Animals: Moral Rights and Legal Rights

ANIMALS: MORAL RIGHTS AND LEGAL RIGHTS

CHARLES MAGEL M:x>rehead State University

I would like to organize my corrments on the moral and legal issues having to do with animals by asking two fundamental questions: Should animals have moral standing, and Should animals have legal standing? self was quite rational, but he was also convinced that many hUIll3D.s were not rational Since most of my research has been in or, at least, not very rational, especially the area of moral philosophy and very little female humans and slave humans. so, he ra­ in the philosophy of law, I will have more to tionally drew the conclusion that both sexism say in regard to the first question than in and slavery were justified. relation to the second.

Not only within the Greek philosophical Let us consider the first question: tradition but also within orthodox Christian­ Should animals have moral standing? What ity, there has been a persistent denial of would it be for an animal not to have moral the moral standing of animals. The most standing, not to count for anything morally prominent and clear example was in the thir­ whatsoever? Consider an example: Joe gets teenth century: st. Thomas Aquinas. Blend­ his kicks out of clubbing calves. He just ing Aristotelianism with the daninion theory loves to smash the heads of calves. To say of the Bible, Aquinas claimed that by divine that the calves have no moral standing would providence the animals are intended for human be to say that they count for nothing moral­ use, and, therefore, it is not wrong for ly. It would mean that Joe does nothing hUIll3D.s to make use of animals, either by wrong as far as the calves themselves are killing or in any other way whatever. True, concernedi although physically damaged, the St. Thomas was against cruelty to animals. calves could not be morally harmed, they But the only reason, or at least the basic could not be morally injured. The calves reason, he was against cruelty was that if would not be the subjects of interests which humans are cruel to animals, then they will, could in any way be violated. And if Joe did he thought, as a matter of fact, tend to be all of his head smashing on a deserted island cruel to other human beings• Given that Joe with no other"hUIll3D. beings around to either smashes calves' heads on a deserted island, see or hear about these clubbings, Joe's Aquinas would be canmitted to the view that actions would, from the moral standpoint, be nothing wrong is done to the calves. The completely neutral. They would be what we action would be morally indifferent as far as might call "amoral," that is, without any the calves are concerned. moral significance whatsoever.

In the seventeenth century, the influen­ The history of Western culture and phil­ tial French philosopher Rene Descartes cate­ osophy reveals a very persistent tendency to gorically denied that animals should have any say "no" to the question: Should animals moral standing. Since animals are soulless, have moral standing? The Greeks, including are mindless machines, as mechanical as Plato and especially Aristotle, said "no": on the basis of the criterion of rationality. Only rational beings are to count for some­ thing morally. Only hUIll3D.s are rational. Animals are not rational. Therefore, animals should count for nothing morally, and animals PHILOSOPHY should be used as instruments to serve the interest of rational hUIll3D.s. Aristotle him­

9 BE'IWEEN THE SP.EX::IES clocks, it is impossible that animals could rational, but we are convinced that human be hurt. When Joe clubs calves, they feel no infants and the severely retarded should IlOre pain that does a clock when it is count for something IlOrally. It is too broad smashed. Calves have no awareness, no con­ in that behavioral and ecological studies are sciousness, no ability to experience either leading to the conclusion that many animals pain or pleasure. It follows, then, that it have some rational capacity. is impossible that an animal could be IlOrally hanned or benefitted. Psychologist David Premack has given serious consideration to the hypothesis that Another Western philosoI,iler of enorllOus primates have the concept of causality and influence was the eighteenth century Gennan, that they make inferences on the basis of Imnanuel Kant. His philosophy has been espe­ this concept. [I] St. Thomas Aquinas' theory, cially important in developing the foundation being a theological theory, has all the weak­ for human rights. For example, the human nesses that theological theories, finally right to life, the human right not to be based on faith, have. They can produce no hanned, the human right to freedom. Kant rational grounds for accepting. the theory• claimed that only rational, self-conscious Other religions have recognized the IlOral human beings counted for anything IlOrally. standing of animals, for example, Buddhism Kant is fallOus for his Categorical Impera­ and Hinduism. Which re~igion is correct? tive, which goes something like this: ra­ And even if one were to accept the theologic­ tional self-conscious human beings should al dominion theory, the view that humans were always be treated as ends in themselves and given rule over the animals, there are two never as mere means, never as mere instru­ opposed interpretations of the concept "do­ mental resources. All other beings, includ­ minion." Does "daninion" mean rule over the ing all animals, could and should be used as animals for the sake of humans? We might mere means to serve the interest of the self­ call this "the tyrannical interpretation" of conscious, rational humans. To be sure, Kant dominion. Or does the concept "daninion" was against cruelty to animals--but for ex­ mean rule over the animals for the sake of actly the same reasons given by St. Thomas. the animals? We might call this "the stew­ Cruelty to animals, he thought, would have a ardship interpretation." St. Thomas gave the tendency to result in humans being cruel to tyrannical interpretation, but there are humans. For example, the clubbed calves contemporary theologians who argue that the counted for nothing whatever IlOrally in and stewardship interpretation is rrbre correct. of themselves. And on a deserted island, Joe's head-smashing activities would be can­ Or, consider Imnanuel Kant's theory' pletely aIlOral as far as the calves are con­ based on rationality and self-consciousness. cerned, without any IlOral significance what­ This has also been criticized as being both soever. too narrow and too broad. His theory would result in two-week old human infants and There are other theories which have an­ severely retarded humans counting for nothing swered "no" to our first question, but we do IlOrally. This criterion is too broad--from not have time to explore them. Let us take a the perspective of anthropocentric tradition look at the theories which say "yes" to the --in that i·t would give IlOral standing to question: Should animals have IlOral many animals. standing? These two theories are utilitari­ anism and the IlOral right theory. These two The I,ililosoI,ilers Peter Singer[ 2] and Tan theories are both negative and positive. Regan[3] have effectively argued that many They are negative in that they criticize the animals are capable of intentional behavior former theories which deny any IlOral stand­ and that intentional behavior necessitates ing to animals, and they are positive in that some self-consciousness, at least an aware­ they· attempt to provide theories which will ness of oneself as being distinct from other serve as a basis for giving IlOral standing to things in the environment, and also awareness animals. of oneself as enduring through time, past, present, and future. Let us first briefly consider criticisms of the past "no-sayers." Aristotle's ration­ Descartes' machine theory of animals has ality criterion is both too narrow and too been heavily and decisively, I believe, cri­ broad. It is too narrow in that human in­ ticized by both scientists and philosophers. fants and severely retarded humans are not Given the silllilarities of the nerve and brain

BEI'WEEN THE SPOCIFS 10 structures and in behaviors of animals and pleasure over pain for all sentient beings-­ humans, there is strong evidence to reject human and nonhuman--affected on this planet the Cartesian theory. Evolutionists empha­ would be maximized if the factory farming of size the survival value implicit in the capa­ food animals were discontinued and if humans city to experience pleasure and pain. How switched from a factory farmed animal diet to could pain and pleasure have survival value a vegetarian diet. Singer also concludes if the animals experience no pain or plea­ that the elimination of m::>st of the current sure? experimentation on animals would maximize the net balance of pleasure over pain for all Having briefly considered the criticisms sentient beings--once again, human and nonhu­ of the "no-saying" theories, let us now take man--affected. For the utilitarian, Joe's a look at the two kinds of theories held by activity of smashing calves' heads on a de­ those who say "yes" to the question: Should serted island would be an action with m::>ral animals have m::>ral standing? significance, or perhaps better, ilrmoral significance. All calves and all sentient First, utilitarianism: Jeremy Bentham animals COtmt for something m::>rally, have (eighteenth and nineteenth century, English) IOC>ral standing, according to utilitarian and John stuart Mill (nineteenth century, theory. English, and a follower of Bentham) systema­ tically developed the classical utilitarian A m::>ral rights theory is a still strong­ theory. The fundamental themes of utilitari­ er theory answering "yes" to the question: anism include the following: Should animals have m::>ral standing? The All and only pleasure is good in and of concept of m::>ral rights is a fairly rrodern itself. concept, performing sane of the functions of All and only pain is bad or evil in and the older "natural rights" concept, but with of itself; an attempt to eliminate some of the historic­ In all their actions, m::>ral agents al and conceptual connection between natural should act in such a way as to maximize the right and early Greek and Ronan metaphysical net balance of pleasure over pain for all views. Also, an attempt is made to stay away sentient beings in any way affected by the from a theological foundation which has been action. stressed as a basis for natural rights. Using these fundamental utilitarian princi­ pIes, Jeremy Bentham wrote the often-quoted There is much controversy currently over sentence: the question of m::>ral rights, not only at the The question is not can animals level of animal !!Oral rights but also in reason, not can they talk or use regard to human moral rights. The following language, but can they suffer? can examples are frequently presented as being they enjoy? strong candidates for moral rights: Bentham answered these last questions, ~ the right to life, they suffer?, ~ they enjoy?, affinnatively. the right not to be harmed, and John stuart Mill agreed with him, and Peter the right to freedom. Singer, the internationally respected philo­ Moral rights theorists call our attention to sopher and author of Animal Liberation[4], is the faIIDUS passage in the Declaration of in fundamental agreement with Bentham and Independence: Mill. All men are created equal. They are endowed by their creator with The m::>ral theory underpinning Peter certain inalienable rights. AIlOng Singer's argument in his very influential these rights are life, liberty, and Animal Liberation is utilitarianism. All the pursuit of happiness. animals are equal, argues Singer; that is, In this passage, we can detect three thanes equal pains in animals and humans should in relation to IOC>ral rights: count equally m::>rally. And equal pleasures Moral rights are universal; that is, in animals and humans should also count they apply to all humans, regardless of time equally m::>rally. Therefore, all sentient or place. animals (by "sentient animals," I mean ani­ Moral rights are equal; that is, if any mals having the capacity to experience pain two beings have moral rights, they possess and pleasure) do have m::>ral standing. them equally--you cannot have !!Ore or less of a !!Oral right to life than I do. Singer concludes that the net balance of Moral rights are inalienable, that is,

11 BE'IWEEN THE SPEX::IES they cannot be transferred fran or sold or that this will leave out many humans and will given away. include sane animals. In answer to those who try to ground rights on the ability to choose It is controversial how best to define a freely, Regan concludes that this, too, will nnral right. I would like to suggest, preli­ exclude many humans and include many animals. minarily, the following definition: And in answer to those who use the criterion to say that a being S has a nnral right of self-consciousness, Regan argues that to x means that S has a valid claim to x, a this, too, excludes many humans and includes claim which is enforceable against others in many animals. Regan's general negative con­ virtue of moral sanctions and principles. [5] clusion is that it is impossible to develop a rational, consistent criterion for nnral Ronald Dworkin, in his book Taking rights which will include all humans but Rights SeriouslY, [6] eInJ;i1asizes that nnral exclude all animals. rights serve as a trump card over and against the collective utilitarian interests of the In his positive argument, Regan develops group. If this is so, then we can easily see what he considers to be the nnst adequate that if animals have nnral rights, then it criterion to serve as a basis for possessing would follow that animals have nnral standing nnral rights. In sUlllllaIy form, this criteri­ in a sigm.ficantly stronger sense than would on is as follows: be the case under utilitarianism. a being which has inherent value has nnral rights. and any being has inherent value if it satisfies the following three In 1983, the University of California conditions: Press released The Case for Animal Rights by such a being has interests; 'Ibm Regan, Professor of Philosofhy at North such a being can be benefitted or Carolina state Uhiversity. [7] This book is hanned; and by far the nnst extensive, systematic, and such a being is the subject of a life sofhisticated argument for animal rights to which can be better or worse for it, indepen­ appear thus far. dently of any other being valuing it or find­ ing it to be useful. Regan claims that humans do have moral Regan canes to the conclusion that this nnst rights, including the right to life, the satisfactory basis for nnral rights will right to freedcm, and the right not to be include virtually all humans (the status of a harmed. The nnst plausible criterion for pennanently ccmatose individual, like Karen nnral rights possession by humans is a cri7" Ann Quinlan, is left an open question) but it terion also met by nnst animals. Therefore, will also include nnst ani.mals: all nonnal, he draws the conclusion that nnst animals, mature mamnals, probably all normal, mature all mamnals, perhaps all birds, have nnral birds, and probably still others. And as far rights. That's the structure of his argu­ as human treatment of animals is concerned, ment. Regan concludes that vegetarianism is nnrally obligatory, and that the elimination of ex­ Regan's arguments are both negative and perimentation which harms animals is also positive. He has negative arguments criti­ nnrally obligatory. Therefore, it follows cizing past and canpeting criteria for the that Joe's smashing calves' heads on the possession of nnral rights. His positive d;eserted island would be violating the arguments are presented in defense of the calves' nnral rights: the right to life, the criterion which he accepts. In answer to right not to be hanned, and the right to those who claim that rights are based on a freedan. divine gift, Regan shows that such a claim can have no rational evidence, since it is Given that I am not a specialist in the ultimately based only on faith. In answer to fhilosofhy of law, IT.rf cemnents will, neces­ those who attempt to base rights on the capa­ sarily, be brief in regard to the second city to use language, Regan argues that this basic question posed at the beginning of this criterion will exclude many humans fran discussion; Should animals have legal stand­ rights (infants and the severely retarded) ing? and will include sane animals (ch:irnpanzees, orangutans, gorillas, porpoises, etc.). In First, it is important to consider two answer to those who attempt to base rights on preliminary questions: the capacity to reason, Regan again argues Do animals already have legal rights?

BE:IWEEN THE SPOCIES 12 Do animals already have legal standing? thinkable for squirrels and dolIhins.

The Animal Welfare Institute in Washing­ What is the relationship between morals ton, D.C., has recenUy published ~ book and lawS? More specifically, we could ask: entiUed Animals and Their ~ Rights. [8] What is the relationship between moral rights '!his tiUe seems to presume that animals and legal rights? Between moral standing and already do have legal rights. Considered in legal standing? There is a popl1ar saying: this book are anti-cruelty laws and laws it is impossible to legislate morality. I'm governing transportation, caging, slaughter, not sure exactly what this statement means, etc. These laws do give animals sane protec­ but I do think there is a sense in which this tion, but just fran the fact that laws pro­ is a false claim. Not only do morals have a tect sanething, it does not follow that that significant influence on law, but law also which is protected has any legal rights. For has a significant influence on morals. For example, there are laws protecting the Golden exanple, consider the strong Minnesota law Gate Bridge, but it does not follow that this prohibiting SIlOking in public areas. I sus­ bridge has any legal rights, that this bridge pect that the moral right not to be banned by has interests which can be represented in others played a significant role in the pass­ legal actions. I think we must conclude that age of this law. Once the law was passed, animals do not have any legal rights in cur­ there was much criticism and grumbling on the rent American law. Nor do they have legal part of the SIlOkers and eIIl?loyers and rest­ standing. aurant owners, but this law is having a very noticeable effect on the moral attitudes and Is legal standing for animals ever beliefs of the general public. There is a thinkable? Does it even make conceptual sense in which morals can be legislated. As sense to try to talk about legal standing for already indicated, the Declaration of Inde­ animals, or is such talk prre nonsense? Joel pendence emIhasized three moral rights: Feinberg, a philosoIher at the University of the right to life, Arizona, has effectively argued that such the right to liberty, talk is thinkable.[9] If legal rights are to the right to the prrsuit of hawiness. be essentially connected with interests and These moral rights have had a profound influ­ if it makes sense to say that a squirrel has ence on American law. interests, then why isn't it at least think­ able that a squirrel could have legal rights Ronald Dworkin, again in Taking Rights and that the interests of the squirrel could Seriously, argues that it is impossible to be represented by an agent or a guardian in a separate law fran morality. Part of his court of law? True, squirrels do not have argument consists of his claim that it is the ability to make their own claims, but impossible for judges to decide hard cases neither do human infants, and human infants without appealing to moral principle, which do have legal rights. are not explicit, within the laws themselves. The principle of justice or fairness, for ChristoIher stone's important book, example, is a moral principle which is often Should Trees Have Standing?, is relevant used to overturn certain rules that were here. [10] Stone wresUes with the question: expliciUy adopted by la~ bodies. In Is it thinkable that a forest or wilderness denying the possibility of separating morals could have legal rights? Stone concludes fran law, Dworkin is attacking the position that it is thinkable, because a forest could called "legal positivism:" the view which meet the three criteria which Stone emIha­ claims that there is no such thing as moral sizes as being sufficient for legal standing: rights, that the only rights which exist are a forest could institute legal action in legal rights, those rights specifically its behest through a guardian; adopted by legislatures and that can be found a court could take injury to the forest in statutes. into account in determining the granting of legal reliefI and How similar is the legal position of the relief granted by the court could animals to the legal position of human run to the benefit of the forest. slaves? I am currenUy doing preliminary If corporations and ships can have legal research on a book to be entiUed Human standing--and they do-then why could not Slavery and Animal Slavery. One chapter forests? If legal standing is thinkable for would deal with slavery law, the law govern­ a forest, then surely legal standing is ing human slaves and the law governing animal

13 Bm'WEEN THE SPECIES slaves. Most people have never thought of conscious, being persons, and being capable the concept of "animal slavery." At first of intentional actions. hearing it seems p.IZzling, but I am convinced that the parallel between the two types of 3. Regan, Tan, The Case for Animal slavery is very enlightening. Rights (Berkeley: University of California Press, 1983). See, especially, Chapter 2: Slaves, be they htnnaIl or animal, are "The Conplexity of Animal Awareness," pp. 34­ property. The htnnaIl slave, being property, 81. can make no contract~ neither can animal slaves. All animals, according to the West­ 4. Singer, Peter, Animal Liberation: ~ owned~ ern tradition, are even the wild ani­ --New ---Ethic ----for our Treatment of Animals (New mals are owned by the public. A htnnaIl slave York: Avon Books, 1975). cannot own property. How could property own property? Neither can animal slaves own 5. I am essentially using Joel Fein­ property. A htnnaIl slave cannot testify in berg's definition of a IlDral right. See his court against a non-slave. How could proper­ "The Nature and Value of Rights," pp. 143-58, ty testify? Neither can an animal slave and "The Rights of Animals and Unborn Genera­ testify. A htnnaIl slave cannot sue the slave­ tions," pp. 159-84, in his Rights, Justice, holder. How could property sue its owner? and the Bounds of Liberty (Princeton: Neither can animal slaves sue their owners. Princeton University Press, 1980). In general, we can conclude that htnnaIl slaves have no legal standing, since they are essen­ 6. Dworkin, Ronald, Taking Rights Seri­ tially property. The same conclusions hold ously (Cambridge: Harvard University Press, for animal slaves. 1977) : Individual rights are political There are also important, illuminating trung;>s held by individuals. Indi­ parallels between the abolition of htnnaIl viduals have rights when,. for sane slavery and the anticipated abolition of reason, a collective goal is not a animal slavery: "animal liberation." Major sufficient justification for deny­ shifts in classical philosophical and theolo­ ing them what they wish, as indivi­ gical views were required before htnnaIl slaves duals, to have or to do, or not a could achieve IlDral standing. PhilosoI;bers sufficient justification for impos­ are now exploring further shifts which recog­ ing sane loss or injury upon them. nize the IlDral standing of animals. Theolo­ (p. xi) gians and clergy will find it necessary to re-examine and re-interpret doctrines affect­ 7. See note 3. ing the relation between htnnaIls and animals. Public attitudes toward animals IIUlSt--and 8. Leavitt, anily S., Animals and Their will-change to the point where animal liber­ ----- ~ Rights (Washington, D.C. : Animal Wel­ ation can become a viable political issue, fare "Institute, 1978). the final result being the recognition of the legal standing of individual animals. 9. See note 5.

10. Stone, ChristoI;ber D., Should Trees Have Standing? Toward ~ Rights for Natur­ Notes al Objects (Los Altos, California: William Kaufmann, Inc., 1974). 1. Premack, David, "Language and Intel­ ligence in Chimpanzee and Child," a paper read at a sytl![X)sium on "The Question of Ani­ mal Consoiousness: Philosophical and Biolo­ gical Perspectives," held at Michigan state University, April 5, 1980.

2. Singer, Peter, "Animals and the Value of Life," in Matters of Life and Death, ed. Tan Regan (Philadelphia: Temple Univer­ sity Press, 1980), pp. 218-59. Singer pre­ sents arguments for sane animals being self-

BEIWEEN THE SPECIES 14