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Rights theories: the general approach

Rights theories maintain that there are things we cannot do against individuals, because they are holders of moral rights. Having a right means having a special protection. It means that an interest that the right defends should not be frustrated. If an interest is defended by a right, it should not be thwarted even if doing so may be good for other reasons.

 

Types of rights

In ethics, ‘rights’ is shorthand for ‘moral rights’, but in Law it’s shorthand for something else. In the legal system, individuals enjoy legal rights. Legal rights also protect the interests of individuals, but legal rights and moral rights are different things. This text deals with ethical approaches, so everything that is said here has to do with moral, not legal, rights.

 

Types of rights theories

Theories of rights can be realist or constructivist. According to realist views, rights holders have rights as one of their intrinsic features. We have to recognize and respect those rights, or struggle for them to be respected. According to constructivist views, the best theory regarding how to behave towards beings who are morally considerable is to grant them rights and to respect those rights or to struggle for them to be respected. Constructivist theory does not accept that rights holders have rights as something intrinsic. Rather, it claims that individuals choose to grant them to each other. However, it defends this as a good thing to do.

Rights theories are ordinarily deontological theories, that is, they maintain that there are norms we should always obey irrespective of circumstance. In fact, they should be obeyed whenever the opportunity of doing so appears, even when it means that this or other norms won’t be obeyed by others or by ourselves in the future.

It is also possible to defend consequentialist theories of rights. These theories entail that we should maximize the (number of) rights that are respected and minimize the (number of) rights violated, regardless of whether it is we or others who respect or violate them and whether the violation happens now or in the future.

In contrast, standard theories of rights, deontological ones, claim that we should respect a right now even if it means we won’t be able to respect other rights later, or even if it means that other people won’t be able to respect the rights of others. There are anthropocentric theories of rights according to which only humans can be considered rights holders. However, many theories contest this view and contend that nonhuman animals should also be considered rights holders (see the different ethical approaches that defend nonhumans as rights holders).

 

Arguments against animals as rights holders

One argument against the possession of rights by nonhuman animals claims that only those who can respect others’ rights can enjoy rights themselves. There are general responses against this argument. But more specifically, it is inconsistent to apply this only to nonhuman animals, because this isn’t applied in the real world in the case of humans. There are human beings who cannot recognize the rights of others (such as babies), yet they are granted rights. And in fact, the theories of rights that are most commonly accepted nowadays don’t use the above argument, but try to justify why someone should have rights based on the interests those human beings have.

Another argument against rights for nonhumans tries to show that the rights of most nonhuman animals could not possibly be respected and claims that nonhuman animals therefore shouldn’t have any rights. This argument is a response to a particular argument in support of rights for nonhuman animals which states that if someone is a rights holder, others should respect her rights. Hence, if we defend that respect for the rights of rights holders must be enforced, and we defend that nonhuman animals have rights, that means that respect for the rights of nonhuman animals must be enforced. The argument against this view is based on the issue that because nonhuman animals living in nature often harm each other, so enforcing one animal’s rights would entail violating the rights of the other.

The argument is that this shows that nonhuman animals cannot be rights holders because their claims could not possibly be respected, which makes an absurdity of the idea that nonhuman animals have rights (this issue is examined in detail in the section on helping animals in nature). But that is not the case.

 

How rights work in practice

Two or more individuals may have conflicting rights that cannot all be satisfied. But this does not mean that they do not have rights. What it entails, though, is that the satisfaction of one right may take priority or override the satisfaction of another, or that we should just try to maximize the rights that are respected if that is possible. This means we should try to enforce the rights of animals living in the wild, at least when doing so doesn’t entail that the rights of other wild animals are violated. And if this isn’t possible, we should look for solutions that would make it possible that more, and the most important, rights are safeguarded.

Apart from this, because exploiting nonhuman animals entails harming them in very significant ways, it is clear that this exploitation is incompatible with respecting their rights. But rights need not be only negative rights, that is, rights about things we shouldn’t do against others. They can also be positive rights, that is, rights that are about things we should do for their holders.


Further readings

Campbell, T. (2006) Rights: A critical introduction, London: Routledge.

Edmundson, W. A. (2004) An introduction to rights, Cambridge: Cambridge University Press.

Feinberg, J. (1970) “The nature and value of rights”, Journal of Value Inquiry, 4, pp. 243-257.

Feinberg, J. (1980) Rights, justice, and the bounds of liberty, Princeton: Princeton University Press.

Holmes, S. & Sunstein, C. R. (1999) The costs of rights: Why liberty depends on taxes, New York: W. W. Norton & Company.

Ivison, D. (2007) Rights, Montreal: McGill-Queen’s University Press.

Kamm, F. M. (2007) Intricate ethics, Oxford: Oxford University Press.

Pettit, P. (1988) “The consequentialist can recognize rights”, Philosophical Quarterly, 38, pp. 42-55.

Rainbolt, G. W. (2006) The concept of rights, Dordrecht: Springer.

Rawls, J. (1999 [1971]) A theory of justice, Cambridge: Harvard University Press.

Raz, J. (1975) Practical reason and norms, London: Hutchinson.

Sen, A. (1982) “Rights and agency”, Philosophy and Public Affairs, 11, pp. 3-39.

Shapiro, I. (1986) The evolution of rights in liberal theory: An essay in critical theory, Cambridge: Cambridge University Press.

Shue, H. (1996) Basic rights: Subsistence, affluence, and U.S. foreign policy, Princeton: Princeton University Press.

Steiner, H. (1994) An essay on rights, Oxford: Blackwell.

Sumner, L. W. (1987) The moral foundations of rights, Oxford: Oxford University Press.

Thomson, J. J. (1990) The realm of rights, Cambridge: Harvard University Press.

Tierney, B. (2001 [1997]) The idea of natural rights: Studies on natural rights, Natural Law, and Church Law, 1150-1625, Cambridge: Wm. B. Eerdmans Publishing Co.

Tushnet, M. (1984) “An essay on rights”, Texas Law Review, 62, pp. 1363-1403.

Waldron, J. (ed.) (1984) Theories of rights, Oxford: Oxford University Press.

Wellman, C. (1997) An approach to rights. Studies in the philosophy of Law and morals, Dordrecht: Kluwer.

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