All humans have rights understood as morally valid claims that are important enough to deserve legal protection. Due to their moral justification, no state is legitimate that systematically disregards them. Do some or all other animals also have rights in this particularly strong sense? Although in more recent times some legal scholars have argued for legal animal rights [1,2,3], the prevailing view among lawyers is that animals lack legal personhood. Consequently, most defenders of animal rights concentrate on the possible moral foundations in order to show that animals also deserve the strong legal protection that humans already enjoy.
The text is organized as follows. First, I outline the function and structure of rights. Then I sketch a model of moral reasoning in which we play the dual role of subjects and objects of moral consideration. Although animals are not capable of grasping the content of moral reasons, they share with us morally significant characteristics in which they basically deserve equal concern. Contrary to the prejudice that animals cannot have rights, I then show that at least the protective function of rights can also apply to them. All sentient animals have basic rights to life and well-being, including volitional activities and access to beneficial social relationships. Further rights arise from special human–animal relationships that are also politically relevant. Not all, but some animals thus have a valid claim to membership in a political community.Morality is about duties. Not all, but central duties arise from rights. They follow from the valid claims of others. Whoever violates them does not simply act wrongly; they act wrongly by doing a wrong to others. They violate directed duties whose fulfillment would be owed to some other party.
Certainly, rights in this sense are not metaphysical dowries. They are not natural or metaphysical properties of individuals, as the natural law rhetoric of ‘rights inherent to all human beings’ might have us believe. This rhetoric would be better understood to mean that our fundamental rights do not first come into the world through political or social acts of bestowal. Rather, they emerge from moral reasoning itself.
A moral right is a special case of valid claims. It is a claim backed up by reasons that can be shared by all normatively responsible persons. I presuppose that at least human rights satisfy this condition. Since human rights, unlike animal rights, are in principle not very controversial, they shall serve me as a model case for the following conceptual explication. I will methodically progress from the more familiar to the less familiar by showing that from the best understanding of human rights claims it follows that many animals also have moral rights.
Claims always have a three-digit structure. A (a subject) has a claim to X (a good) against B (a bearer of the duty or obligation). The relation can also be logically reversed: B has a duty with respect to X against A. This fact supports the so-called correlativity thesis: no rights of one party without substantively corresponding duties of another.
This is not entirely wrong, but it must not obscure an essential asymmetry: Claim rights give rise to the duties that correspond to them. B is obligated to do or omit something because A has the practical authority to demand this of B. B owes A the fulfillment of the obligation. The normative relationship emanates from A, the holder of the right. The latter may directly and for their own sake expect B to do or not to do something. Without this practical authority embodied by A, the duty would not exist.
Human rights are a subclass of claim rights. They are morally justified claims that every human being possesses as such. A minimal consensus states that every born and not (entirely) brain-dead individual member of the species Homo Sapiens is necessarily and inalienably endowed with certain rights, including the rights to life and physical integrity. Normatively, they apply even if the positive law of a state does not provide for them. The convincing moral justification, not the actual legal implementation and observance, constitutes the condition of the existence of human rights. We react specifically morally, for example with indignation [9], where we believe them to have been violated; and our indignation would not diminish if we learned that those in power did not believe in human rights and that the laws of the state therefore did not entail them. Rather, we would see this as an additional reason for moral resentment.
What might a convincing moral justification for human rights look like? Let us imagine a moral discourse about what we owe to each other as human beings. Such a discourse has a practical purpose: it aims at reasons for norms of action that all normatively responsible persons should see as categorically binding. Every sane person should incorporate a validly grounded norm of morality into their conscience. The reasons that speak for the validity of the norm must therefore not only be valid relative to particular social positions. They must be acceptable for all independent of their bargaining power and other properties that separate agents from each other. Valid norms of morality are based on reasons all moral agents can share [10].
However, human persons are not only addressees of moral responsibility. They also require moral consideration from all other moral actors. They are not only moral agents, but also moral patients. We should therefore presuppose that any participant in moral discourse also regards themselves as a vulnerable being worthy of consideration. Each of them has their own point of view of the world, makes their own experiences, and is irreplaceable in the conduct of their life, the success of which is of ultimate value for any of them. Any agent will therefore want to reconcile the norms of morality with the pursuit of a successful life. In Kantian terms: Any moral agent sees themselves as an end and never merely as a means [11].
This rules out a purely aggregative view of morality, as represented by utilitarianism. Any moral agent will reasonably attach importance to not letting their most important interests fall under the wheels of collective goal pursuit. We will all demand guarantees that our individual good cannot simply be sacrificed for a supra-personal overall good. The moral status therefore consists in a right to have rights [5]. This concept, redundant only in appearance, emphasizes the difference from a purely aggregative moral conception. Moral agents not only have the right to appear with their utility functions in an ultimately impersonal moral calculus. The right to have rights gives each member of the moral community the normative authority to demand from all others a consideration owed to him or her. Otherwise, a normative order would not merit the consent of every participant in a moral discourse. The normative order must be characterized by the form of subjective rights. In addition, since the participants in the moral discourse are all human beings, they will grant each other rights as human beings.
Notwithstanding the partial overlap of morally relevant interests, some philosophers and lawyers argue that animals cannot have rights. Three such arguments should be considered. A first one starts with the correlativity of rights and duties. Almost all animals except humans are incapable of insightful compliance with the rights of others. They lack the ability to accept an obligation from insight into the validity of the reasons justifying it. However, the view that only those who can observe moral obligations arising from rights can have rights themselves is already implausible with regard to human rights. Even small children or people with severe dementia cannot insightfully respect other people’s rights.
A second argument refers to a distinction drawn by the legal philosopher Joel Feinberg [16]. Those who confidently make use of their normative possibilities as rights holders thus testify to their self-respect. By claiming rights, they can value themselves as holders of valid claims. Feinberg argues that this special self-relation is only conceivable in a world with rights. He illustrates this with the counter-image of a world only with duties. In this counter-world—Feinberg calls it Nowheresville—a considerate interaction on all sides would probably be possible. Perhaps no one would have to fear for their life, their health, or their basic freedoms. Perhaps everyone would treat each other nicely. However, no one could say that certain actions were owed to her. No one could demand that others do or refrain from doing something for her sake. In this important respect, Nowheresville would remain normatively deficient: it would be a moral world without self-respecting subjects.
However, if rights enrich the moral universe by enabling self-respect, does this not confirm the thesis that only self-conscious subjects can have rights? After all, only they have a self-respect to gain or lose. Animals cannot conceptualize themselves as rights-bearers and cannot derive any self-respect from this status. There is a conceptual reason, however, why enabling self-respect cannot be the very ground of rights. Self-respect is not a good that we are entitled to because we desperately need it. It is a genuinely normative good. Those who respect themselves thereby testify that they know about and affirm their own moral status as subjects of rights.
However, this means that the commanded respect logically precedes self-respect. Nobody has a claim to respect herself for something which is not already due to her independently of this self-relation. The fundamental claim can therefore only be the claim to respect itself. Self-respect is systematically secondary to it. This does not invalidate Feinberg’s insight that normative orders with rights, unlike those that entail only duties or even virtues, produce subjects who can respect themselves. This is an additional advantage of rights-oriented orders, but it does not give rise to the moral status on which self-respect is based.
Feinberg himself denied that only possible subjects of self-respect could also be subjects of rights. Even though rights can be claimed, the person who claims something and the individual in whose name she claims it do not have to be identical with each other. According to Feinberg, every individual with their own interests can be considered a right holder. That applies to young children and likewise to many animals [17]. Others could exercise the claims as proxy representatives for them.
However, does this not mean that something essential is lost? A merely advocatory use of rights may be conceptually possible, but it seems to be part of the special value of rights that they give us possibilities for the self-confident shaping of normative relationships. The connection between rights and self-respect points to the emancipatory value of valid claims. This added value of rights is emphasized by supporters of the will theory, which, as the name already suggests, accentuates the willpower of the rights holder [18]. The latter can use their rights as they see fit and thereby also change normative relationships. Thus, an owner can reclaim a loan, appeal to the courts, or even make others into owners with their consent. Holders of rights have freedoms and powers that they would not possess in a world with only duties or even virtues. Subjective rights in the sense of will theory are thus an important embodiment of the modern basic value of personal self-determination or autonomy.
From the will theory emerges the third reason why animals could not have rights. Almost all of them, after all, are incapable of self-conscious and self-determined use of claims. They possess at best a rudimentary concept of moral claims and normative relations as such. However, do rights really always include freedoms such as the use of a thing at one’s own discretion and powers such as to transfer property? There are two reasons against such a generalization [19].
First, the will theory leaves no room for inalienable rights. An inalienable right is a valid claim that the holder may not relinquish or cede to others. Thus, the right not to be enslaved arguably includes the prohibition against offering oneself for enslavement. Consent to an enslavement contract would be normatively void: no one would possess the competence to enter into such a contract. Similarly, procedural rights such as the right to a fair trial are not primarily there to bring the free will of the accused to bear. The latter may have the freedom to choose a defense counsel or a particular defense strategy, but she does not therefore also have the freedom to forego overall fair treatment in court. Second, the will theory has a socially exclusive effect. It misses all subjects who are not yet, no longer, or never will be capable of self-conscious self-determination. This is not a marginal problem, and it does not only concern animals. It affects all human beings in the early, and many in the later stages of their lives. Once again, the solution lies in the possibility of using rights by proxy.
The will theory is therefore not a good general framework for a conception of claim rights. It tells us how self-aware subjects can use some of their rights, but it tells us too little about what rights might be good for. That is rather the domain of the interest theory. The latter emphasizes the substantial benefits that rights offer us. According to the interest theory, an individual X can have rights if some aspect of X’s well-being (an interest) is weighty enough for holding some moral agents under a duty [20]. Sentient animals are capable of subjective well-being and can therefore be considered rights bearers in the sense of the interest theory.
To be sure, animal rights lack the kind of emancipatory added value that will theorists emphasize. Their central purpose is protection, not personal autonomy; however, the protective function of the rights is essential, especially for animals. Today, many of them are even excluded by definition from the space of rights-bearers. They are labeled as ‘livestock’ or as ‘pests’ and thus reduced to possible contributions to the fulfillment or thwarting of human purposes. Likewise, humans dispose of animal habitats without appreciably considering their importance to the well-being and flourishing of untold numbers of animals. Humans decide on new settlements, roads, power lines, cultivation areas, or spoil heaps and regard animal territories as terra nullius [21].
In the meantime, many states have enacted laws to protect animals. German animal protection law, for example, stipulates that animals must be stunned before slaughter. However, the law basically serves to regulate the use and also killing of animals for foreign, primarily human purposes. The so-called farm animals are only in the world to be used or consumed by humans. They have no independent right to their own life. Our interests of use form the framework of their consideration by animal protection norms. These norms should ease the animals’ lot after it is already determined that they should give us meat, milk, eggs, leather, or other products and may be locked up and slaughtered for it.
However, sentient animals are not our natural servants. They are individuals with a life of their own, which for each of them is the only one they have. To recognize them as holders of rights would mean to respect them as ends instead of seeing them merely as means. In addition, even if very few rights apply absolutely, they do imply strict justification obligations for any violation of basic goods [22]. Most animals would objectively benefit greatly if at least their painful and life-shortening use for comparatively trivial purposes such as meat-eating were excluded and if they were no longer allowed to be mere material for medical experiments. Animals would even benefit from rights in a special way: they are particularly vulnerable inhabitants of a world designed by humans for humans, they cannot defend their interests themselves through collective action, and the vast majority of them cannot hope for our spontaneous sympathy, as dogs, cats, or canaries might.
