This article considers objections to current litigation strategies of the US-based Nonhuman Rights Project (NhRP), which seek to extend legal personhood and liberty rights to nonhuman animals who possess ‘practical autonomy’. By tying personhood to intellectual abilities, so the objections go, such strategies endanger the present legal standing of humans with profound cognitive impairments. This article will argue that such cause for concern is largely misplaced for two reasons. First, the NhRP argue that practical autonomy is only a sufficient condition for personhood, not a necessary one. Second, drawing on theoretical and empirical literature, the article will argue that speciesism itself is a multiplier of oppressive theories, attitudes, beliefs and practices that negatively affect marginalized humans, including humans with cognitive impairments. The NhRP's attempts to reduce speciesism in the legal domain are thus hypothesized as being part of the solution to discrimination against marginalized humans, not as part of the problem.
Juan Pablo Mañalich R.
A being to which intentional states – such as desires or preferences – may be ascribed is a being capable of having (actual) interests, whereas to be the subject of interests of some kind is both a necessary and sufficient condition to be the holder of individual rights. After clarifying the sense in which, according to the ‘interest-theory’, the notion of a rights-subject specifies a distinctive normative status, this article will highlight the importance of distinguishing between subjectivity-dependent interests capable of being attributed to conscious beings, on the one hand, and biologically structured needs of conscious and nonconscious living beings, on the other. This distinction allows one to see that the moral requirement of recognizing legal rights for (individual) animals ought not to be conflated with biocentric demands of ecological justice. However, the argument thus delineated will not, without more, answer the crucial question of which specific legal rights ought to be ascribed to nonhuman animals. The article closes with an exploration of the need for holding onto the distinction between rights-subjecthood and personhood by analyzing some implications of Tooley's ‘particular-interest principle’.
This article aims to explore potential friction points that may arise with the emergence of new natural non-human rights holders (for instance, individual animals, rivers, Pacha Mama and so on). Specifically, the article relies on the case of invasive alien species (IAS) to highlight that animal rights can collide with rights of the environment. Indeed, IAS represent a serious environmental threat and are, as such, at the centre of numerous global, regional and national regulations that favour early eradication as the best course of action. However, in a rights paradigm, this collision amounts to a conflict between the right to life of individuals from IAS and the right to integrity of the threatened ecosystems. This article addresses how such conflicts might be solved by relying on an analogy with the lawful restrictions of human rights. It highlights how, even in a rights paradigm, eradicating individuals from IAS could remain legal, albeit more strictly controlled. It also points to the inevitable questions of representation that such situations entail. As the rights of natural non-humans clash, the issue becomes, in turn, a discussion among humans. This discussion requires legal frameworks and principles to be legitimate and accountable. This article seeks to describe some of these principles by relying on an analysis of current practices in different fields. In sum, the article argues that it is not inherently problematic to solve conflicts between natural non-human rights. However, the human discussion to solve this conflict has to be based on epistemic plurality to gain in legitimacy.
Tom Sparks, Visa Kurki and Saskia Stucki
Legal animal rights may, in the short term, offer an efficient means to improve the living conditions of animals and how they are treated by human societies. This article argues that this shift to adopt an animal rights framing of the human-animal interaction might also risk producing certain counterproductive effects. It suggests that there is a need for a broader reassessment of the relationships between the human and animal worlds. This article posits that the adoption of legal animal rights as a workable legal solution for the better protection of animals has been increasingly accepted because rights frameworks rely upon a core premise of Western jurisprudence, namely legal subjectivism and the epistemological and axiological assumptions it conveys. The article argues that such an individualistic and dualist approach to legal animal rights will ultimately reveal itself to be insufficient and unable to capture animals as members of concrete social and environmental entanglements. Rather, a true legal revolution is required, which would evoke an ecological understanding of law itself.
Whereas regulation relating to minimum standards of animal welfare is increasingly uncontroversial in contemporary popular discourse, the same cannot be said of viewing animals as legal persons possessing legally enforceable rights in and of themselves. The purpose of this article will be to explore this reticence and ask whether the continued anthropocentricity of legally enforceable rights is compatible with the very concept of law itself. The article will draw heavily on the moral writing of Alan Gewirth, engaging with his justification for why human beings themselves can make philosophically valid claims to be rightsholders. Taking Gewirthian ethical rationalism as providing a universally applicable hypothetical imperative which binds all agents to comply with its requirements, the article will move on to discuss the implications of the theory on our understanding of legal normativity. If we accept that the purpose of law is to guide action, and that legal normativity therefore operates at the level of practical rationality, the Gewirthian project necessarily limits the content of law to those norms which are compliant with the moral underpinning of all normative reasons for action. A necessary connection between law and morality can therefore be established which requires equal respect for all agents. By creating this necessary connection, it is possible to move beyond an anthropocentric conception of legal normativity to one that necessarily must instead respect the basic rights possessed by all agents – regardless of species. Legal rights for animals that are capable of acting within Gewirth's conception of agency must therefore be seen not to be a mere aspiration for a well-meaning society, but a logical necessity within any legal system.
Animal law and animal law studies both suffer from shortcomings in their underlying ethics. For the most part, (global) animal law draws from utilitarian welfarism and rights-based approaches to animals. Animal law academics have, thus far, paid little attention to more critical animal ethical studies, although these hold great potential for improving the justness and effectiveness of animal law. This article proposes delineating a ‘second wave of animal ethics’ consisting of a number of critical ethical lenses that are capable of addressing four key shortcomings in ‘first wave animal ethics’. This article draws particularly on feminist, posthumanist and earth jurisprudence studies to draw out four key lessons. First, the need to stop assuming that animals only deserve moral and legal consideration if they are like humans, and instead to accept, celebrate, reward and legally protect difference. Second, the need to stop assuming that moral and legal considerations should extend to animals and no further. Third, the need to stop over-relying on liberal concepts like rights and start engaging with (intersectionally) marginalized communities to theorize viable alternative paradigms that might work better for animals. Fourth, the need to stop assuming that animal ethics need to be the same everywhere. In making this argument, this article intends to inspire further research on ‘second wave animal ethics’ ideas amongst animal law scholars.
Plant-based diets are often perceived as being antithetical to Indigenous interests in what is today colonially known as Canada. This perceived antithesis hinges on veganism's rejection of the consumption of animals. This apparent antithesis, however, is a misperception that a reframing of ethical veganism can help correct. This article argues that veganism's objection to dairy should be underscored as a central concern of ethical veganism. Such emphasis not only brings into view the substantial alignment between plant-based diets and Indigenous worldviews, but also highlights the related goals of decolonization and reconciliation in Canada.
Veganism, in reality, rejects a practice (dairy farming) that was constitutive of settler colonialism in North America and which still promotes colonial familial ideologies while constructing Indigenous peoples and other non-Europeans (who disproportionately cannot tolerate lactose) as abnormal. Veganism – along with vegetarianism – shares the general respect for animals and interspecies relations (along with a concomitant disavowal of human exceptionalism) that many Indigenous legal orders in Canada promote. Yet, despite this shared disavowal of a principal colonial ideology, the tight correlation between hunting and Indigeneity on the one hand, and veganism and vegetarianism and an objection to killing animals on the other, makes veganism's contributions to decolonization and reconciliation difficult to see. By framing veganism as a critique of the dairy industry, however, the associations that veganism has with decolonizing ends are not clouded by these overpowering correlations, helping to bring into view even vegetarianism's contributions toward these ends.