Legally protected rights and interests
Every right protects a particular interest. The legally granted right to protect such interest doesn’t depend on others beings able to benefit with the loss of that right. It means a barrier, a specific limitation in the actions of others, that only gives way in predetermined circumstances in which the holder of that right is the one that loses it. In the juridical system the basic rights -that include not being treated as means for other’s ends – has its origins in the person’s juridical categorization.
Although some laws can look as if they granted rights to animals, they aren’t considered more than means for ends, granting the » right » to be treated in a humane way, which in practice means that the interests of the non human animals and humans will be weighed and, as things (animals) cannot be compared to persons (human), the animals will always lose. Here, then, lies the reason for welfare laws not being protective of animals. In fact, they promote tendencies to sell them, to kill them, to eat them, to obtain earnings even at the cost of their pain, to torture them, all of this under the protection that the right of property grants over them, to which the anti cruelty statutes can hardly react against.
Can animals have rights?
Historically, rights were created to favor the privileges of a certain group. The theory of rights is secured with the era of illumination in the western socio-political theory. After that, many rights were extended further to include children and those mentally incapacitated, even if these groups cannot enter into obligations.
We are so used to the term ‘animal’ working as barrier to separate humans from animals that, in addition to forgetting that humans are also animals, we also forget that the term animals includes about thirty million species. If there were some dividing line to be traced, this would be the one that separates sentient beings from non-sentient ones. Certainly, as long as the beings in question are endowed with sensation, we have duties towards them if we can harm them with our actions. To state that we cannot kill or harm a human being but we are allowed to do so to an animal, enlists us in an illogical statement impregnated with arbitrariness. On the subject, the inconsistency is rooted in speciesism. An animal endowed with sensation should integrate our moral circle for reason of justice. It is not necessary to feel special affections to consider the interests of any sentient animal to live in freedom and not be subjected to torture. This doesn’t mean to ignore relevant differences among the different species, but rather that none can be enslaved institutionally to be at the service of another.
From the perspective of Kelsen, holder of right is a construction that relates to ‘holders of duties’. That is, I am entitled to a right to the extent that others have certain obligations toward me tending to protect a certain interest. In this sense, there are no problems in that the subjects of rights are beings other than human beings. In the modern legal philosophy this rights concept prevails. And it is in this way that the American philosopher Tom Regan presents it. We have the obligation of not harming beings with an inherent value.
The Italian philosopher Norberto Bobbio said in El tiempo de los derechos (The time of Rights), 1991:
The cast of the human rights has been modified and is being modified with the change of the historical conditions, that is, the needs, the interests, the classes in power, the available means for its realization, the technical transformations, etc. Rights that had been declared absolute at the end of the eighteenth century, as the sacrée et inviolable property , have been subjected to radical limitations in contemporary declarations; rights that the declarations of the eighteenth century didn’t even mention, as the social rights, are now proclaimed with great ostentation in all the recent declarations. It is not difficult to foresee that in the future new claims could appear that we don’t even can anticipate, as the right to avoid carrying weapons against their will, or the right to respect the life of animals also, and not only those of men’s.
Once it is acknowledged that an animal can have rights, we will have to determine which ones are entitled to them. Doubtless, the first right that they deserve as sentient beings is the right of not being a thing, not to be considered as property. In such a case it is practically impossible to justify the systematic use of animals in experiments, their use as food, as clothes, for entertainment, etc. This would take justice to the animal kingdom. But humans would also benefit enormously. From the decrease of illnesses related to the consumption of animal products, to an impressive reduction of the environmental pollution, and finally to the recovery of an atrophied sensibility that rebounds in the treatment given to our species partners, increasing and/or allowing violence, as has already been noted by philosophers of different eras and prominent contemporary psychiatrists. The animal rights movement is thus joined to that of all the oppressed human groups, because those who reject speciesism also reject other forms of exploitation and discrimination.
Por Ana María Aboglio. Traducción: Viviana Löb.