There are many different views about exactly how to determine who is entitled to rights, and how those rights should vary depending on the species or individual. Most rights views hold that individuals meeting some requirement (whether that requirement be sentience, the possession of desires and beliefs, autonomy, or something else) are entitled to have their basic interests protected. This is different from saying that having the same capacities should give rise to the same rights. Some species of animals may have capacities for things but no interest in them (such as learning human languages). Most rights theories do not get into this degree of granularity about rights, however. The main idea is that basic legal rights such as freedom from slavery and bodily harm should protect other animals as well as humans. Basic rights protect the interests that all animals, human and nonhuman, have in common.
There is general (though not universal) agreement among animal rights advocates that educating the public to take individual responsibility for their participation in exploiting animals is essential, and so is turning it into a social and political issue that is seen as legitimate by the public. There are major disagreements over several issues. One is whether meaningful changes in law can be achieved currently, given the conservative nature of law, public opinion and economic pressures working against it, or whether seeking changes in the law should wait until after a larger political and economic base of vegans is built through vegan education (and the answer to this may vary by country or state). Another area of contention is what constitutes meaningful legislation – a ban such as a ban on fur farming? a little more cage space for a hen? A third is what rights are nonhuman animals entitled to, and should it be determined based on species membership, capacities, interests, relationship to humans, or some other criterion?
Animal rights arguments are not meant to suggest that any animal who meets a certain criterion, such as sentience or autonomy, should be given all the rights that humans have. A deer has no interest in voting or driving, for instance. But she does have an interest in not being shot and in not being enslaved for entertainment purposes. Securing the basic negative rights such as the right not to be used exclusively as a means to an end (that is, the right not to have suffering inflicted on them by humans for their own benefit and the right not to be someone else’s property) is the main focus of most people seeking animal rights.
The following are brief explanations of some of the many rights theories.
Moral rights based on cognitive ability
Tom Regan came up with one of the first animal rights theories in his book The Case for Animal Rights, published in 1983. He argues that at least some nonhuman animals should be recognized as having inherent value, and thus, moral rights. He created a subject-of-a-life requirement, which includes much more than sentience. To meet it, an animal must have certain cognitive abilities, such as the ability to have beliefs, desires, goals and a sense of the future. He argues that the case is clear that normal mammals of one year of age and older satisfy this requirement. He also writes that he drew this line in pencil, and much higher than he believes it should be drawn, simply to put the burden of proof on those who would deny that mammals have beliefs and desires.
Regan also contends that even among subjects-of-a-life, animals with less sophisticated cognitive abilities have less important interests than humans and other animals with human-like cognitive capacity. In his famous lifeboat scenario where four humans and a dog are on a lifeboat and it will sink unless someone is thrown overboard, he argues that a normal dog should always be sacrificed to save four normal humans, and that in fact any number of dogs’ lives are less valuable than a human life because dogs have less capacity and fewer opportunities for satisfaction in life. “A million dogs ought to be cast overboard if that is necessary to save the four normal humans, the aggregate of the lesser harms of the individual animals harming no one in a way that is prima facie comparable to the harm death would be to any of these humans.”
The right not be owned as property
Legal scholar and law professor Gary L. Francione argues that nonhuman animals have one right, and that is the right not to be owned as property. He points out that the animal welfare and even many rights approaches focus mainly or only on the treatment of animals without challenging their status as resources for human use. His approach “applies the notion of equal consideration to animal use and not merely to animal treatment and maintains that we cannot justify using nonhumans as human resources, irrespective of whether we treat animals ‘humanely’ in the process.”
Francione describes a right as simply a way of protecting an interest. His position is that sentience (consciousness, or perceptual awareness) alone should be the only criterion for the right not to be property. He argues that death is a harm to all sentient beings because the very purpose of sentience is to “allow the beings who have it to identify situations that are harmful and that threaten survival. Sentience is a means to the end of continued existence. Sentient beings, by virtue of their being sentient, have an interest in remaining alive; that is, they prefer, want, or desire to remain alive. Therefore, to say that a sentient being is not harmed by death denies that the being has the very interest that sentience serves to perpetuate. It would be analogous to saying that a being with eyes does not have an interest in continuing to see or is not harmed by being made blind.”
Francione has argued that it is not worthwhile to try to win legal rights for nonhuman animals while so few people respect animals as individuals. He recommends pursuing vegan education and public debates of the issues to increase awareness and to increase the number of vegans in society. He points out that only since the last decade of the 20th century has there been any real attempt to establish veganism as the moral baseline for the animal rights movement in the United States. Only once there is a large enough base of vegans to exert political and economic pressure will any meaningful changes be possible.
The right not to suffer
Robert Garner is a political philosopher who argues for rights for animals but not from a liberation perspective. He believes that animals do not have an interest in liberty, and that while they do have an interest in continuing to live, it is a lesser interest than that of humans. He argues that the capacities of nonhuman animals makes their lives less valuable (to them), so that when human and nonhuman interests conflict, human interests should usually prevail. Garner focuses on unnecessary suffering (the humane treatment principle), since it is something most people already agree with. It is simply the idea that humans should not cause unnecessary suffering to nonhuman animals. Its meaning can change over time because what people consider “unnecessary” can be changed.
There is one interest that he believes is equal in humans and nonhumans, and that is the interest in not suffering. He’s not opposed in principle to the property status of nonhuman animals, since he believes that lack of freedom does not usually harm animals. He acknowledges that ending the property status of at least some animals, such as those who are raised for food, will be necessary in order to prevent their suffering at the hands of humans. He argues that following the humane treatment principle will inevitably lead to the end of animal use for food and most animal experimentation, since they cannot be done without causing animals to suffer.
Garner contends that the distinction between animal rights and animal welfare is problematic, because an animal rights position based on interests (as opposed to the abolition of animal use) does not require saying all uses of animals are illegitimate. He also believes that the potential willingness of the public to dispense with human benefit when animal suffering is great enough is underestimated, and this tends to get obscured when the focus is on use rather than suffering.
Unlike the first two rights approaches, which focus on the morality of animal use and treatment, Garner looks at the issue mainly from a pragmatic political perspective. He is wary of strategies that he calls “moral crusades” meant to convince the public that all animal use is wrong. Since morality is considered a personal thing and moral plurality is considered a good thing in society, he argues that attempts at moral persuasion will be unlikely to bring about significant change. What has to be done, he says, is to force the issue into the political arena, to make responsibility for animals the responsibility of society and the state rather than the responsibility of individuals.
Rights through common law
Steven Wise proposes trying to win basic rights for nonhuman animals through U.S. common law. Wise thinks the common-law approach will work because it is flexible and adaptable. “Lemuel Shaw, the most prominent nineteenth-century American common-law judge, said it consists of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy, modified and adapted to all the circumstances of all the particular cases that fall within it.’ It can accommodate different visions of what law is, and those visions vary dramatically.”
It is sometimes argued that an individual has to be able to understand and assert a legal claim in order to have one. To keep his case as simple and defensible as possible, Wise argues only that nonhuman animals showing a certain degree of autonomy should have legal immunities. “Immunities don’t need to be asserted. Such immunities as freedom from slavery and torture are the most basic kinds of legal rights, and so it’s these to which nonhuman animals, like human beings, are most strongly entitled.”
His plan is to demonstrate that some nonhuman animals possess autonomy as understood in human terms, and to show that they should therefore be regarded as autonomous persons under the law. Wise introduces a scale of practical autonomy, according to what evidence exists that members of a particular species have the capacity to feel, want, act intentionally, think, and have a sense of self. Animals who demonstrate a similar degree and type of autonomy as humans would be given liberty rights.
He also argues that animals with partial autonomy should be granted equality rights, a smaller subset of rights that do not require proof of autonomy. “An animal might be entitled to basic equality rights, even if she isn’t entitled to liberty rights, because she is ‘like’ someone with basic liberty rights.” According to Wise, the strongest argument for equality rights for (some) nonhuman animals comes from comparing them mentally to human infants and toddlers, who have basic rights because of their mental qualities. Anyone possessing similar mental qualities should have the same rights.
Wise acknowledges that his proposal, which would give legal rights to great apes, cetaceans, probably elephants and parrots and possibly dogs, is just a matter of redrawing the line within an existing hierarchy of worth. In fact, he portrays his approach as a conventional legal one and considers this a strength. He emphasizes that his approach is a legal one, not a moral one: “If I were chief justice of the universe, I might make the capacity to suffer, not practical autonomy, sufficient for personhood and dignity rights as well. For why should even a non-autonomous being be forced to suffer? But the capacity to suffer appears irrelevant to common law judges in their consideration of who is entitled to basic rights. At least practical autonomy appears sufficient… philosophers argue moral rights; judges decide legal rights. And so I present a legal, and not a philosophical, argument for the dignity rights of nonhuman animals.” He compares his approach to that of Abraham Lincoln who worked towards “a realizable minimum” in the struggle to end human slavery, realizing that arguing for true social and political equality would not be politically viable.
In Drawing the Line, he argues that breaking through the species barrier is crucial, not only psychologically, but also legally. Once even one species of nonhuman animal is recognized by the law, it paves the way for showing that discrimination against any sentient animal is arbitrary, since all sentient humans are given protection under the law even when they are clearly not autonomous.
The right for free living animals to live without human intervention
Lee Hall is a lawyer and animal rights theorist whose views are grounded in the principle of ahimsa. According to Hall, animal rights can only apply to free living animals who are capable of living autonomously. An ethic of care should be applied to domesticated animals who need our help to survive, which means they should be cared for and protected as the vulnerable beings they are, rather than being exploited and treated as expendable units of production. Hall believes that showing true respect for free living animals means leaving them on their own to live their lives in a natural way, without any help from humans.
Hall argues against drawing lines and ranking species as Regan, Wise, and others have done: “Being conscious, experiencing life, supplies most every individual with a tenacious will to continue doing so. If we respect all lives, based simply on those who live them experiencing a role in life, we need not decide whose life has more nuances or potential for satisfaction. We need not do something so hurtful as measure the value of a purportedly abnormal person’s life against someone’s definition of normal. We need not decide which species have which interests and thus get which rights, or the degree to which pain and emotional responses in each may be anticipated, or where to draw the line around who gets meaningful rights.”
Hall does not believe that an animal rights view can accommodate the conventional wisdom that humans should choose another human in cases of true conflict. Hall argues we should be wary of “conventional wisdom” as it often leads us down the path of human entitlement and domination. In fact, Hall argues, the case for animal rights is the case “for undoing age-old thinking patterns that other beings were put on Earth for us to control.”
According to Hall, how we would decide such cases of true conflict reflect our attitudes towards other animals in general: “once lives are differently valued, oppressive results are unlikely to wait for rare emergencies… Insofar as it’s decided that some lack certain abilities, and thus are expendable, the Other is dominated, enslaved, used up, or pushed aside. Daily.”
Hall agrees with Regan that our only duty to free living animals is to “let them be!” but unlike Regan, thinks we are obligated not to intervene in their lives in any way, even to make them better. To do so, Hall argues, would be to deny their autonomy and take away their dignity. In Hall’s view, helping animals who are capable of living on their own is a type of control and domination.
These are just a few of the many different types of rights approaches.
Support of legal rights for nonhuman animals in other theories
There are other theories that are not rights theories but whose proponents support the granting of legal rights to nonhuman animals. Anyone who focuses on the wellbeing of nonhuman animals can support legal rights for animals as part of their strategies for protecting them. Many people support basic legal rights for animals as a necessary part of ending animal exploitation, but think that we should go far beyond what would be protected by rights and focus on addressing discrimination against nonhuman animals, regardless of whether or not that discrimination violates any rights.
Someone can hold discriminatory attitudes towards a group of people and treat them worse than others without violating their rights. They could also help one group of people more than another for an arbitrary reason, such as their sex or skin color. These things would lead to greater inequality but wouldn’t necessarily violate anyone’s rights. Similarly, a person can discriminate against nonhuman animals by treating them worse than humans, or by helping some animals, like dogs and cats, but not giving the same help to others such as free living animals. Much of this discrimination would not be addressed by animal rights.
One of the debates among animal rights supporters is about what rights free living animals have or should have. Some would say they have a right to be left alone. Others would disagree that we should leave free living animals to live and die on their own, since their lives in the wild are often terrible. Another approach could be to look at what would be best for the animals themselves and how humans can help them, rather than assuming that any intervention in their lives would violate something more important than their wellbeing.