Who should be included in, and who excluded from, the club of rights-holders?

Index

Introduction

Having rights

Having Choices

Having Interests

Having Characteristics

Obligations and duties towards animals

Conclusion

Bibliography

Introduction

In the following text I shall attempt to approach an answer to the question of who should be included in, and who excluded from, the club of rights-holders. In answering such a question one might easily be overwhelmed by not only the amount of literature on the subject, but also by the numerous possible approaches one might take. Due to the spacial limitations of this paper, I must therefore limit myself in both cases and approaches.

The main focus of this text will be on animals, i.e. non-human animals (from here on termed “animals”), and whether or not such beings should be treated as being able to hold rights. In dealing with this question I shall on the one side primarily rely on Tom Regan, James Rachels and Joel Feinberg, who argue for the case of animals having rights, and on the other side R.G. Frey and Carl Cohen who have promoted the view that animals should not be considered to have such property.

As we shall see, the arguments promoting each view are based on different presumptions about the theoretical foundation of moral rights.

The structure of the text is as follows: I shall first give a very brief account of what it means to have a right, based on the Hohfeldian view, in order to understand the common framework upon which most modern rights-theory is founded. I will then move on to explain the rationales of the use of either choice theory or interest theory in the explanation of rights. This short theoretical introduction will serve as a base for the actual question of whether animals should belong in the category of rights holders.

In this section I will present some of the views of the aforementioned authors and critically assess and reflect on them.

Having rights

Before embarking on the task of answering whether someone or something should belong in the category of rights-holders, we should ask ourselves the question of what it entails to have a right and what a right is.

Wesley N. Hohfeld identifies four forms of right:1) claim-rights, 2) liberty-rights, 3) powers, and 4) immunities, all of which have corresponding opposites and correlatives (Hohfeld 1920:35ff., Jones 1994:12-25). The two former (first-order relations) are of importance to the task at hand.

Claim-rights are characterized by someone having a claim or a demand upon another person(s), whom have a reciprocal duty to fulfil that claim. We might say that claim- rights are “necessarily rights against a person or persons who owe the corresponding duty to the right-holder”, and are thus passive in the perspective of the right-holder: they concern what others are obliged to do (Jones 1994:14,21).

Liberty-rights or privileges, on the other hand, are active in dealing with the actions that the right-holder may or may not be entitled to. It is characterized by the absence of duty directly connected to that liberty (unless the liberty has been agreed upon to be abandoned), and correlates to “no-rights” (Simmonds 2001:xiii).

When asking whether animals should belong in the category of rights-holders, I am assuming that holding just one single right (however “significant” it may or may not be) will classify them as right-holders. It will thus make sense to categorize which rights we are talking about, e.g. an animal’s right not to be killed, right not to be treated unfairly or suffer unnecessary harm or even a right to life? It is obvious that if we ascribe rights to such beings as animals, that these rights are passive in nature, i.e. they concern how we should behave towards them and not how they are entitled or empowered to act towards us. It should be clear that these necessarily must be claim- rights then.

Let us imagine for a moment that it was agreed that animals had a right not to suffer unnecessary harm. According to hohfeldian terms, such a claim-right cannot exist without a correlative, namely the duty not to subject any animals to any unnecessary harm. But can we reason “the other way around”: If we have duties to animals does this automatically entail that these have rights? Can we have duties without correlating rights? Two competing views have been made on this, namely choice theory and interest theory.

Having Choices

Choice or Will theory, can roughly be said to be grounded in the axiom that a right is a form of choice. Whenever X has owed a duty to Y, and Y has the choice to either absolve X from or ]insist upon that duty, we can speak of the existence of a right. The correlation between duty and claim-right can in this sense be said only to exist when the right-holder can exercise control over the performance of another’s duty. What seems to be problematic about this approach is that, not only does it exclude potential rights-holders by reference to certain cognitive standards, it moreover vetoes distinct rights that we do not find controversial such as the right not to be assaulted, since we hardly can talk of exercising control over the duty not to assault us (Jones 1994:32-33, Machan 2007).

Can choice theory in any way help us in establishing if animals can have rights? Obviously, it may be argued that even though we have some obligations towards animals in the way we should treat them, animals cannot be said to possess the cognitive capability to make qualified choices and exercise control over our duties to them. Attempts to repudiate this claim, by reference to studies of the cognitive, linguistic and mental capabilities of higher animals, have failed and it is commonly regarded that such beings cannot insist upon or waive rights. We may certainly have some legal and/or moral obligations (or even duties) not to treat animals in certain ways, but Choice Theory does not let duty correlate to claim-right in this case, since individuals have to be able to make choices in order to hold rights.

Having Interests

Contrary to the choice-based rights theory we find Interest Theory or Benefit Theory, whose main argument is that rights can potentially be ascribed to anyone or anything that can be a beneficiary or posses an interest. If X benefits from Y’s duty that Y not kills X, then X has a right not to be killed. The duties that we have do not all give rise to rights, though. It is said that it is only when duties are aimed at the benefit of specific individuals, as opposed to a general public, that they do so. The duty not to kill someone can thus be said to benefit individuals (and not merely a broader public), which gives rise to the right not to be killed, whereas the duty not to moonlight (illegally) benefits individuals “...only as members of an undifferentiated collectivity” (Jones 1994:28). In this case it would be highly arbitrary to talk of someone having a right that others not moonlight. Interest theory is in this sense restrictive in that it only allows for correlativity between duty and claim-right when the duties are “designed” to benefit specific individuals (Jones 1994:29).

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