A Gallup poll taken in May of 2003 found that only 3 percent of Americans believe animals do not need much legal protection. Fully 71 percent supported some kind of legal protection for animals, and 25 percent said that animals should have the same rights as people.
As a life-long animal lover, I am deeply sympathetic to arguments that we should treat animals humanely. But the moral issue of how we should treat animals is a different and much wider matter than the issue of what legal obligations there should be for protecting animals. For instance, it is normally immoral to lie to your friend, but that does not imply any legal rights or protections. Similarly, it is immoral to nail a cat to a wall, but that does not ground a legal obligation to refrain from such monstrous behavior. I suspect that the 71-percent support for granting animals some kind of legal protection is based on just this confusion between concern about the welfare of animals and a proper ground for rights.
In fact, I think that the proper basis for individual rights—which I take to be Ayn Rand's theory of rights—excludes extending rights or legal protections to animals. For a concise summary of that theory, the reader should consult Rand's essay "Man's Rights," in The Virtue of Selfishness (New York: Penguin Putnam, 1964). This article will simply describe that theory and then employ it to rebut arguments that claim an extension of rights to animals is morally required.
The two main types of argument put forward for animal rights come primarily from two philosophers: Peter Singer and Tom Regan. With few exceptions, the philosophic arguments one finds in the philosophy journals or on the Internet follow more or less the arguments made by either Singer or Regan (see Keith Burgess-Jackson's "Animal Ethics" blog ). Therefore, this article will focus on the essential ideas of their arguments.
Singer is a controversial, even infamous, Australian philosopher who is currently a professor at Princeton. He is the intellectual inspiration for many animal-rights groups (as well as environmentalist groups) and is the author of several books and articles on animal rights, including his 1975 Animal Liberation . He is also well known for his work on other issues in ethics, including euthanasia, famine, and abortion. And his appointment at Princeton sparked tremendous protest because of his views defending the killing of certain kinds of severely disabled newborns.
Regan is also the author of several widely used textbooks on moral and social thought, as well as countless articles on animal rights and related issues. His argument is extensively laid out in his 1983 The Case for Animal Rights .
Both Regan and Singer argue for the same ultimate conclusion: a radical change in the way humans treat animals, primarily through extensive legal protections extended to at least some animals. Nonetheless, they get to this conclusion in different ways. Singer's method is based on the moral philosophy of utilitarianism and on concerns about equality, while Regan's approach is focused on the kind of value possessed by both animals and humans.
Utilitarianism is a moral theory that defines the good as that which maximizes the overall happiness or pleasure in the world and minimizes the overall unhappiness and pain. What is bad, then, is that which fails to increase happiness or that which increases overall unhappiness.
Utilitarians have historically been reticent or unable to offer a defense of individual rights. After all, rights—as principles that protect certain kinds of actions—are likely to interfere with the maximization of overall happiness and minimization of overall pain. For instance, the outlawing of dangerous drugs like ecstasy or methamphetamine might be seen as best under utilitarianism because it decreases the amount of pain and suffering caused by the use of these drugs. However, such a ban conflicts with individual rights to liberty and property. Utilitarianism therefore jettisons the notion of rights in order to focus on maximizing overall happiness.
As a utilitarian, then, Singer is not interested in presenting a theory of rights as such but is primarily concerned about the proper treatment of animals. He refers to his position as "animal liberation" as opposed to "animal rights." Nevertheless, we can speak of Singer's position as advocating animal rights in a shorthand sense because he does not merely put forward ethical recommendations, he also advocates principles and rules that demarcate the proper legal protections of animals and humans. For that reason, I will refer to Singer's position as a pro-animal-rights position.
Like almost every other defender of animal rights, Regan and Singer depend on the so-called marginal-humans argument, which begins with the following observation: There are normal paradigmatic humans; they have the features and capacities that we think of when we think of humans: reasoning ability, normal emotional responses, and so forth. Then there are those outside of that paradigm--marginal humans--that lack some or all of these capacities. These include infants, young children, the severely mentally retarded, the permanently comatose, and probably the senile.
The argument goes something like this: If normal, adult humans have rights by virtue of being rational beings, then, according to the marginal-humans argument, infants and severely retarded humans cannot have rights on this basis because they are not capable of being rational. So, either rationality is not the sole basis for rights, or these marginal humans do not have rights.
This seems to put the defender of rights in a precarious position. He can either reject the idea that marginal humans have rights and thus should be given legal protection against harm and abuse; or he must modify the basis for rights to include marginal humans—and along with them, it seems, at least some higher-order animals.
We can see this problem in the following dilemma from Singer: "If we do not reject the belief that it is wrong to kill severely intellectually disabled humans for food, then we must reject the belief that it is all right to kill animals at the same level of mental development for the same purpose" (Peter Singer, "Animals and the Value of Life," Matters of Life and Death, New York: McGraw Hill, 1993, p. 306).
We either accept some consideration—like rationality or intelligence—as the criterion for rights and accept that infants and the severely retarded might be treated as we treat monkeys or pigs, or we accept that rights are not limited to humans and that rights-holders will include, at least, some animals.
One may be willing to bite the bullet on the treatment of marginal humans and accept that they can be treated as we treat non-human animals. However, most people are not willing to say that and will likely see such a conclusion as a sign that something is wrong in the theory of rights being presented. If the theory allows for infanticide or something similar, it seems wiser to reject or revise the theory of rights than to accept this outcome.
In short, the purpose of the argument regarding the position of marginal humans is to show that traditional theories of rights fail to establish that all humans, including marginal and borderline cases, have rights. This, then, makes room for the new theories presented by Regan and Singer—and these new theories will include rights and protections for at least some animals.
Regan starts with the claim that each person, as an individual, has some distinctive and unique value, which he calls "inherent value." He argues that the basis for rights is this inherent value and not rationality, autonomy, or some other quality.
Regan's "inherent value" is not something earned—that is, one cannot lose or gain the value by his actions—nor is the value instrumental. A person's inherent value does not exist because he is cute and cuddly or because he writes wonderful sonnets—he just has the value. Lastly, inherent value is equal among all who have it. One cannot have more inherent value than another; William Shakespeare and Osama bin Laden would have the same inherent value.
Regan's justification for inherent value rests on the assumption that this kind of value is the best way to explain our "reflective intuitions" regarding harm to other humans, including the marginal cases (Tom Regan, The Case for Animal Rights, Berkeley: University of California Press, 1983, p. 247). We believe it is wrong to enslave humans or to treat babies as food sources, and Regan argues that "inherent value" is the best explanation for these beliefs. Thus, inherent value is essentially an idea that is required in order to explain why we have certain other beliefs. This is similar to the way an astronomer might justify the claim that a planet is circling a faraway star. The astronomer might not be able to detect the planet directly, but he can rationally postulate it because such a mass is required to explain certain other known features about the star and the star system. Inherent value, Regan argues, is similarly required to explain our considered moral beliefs.
So, like paradigmatic humans, marginal humans have inherent value and thus rights. In addition, Regan claims, there is no rational basis for denying that some animals also have inherent value, and thus no basis for denying that animals have rights.
How do we know whether or not something has inherent value? Regan does not offer straightforward conditions that would need to be met to show inherent value. But he does offer one condition that demonstrates inherent value exists in some beings. He calls it "being a subject-of-a-life."
What does it mean to be a subject-of-a-life? First, one is an organism such that events make a real difference to oneself as an individual. Secondly, one is an organism such that continuing to live matters to oneself. Thirdly, one is an organism for whom what happens in life has some meaning for oneself.
According to Regan, in order to be a subject-of-a-life, one needs (among other things) the ability to take action; a memory; a sense of the future; an awareness of one's individual welfare, desires, and goals; and the capability of feeling pleasure and pain. These are the sorts of characteristics that ensure things will matter to an individual and make a difference to that individual.
Regan claims that being a subject-of-a-life means one has inherent value. However, a creature might not be a subject-of-a-life and still have inherent value. He claims that the permanently comatose are not subjects-of-a-life, but that they do have inherent value. Regan even ponders at one point whether natural objects like trees can have inherent value even though they clearly are not subjects-of-a-life. So, the subject-of-a-life condition is not an explanation or definition of inherent value, only a useful tool to spot inherent value in some cases.
Regan's assumption is that most humans, marginal and otherwise, are subjects-of-a-life. Furthermore, he argues that most higher-order animals are as well and that, as subjects-of-a-life, they also have inherent value.
In sum, Regan's argument is that individuals, human or not, that have inherent value are entitled to treatment that respects this inherent value and does not harm that individual. His case for rights—animal or human--therefore, rests on this idea of inherent value.
To anyone who has spent time at a zoo or had pets, it should not be a stretch to accept that higher-order animals—apes, dogs, cats, and so forth—experience pain and pleasure, have desires and goals, initiate actions to meet their needs and desires, have some sense of their own personal future, and even experience, in some sense, life as good or ill for themselves. Furthermore, it does not strike me that attributing these capacities to them is wild speculation or anthropomorphism. Regan is right that some higher-order mammals possess these capacities. In fact, this is probably one of the things that makes such creatures compelling as pets; it may even provide a moral basis for treating animals with a certain amount of sensitivity and care. Nonetheless, this does not show that such creatures have inherent value, nor does it ground a case for animals' possessing rights.
This is primarily because inherent value is an invalid concept. It has no basis in reality—it is arbitrary and inconsistent with a proper understanding of value.
As Ayn Rand argued, value depends on the existence of a being that faces the alternative of continued existence or the end of existence—and a being that must act to continue in existence. Values, then, are those things that are required for the being's continued life. Therefore, a value is always a value for some reason (it is required for life) and to some organism (the being acting in the face of the alternative of life or death).
Moral values are the values pursued by an organism with the capacity to choose and reason. Volitional rationality gives rise to the need for a system to guide choices and actions. Without choice, there is no point to giving guidance; and without reason, we can't formulate and act on the principles that morality provides. Humans are the only organisms that are capable of volitional rationality and, as such, are the only organisms capable of morality. And while animals certainly face the alternative of life or death and thus pursue value, they do not react to this alternative by choosing what actions to take and what values to pursue to maintain their lives. They do not and cannot pursue moral values.
Inherent value, by contrast, is not valued for any reason and does not require an organism's action or choice in pursuit of values. Regan's account of inherent value makes this abundantly clear. It matters not what a person does or who the person is—so long as he has this inherent value, he should be treated like any other person. It is in this way that inherent value divorces value from its conceptual roots and is thus invalid.
But even for one who does not accept Rand's account of values, inherent value should be troubling. Regan is concerned that theories that include marginal cases of human beings but exclude animals are doing so on an arbitrary basis. For instance, a theory might attempt to extend rights to marginal cases just because they are all members of Homo sapiens. Regan, as well as Singer, argues that such a theory of rights is arbitrary because biological membership is morally irrelevant.
Yet Regan's solution—inherent value—is itself arbitrary. We are not given any reason, other than our "reflected intuitions," to believe that paradigmatic humans or marginal humans or animals have inherent value. Regan argues that we need inherent value to explain our moral beliefs about how to treat others, including animals. However, this claim is quite wrong since we can explain why we value treating others with respect and dignity, as well as seeing that needlessly mistreating animals is likely wrong, without appealing to the dubious notion of inherent value. (For a treatment of why treating others well is a value, see David Kelley, Unrugged Individualism: The Selfish Basis for Benevolence, New York: The Objectivist Center, 1996. Kelley doesn't mention treatment of animals, but needlessly mistreating an animal usually indicates a depravity that is inconsistent with the kinds of values and virtues needed for life.)
Singer places the principle of equality or equal consideration at the center of his moral view. Each person, in his view, is entitled to equal consideration and respect. Utilitarianism is then seen as the best moral theory to satisfy this principle of equality.
According to Singer, an individual's capacity to suffer is sufficient for that individual, human or animal, to be entitled to equal consideration. Singer quotes the famous English utilitarian Jeremy Bentham: "The question is not, Can they reason? Nor can they talk? But, can they suffer?"
What is important is whether or not a creature can suffer. If it can suffer, then its suffering has to be considered in the utilitarian calculation of maximizing pleasure and minimizing pain. The creature's capacity for pleasure is also relevant, but more often than not the focus is on suffering because this is the perceived injustice that is calling for rectification. Moreover, any creature capable of feeling pain and pleasure needs to be given consideration when determining what actions are best.
The capacity for suffering and enjoyment is the morally relevant factor here, according to Singer, because it is this capacity that is at the base of having any interests at all. In this view, not wanting to be hurt is not just another interest that one has along with interests in being fed or having shelter. It is the basis of the other interests one has. The interest in being fed is based on the pain one experiences from starving. The interest in having shelter is based on the pain one would experience when exposed to the elements. Without the ability to feel pain and pleasure, there can be no interests, period.
A rock has no interest in not being kicked (or any other interests) precisely because it has no capacity to feel the pain of being kicked or anything else. My niece, on the other hand, is capable of feeling the pain and thus has an interest in not being kicked, among other interests.
Most people respond to Singer's argument in something like the following way: There is a difference between human suffering and animal suffering. Human suffering is morally relevant precisely because it is human suffering.
But like Regan, Singer argues this is arbitrary and merely shows a bias towards humans. Both refer to this bias as speciesism. Speciesism, as defined by Singer, is a "prejudice or attitude of bias in favor of the interests of members of one's own species and against those of members of other species" (Peter Singer, Animal Liberation, New York: HarperCollins Publishers, 2002, p. 6). Think of "sexism" or "racism," but instead of sex or race, substitute species. And insofar as sexism and racism are wrong because they go against the principle of equal consideration, speciesism is wrong too, according to Regan and Singer. Thus, it cannot be used to exclude animal suffering from consideration.
Singer's argument is that, with the principle of equality and the shared capacity for pleasure and pain, humans and non-human animals should have their interests weighted equally when doing the moral calculus of right and wrong. By including the interests of non-human animals in the utilitarian calculus, Singer argues, we will find that the rules and principles that demarcate the proper legal protections of humans will apply similarly to sentient animals.
In many ways, these arguments are easy to dismiss. Regan's "inherent value" is an arbitrary and invalid concept and thus fails to ground rights. Singer's argument is based on utilitarianism, a moral theory notorious for its inadequacies at providing moral guidance and for its anti-individual biases. If one rejects utilitarianism—as one should—then Singer's argument never gains any traction.
This is a big part of why one should reject Regan's and Singer's arguments. But, while their arguments should be rejected, there are two issues raised by animal-rights arguments that still need to be dealt with.
First is the moral significance of various and complex animal capacities. If animals are sentient or have an awareness that is even more complex than sentience, is that a basis for animal rights?
Secondly, we still face the marginal-humans argument. If one has no rational answer to this argument, one's theory of rights has a definite weakness.
Fortunately, these problems are based on mistaken notions of rights. A valid notion should be able to explain the real basis for rights and its proper scope in an unambiguous way.
Both Regan and Singer rely heavily on appeals to the capacities of animals, whether they are talking about experiencing pain and pleasure or the more complex capacities that constitute Regan's "subject-of-a-life." And when one talks to individuals who believe in animal rights, at the base of their belief in such rights there always seems to be some notion of an animal's capacity to suffer.
As indicated earlier, I have a strong sympathy for this view. I have always been an animal lover: growing up with a dog, caring for farm animals at summer camp, and happily sharing my home with two cats today. From observation and from an understanding of biology, it seems obvious that higher-order animals have a robust and complex awareness. And it is quite clear that animals can suffer horribly when subjected to abuse and trauma.
I do not want animals to suffer needlessly, but the capacity to suffer is not a ground for animal rights. Indeed, it is not the basis for human rights.
The mode of survival for a rational being is to engage in reason and act on the basis of that judgment. To the extent a human does that, that person is more likely to lead a successful and prosperous life.
If a person lived a solitary life, no one could interfere in this process. It is only when he engages in society with other persons that interference becomes possible and, thus, rights necessary.
We have rights because, to pursue life in society by means of reason (which is how one best lives), an individual needs freedom for action and therefore freedom from force.
We respect the rights of others because we live in society and have to interact and trade with all kinds of individuals: from those with whom we trade basic consumable goods to those with whom we trade in the broader sense of communication, visibility, and friendship. If these individuals are to produce optimally the values we will gain from them in trade, we need to make sure that these individuals have the freedom to think, the freedom to act on their decisions, and thus freedom from coercion.
This means that rights are ultimately based on the capacity to reason. It is through this capacity that we (as well as others) are able to make judgments, to take free actions to meet our needs and values, and to engage in society. Animals, lacking a capacity to reason, cannot take part in these actions and so do not have rights.
This is the point at which a Singer or a Regan would chime in with the marginal-humans argument. Not all humans are capable of reasoning, taking part in the social context, or trading, and so protecting marginal humans while leaving animals without rights is arbitrary.
In regards to children, there is an important, non-arbitrary reason for protecting them: children are going to be rational beings some day. Animals will not. Left to their normal development process, animals do not develop a rational capacity. Children are developing into value-traders and value-seekers, and it is, therefore, rational and important to protect this developing capacity. The issue of the status of fetuses is different. Children are physiologically and anatomically independent, and the fetus is not. A fetus is physically a part of the mother, and its status is inescapably tied to her. If one wants to argue that the fetus, too, needs protection, that requires a separate analysis.
The argument used for children, however, is not adequate for other marginal cases, like the severely mentally retarded or permanently comatose. These individuals are not developing rational beings or value-traders. Someone with severe retardation cannot (with current medical technology) develop into a normally functioning rational human being.
We might, nonetheless, point to a rational and non-arbitrary distinction between non-human animals and marginal humans along the following lines. Under normal developmental circumstances marginal human beings would be normally functioning rational beings. But under normal developmental circumstances animals are not rational, conceptual beings. This non-arbitrary distinction could offer a theoretical basis to legal protections short of full rights for marginal humans but not for animals, though admittedly that theory has not yet been developed.
One possible approach would be to note the history of medical advances and the possibility that cures and treatments for mental retardation and comatose patients might be developed, giving these individuals the ability to function as rational human beings. In this way, the potential for treatment establishes a connection between non-rational human beings and normal, paradigmatic, rational human beings, thereby creating a real sense in which these marginal cases are potential traders, whereas animals cannot be. On this non-arbitrary basis, it may be possible to validate a certain subset of rights for marginal human beings.
Thus, it may be that marginal humans possess certain rights as potential traders, but animals do not because they are not potential traders.
One might counter that a person does trade with his pets, if not with all animals. And certainly it is true that my wife and I give our cats food, shelter, and love, and we get much affection and enjoyment in return. That is precisely why we have cats. But trade is a voluntary exchange of values, and it is only the need for the exchange to be voluntary that gives rise to rights. We respect the rights of other people because that is the way in which we optimize what they will have to offer us in trade. Obviously, the value that my wife and I get from our cats does not come from a mutually voluntary exchange between the cats and us. In fact, the pleasure that we derive and that the cats derive comes about only because we have compelled them to live with us and to interact with us. Letting our cats go where they wished and do what they wished would not optimize what they have to offer us. And the same is true for marginal human beings. The tremendous exchange of love that takes place between parent and infant, or between a normal sibling and a severely retarded sibling, is not the basis for such rights as children and the retarded may have—because the exchange is not voluntary. If marginal human beings are to be accorded some subset of rights, it must be on the basis of their potential for voluntary exchange.
In sum, rights are necessary for the peaceful survival of a conceptual, rational being within a social context. Animals are neither conceptual beings nor within our social context, and therefore animal rights are not justified. Since our legal system should be rights-based, legal protections for animals are not justified. Most marginal humans, it might be argued, are a part of the social context, as potential traders, and so certain legal protections could be justified.
There are other criticisms that might be made against animal-rights arguments; most especially, one could attack the concept of speciesism. But by showing what the proper basis for rights is, and by arguing that the cases of marginal humans can be rationally explained, the foundations of the arguments for animal rights are sufficiently weakened that there is little need to attack less fundamental issues.
But, once again, the arguments for animal rights deal with how animals are to be treated in a legal context. While I think it is clear that animals do not have rights, one must not conclude that it is morally acceptable to treat animals in just any which way. There may not be legal sanctions against individuals who abuse their own animals, but such behavior may still be immoral and there should be severe social sanctions to inhibit it. Our proper moral relationship with animals, however, is a separate question from what our legal relationship should be. The former requires more elaboration, but we should not in the meantime confuse the two and thereby undermine the real argument for individual rights.
This article was first published in the June 2004 issue of Navigator magazine, The Atlas Society precursor to The New Individualist.