12

ANIMAL RIGHTS, HUMAN OBLIGATIONS

If you are exasperated by your computer not working and you can’t succeed in fixing it, you are free to throw it out the window. Such a gesture will certainly not do anything to repair it, but it is your right. On the other hand, if you are irritated by the yowling of a cat and you catch it and try to smash its skull against a wall, it will try to fight you off and escape. In this case, your behavior is much more serious, because you are attacking a living being. It is not a right you are exercising here; it is an abuse of power.

As the philosopher Florence Burgat puts it: “The resistance that animals put up to being caught is fully a part of their struggle to have their most fundamental right recognized: the right to pursue their own life. The animal that resists being captured is manifesting its will to live—not to be captured, tormented, injured, shut up, tied up, or killed. Every being that undertakes this struggle by whatever means it has at its disposal is concretely expressing its wish to have its right to live recognized.”¹

If we were to write a single article of a hypothetical Universal Declaration of the Rights of Living Beings, it could be formulated as follows: “Every living being has the right to live and not be the victim of suffering imposed on it by others.” Henry Stephens Salt, an English reformer and a friend of Mahatma Gandhi, said: “Pain is pain . . . whether it be inflicted on man or on beast; . . . and the creature that suffers it, whether man or beast suffers evil; and the sufferance of evil, unmeritedly, unprovokedly . . . is Cruelty and Injustice in him that occasions it.”2

If the question of the rights of humans is already sufficiently complex, that of animals is even more so. A number of philosophers are of the opinion that rights and obligations only concern existing persons, conscious of their rights and capable of respecting them in relation to others.³ Thus they deny all rights to animals as well as to human beings of future generations (the latter, since they are nothing more than a multitude of potential and indeterminate individuals).

Another side of the problem is expressed by the English philosopher Mary Midgley, for whom the concept of rights is at once too broad and too ambiguous: “It can be used in a wide sense to draw attention to problems, but not to solve them. In its moral sense, it oscillates uncontrollably between applications which are too wide to resolve conflicts (‘the right to life, liberty and the pursuit of happiness’) and ones which are too narrow to be plausible (‘the basic human right to stay at home on Bank Holiday’). As many people have already suggested, its various uses have diverged too far to be usefully reunited.”⁴

Instead of arguing about the notion of rights, one way to resolve this impasse is to speak the language of consideration, respect for others, and the duty or obligation of the goodwill we have toward all sentient beings. If making altruism and compassion extend to all human beings without any discrimination is a special quality of being human, extending the same to animals only follows logically. Having said that, even if the question of rights is complex philosophically, as a practical matter it is essential to protect animals by ascribing to them certain legal rights that it is our duty to defend in their name.

Equal Consideration or Equal Rights?

Contrary to what is often stated sarcastically by those who want to make a mockery of the question of animal protection, none of the eminent advocates of animal liberation, such as Peter Singer, nor any of the champions of animal rights, like the philosopher and deontologist Tom Regan, have ever asserted or even implied that the life of a mouse was equal in value to that of a human. They never claimed that mouse and man had identical rights or that they had to be treated in exactly the same way. While recognizing the many differences that exist between humans and animal species, Peter Singer nevertheless defends the principle of equal consideration of their interests. As for Tom Regan, he maintains that animals share with human beings the fundamental right to be treated with respect on the basis of their inherent value.

Peter Singer puts forward the argument that, except in cases of absolute necessity, it is unjustifiable to inflict suffering on another living being, whether or not it is of the same species as us. In spite of the undeniable inequalities between human beings and animals (with respect to their physical and intellectual capabilities), we should grant to both equal consideration. We must of course understand, Singer tells us, that equal consideration for different beings can also mean different treatments and different rights.5

It is clear that human and nonhuman beings do not need to have the same rights in all matters. It would be absurd to call for the right of abortion for men and access to higher education for mice. On the other hand, Singer writes: “If a being suffers there can be no moral justification for refusing to take that suffering into consideration. No matter what the nature of the being, the principle of equality requires that its suffering be counted equally with the like suffering.”⁶

The needs of beings are very different. Put a million dollars in front of a sheep: it won’t have much of a reaction, and if you take it away, that won’t bother it at all. A man will react in an entirely different fashion. The cow delights in fresh grass, which leaves the tiger indifferent. On the other hand, if you stab them with a knife, the man and the sheep will feel the same pain and will each struggle with equal desperation to escape death.

Peter Singer considers it unacceptable to dehumanize human beings as well as to treat animals like things, to mistreat certain humans because of their race or sex or to mistreat animals for the sole reason that they belong to a species different from our own. According to him, the capacity to suffer and feel pleasure is a sufficient condition for asserting that a being has interests. At the bare minimum, its interest is not to suffer.⁷

Tom Regan tells us that the potential flaws and aberrations of the utilitarian approach in actual practice make it impossible for that philosophy to come up with a coherent vision of animal protection.8

Therefore he defends the rights of animals to be respected because they possess intrinsic value:

We do not say that humans and other animals are equal with regard to all their characteristics. For example, we do not say that dogs and cats can do algebra or that pigs and cows appreciate poetry. What we do say is that the many non-human animals are, just like humans, psychological beings who have their own experience of well-being. In that sense, they and we are alike. . . .

We do not say that humans and other animals always have the same rights. Already all humans do not have the same rights. For example, those who are affected by significant mental retardation do not have the right to attend university. What we do say is that these humans, like other humans, have in common with other animals a fundamental moral right: the right to be treated with respect. . . .

It is true that certain animals, like shrimps or mussels, are perhaps capable of feeling pain, but they do not have most of the other psychological capacities. If that is true, then they do not have some of the rights that other animals have. Nevertheless, there can be no moral justification for inflicting pain on anyone if it is not necessary. And since it is not necessary for humans to eat shrimps, mussels, and other similar animals, nor to make use of them in other ways, there can be no moral justification to inflict the pain on them that invariably accompanies these uses.⁹

More precisely, Regan is of the opinion that injuries intentionally inflicted on a sentient being cannot be justified by adding up the advantages that others can derive from causing them.¹⁰

Just as does Peter Singer, Regan acknowledges without ambiguity that the death of a human being represents a greater loss than that of a dog. That is the reason why, when circumstances demand such a choice, it is the dog that must be sacrificed. Moreover, for Regan, the number makes no difference, since the death of any particular human being represents a more significant loss than the death of any particular dog, that is, any one of ten, of a hundred or a million dogs, considered individually. He adds that a group of ten dogs does not constitute an entity in itself that would have more moral weight than a human being. However reasonable this may be, this point of view becomes problematic when the numbers become astronomical, as was the case at the time of the mad cow and SARS epidemics of recent decades. But how is it possible to set a limit that is anything but arbitrary? That is certainly one of the most difficult questions to settle. Peter Singer and Tom Regan, in all reasonability, simply advocate the abolition of massive exploitation of animals as well as the adoption of a vegan diet.

Moral Agents and Moral Patients

Moral philosophy makes the distinction between moral agents and moral patients. Moral agents are those who are capable of distinguishing good from evil and of deciding to do or not do what morality, as they conceive it, dictates. Therefore we consider them responsible for their actions. Taking into account the fact that they can also become the object of good or bad acts on the part of other moral agents, they participate in a relationship of reciprocity.

Moral patients are those who are only passively affected by the good or bad actions carried out by moral agents but are themselves incapable of formulating moral principles and deliberating on whether or not their actions have a moral basis before carrying them out.

Adult human beings who are in possession of all their intellectual faculties are both moral agents and moral patients. On the other hand, children, heavily handicapped persons, and the mentally ill are not moral agents and are not considered morally responsible for their actions. Nevertheless, they remain moral patients who, as such, benefit from a certain number of rights.

Animals are generally considered moral patients.11 If a snake eats a frog, its intention is not to do something bad but only to feed itself. Similarly, if it bites a human being who is passing nearby, it is because it is trying to defend itself. When an animal attacks another moral patient (the frog) or a moral agent (the passing human), its action cannot be judged in moral terms.

This does not prevent us from frequently developing illogical attitudes toward animals. Because of the self-proclaimed privileges of human domination, Jean-Baptiste Jeangène Vilmer explains, “humans can mistreat an animal without that being considered ‘evil’” (the animal is not then considered to be a moral patient) and at the same time hold it against that animal if it defends itself and injures its tormenter (the animal then is considered a moral agent).”12

If animals are indeed moral patients, as the philosophers of the animal liberation movement assert, then we have a responsibility toward them. The way in which we treat them becomes the object of a moral evaluation and can be considered more or less good. That, according to Jeangène Vilmer, is the area of concern of animal ethics.

This distinction makes it possible for moral agents to recognize the duties they have toward moral patients. Thus it becomes incumbent upon them to show concern for those who do not have the capacity to formulate and stand up for their own rights, notably their right to live and not suffer. It is equally important that our laws should translate this responsibility and these duties into concrete terms. We could say that, the more a moral patient is helpless and defenseless, the more moral agents have the duty to protect and care for them. The degree of vulnerability of a moral patient should be proportional to the requirement to protect it.

For Tom Regan, the principle of respect requires us to relate to all individuals possessing an intrinsic value by adopting a mode of conduct that respects this value, whether the value possessors are moral agents or moral patients. Even beyond that, we have the duty to not cause harm to moral patients. Finally, the right to being treated with respect cannot be adjudged to be either stronger or weaker in the case of moral patients than it is in the case of moral agents.¹³

Morality: An Ability That Comes from Evolution

That being said, the distinction between moral agents and patients should not be allowed to fall into the kind of caricatured dualism that makes absolute distinctions between humans and animals or between humanism and animalism. The dogmatic and arbitrary quality of such dichotomies becomes evident the moment we take into account the continuity of evolution and the process of gradual transformation that link all animal species. The manifestations of empathy, gratitude, consolation, mourning, mutual help, protection, sense of fairness, and so on that have been observed in animals are not the product of chance. The same is true of the ability to distinguish between actions that are good for or harmful to others. All the abilities that exist in humans have been selected for over the course of millions of years of evolution because they were useful for survival. Therefore they are also useful for other species, and we should expect to find in animals emotions and mental states that approach those of human beings, including a moral sense.

So it is not surprising that research carried out over the past few decades has shown that the great part of our moral sense is innate.

We have seen that, according to Jonathan Haidt, we first sense instinctively whether a behavior is morally good or bad, and then we justify our judgments with reasoning after the fact. Following the same line of thought, in his book entitled The Bonobo and the Atheist: In Search of Humanism among the Primates, the ethologist Frans de Waal makes clear on the basis of a body of observations and research studies that morality is not an innovation on the part of humans, as many people have hitherto believed. Far from having developed morality solely through our power of rational reflection, we have benefited from capacities already developed by the social animals who have preceded us.14

Observations of behavior in animals that can be described as moral abound. In his Expression of the Emotions in Man and Animals, Darwin tells the story of a dog who, each time he passed near the basket in which his friend, a sick female cat, was lying, never failed to lick her a few times. It also happens that chimpanzees mediate in an impartial manner among peers of theirs who are quarreling, trying to separate them and calm them down, thus showing not only an individual moral sense but also concern for the harmony of their community.¹⁵

Sarah Brosnan and Frans de Waal have shown that capuchin monkeys have a sense of fairness.¹⁶ Two capuchins were placed in adjacent cages and are able to observe one another. The experimenter gave a token to each monkey alternately, then held out her hand for the monkey to give the token back. In exchange for doing so, the monkey got a slice of cucumber. The monkeys quickly learned the meaning of the exchange and appreciated it greatly. At the end of twenty-five exchanges, the experimenter continued to give a piece of cucumber to one of the monkeys, but she gave raisins, a fruit the capuchins are very fond of, to the other. The first one noticed this injustice, as it saw it, and not only refused the piece of cucumber most of the time, but from time to time went so far as to throw it out of its cage. This sense of fairness has also been observed in dogs, who consent several times to do a certain trick without getting an immediate reward, but refuse to continue doing so as soon as they see another dog receive a piece of sausage as a reward for doing the same trick.17

Frans de Waal recounts the story of Lody, a bonobo in the Milwaukee Zoo. Lody was a very protective dominant male who in particular took care of Kitty, an old female who was deaf and blind. Since Kitty was in danger of getting lost in an area with many doors and tunnels, every morning Lody took her by the hand and guided her to the sunny spot on the grass that Kitty was especially fond of. At the end of the day, he guided her back inside her shelter with the same care. When Kitty had one of her frequent fits of epilepsy, Lody stayed at her side and refused to leave her.¹⁸

One day, Lody bit the finger of the veterinarian, Barbara Bell, who was giving him vitamins through the bars of his cage. He heard the cracking noise, raised his eyes apparently in surprise, and let go. But he had bitten too hard. Barbara was missing a finger from her hand, and the doctors were not able to graft it back on. A few days later, the unfortunate injured party came back to the zoo and, seeing Lody, raised her bandaged had as if to say, “Look what you did!” Lody came over and examined the hand attentively, then went to the farthest corner of his enclosure and sat down there with his head lowered and his arms wrapped around himself.

In the next years, Barbara left to work in another city. Fifteen years after the accident, she made an impromptu visit to the Milwaukee Zoo and, mingling with the rest of the crowd, went to have a look at the enclosure where Lody was living. As soon as Lody saw Barbara, he ran over and tried to look at her left hand, which was hidden behind the railing. He kept on looking toward her left side, as though insisting on seeing the hand he had bitten, until finally the victim raised her hand. Lody stared at the mutilated hand, then looked Barbara in the eyes, then looked back at the hand. “He knew,” the veterinarian concluded, an opinion that Frans de Waal, with his extensive experience of bonobos, agreed with entirely. If it is true that bonobos are conscious of the consequences of their actions, that shows to what degree they are capable of feeling the types of concerns that underlie the moral sense in humans.

Frans de Waal reaches this conclusion:

This brings me back to my bottom-up view of morality. The moral law is not imposed from above or derived from well-reasoned principles; rather, it arises from ingrained values that have been there since the beginning of time. The most fundamental one derives from the survival value of group life. The desire to belong, to get along, to love and be loved, prompts us to do everything in our power to stay on good terms with those on whom we depend. Other social primates share this value and rely on the same filter between emotion and action to reach a mutually agreeable modus vivendi. . . . Morality has much more humble beginnings, which are recognizable in the behavior of other animals. . . . Our evolutionary background lends a massive helping hand without which we would never have gotten this far.19

Do We Have to Be Conscious of Our Rights in Order to Have Them?

The argument according to which only those beings can have rights who are conscious of them and are capable of defending them is a fallacious one. It is “as though the omnipotence of one being or the weakness of another could have an influence on the existence of the rights of the latter. . . . After all, we do grant rights to idiots, to the totally senile, and to the incurably insane.” So argues Louis Lépine, a French lawyer who was the president of the European International Committee for the Protection of Animals.²⁰ Similarly, the fact that a person is deeply asleep and therefore not conscious of his or her rights does not divest that person of the rights that we accord to all human beings.

Moreover, there are different ways of being conscious of a natural right. That animals are not capable of being conscious of the “concept” of rights does not alter the facts that, like us, they aspire not to suffer and they try to the best of their ability to achieve the most favorable conditions for their survival. Jean-Jacques Rousseau made the point that just being sentient guarantees the “participation of animals in natural rights.”21 Saying this, he swept aside the perennial notion, reiterated by Hobbes, according to which “for the weak of mind, for children, and for the insane, there is no law, not any more than there is for animals.” This idea was also advocated by Hugo Grotius, a Dutch jurist of the seventeenth century, who in his work De jure belli ac pacis (Concerning the Laws of War and Peace) stipulates: “No being, other than those who are capable of formulating general principles [i.e., who are capable of reason] are qualified to have rights.”²²

Louis Lépine takes it to be obvious that “animals possess the consciousness of their right to life in the form, perhaps obscure but still very real, that we commonly call the instinct of self-preservation, and that they also possess a conscious sense that their life ought to unfold normally in conditions that are appropriate to their nature and to the particular unique character of their species.”²³ Thus his view is that it is essential to attribute to animals the right to life and to not having to endure inescapable suffering at the hands of human beings.

When we see that another being has a need, the fulfillment of which would permit that being to experience well-being and to avoid suffering, empathy immediately and spontaneously makes us also feel this need. Then our care for the other generates a desire to help fulfill that need. Conversely, if we place little value on the other, we won’t care. The other’s needs will not matter to us, and perhaps we will not even notice them.

However, experience has taught us that we cannot really count on the compassion of our fellow humans. It is essential to protect animals from the abuses and sufferings inflicted upon them by those who, in point of fact, lack compassion toward them. We do not protect human beings from torture, loss of liberty, and from other people who might seek to kill them just because human beings are conscious of their rights, but because it is unacceptable to inflict these wrongs upon them.

In places where human rights are given little respect, the rights of animals are given even less. The Chinese government, for example, which contests the Western concept of the rights of man, totally disdains the rights of animals. As we have seen, cruelty toward animals is common practice at facilities that breed fur-bearing animals, extract bile from bears, deal in tiger parts, and in many other commercial enterprises of that sort.

Duties toward Animals according to “Humanist” Philosophy

In Notre Humanité (Our Humanity), humanist philosopher Francis Wolff writes: “Even though our obligations are first directed toward humanity, they can also have as their object—in a relative and derivative way—certain other beings such as animals.”24 He distinguishes three types of duties, which relate, respectively, to pets, domestic animals, and wild animals. According to the distinction he makes here, “With pets, we have emotional relationships, often reciprocal, which explain the concern, care, and devotion that we can feel toward them and they also sometimes can feel for us, their masters.” For the case of animals that are useful to us, domestic animals and bred animals (called “profit-bringing” animals), Francis Wolff has the following to say: “We owe them conditions of life proportional to their significance for us. Thus we owe them protection and food, because in exchange they give us their help, their meat, and their skin. Thus it is moral to kill those animals who live only for that.”²⁵ But the animals do not “give” us their meat and their skin: it is we who decide to take it from them by force. Moreover, it is difficult to conclude that these animals “live only for that,” because it is we who decide unilaterally to raise them in order to kill them. As we pointed out earlier, arbitrarily deciding that a child is destined to become a slave does not make slavery moral.

Regarding wild species, Francis Wolff is of the opinion that we have “no duty to assist, protect, or respect them, thus no moral obligation toward them properly speaking.” Nevertheless he thinks we have a general sort of obligation toward animals, that we ought to respect the balance of ecosystems, and we ought to respect biodiversity to the extent that it meets human needs and necessities. For example, this means fighting against species considered “harmful” and protecting certain endangered species. Francis Wolff decries cruelty, by which he means inflicting suffering deliberately and needlessly on any being. Such cruelty is “always wrong—it must be condemned as despicable, abject behavior unworthy of a human being, and it must sometimes be halted.” But the philosopher adds that the absence of any obligation toward wild animals means that hunting or fishing for sport “have nothing morally reprehensible about them, not any more than eating lobster, even if it entails the ‘pain’ of the fish taken on the hook, of the rabbit shot, or the lobster in boiling water, as long as, to the extent possible, these practices respect ecological balances, biodiversity, and the natural conditions necessary for the life and reproduction of the animals.”26 However, speaking of hunting or fishing “for sport” implies that neither one nor the other is necessary for our survival but that they are carried on for our “pleasure,” whether it is gastronomic or lies in sport or play. If that is so, do we not have a case here of suffering inflicted “deliberately and needlessly”?

So as their name implies, “humanist” duties toward animals are entirely conceived of in terms of the interests of human beings. By contrast, Francis Wolff defines “animalism” as “any doctrine that makes of the animal as such, whether it is human or non-human, the privileged, indeed sole, object of our moral attention, whether that takes the form of the ethics of compassion, of utilitarian philosophy, or of a theory of rights.”²⁷ The ethical system that we are defending here does not make the animal a “privileged” object of our morality; it simply regards it as necessary to include animals along with the rest of us sentient beings.

Martin Gibert distinguishes two forms of humanism:

On the one hand, “inclusive humanism” designates a group of values, norms, and moral virtues that form the basis for a constant extension of the circle of morality. It advocates equality, freedom, and solidarity and shows concern for the most vulnerable. It is inclusive in the sense that it does not set out any a priori limits on the sphere of application of these values. This is the humanism of Voltaire and Rousseau, of Jeremy Bentham and John Stuart Mill, of Martin Luther King and Gandhi.

On the other hand, “exclusive humanism” consists in limiting moral consideration solely to members of the human species. Justice, equality, and benevolence—yes, but only those who possess the VIP card. Thus exclusive humanism is fundamentally species-ist and is indistinguishable from human supremacism.”28

Does Enjoying a Right Require Reciprocity?

A number of thinkers, principally among those of the humanist tendency, deny all rights to animals, invoking the fact that animals are incapable of reciprocity. This is also the opinion of Francis Wolff, who declares:

Reducing a man or a woman to slavery, not recognizing others as persons, treating them as a means to satisfy our needs, refusing the principles of reciprocity or justice, violating the principles of the liberty, equality, and dignity of human beings—none of these things can be sheltered under the idea of cultural diversity or even under the highly seductive notion of “moral relativity”—it is all simply barbarism. And these universal principles cannot apply to animals by definition, because they presuppose the recognition of others as equals; they presuppose the reciprocity without which there would be no such thing as justice.²⁹

Such a point of view raises the crucial question of whether we should refuse to respect the rights of the most vulnerable. Should we condemn nursing babies, very young children, or people suffering from mental pathologies for not respecting the rights of sane human beings? Should parents punish their babies for crying at night and not respecting their right to sleep? Shouldn’t a schizophrenic who in mid-hallucination throws himself on a caregiver and tries to hit her be the object of care and not aggressive reaction? Should we say that beings like these are failing to respect our rights? The very fact of temporary immaturity in some cases or of confirmed pathology in others automatically renders inapplicable any notion of the reciprocity of rights. Tenderness, care, and empathy are the responses these people ought to get from us, rather than the imposition of the unrealistic requirement of some kind of reciprocity. In The Case for Animal Rights, Tom Regan concludes: “These animals do not have the duty to respect our rights; but that does not eliminate or diminish our obligation to respect theirs.”30

We should also note that it seems a bit contradictory to speak of “universal” principles as Francis Wolff does, adding that these principles do not apply to animals. Can the notion of rights really be restricted to the human species when there exist at least 7.7 million species of animals? Even though it may be true that we are especially intelligent and endowed with many marvelous faculties, a little humility is still in order.

Aren’t the Duties We Have toward Animals Really “Indirect Duties” to Humans?

It is the view of some thinkers that, if we have duties toward animals, it is not because we ought to be concerned with their fate but rather because by habituating ourselves to being cruel toward them, we risk losing our sensitivity and becoming cruel to our fellow humans. This point of view, which is call the “indirect duty” view, was held most notably by Immanuel Kant:

Someone who kills his dog because his dog is no longer of any use to him . . . does not in truth infringe upon the duty he has toward his dog, because the latter is incapable of judgment; but he is committing an act that clashes with the feeling within himself of humanity and benevolence, which he ought to heed on account of the duties he has towards humanity. If he does not wish to stifle these qualities, he should exercise kindness of heart toward animals, for the man who is cruel toward them also becomes hardened toward men, whereas this gentleness toward animals goes on afterward to be applied to men themselves.³¹

Paul Janet, a French philosopher of the nineteenth century, contests the validity of this anthropocentric view: “We say that we ought not be cruel to animals so as not to become so to men. But if we were assured of not being cruel to men, would it follow from that that it would be permissible to be so toward animals? . . . We would rather say quite simply that kindness toward an animal is a duty to this animal.”32 The point is, we should stop referring the whole matter back to human beings and grant “direct rights” to animals, rights which they possess intrinsically.

The American philosopher Joel Feinberg also thinks that we have “direct duties” toward animals, based on the fact that they have their own interests linked to their cognitive faculties and the ability to establish a distinction between what is beneficial to them and what is harmful.³³ According to him, if we should hold the idea that it is not only our duty to treat animals with humanity but, in addition, we should behave that way toward them directly on their own account (and not indirectly because of the effect it has on humans). If we believe that such treatment is their due, then it can be demanded on their part by a third party, and to deprive them of such treatment constitutes injustice and legal damage (and is not just a form of violence). And if all that is the case, then we are indeed saying that they have rights.

As Tom Regan has shown,³⁴ three criticisms of Kant’s position can be put forward. First, Kant is mistaken when he states that “animals do not have consciousness of themselves.” A great number of reasoned arguments and research studies come together to confirm that many species of animals possess self-consciousness. As we saw in chapter 6, “The Continuum of Life,” the fact that consciousness is eminently useful for our survival leads us to think that it must be present in numerous species, as it was in our own ancestors.

Second, if we take the position that animals in general are “incapable of judgment,” then we must come to an agreement on the implications of this phrase. A dog is certainly capable of making the judgment that a situation is a source of suffering and that a certain object is indeed a bone and therefore desirable. Or if we understand the trait of “judgment” to mean the ability to form moral judgments,³⁵ then it is true that certain species of animals, molluscs and insects, for example, are not capable of such conceptions. However, it has now turned out to be the case that other species of animals, in particular the great apes and dogs, do possess this ability (notably, a sense of fairness). Moreover, as the English philosopher Mary Midgley believes,36 even if animals were incapable of “judging,” as Kant says, then that would only reinforce our obligations toward them. The point here is that we have a moral obligation to protect and care for all those who are too ignorant, fragile, disoriented, incompetent, or indecisive to be capable of judging whether or not they are being wronged. We are in fact responsible for our own conduct toward those who either benefit from or are hurt by it. Kant cannot deny animals all rights without at the same time depriving all human moral patients of them. Now, it is clear that the latter certainly possess rights.

Third, Regan shows that Kant is not making a valid point when he asserts that animals only exist “as means to an end”—the end in this case being the benefit of humans. Says Regan: “The plausibility of the idea that animals only have a value if they serve human ends diminishes as soon as we begin to recognize that, like the human beings they resemble in this respect, animals have a life of their own that is susceptible of becoming better or worse for them independently of their usefulness for others.”

So the value of animals cannot be reduced to their usefulness for the human species. That was already the point of view of the early twentieth-century American zoologist and philosopher John Howard Moore, who stated in no uncertain terms:

Every being is an end. In other words, every being is to be taken into account in determining the ends of conduct. This is the only consistent outcome of the ethical process which is in course of evolution on the earth. This world was not made and presented to any particular clique for its exclusive use or enjoyment. The earth belongs, if it belongs to anybody, to the beings who inhabit it—to all of them. And when one being or set of beings sets itself up as the sole end for which the universe exists, and looks upon and acts toward others as mere means to this end, it is usurpation, nothing else and never can be anything else, it matters not by whom or upon whom the usurpation is practiced.³⁷

The instrumentalization of animals is part of the more general instrumentalization of the world as a whole, which, according to French philosopher Patrice Rouget, “thus acquires a new status, that of a resource, a storehouse of available materials, entirely and exclusively set aside for whatever use human beings want to make of it. There is not one sector of the world that escapes utilitarian scrutiny.”38

For Rouget, this instrumentalization results in “a degraded and disenchanted relationship to a world considered as a mere quantitative resource, as a source of profit exclusively dedicated to the use of humans. . . . This relationship presumes a radical dismissal of the existence per se of the whole of the non-human world, an existence that long antedates the attention brought to bear on it by the practical reason of human beings and which will happily continue to stand outside it.”³⁹

Since 2007, a lawyer named Antoine Goetschel has been assigned by the government of the Swiss canton of Zurich to plead the cause of animals. He has devoted himself to defending the rights of mistreated animals, pleading more than two hundred cases per year and making sure that laws protecting animals are applied. One such law is the one prohibiting impaling a live fish on a hook to serve as bait in trawling.⁴⁰ In 1973 the Swiss modified their constitution to make protection of animals a duty of the state. The mass breeding of chickens has progressively been replaced by a system that permits the birds to circulate freely, scratch the soil, roll in the dust, fly to a perch, and to lay their eggs in protected boxes lined with a suitable material.

An Integral Vision of the Rights of Animals

A number of authors who actively support the animal cause say, in effect: “All the animals need is for us to leave them in peace.”⁴¹ All right, fine, but in point of fact it is unthinkable to confine ourselves to merely leaving the animals in peace, as though they lived in a world that is detached from ours. The biosphere is fundamentally interdependent, and our life is inextricably bound up with the life of animals due to the simple fact that we are all active members of the world that we live in and continually modify through our activities. For the most part, animals are our victims, but in some cases we are theirs (tigers, mosquitoes). Sometimes they are our companions (dogs and cats), sometimes they help us (seeing-eye dogs), sometimes they invade us (locusts, termites). Even though we have been ignorant of each other for a long time (the animals of the deep sea or of impenetrable jungles), with the advent of the anthropocene era and the pervasive impact that we have today on our environment, conditions are such that no life form remains beyond the reach of our activities. Thus it is essential to rethink our relationship with animals in a more coherent and equitable fashion and in a spirit that sees humans and animals as fellow citizens of the planet.

This is exactly what has been done in a brilliant manner by Sue Donaldson and Will Kymlicka, who in 2011 published their book Zoopolis: A Political Theory of Animal Rights,42 an innovative work on the rights of animals to life and liberty, which received the biannual award of the Canadian Association of Philosophy. Will Kymlicka is a Canadian academic known for his work in political philosophy who has devoted numerous writings to issues related to national, ethnic, or cultural minorities. Sue Donaldson, his partner, is an independent researcher. They envisage three principal types of rights for animals, depending on their way of life. In the case of wild animals, they propose to treat them as sovereign political communities, disposing of their own territory. The principle of sovereignty aims at protecting peoples from the paternalistic or profit-oriented encroachments of more powerful peoples. As far as wild animals are concerned, the International Covenant on Economic, Social, and Cultural Rights (United Nations, 1966) can serve as a basis for reflection. Article 1 of this Covenant postulates that “all peoples have the right of self-determination.” Article 2 stipulates that “all peoples may . . . freely dispose of their natural wealth and resources,” and “In no case may a people be deprived of its own means of subsistence.”

Wild animals have the ability to feed themselves, move from place to place, avoid dangers, manage the risks they take, play, choose a sexual partner, and raise a family. For the most part, they do not seek contact with humans. It is therefore desirable to preserve their way of life, protect their territory, respect their wish to govern themselves, and to avoid actions directly harmful to them (e.g., hunting and destruction of biotopes) or indirectly harmful (e.g., pollution and general degradation of the environment due to human activity). According to these authors, there is no reason to intervene to prevent predatory activity among wild animals—to save the gazelle from the fangs of the lion.

With regard to domestic animals that live with us and are dependent on us, Donaldson and Kymlicka propose to make them citizens of our political communities: “Why should concepts such as community, sociability, friendship, and love be hedged by species?”43 They argue that, in many situations, domestic animals are capable of expressing their preferences by coming toward us or by taking flight, for example. Moreover, co-citizenship is not limited to the right to vote; it also confers the right to inhabit a territory under decent conditions and be represented in our institutions. Just as young children and mentally handicapped people have the right to be represented when decisions are taken that concern them, domestic animals can be represented by spokespersons who perceive them as individuals with preferences.

Donaldson and Kymlicka distance themselves from abolitionist positions that imply the disappearance of domestic animals, since doing away with the exploitation of domesticated animals does not necessarily require putting an end to centuries of shared existence. Generally speaking, the first domesticated animals were wild species that approached humans with whom they had learned to communicate in various ways. The abolition of slavery led to integration into society of former slaves, not to their extinction. Only the disappearance of the monsters created by zootechnology would be a welcome thing—turkeys whose bodies have been deformed (in order to develop the breast part, favored for eating) to the point where they are no longer able to mate naturally, or immense sows that have large litters of 28 piglets that they are then not capable of feeding, to cite only two examples.

With intelligent management, humans can profit from the normal and spontaneous activities of animals living in environments that suit their preferences and needs. For example, we can gather horse dung or the excrement of other animals to be used as fertilizer. We can leave it to sheep herds to keep the grass mown in our large public parks. Goats can clear the undergrowth of forests and thus mitigate the risk of fire. The olfactory acuity of dogs can save lives and be a precious tool in many situations. It is also possible to envisage the use of animal labor in exchange for food and care, but then the specific personality of each kind of animal must be taken into account, the animals must take to the work voluntarily, and the workload must not become so great that it prevents the animals from engaging in other activities and relationships that are important to them.

The third category includes animals neither domesticated nor wild who live in areas inhabited or cultivated by humans but maintain an autonomous lifestyle—pigeons, sparrows, gulls, crows, mice, bats, squirrels, raccoons, and so on—but whose livelihood is bound up with human activity. Donaldson and Kymlicka suggest treating them as “de facto residents.” They have the right to live where they are (they are not regarded as intruders), we must respect their fundamental rights, but we have no active obligations in their regard: for example, protecting them from predators or providing them with health care.

In essence, Donaldson and Kymlicka take the view that we must acknowledge that animals have inviolable rights that vary according to their way of life:

What are the implications of recognizing animals as persons or selves with inviolable rights? In the simplest terms, it means recognizing that they are not means to our ends. They were not put on earth to serve us, or feed us, or comfort us. Rather, they have their own subjective existence, and hence their own equal and inviolable rights to life and liberty, which prohibits harming them, killing them, confining them, owning them, and enslaving them. Respect for these rights rules out virtually all existing practices of the animal-use industries, where animals are owned and exploited for human profit, pleasure, education, convenience, or comfort.44

The Rights of Animals in the Sight of the Law

For a long time, as Dean Carbonnier, a celebrated jurist, tells us, “one of the essential traits . . . of our civilization consisted in pitilessly keeping animals outside the law.”⁴⁵ However, in the meantime, things have slowly improved, even if there is still a lot to do.

In France, on April 14, 2014, the jurisprudence committee of the National Assembly recognized animals as having the status of “living beings endowed with sensibility” and did this in conformity with the opinion of the majority of the French people (89 percent, according to a poll carried out by the IFOP in 2013). Before that, according to the civil code, which relates to society as a whole and constitutes the basis of French law, animals that were someone’s property were considered “by their nature” as “movable goods” and “by their use” as “immovable goods,” that is, goods allocated to service (of humans) and to being exploited for their usefulness (by humans).46 The civil code has now been brought into accord with the penal code and the rural code, which recognize already, explicitly or implicitly, that animals are living and sentient beings.

To that may be added the regulations in the penal and rural codes whose purpose is to protect animals. Two articles deal with deliberate and accidental attacks on the life of an animal or its physical integrity, a third condemns bad treatment of animals, and a fourth punishes seriously the tormenting of animals and acts of cruelty toward them.⁴⁷

As for the rural code, it explicitly recognizes animals as sentient beings, with article L214 of the law of July 10, 1976, specifying: “Any animal, being a sentient being, should be kept by its owner in conditions compatible with the biological imperatives of its species.”

As for wild animals at large, they do not belong to anyone. They are called “res nullius,” that is, “no one’s thing.”

The contradictions existing up until now in these three codes have hindered the development of a coherent policy. And now there still remains an immense distance between the existing legal texts (notably article L214) and their application.

On the European level, the Treaty of Rome (1957) saw in animals only “merchandise and agricultural products.” As for the Treaty on the Functioning of the European Union, it stipulates that “The Union and its member states fully recognize the requirements for the wellbeing of animals understood as sentient beings.” A directive of 2010 relating to the use of animals for scientific research stipulates: “The wellbeing of animals is one of the values of the European Union,” adding that “animals have an intrinsic value that must be respected . . . and thus should always be treated as sentient beings.” The application of this legislation is based on the criterion of suffering, and the European Union directive recognizes that the suffering of animals has been proved scientifically.

In 2002 Germany became the first country in the European Union to include the rights of animals in its constitution, and several other countries have gone on to do the same, explicitly writing protection of animals into their founding documents. In this way, they have recognized it as a duty of the state. In Germany, legislators approved by a two-thirds majority the resolution that the words “and animals” be added to the phrase in their constitution obliging the state to “respect and protect the dignity of human beings.” In their respective constitutions, Switzerland, Luxembourg, India, and Brazil protect all animals without distinction. The United Kingdom adopted an Animal Welfare Act in 2006 that confers legal status on all animals kept by human beings and introduces an obligation of “good treatment.” The Finnish legislative house went even further by recognizing that animals have intellectual abilities. In Switzerland, beginning in 2003, the civil code has clearly stated that “animals are not things.”

The laws of Austria are the most advanced in this area. The Law of Animals, for example, stipulates that “the state protects the life and wellbeing of animals in their status as cohabitants with human beings.” According to this law, it is forbidden to kill an animal without a valid reason, to keep an animal with the intention of producing fur, to keep or use animals in a circus (except for domestic animals), even if it is not with the intention of making money. This same law stipulates that each province must retain lawyers who specialize in animal rights and who are empowered to intervene in any case involving the protection of animals. The Austrian law on animal experimentation prohibits carrying out experiments on any of the great apes, except if the experiment is carried out for the express benefit of the apes being used in the experiment.48

According to the Swiss lawyer Antoine Goetschel, once animals are mentioned in the constitution of a state, it becomes easy to bring all the provisions of that state’s legal codes regarding animals into agreement, since the validity of all the codes derives from the constitution. Moreover, if the state becomes concerned with the fate of animals, when an abuse occurs, it is enough to apply to the state for redress, and it is no longer necessary in each case to arouse public opinion to counteract cases of the mistreatment of animals.⁴⁹ In addition, along with the governmental legal systems, companies can also establish charters in which they voluntarily commit themselves to the proper treatment of animals.

In spite of all these improvements in the legal situation, in many countries the situation remains far from brilliant. For example, the U.S. meat and dairy industries have succeeded in getting enough elected officials on their side to obtain exemptions from the laws protecting animals.

In Jean-Pierre Marguénaud’s opinion, “granting animals the status of a legal subject only results in putting in place a juridically technical means capable, in a given case, of providing the protection adjudged necessary for the interests of certain animals.” He adds that this does not in the least amount to generalizing the rights of human beings to include animals, since a “legal subject” is not equivalent in status to a “legal person,” and so does not suffice to do away with the legal separation between humans and animals.50 Commenting on this point, Élisabeth de Fontenay writes: “Like the moral person, the animal is therefore a legal person without, however, being a legal subject; and this juridical reality must be brought clearly to the fore so that our debates on the subject can stop being absurd.”⁵¹

The Disparity between Law and Practice

In the opinion of many jurists and ecologists, the constitutional amendment (recognizing animals as sentient beings) is only a symbolic step. Laurence Abeille, a deputy of the French National Assembly, introduced a number of subamendments challenging practices that deny “animal sentience,” such as mass breeding, bullfighting, and cockfighting. All these were rejected on the pretext of being “irrelevant.” When Jean-Marc Neumann, jurist and vice president of the French Foundation for Animal Rights, Ethics, and Science, was asked what this amendment would really change, he replied: “A few sentences in the civil code, but fundamentally nothing. In the end, with this amendment, animals will still be subjected to the rules governing physical goods. . . . So that will not change our behavior toward animals, which will still be able to be sold, rented, exploited. . . . The most cruel practices, such as the corrida, hunting with dog packs, cock fighting, ritual slaughter, or certain forms of fishing and breeding have not at all been challenged.”52

What can we do, then, for animals to be really protected, under the law, from the different forms of cruelty of which they are still victims? Neumann has in view a general animal protection law that would harmonize all the different codes that are in force (the penal, rural, and environmental codes). The disparities that exist between the different codes regarding the status of animals basically prevent a systematic application of this amendment. Thus the civil code excludes wild animals from its domain. Wild animals fall under the legislation of the environmental code, which does not recognize their sentience. Moreover, explains Neumann, “the penal code does not officially recognize animals as sentient, but does so only ‘implicitly.’” The consequence of this is that a crime committed against an animal is less punished than a simple theft of goods, if it is punished at all. As for bred animals, they are governed by the rural code, which, although it recognized them in 1976 as “sentient animals,” considers the fact of their suffering, “as useful because necessary for the nourishment of the population,” this jurist explains.⁵³

The real question seems to be of a personal and civil nature: “Do we want to continue with the exploitation and suffering of animals, or are we ready to make certain efforts and sacrifices to avoid it?” This is the question that Neumann asks. Legislation is the end product of a raising of consciousness that leads to a spirit of reform, but only rarely to a radical change. This being the case, the legislative development has to be understood in the framework of the slow process of the evolution of collective mentalities. Since it is impossible to upset our lifestyles and our eating habits by decree from one day to the next, we can only proceed in stages by putting in place measures that prevent the most cruel practices against animals. Each one of us is a responsible, and integral, part of this evolutionary societal process that can lead to the protection of animals. Each of us can begin by asking ourselves: “Should I eat my friends or not? Should I continue to be entertained by their pain? Do I want to continue to find relaxation in pulling them out of the water and letting them suffocate to death?”