Animal rights
As a result of legal rights being contractual by nature, to access them any potential rights holder needs to respect an obligation and reciprocate a right by the same token by which it is granted. 6 Animals are unable to satisfy these criteria. Principally, conferring legal rights onto a group which cannot respect those same rights would make for an unfair social contract. This is why Singer’s ‘speciesism’ allegation does not work on the same plane legally as sexism: women demanded rights and agreed to the obligations which went with them; animals cannot do the same. Proponents of legal animal rights counter that inability to meet obligations of respecting rights prohibits them from accessing rights, by citing ‘legally incompetent’ actors such as children who are unable to meet obligations but are afforded rights. 7 That claim misses two things, however: first that children will have the capacity to perform their obligations for the rights that they have(by gro wing into adults), whilst animals won’t and, secondly, that we still consider children’s wellbeing by having moral duties towards them without granting them positive rights until such as time at which they will be able to meet their obligations. Ultimately, even though biological similarity has no impact on the advancement of animals having legal rights, as that would be structurally impossible as described above, this consideration certainly does play into our conception of animals as having moral rights to protect their welfare. This approach can be justified not through saying that we owe it to animals (as they can’t owe anything back to us) but to say that we owe it to ourselves (as suggested by Korsgaard 8 ) to protect animal welfare, partly due to us believing animals have moral value and hence value to ourselves. This then allows us to pass legislation which mandates duties to each other as members of a community not to infringe on welfare, thus keeping in line with the contractual spirit of the legal system: we have an invisible ‘right’ over each other to keep animals from harm which is exercised through our collective duties to one another not to harm them. While we cannot confer legal rights onto animals as they cannot enter into a social contract with us (thus doing so would negatively impact the rights of the rest of society), we can certainty behave more morally towards them by exercising duties over each towards the protection of animals for the common benefit of the consenting members of the legal social contract and thus de facto giving animals a ‘a right from harm’ which de jure originates through human duties to other humans.
Bibliography
Feinberg, J. (2012) ‘The Rights of Animals and Unborn Generations’ in Environmental Rights (ed. Vanderheiden, S.). London Hobbes, T. (1651). Leviathan. Gutenberg project: https://www.gutenberg.org/files/3207/3207-h/3207-h.htm Korsgaard, C. (2018) Fellow Creatures: Our Obligations to the Other Animals . Oxford Nuttall, J. (2013) Moral Questions . London Regan, T. (1983) The Case for Animal Rights . University of California Press Sapontzis, S. (2014) ‘Speciesism, Painism, and Morality’ , Journal of Animal Ethics 4.1, 2014: 95 – 102. JSTOR , https://doi.org/10.5406/janimalethics.4.1.0095. Singer, P. (1990) [1975]. Animal Liberation . New York Tommy v Lavery NY App Div 4 December 2014, Case No 518336, p 4, 6, decision of 8 May 2018 New York Court of Appeals
6 NY Court of appeals, Tommy v Lavery. 7 Feinberg 2012: 163 (n.19). 8 Korsgaard 2018.
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