered ethical so long as the experiment could not be simulated (for example, on a computer), or conducted on cell cultures and biopsies or in some other way that avoided those outcomes. Anesthesia could be employed unless it damaged the experiment. Further, the research had to be original, such that the information could not be gained from other sources, and it had to be likely to bring about a pharmaceutical good which would aid more beings than were sacrificed.
The decision to allow for animal experimentation is now made by Internal Review Boards, which are made up of scientists and lay people—scientists because they understand the experiment at issue, and lay participants to keep the scientists in check. The current version of this procedure in Europe is enshrined in Council Directive 2010/63/EU of the European Parliament and the Council. In addition to the above, it stipulates that animals must always be treated as sentient, death should be avoided wherever possible and a particular threshold of pain must not be crossed, the number of animals used must be minimal, and the type of animal is determined by its capacity to experience pain, suffering, distress, or lasting harm.
Thus, animals have the right to not suffer needlessly and to have their interests taken into consideration by the humans who use them. It is possible to both respect these rights and to gain the benefits of using animals in agriculture and medical science, and we have a corresponding obligation to pay the extra associated costs of maintaining a morally satisfactory standard of animal welfare.
III. Animals do not have rights
Jake Scott is undertaking doctoral research of political theory at University of Birmingham, UK. You can follow him on Twitter @J_Scott_95.
Rights have become the gold standard of political discourse in the West. In his 1977 book Taking Rights Seriously, Ronald Dworkin maintains that “rights are trumps.” Dworkin, like other rights theorists, struggled to answer the question of what happens when rights conflict, but if we understand his statement as a straightforward observation and not a moral claim, it is difficult to dispute. In the West, we often hear the rights of individuals or groups invoked, as if merely doing so is enough to end an argument, such as the right to privacy or the right of free movement. Such assertions frequently beg the question at issue, but the rhetorical currency of rights is prima facie evidence of their societal importance and appeal.
Here, however, my concern is normative, and to answer the question of whether or not animals have rights, we need to be able to define what a right is, to whom it belongs, and what it does. This requires a brief excursion into metaphysics to examine the philosophically relevant differences between human and non-human animals.
The phrasing on which this question is predicated is not accidental—humans are animals, famously defined by Aristotle as political animals (the zoon politikon). Whilst we retain our “animality,” we do not live in groups out of mere physical necessity, but according to rules of our own making. In other words, we are politic about the way in which we live together, and we recognise that individuals often have desires that conflict with those of other people. Here we can turn to Sir Roger Scruton, a philosopher who argued extensively that animals do not have rights, and that it is cruel to pretend otherwise.
In Chapter 2 of Animal Rights and Wrongs, Scruton wrote, “although other animals are individuals, with thoughts, desires and characters that distinguish them, human beings are individuals in another and stronger sense, in that they are self-created individuals.” When he describes humans as “self-created,” he means that human individuals have the power to shape themselves and to do so through the higher faculty of rationality. It is this rationality that allows us to talk of the human person, in a way we never can of an animal. Some people might describe an animal as having a “personality,” but this is not a reflection of the animal, but of the person describing that animal.
Focusing on personhood and humans as political animals, Scruton recognised, gives rise to a conflict produced by the paradoxical nature of humanity that could never occur in the non-human animal world: “people depend on others and also need to be free of them.” Humans, as Aristotle wrote, are not capable of living self-sufficiently, and yet they feel the desperate need for freedom from other persons.
Scruton argued that the notion of rights and personhood attempts to resolve this conflict: “the concept of the person should be seen in light of this. It denotes potential members of a free community—a community in which the individual members can lead a life of their own. Persons live by negotiation and, through rational dialogue, create the space which their projects desire.” In other words, “human beings are actual or potential members of a moral community, in which each member enjoys sovereignty over his own affairs, so long as he accords equal sovereignty to others.”
It is in this world—of sovereign individuals who must nonetheless live together—that the language of rights arises. In his 2014 work, How to be a Conservative, Scruton described rights as producing a “sphere of personal sovereignty” as part of a “calculus of rights and duties,” which rational beings use in order to settle their disputes and to reach agreement over matters of common or conflicting interest.
Some rights are passive, and some are active. As Scruton put it, my right to life implies a duty on others not to kill me, which requires nothing of them; on the other hand, a right to food implies that others have a duty to help feed me. There is a debate to be had over the significance we ought to place on passive and active rights, but so understood, their existence is plausible and socially important.
Rights give weight to that sphere of personal sovereignty as an inviolable territory of personhood that helps to create and regulate a society of consensual relations, rather than one of domination and exploitation. If rights exist in a nexus of duties and responsibilities, then they act (1) to allow a person to control his own life; and (2) to ensure coercive interference is punishable. “The individuality of the moral agent,” expressed in this nexus, wrote Scruton, “exists also as a constraint upon treatment by others. … Around the moral being, therefore, a sovereign territory exists, which cannot be entered without permission. This fact is enshrined in our concept of a right, in the idea of the person and in the moral law and its prohibitions.”
Non-human animals, for all their varied intelligence, do not have the conceptual consciousness required to respect others’ rights; they do not have the ability to settle disputes relating to the moral law of personal sovereignty that human animals do; and, importantly, they do not have the potential to do so. Throughout his writing on animality and human rights, Scruton uses the word “potential” to qualify members of the moral community. This allowed him to include those humans who do not have the capacity to exercise their own rights or respect the rights of others—such as fetuses, infants, or the mentally disabled. In A Political Philosophy, Scruton asserted that we include such “marginal humans” and not non-humans in the moral community because “the human form is, for us, the outward sign and symbol of the moral life, and because we never wish to foreclose the possibility that each human body harbours, in whatever embryonic form, a personality.” To put it another way, in this question we must consider normal developmental trajectories. Humans ordinarily develop moral consciences, whereas animals do not.
The point is that animals cannot have rights because they cannot respect rights, and do not even have the potential to respect rights. And not simply the rights that humans claim for themselves—a leopard in the savanna does not respect the right to life of the antelope. If animals cannot respect the rights they each supposedly possess, then they cannot reasonably be said to possess rights in themselves; they do not exist in a moral community, but in a community of necessity and appetite.
Furthermore, it is actually cruel to impose human normative notions on animals because that would require them to suppress their own natures. We do not imprison a leopard if it kills an antelope. I do not impose a fine or civil sentence on my dog if she steals one of my biscuits. Animals do not have a moral conscience capable of understanding the notions of life, ownership, property, and so on, and for that reason it is not in their nature to understand the moral weight at stake in the inviolable sphere of personhood. Animals are not capable of moral reasoning, or at least of the reasoning required for sophisticated conceptions of reciprocal rights.
This does not mean that animals have no moral worth. That would be an absurd claim. Nor does it mean that humans have no obligations to animals. In fact, it means the opposite: humans have a greater obligation to animals than rights can possibly imply. Animals cannot make a moral judgement, but nor can they make a moral claim. To invoke rights as a possession of animals is to imagine that predatory animals would respect the claims of their prey—an idea that is negligent and disrespectful. Instead, humans should recognise that they alone can know what is right and wrong and what is therefore abuse. The gross industry of factory farming needs to end—but only because we alone can recognise the immorality of such practices. The animals do not care if it is moral or not, they only care if they can be their natural selves.
It is a human behaviour to assign human characteristics to non-human objects. We can talk of the face of a building, the song of a bird, and the love of a dog, but only because it is we that can do so. We alone can make the moral judgements necessary to sustain a moral community, and it is a gift of that aesthetic mind that we are able to include animals within such a community, but never as equals. To treat them as equals is cruel; they are our wards, and we are their guardians. To give them rights is to expect them to respect the rights of others, and only when the lion lies down with the lamb can that be said to happen.
It is worth closing with Scruton’s reflections on this point. In this essay, I have attempted to make clear the moral distinction between human and non-human animals, and explain why this means non-human animals can neither respect nor possess rights. According to Scruton, this is a kinder view of animality than the pro-rights writers such as Peter Singer:
A creature with rights is duty-bound to respect the rights of others. The fox would be duty-bound to respect the right to life of the chicken and whole species would be condemned out of hand as criminal by nature. Any law which compelled persons to respect the rights of non-human species would weigh so heavily on the predators as to drive them to extinction in a short while. Any morality which really attributed rights to animals would therefore constitute a gross and callous abuse of them.
The point is this: rights demand a duty. Non-human animals do not have, and cannot develop, the moral capacity to fulfil these duties. If we treat non-human animals as having duties, then we have no choice but to punish them as we would punish a human. This is absurd—whether it is imprisoning a leopard for killing an antelope or fining a cat for wandering through a neighbour’s garden. Such examples might seem somewhat frivolous, but they are to the point: animality really demands that we recognise its difference from humanity and treat non-human animals as such.
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