Should Animals have Rights?
Dr.Saskia Stucki writes in the Oxford Journal of Legal Studies, exploring the nature of the legal rights of animals. In doing so, she presents a lucid analysis of the nature of legal/human rights in general - making this article a valuable reading for those interested in animal welfare policy as well as rights jurisprudence.
An important argument presented in the paper is that animal welfare duties are indicative of animal “rights” - even if animal rights have weak normative force. As Stucki explains:
“animal interests are grounds of animal welfare duties, and this, in turn, is conceptually constitutive of animal rights”.
In this context, Stucki formulates a distinction between “simple” rights (or those rights having weak normative force) and “fundamental” rights (or stronger rights that are less susceptible to infringement). The concern addressed in this paper is identifying and enforcing the fundamental rights of animals.
An informed debate on animal rights requires one to understand the reason why law enforces rights in the first place. A major source of discontent with a country’s legal system is the inability to protect vulnerable groups of societies. For instance, a young victim of abuse may rarely get the justice she deserves unless she is the poster-child of a controversy that has received nation-wide attention.
A legal right is meant to protect things that an individual values the most (such as life; livelihood; movement; free speech & expression) even if it is unpopular to the political community at the time. Stucki explains the reason a mature society decides to enforce legal rights:
‘rights are not decrees of nature, but human inventions that are historically and socially contingent….rights are often born from imperfect social conditions, as a ‘response to a failure of social responsibility’ and as corrections of experiences of injustice, or, as Dershowitz puts it: ‘rights come from wrongs’. Historical experience suggests that, at least in non-ideal societies, there is a practical need for rights as a safety net—a ‘position of fall-back and security’—that guarantees individuals a minimum degree of protection, in case or because other, less coercive social or moral mechanisms fail to do so.’
The reader cannot help but empathise with Stucki’s sentiment as she laments on the general trend to dismiss rights as far too ‘individualistic, antagonistic and anti-communitarian framing’.
‘To give (a somewhat exaggerated) example: from the perspective of a critical legal scholar, meta- theorising from his office in the ivory tower, it may seem easier, and even desirable, to intellectually dispense with the abstract notion of rights, whereas for an elephant who is actually hunted down for his ivory tusks, concrete rights may make a very real difference, literally between life and death.’
Stucki further contends that the decision to enforce a strong legal right are indicative of a country’s aspiration to establish and encourage certain norms. In other words,
‘ [rights] express commitments to ideals that, even if they may not be fully realisable at the time of their formal recognition, act as a continuous reminder and impulse that stimulates social and legal change… facilitate the transition from past and present imperfect social realities towards more just societies’.
It would be interesting to see how animal rights jurisprudence evolves over time, and whether courts would adopt the above perspective in articulating the nature of animal rights in their respective jurisdictions.