A key feature of many debates in animal ethics is the distinction between ‘animal welfare’ and ‘animal rights’. According to prevailing thought, most theories of animal ethics can be assigned to one of two schools. Theories of animal welfare accept that sentient nonhuman animals have moral status; that is, that individuals with the capacity for consciousness and sensation are worthy of moral consideration in their own right. As a result of this status, these theories are claimed to argue that humans’ use of animals ought to be reformed, most commonly by restricting or eliminating the infliction of pain on the animals involved. Theories of animal rights, on the other hand, are argued to be much more radical. For what is said to distinguish animal rights positions is that they do not seek to regulate the use of animals in zoos, agriculture, laboratories, pet-keeping and so on; rather, they seek to abolish all such uses. According to this perspective, animal rights theories are those which call for the end of the human use, ownership and exploitation of animals (Francione 1996, 2000, 2008; Sztybel 1998). We can see, then, how this understanding of animal rights considers them to be analogous to human rights. For human rights do not demand that we regulate slavery, torture or human trafficking to make those practices more humane; instead, they demand that such forms of exploitation be abolished.
In this chapter, I want to challenge this understanding of animal rights – and in so doing, to challenge the strict dichotomy between animal welfarism and animal rights which has come to dominate so much ethical thinking about animals. For the idea that sentient nonhuman animals possess rights does not, in itself, tell us anything about which rights that they have. To understand which rights animals possess, we need to have an underlying theory which we can use to justify the ascription of particular rights to them. In the next section, I will briefly outline the most popular and plausible such theory, the interest-based approach, which assigns rights to the important interests of individuals. In the following sections, I will then argue that when we have a proper understanding of the interests of nonhuman animals, it becomes clear that the majority of them have no intrinsic interest in not being used, owned or exploited; and because they lack those interests, they also lack the equivalent rights. In sum, then, I will argue that contrary to the prevailing view, under the best understanding of animal rights, animals have no rights not to be used, owned or exploited by human beings, when such use, ownership or exploitation does not cause them suffering or other forms of harm.
To reiterate, in order to understand just what kinds of rights (if any) animals have, we need to have a robust understanding of the kinds of things that rights are and how they can be justified. In other words, then, we need a theory of rights. In the philosophical literature on rights, there are two main rival theories: the ‘will theory’ and the ‘interest theory’. For the will theory (sometimes also known as the choice theory) of rights, the essential feature of a right is the presence of choice in the right-holder. To be more specific, it is claimed under this theory that when an individual has a right to something, then that individual is able to demand or waive enforcement of the relevant duty (Hart 1967; Sumner 1987; Simmonds 1998; Steiner 1998). To clarify, let us take the example of a loan: I have lent you some money, and you have agreed to pay me back. It is clear that in this situation, you have a duty to repay me. Moreover, it is perfectly legitimate for me to demand repayment from you, or, if I so choose, I can waive your duty to repay, thereby cancelling the debt.
One of the important problems with this understanding of rights is that it means that individuals without the power of choice – such as young babies and the severely mentally disabled – lack rights. This implication is hard to reconcile with the powerful conviction many of us share which takes it as obvious that vulnerable individuals such as these possess rights. After all, it seems to clash violently with our ordinary understanding of rights to claim that young babies and the severely mentally disabled lack the right not to be tortured, for example. And that conviction is unmoved by the simple fact that such individuals lack the power of choice. Many of us would argue that these individuals have such a right for the simple reason that they have a powerful interest in not being caused the excruciating pain which torture entails. For this and other reasons, then, many philosophers have adopted a theory of rights which is grounded in interests. For interest theories of rights, the essential feature of rights is the benefit afforded to the right-holder (MacCormick 1977; Raz 1988; Kramer 1998). On this view, rights are essentially those interests that are sufficiently important to ground duties on the part of others (Raz 1988). Because babies have an interest in not being tortured which is weighty enough to ground a duty in others, they have a right not to be tortured; and because I have an interest in being repaid which grounds a duty on your part, I have a right to the repayment of the money I leant you.
Of course, the adoption of the interest theory of rights also has another important implication. It means that any individual who has interests is also a putative possessor of rights. Since interests are usually attributed to those individuals who can experience the world and themselves in it, this means that sentient nonhuman animals are possible rights bearers (Feinberg 1974). And indeed, the interest theory has been adopted by many philosophers who have sought to justify the extension of rights to animals (Feinberg 1974; Rachels 1990; Rollin 2004; Cochrane 2012). Less attention, however, has been given to using the theory to outline the content of animal rights. This is unfortunate, because the simple fact that animals can possess rights on the basis of their interests does not, by itself, determine which rights they have. It certainly does not mean that they have the same rights as humans, or each other, for they are unlikely to possess the same set of interests, or interests of the same weight. The important question for any theory of animal rights, then, is which animal interests (if any) are sufficiently important to ground duties in other individuals.
I believe that sentient animals have many interests which are important enough to ground duties on the part of others. Indeed, elsewhere I have argued (Cochrane 2012) that their interests in not being made to suffer and in continued life are sufficiently important to generate rights to such goods. And quite obviously, the recognition of just these two rights has radical implications for a huge range of human practices, including agriculture, medical research, sport and far more. There is not the space here to provide a full defence of this claim. Instead, the aim of this chapter is to concentrate on a range of other rights that are alleged to flow logically from an animal rights position: the rights of animals not to be used, owned or exploited by human beings. In the following sections, I will argue that the vast majority of animals do not have sufficiently important interests in not being used, owned or exploited by human beings to ground equivalent rights. This is not to say that animals are not and cannot be harmed by their use, ownership and exploitation by humans. Clearly, the use of animals frequently inflicts all sorts of harms upon them, including suffering and death – and those forms of use should be condemned on the basis of the harms they cause. But my concern is with whether use, ownership and exploitation per se cause harm to sentient animals. And I will argue that for the vast majority of animals, they do not.
As outlined above, for many proponents of animal rights, all human uses of animals must be abolished. But do animals have an interest in not being used by humans? Moreover, do they have an interest in not being used by humans, even when such use causes them no suffering or other forms of hardship? One way in which it might be argued that they do is to point to a more general interest that animals possess in being treated ‘respectfully’. To explain, one of the most famous proponents of animals rights, Tom Regan (2004), has argued that animals have one basic moral right: the right to respectful treatment. Regan claims that sentient animals possess this right on the grounds that they are individuals whose value cannot be reduced to their usefulness to others. In other words, sentient animals possess ‘inherent value’. Regan (243) argues that they have such value because they are ‘subjects-of-a-life’: beings with beliefs, desires, a sense of themselves over time, interests in their own fate, and so on. For Regan, subjects-of-a-life possess a value all of their own, a value which is independent of how they are valued by others. In turn, this means that they have a right to respectful treatment: a right never to be treated solely as a means to securing the best overall consequences (249, 277). For Gary Francione, Regan’s theory logically entails the abolition of all human use of animals: “The use of animals for food, sport, entertainment, or research involves treating animals merely as means to ends, and this constitutes a violation of the respect principle” (Francione 1996: 18).
The first issue that arises from this analysis is whether animals do indeed have an interest in always being treated as beings with inherent value, and thus in never being treated solely as a means to securing the best overall consequences. Attributing such an interest to animals certainly seems plausible. After all, treating an individual in a way which is solely designed to secure the best overall consequences fails to recognise that individual as having any worth at all. And surely if animals have any interests at all, they must have an interest that they and their interests count for something. But just because animals possess this interest, it does not follow, as Francione thinks, that all human uses of animals are thereby impermissible. For quite simply, not all human uses of animals – or indeed other humans – do or must treat those individuals solely as a means to secure the best overall consequences, and thus as if they have no inherent value. In fact, it is actually quite hard to think of examples of uses of animals which grant absolutely no value at all to animals, and which are aimed squarely at the best overall consequences. Take industrial animal farming, which entails extracting as much protein at as little cost as possible, usually resulting in severe suffering and death for the animals involved. Even in this context, most jurisdictions place some limits on such practices for animal welfare concerns. We may justifiably regard those limits as woefully inadequate, but they are limits nonetheless. As such, even the use of animals in industrial animal agriculture treats animals as if they have some value of their own. More importantly, we can all think of many other uses of animals – whether it be the use of cats as companions, of backyard chickens to produce eggs, of dogs to provide assistance to those with disabilities – where the animals involved are obviously and uncontroversially treated as possessing value of their own. Many such animals lead flourishing lives that are of value to them, in spite of the fact that they are used by humans.
At this point it may be objected that even these animals are harmed by their use by humans. For while many companion cats, for example, seem to enjoy their lives, the truth is that they are pursuing ends that they have had no choice in setting. Humans control every aspect of cats’ existence, including their features, characteristics and opportunities. In effect, it can be argued that these animals are ‘slaves’ who lack meaningful control over their own lives, and are thus harmed as a result (Francione 2012; Bryant 1990: 9). The problem with this view, however, is that it is unclear that the majority of animals do have an interest in having control over their own lives in this way. To explain, the reason why we believe that most adult humans possess an interest in pursuing ends that they have chosen for themselves comes down to the fact that they are persons: individuals with the ability to frame, revise and pursue their own conceptions of the good (Rawls 1993: 72). This means that for most humans, being in control of fundamental choices regarding family, employment, religious belief and so on are central to living well. The requirements of a decent life for most animals, however, are quite different in this regard. The majority of nonhuman animals lack the ability to frame, revise and pursue their own conceptions of the good.1 They thus also lack that intrinsic interest in having ultimate control over their own lives (Cochrane 2009). As such, while controlling humans through coercing them into particular forms of use is necessarily harmful, no such harm is entailed by using most animals in such a way.
There thus seems to be little reason to believe that most animals have an intrinsic interest in not being used by humans. As such, we cannot claim that all sentient animals have a right not to be used by humans when such use does not entail suffering, death or other forms of harm.
What then of owning animals? You will recall that another purported implication of animal rights is that it means that they ought never to be the property of human (or other) beings. But do animals have an interest in not being owned? Many proponents of animal rights take it for granted that they do have such an interest. In so doing, they have largely followed the claims of Gary Francione (2008), who has argued that animals have a basic interest in not being owned, because of a strict dichotomy in the law between ‘things’ and ‘persons’. He argues that if an entity has the status of ‘property’, then that individual is classified as a ‘thing’ whose interests will necessarily be subordinated to those of property-owning ‘persons’.
But there are two problems with this analysis. First of all, it is not at all evident that the property status of animals means that all of their interests are necessarily subordinated to those of their human owners. The right of ownership is not an absolute right to do as one pleases with one’s property; it is instead a much more qualified concept entailing a bundle of rights and entitlements (Honoré 1961). Crucially, the content and stringency of that bundle of rights will vary upon context. This means that animals may well be property under the law, but that the law can still place restrictions on what an owner can do with her property. Importantly, the law can place restrictions which prioritise the interests of the owned animal above the human property-owner. And we can see that the law does precisely that in many jurisdictions. For example, in the EU, it is illegal to chain calves in veal crates. As such, human property-owners are denied the freedom to pursue their business and culinary interests as they might desire; and such a restriction is in place for the sake of the welfare of animals. Put simply, ownership does not necessarily entail that the interests of the owner must be prioritised over those of the property (Sunstein 2004, 11; Garner 2006; Cochrane 2009).
Nonetheless, it still might be claimed that animals have an interest in not being owned quite simply because it officially confers upon them an inferior and ‘second-class’ status. But if being owned does not necessarily mean that their interests will be undermined or subordinated to those of others, it is unclear why having such a status would be of concern to animals. After all, animals have no conception of what property is, nor do most of them have the kinds of capacities for self-respect which might be undermined if they were aware of their second-class status. Furthermore, it is also worth challenging the oft-repeated claim that there is and must be a strict and hierarchical dichotomy in the law between things and persons. To reiterate, ownership signifies the presence of a bundle of rights: to use, to possess, to transfer and so on. But the particular bundle of rights and the stringency of those rights will vary with different examples of ownership. In this light, there is no strict dividing line between owners and the owned, but instead a far more fragmented picture where the vast majority of us are both the subjects and objects of various incidents of ownership. By way of example, just consider the incidents of ownership that parents have over their children, such as the right to possess; or that employers have over employees, such as the right to income; or that states have over citizens, such as the right to manage; and so on. All such incidents ought to be qualified, of course; but still, they are nonetheless incidents of ownership to which human persons are subjected.
In sum, then, we cannot say that animals have an intrinsic interest in not being owned by humans. As such, there is no reason for assigning to them a right not to be owned by humans, provided that such ownership does not cause them suffering, death or other forms of harm.
As well as ruling out the use and ownership of animals, many also claim that an animal rights position necessarily entails that animals ought not to be exploited. But do animals have an interest in not being exploited? This is a somewhat tricky question on the basis that the term ‘exploitation’ is used in a rather loose way, usually with negative connotations, in both the animal ethics literature and in everyday discourse. And, of course, if exploitation is simply equivalent to being caused suffering or other forms of harm, then it would be very easy to acknowledge that animals have such an interest, and one which can be said to ground duties on the part of others.
However, exploitation also has a more specific Marxist definition, and this is one that is employed by some proponents of animal rights. To explain, a number of thinkers (Noske 1997; Perlo 2002; Hribal 2003) have drawn on Marxist theory to justify animal rights. Furthermore, part of that reasoning entails showing how animals are exploited by capitalist production in much the same way as human workers. After all, both humans and animals work for the capitalist who extracts a surplus from their labor in order to make a profit. It is this element of ‘unpaid labor’ which makes the relations between the capitalist and human or animal workers necessarily exploitative.
So do animals have an interest in not performing unpaid labor for human employers? If they are compensated for their labour to the extent that they may lead flourishing lives and enjoy freedom from suffering, death or other forms of hardship, then it is hard to see why they have such an interest. If chickens are kept to lay eggs for profit, or sheep are kept to produce wool for profit, so long as the animals involved are able to lead enjoyable lives free from suffering, it is very hard to identify the harm in these practices. In other words, then, it is hard to see why the animals involved have an interest in not being exploited.
But perhaps there is a deeper reason to believe that animals have an interest in not being exploited. For perhaps animals have an interest in not being alienated from the full product of their labour. To explain, Marx sees productive labour as the essential human activity. A truly human life necessarily entails intentionally labouring on the world, transforming the world and producing objects. Free, conscious and spontaneous productive labour is what Marx calls humanity’s ‘species-being’. However, when an individual is forced to labour for someone else, as they are under wage-labour capitalism, then that individual is alienated – which includes being alienated from the full product of her labour (Marx 1994: 58–66). Perhaps, then, animals share this interest in not being alienated from the full product of their labour – explaining why the chickens and sheep in the examples above are harmed by their exploitation.
The obvious problem with this reasoning, however, is that it is far from clear that productive labour is the essential activity of human beings, let alone of animals. After all, most of us readily accept that those individuals who cannot transform the world and produce objects – such as young children or those with serious disabilities – can nevertheless flourish as human beings. This seems obvious on the simple basis that such individuals can enjoy a whole host of other goods, such as love, play, intellectual stimulation and so on. In this light, transforming the world to produce objects is not of ultimate importance to humans. This makes being alienated from the full product of one’s labour of questionable importance to a flourishing life. And the same reasoning surely applies to nonhuman animals. Transforming the world and producing objects is not the essential feature of any species of animal. There are a whole range of goods that are far more important to them. As a result, it is reasonable to believe that it is permissible for humans to take some of what animals produce, so long as they are not made to suffer, killed or otherwise harmed in the process.
It may, of course, be responded that under capitalism, suffering is intrinsic to the process of exploitation. After all, it can be argued that capitalist processes have an insatiable demand for profit, which entails extracting as much surplus value as possible from workers, which inevitably entails suffering for the worker. And perhaps we can see this evidenced in the ways in which animal agriculture has increasingly become more intensive in order to boost profits. But while we should not downplay the ways in which the search for profits has led to increased levels of animal suffering, that should not lead us to the conclusion that increased suffering is inevitable under the capitalist mode of production. And we can see this from the example of animal agriculture itself. For as methods have become more intensive, many states have legislated to outlaw some of the most egregious forms of intensive animal agriculture in order to reduce suffering. We can, of course, readily acknowledge that such measures are woefully inadequate. Nevertheless, they show that the suffering of animals within the capitalist system need not necessarily increase, and is not intrinsic to the extraction of profit itself. That is to say, if there is sufficient political will to reduce suffering, it can be done.
In this chapter, I have sought to challenge the prevailing view that a theory of animal rights necessarily demands that the use, ownership and exploitation of animals be abolished. I have argued that to understand what rights animals possess, we need a convincing theory of rights, and the most plausible such theory for animals is interest-based. As such, in order to discover which rights animals possess, we need to know what interests they have which are sufficiently important to ground duties in others. I have argued that animals have no intrinsic interest in not being used, owned or exploited by human beings. As such, they have no such equivalent rights. This is not to say that uses of animals which cause animals suffering, death or other harms should not be condemned; they certainly should – but on the basis that such uses cause suffering, death and other harms. Using, owing and exploiting animals are not in and of themselves harmful to the vast majority of sentient animals.
1 The exceptions may be cetaceans and the great apes, who many claim do exhibit capacities for personhood. See White (2007) and Singer and Cavalieri (1993).
The most notable example of the view that an animal rights position entails the rights not to be used, owned and exploited is to be found in Gary Francione’s work. His book, Animals, Property, and the Law (1995) outlines his argument clearly and usefully. And further helpful elaborations can be found in his collection, Animals as Persons: Essays on the Abolition of Animal Exploitation (2008). Cass Sunstein and Martha Nussbaum’s edited collection, Animal Rights: Current Debates and New Directions (2005), has a number of fantastic papers which engage with these themes. I lay out my own view that animal rights do not imply the rights not to be used, owned and exploited more fully in Animal Rights Without Liberation (2012). Some important critiques of that argument have emerged, including Jason Wyckoff’s paper “Toward Justice for Animals” (2014).
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