Rights and Animals Again

Tibor R. Machan

That people have rights is an idea that has been around a while--some argue that even Aristotle, who accepted a form of slavery for some, began to reflect on them back in ancient Greece. In time the notion got cleared up a good deal and with John Locke's help, in the 17th century, a full theory of individual human rights emerged.

As someone who was smuggled out of communist Hungary where rights were deemed to be no more than bourgeois prejudices, I have always had a deep concern about whether a country's legal order rests on such rights or on something far less solid and easily manipulated for the benefit of more or less Draconian tyrants. (In time I wrote two entire books, as well as a lot of papers and essays, on the topic.)

There have always been eager critics of individual human rights, for a variety of reasons, mainly because taking them seriously implies a severe reduction of the scope of governmental authority and power. That does not sit well with many people who want to achieve various goals without having to concern themselves about gaining the consent of those whose lives and labors they wish to use to help them do this. They wish to conscript people, not gain their consent, when they want their support and acknowledging individual rights renders this very difficult.

There are however those, too, who want to expand the coverage of individual human rights to include at least the "higher" animals, so that recently, for example, the government of Spain decided to "grant" rights to great apes. There is now a sizable movement, both popular and academic, insisting that animals other than human beings have the very same rights the American Founders mentioned in the Declaration of Independence. They deploy a variety of arguments in support of this idea and I have addressed several of them (in my book Putting Humans First [2004]).

One point I did not make in that work but one that should add a major obstacle efforts to ascribe rights to non-humans is worth laying out, especially now that one of our new president's favorite legal theorist, Professor Cass Sunstein of the Harvard Law School, is proposing the push for laws that would empower animal rights supporters to sue in court in behalf of the rights of animals just as this is possible to do now vis-a-vis human beings.

Not that there is nothing wrong with abusing animals, with wanton cruelty toward them, and not that this couldn't use a good deal of consideration from thoughtful persons, maybe even legal theorists. But the idea that animals have the rights we human beings do is completely misguided. That's because animals are not moral agents. (There are some indications that here and there some minimal moral awareness is evident in some very few species but these are marginal cases not warranting the ascription of rights! We aren't dealing with geometry here, so borders are sometimes hazy.)

In any event, a big problem with claiming that animals have a moral nature and rights, as human beings do, is that this would wreak havoc with the way animals are treated by us in the wilds. Putting it plainly, animals are not deemed guilty of anything when they kill, maim, devour and brutalize one another, as they do routinely on the high seas, in the desert, and up in the skies. One need but be minimally familiar with how millions of animals behave to appreciate that talk of their guilt or responsibility to be humane to one another, their need to be kind and considerate is utter nonsense. And if animals did have the rights human beings do, that is what would have to be true of them all--they would have to respect one another's rights.

Consider that human rights watchdog agencies around the globe aim to bring governments and legal systems in line with the fact that everyone has basic rights to, for example, life, liberty, property, due process of law, free expression, political participation, and so forth. It matters not where the violations occur because the fact of someone's humanity makes one a rights holder and indicts anyone who violates his or her rights.

If animals had these rights, too, then all of their tormentors in the wilds would have to be indicted, too. But this is nonsense because they aren't subject to moral or legal principles and demanding that they conform to them is entirely off base. Yet if they all had rights and were moral agents that animal rights advocates insist they are--the main advocate, Tom Regan, who wrote The Case for Animal Rights back in 1984, argued that no morally significant difference can be found between people and animals--they would be (a) required to respect the rights of their fellow animals and (b) it would be mandatory to enact legislation for the protection of the rights of animals, ones being violated as a matter of course by other animals. These rights violating animals would have to be treated just like we treat violent criminals--charging them, prosecuting them, and incarcerating them once found guilty.

This is what follows form the claim that animals are just like us only a little less so--sort of like juveniles--in having a moral nature and thus possessing basic rights.

There is much else that could be pointed out that renders animal rights talk highly dubious if not out and out nonsense. But this is a major implication worth being given serious thought.