Rights theories

Rights are safeguards that protect the interests of the rights-bearer. If someone has a negative right, others are forbidden to treat them in a certain way. According to rights theories, rights are an especially strong kind of protection, because they cannot be overridden even if it would procure a greater benefit for others (unless that benefit is granted by another right). For example, rights theories typically prescribe that we have a right not to be killed, and this right cannot be overridden even for some greater good, such as saving the lives of other people. Rights theories need to specify which beings have rights, what rights, and why.¹

Rights can be negative or positive. The rights to life and safety from physical harm are examples of negative rights, because infringing upon these rights involves bringing harm to the rights-bearer. Positive rights are a binding moral claim to receive certain treatment from others. The right to education and the right to vote are examples.

It is sometimes claimed that only human beings should have rights. Below we will argue that this is a speciesist position, and that all sentient beings, including nonhuman animals used by humans and in the wild should have both negative and positive rights too, if humans have them.

Moral rights and legal rights

Rights theories can refer to moral rights or legal rights. Moral rights are generally conceived of as rights that a being is born with or possesses by virtue of their nature. Legal rights — independent of moral rights — are government-recognized laws established and upheld to protect some interests. For someone with a moral rights view, moral rights are independent of, and precede, legal rights. According to this view, an individual can have moral rights even if those rights aren’t recognized by broader society or enshrined in law.

Moral rights are sometimes justified on the grounds that certain interests are important enough to warrant strong protection, because this is the best way to maximize the wellbeing of all. This is the case with the right to life and physical safety (freedom from assault and murder) and the right not to be used by others as a slave. In other cases, moral rights are defended to protect individuals’ decisions. The argument is that rights holders have wills of their own, and this is grounds for them to have a right not to be controlled by others.

Legal rights are just rights that are accepted in a certain legislation. One can deny that there is such a thing as moral rights but argue for legal rights as a way of protecting the interests or the preferences of those who are protected by them. This page will focus on theories of moral rights and the moral consideration of animals, rather than on the question of legal rights (you can read about that in our page about the legal status of nonhuman animals).

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. 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.

There are also 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 the rights of others 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 aren’t capable of respecting 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, therefore, nonhuman animals shouldn’t have any rights. The argument is based on the fact that because nonhuman animals living in nature often harm each other, enforcing one animal’s rights would entail violating the rights of the other.

Below we will see in much more detail the debate about animal moral rights by looking at how different theorists have argued about it.

Kant’s theory of rights

There are many different forms of moral rights theories, each of which has its own framework and arguments to support the claim that humans, and sometimes nonhuman animals, have rights. Perhaps the most influential rights theory is that of Immanuel Kant.² Kant’s theory focused much more on duties than on rights. However, since these duties are absolute, and involve treating each rational person as an end in themselves and never merely as a means to an end, it makes sense to categorize him as a rights theorist. Kant believed that morality is based on a universally binding principle of rationality called the categorical imperative. He characterized the categorical imperative as a rational principle that we must always follow regardless of our contrary inclinations, and it is from this general rational requirement that all moral duties are derived. Unlike Hobbes, who also based morality on rational requirements, Kant’s conception of rationality wasn’t simply in the service of self-interest. For him, the just treatment of other beings who can understand and fulfill obligations also came under the scope of rationality.

Kant formulated the categorical imperative in several different ways, of which the first and second formulations have been the most influential. The first can be interpreted as it is only right to do something if we would want everyone else to do it too. This is expressed formally as we should only act in such a way that we could rationally want the maxim (or principle) behind our action to be a universal law. Kant also provided a second formulation of the categorical imperative, which he thought was connected to the first one (see below for a dispute). The second formulation instructs us to treat all human beings as ends in themselves and never as a mere means to an end (the extreme case is slavery). This means that we should always respect other human beings and never use them as mere tools to further our own interests.³

Kant believed that our treatment of nonhuman animals doesn’t fall under the categorical imperative, so we cannot have direct duties to them. In other words, animals do not have rights. This is because he thought that rationality was a necessary condition to be morally considerable, and he thought that nonhuman animals weren’t rational. Despite this, he maintained it is wrong to be cruel to animals. His justification was that one develops a cruel character by being mean to nonhuman animals, potentially resulting in the mistreatment of human beings. Therefore our “duties” to animals are actually indirect duties to humans.

Contemporary Kantian rights theories

Contemporary Kantians such as Christine Korsgaard⁴ and Julian Franklin⁵ have defended Kant’s general approach. However, they have rejected his conclusion that it should be applied exclusively to humans. They argue that if we were in a nonhuman animal’s place, we would not find it acceptable to have our interests disregarded as theirs are. Therefore all sentient animals should be considered as ends in themselves, whether or not they are able to understand the concept of rights. Franklin argues that Kant misunderstood his own theory by confusing the subjects of the categorical imperative (moral agents, or those who respect rights), who must be rational beings, with the objects (or moral patients, whose rights are respected) to whom it applies, who need not themselves be rational, only sentient. He reinterprets Kant’s second formulation of the categorical imperative as follows: “Act in such a way that you always treat sentience, whether in yourself or in the self of any other, never simply as a means but also at the same time as an end.”⁶ For Franklin, this, instead of Kant’s second formulation of the categorial imperative, would be truly connected with the first formulation.

Korsgaard agrees with Kant that rational human beings are capable of “stepping back” from their own beliefs and desires and asking themselves if they are justified in believing and desiring as they do. Unlike Kant, Korsgaard does not think that this rationality is what makes humans morally considerable. She argues that this makes humans moral agents, and it makes them responsible for their actions. But she argues that humans also have an animal nature that concerns what is good or bad for us as animals: being free from pain, experiencing pleasure and happiness, living a full life and, so on. In short, this is what makes us the kind of being for whom things can be good or bad.

According to Korsgaard, when we demand respect from others, we do so on two grounds: as beings capable of moral self-governance and autonomous action, and as animal beings with a welfare, who can be harmed or benefited. In other words, our animal nature gives us a will to act in certain ways and makes us capable of experiencing pain and pleasure. All sentient beings have this nature in common, and because we can be harmed and benefited, we are all morally considerable. What Korsgaard calls “animal nature” is not really something merely biological, but some features related to the capacity to be harmed or benefited that are biological, that is, features related to our sentience (this is why Korsgaard’s argument could also ground concern for sentient artificial entities).

Other contemporary thinkers have developed theories based on Kantian ethics while trying to avoid some of his theory’s problems. One author, Alan Gewirth, has claimed that all agents, by the mere fact of acting, are assuming they have the right to act, and possess the more basic rights that are necessary to act (such as the right to survive) .⁷ Since we implicitly claim these rights for ourselves whenever we act, to be consistent we must recognize and respect the rights of others too. This argument has been accepted by Evelyn Pluhar, who has argued that it should apply to all sentient beings since they also have the interests and needs that should be protected by rights.⁸

Other contemporary animal rights theories

Tom Regan, a well-known defender of a moral rights view for nonhuman animals, had another perspective. He believed that we would have to reject any theory that denies direct duties towards nonhuman animals, denies that we should accept and respect their moral rights, or that claims that only humans have inherent value. He claims that there are several reasons to conclude that nonhuman animals (or at least many of them) have moral rights. Perhaps each of these reasons, taken separately, wouldn’t be conclusive, but together they make a cumulative argument that makes a strong case for that claim.⁹ He argues that this also allows us to make sense of our considered moral judgement that all human beings are morally equal despite the very significant differences in capacities between individuals. The way he tries to justify this is by arguing that certain beings including humans and other animals have inherent value. These are those beings that are not just merely alive, but have certain features that make them have an experiential welfare due to which they can be harmed or benefited. Regan calls them “subjects-of-a-life.”¹⁰ According to Regan anyone who is a subject-of-a-life has inherent value because subjects-of-a-life have an experiential welfare.

According to Regan, this means that beings with inherent value should never be thought of as mere objects to be used by others, nor as mere “receptacles” of value whose wellbeing can be traded off against the wellbeing of others. In short, they have rights. This includes not only humans but all mammals and many other animals.

Another theorist who has argued in favor of rights for nonhuman animals is Gary Francione. He claims that nonhuman animals should enjoy legal rights consisting mainly of the fundamental right not to be used as resources by others. Francione does not limit his view to legal rights and claims that nonhuman animals also have moral rights. He has argued that sentience is the criterion for basic moral rights.¹¹ At the very least, all sentient beings have the basic pre-legal right not to be treated as property. This right entails abolitionism, the idea that all animal use industries (e.g., for food, entertainment, and labor) and practices must be abolished rather than simply reformed to be more “humane.”

Finally, other theorists have argued that nonhuman animals should have rights because it follows from a consistent and unprejudiced application of contractarian theory .¹² This view is explained in contractarianism .

What giving rights to animals implies

Because exploiting nonhuman animals entails harming them in very significant ways, it is clear that this exploitation is incompatible with respecting their rights. Due to this, defenders of moral rights for animals defend the end of this exploitation, and claim that we should adopt veganism.

But, as we have seen, rights need not be only negative rights, that is, about things we shouldn’t do against others. They can also be positive rights, that is, about things we should do for their holders. This is relevant especially for animals in the wild. Contrary to what many people think, they often suffer from many factors, both human-caused and natural, in situations where we could help them. In fact, there are many cases where humans are currently helping them, and thus reducing wild animal suffering. Granting positive rights for animals means that we should support these efforts, because they mean respecting their right to being helped.

It can be argued here that there are sometimes conflicts between respecting the rights of different individuals, including of course nonhuman animals. 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.

Further readings