Animal Rights and Other Fictions

by Mike O’Brien

There’s a concept in education, particularly science education, called “lies-to-children”. It roughly means this: some matters are so complicated that they cannot be clearly understood when accurately presented. So, if you want a naive audience (“children”) to eventually understand how these complex matters actually work, you need to prepare their minds with inaccurate but helpfully simplified analogies, which are discarded and replaced by ever more complicated and accurate analogies, until they are finally ready to understand the most complicated and accurate version of the truth presently available. A concrete example is teaching Newtonian physics in high school, then telling university physics students arriving for their first day of class that everything they’ve been taught is a lie (and everything they’re about to learn is also a lie, but necessarily so).

The concept of rights, both human and non-human, is like this. It is different from concepts in physics or chemistry in that it is fundamentally prescriptive rather than descriptive, but operates exactly like “lies” in scientific education in that the simplicity and certainty of false portrayals serve to accomplish a useful end. In the case of science education, that end is a mental “formatting” that prepares the student for incrementally more complicated pictures of reality. In the case of moral advocacy, the end is to introduce a predicate that can be attached to objects in moral calculation, allowing moral discussions to proceed in a descriptive, concrete mode rather than a prescriptive, contentious one.

Do rights exist? That strikes me as a nonsensical question. Is there a moral state of affairs that is usefully analogised by “rights” discourse? Now you’re talking. I’m not sure that there is, or that any objective state of moral affairs can be objectively shown to obtain, but at least rights talk seems to be an activity that morally interested, language-using beings can engage in with useful results. We can talk about how people have rights, and what obligations those rights impose on how people are treated by others. We can talk about how animals have rights, and what obligations those rights impose on how animals are treated. We can even talk about according rights to trees, mountains, and legally incorporated businesses, if we want to. But the trees don’t know they have rights, nor do the mountains, nor do the animals. And, given the dismal state of moral and civic education in many places, nor do many people. If they don’t think of themselves as having rights (or, furthermore, lack any clear concept of legal or moral right), and don’t experience any special treatment or status as rights-holders, what does it matter if some philosopher or judge believes them to have rights?

One argument in favour of maintaining a theory of rights, even when it makes no practical difference to putative rights-holders, is that the efficacy of rights discourse is bolstered by understanding and applying concepts of rights consistently, even in futile instances. This is a practical argument for treating rights deontologically; the spell only works if we all pretend that magic is real. I’ve heard presentations by lawyers who are very effective advocates for animal rights, but are completely agnostic about whether concepts like rights accurately represent moral truths. A perhaps non-obvious comparison to make here is to professional wrestling’s code of “kayfabe”, an unwavering performative commitment to fictional pretence that, though plainly false, creates real experiences and reactions for those who share in the lie. The audience in this case isn’t duped by falsehoods, but rather is enriched by adopting a picture of the world which includes more than facts.

The discourse of rights is also enriching, by providing new qualities and entities with which to populate our moral picture of the world. But there is a danger that it can crowd out other analogies and conceptual schemes which may be more apt and efficacious for improving some moral matter, and beyond that there is a danger that rights discourse can over-extend itself at the expense of its own coherence and credibility.

Rights talk is, I think, a particular kind of language game. It’s a transposition of “ought” statements into “is” statements, allowing people to talk matter-of-fact-ly about matters of value. It has a legalistic structure, whereby those entities with rights have standing to make claims, and to advocate their own interests against the competing interests of fellow rights-holders. The fact that this language tracks legal concepts closely means that it is tractable in systems of law, and a moral claim is easily translated into a legal claim. (Insofar as most legal systems have existed in the shadow of religious moral codes, was it not always thus? Ponder that.) This picture works for people who are able to advocate for themselves, and the granting of rights is presumed to have a kind of enabling effect on the rights-holders, allowing them to use their standing to pursue the full penumbra of their rights.

This idealized picture doesn’t work for all humans, though. Not everyone is competent to understand their rights, let alone defend them against other rights-holders with opposing interests. But we can at least imagine that if they did understand their rights, they would defend them in certain ways, and so we accord them rights even if the practical exercise of those rights is derogated to others. This might be thought of as assisted personhood.

But then there are cases where a human being has no ability whatsoever to exercise their personhood, and indeed we may question whether they are persons at all. Such cases, like people who are comatose or severely cognitively disabled, are often brought up as objection to anti-speciesist arguments for according animals rights on the basis of their sentience. If the basis of rights-having is some measure of conscious experience, rather than simply being human, then some humans are vulnerable to losing their rights when they fall below a certain functional threshold. The dilemma is between a consistently species-based distribution of rights that includes all humans but excludes all non-humans, or a consistently capacities-based distribution that excludes some humans but includes some non-humans.

I think this is a weak objection, and I’m baffled by the effort expended by animal rights advocates trying to find ways around it. Comatose people don’t have (moral) rights because they can’t play the language games that turn rights concepts into behaviour. We continue to treat them as rights-holders because to do otherwise seems monstrous, and because there is a shared interest among non-comatose people in preventing the repeal of anyone’s rights. Both of these considerations are more compelling than preserving the conceptual coherence of “person” and “rights”, I suppose. This is fine. Coherence and consistency are unattainable in any idealized moral theory that tries to comprehend our moral intuitions, because our intuitions are often incoherent and inconsistent. We are large. We contain multitudes.

The living world, too, contains multitudes. Most of them can’t play the language games that have come to dominate the enforceable systems of moral belief called “law”. The distance between the idealized form of “rational person”, and the existing life forms subject to maltreatment , is too great for any concept of rights to bridge without snapping. It might be the case that self-representation, assisted or not, in a system of equal rights is the best practical option for protecting the welfare of human persons, even if many of those persons lack some understanding of the kind of entity they are supposed to be and the kinds of rights they are able to exercise. It is plausible, or perhaps just tolerably inaccurate, because enough paradigmatic persons exist to ground the idealized type in reality, and from that core we may extend rights by a logic of relevant equality. Thus, groups which were once denied full rights eventually won equal status by winning recognition as equals in those relevant capacities. (Of course, the denial of status also denied many the opportunity to demonstrate those capacities.)

The extension of equal rights to all sexes made sense because there are no morally relevant differences between the sexes. The extension of equal rights to all ethnic groups made sense because there are no morally relevant differences between ethnic groups. The extension of equal rights to animals would not make sense in this way. But neither, I think, would the extension of different rights to animals, matching their morally relevant differences. The universal extension of human rights was morally compulsory as well as logically so, because of how people exercise rights to win and keep what is proper to them. Extending rights to animals doesn’t give them anything that they can use.

Rights are also important in their negative capacity, blocking others from treating rights-holders in certain ways. In this sense, granting animals rights does grant them protection against abuse, so long as the humans who recognise their rights respect them, and the humans charged with enforcing animals’ rights do so effectively. But here’s the rub: you could do the same thing for trees, or rocks, or paintings. Rights are not proper to non-language-having forms of life, even if they are an intelligible way for us to structure our beliefs about how we should treat these life forms.

To use a pet aphorism, “If it’s stupid and it works, it isn’t stupid”. What’s the harm in shoe-horning animals into a person/rights conceptual scheme, if that’s what it takes to get actionable legal protection for their welfare? In the short term, I’d say there is a risk of provoking undue resistance from people who assume that “rights” for animals will mean “equal rights”, and that chaos and absurdity would follow. But the value of using “rights” as a readily accepted currency in the infrastructures of law and politics probably outweighs that resistance.

In the long term, however, I worry that the expedient “kluge” of extending rights to animals will forestall an evolution in moral thinking. The antagonistic model of rationally self-interested persons with competing rights claims is already too narrow for human cases. It has a seductive parsimony, but it achieves this by restricting its focus to cases where the moral subjects involved can hash out the details by themselves. As we expand our scope of moral concern, we find ever more questions that are one-sided, rather than antagonistic between formal equals, and require restraint imposed from within by substantive principles, rather than from without by rights-bearing interests.

The more deeply rights discourse becomes embedded as the universal model for moral reasoning, the less able we are to address asymmetrical moral conflicts. The granting of rights to trees, and fish, and rivers, gives these beings a new status but also a new vulnerability, as rights exist in a matrix of contestation. Whether or not their rights will win them a better existence depends on the legal and political support made by rights-comprehending humans on their behalf, without their knowledge or behest. What matters is that people have standing to force other people to treat animals in a certain way, however these people may understand their obligation to do so.

Ultimately, the only check on our behaviour towards non-persons (and moral persons without effective legal protection) is our own conscience. This conscience functions better when fed with accurate representations of the world, rather than idealized legal fictions. To see animals and other natural entities as they are, oblivious and vulnerable to the operation of our rationalized systems, is to recognize the need for a morality of inequality and asymmetry. Given that these vulnerable beings cannot tell us what they are due, it behooves us to exercise a generous caution in avoiding harm. Dare we call it grace, or charity?

Animal rights advocates are correct in supposing that a lack of equal status for animals puts these beings in grave danger. Rectifying unjust inequalities of status is one path to moral improvement, but not all inequalities are unjust. Another path to becoming less morally monstrous is to address why we treat unequals so badly, and to articulate a coherent case for doing better. Maybe that case is as simple as “inflicting suffering is bad”. Do we really need to subject this notion to a tortured metaphysical translation in order to make it compelling?