Paola Cavalieri Animals: For an expanded theory of human rights

What can it mean to extend fundamendal rights beyond the boundaries of our species, asks Paola Cavalieri. It primarily implies that animals are transformed into subjects of legal rights, and, as a consequence, all the exploitative practices that are today made possible by their current status are prohibited.
A different view of animals existed at the dawn of our civilization. There was a time and a place in which nonhumans were philosophically perceived as cognate and allied beings rather than as sentient tools. When, in the fourth century B. C., the Athenians punished a man for flaying a living ram, Xenocrates of Chalcedon, under the influence of the deep current in Greek thought which can be traced back to Pythagoras, declared that torturing is no worse than killing that what is really criminal is taking the life of a being who is of ones own kind, homogens. (1) This view of animals virtually disappeared with the end of the Classical World. Through late antiquity and medieval times, up to recent centuries, the status of nonhumans as second-class beings was never challenged. In the past few decades, however, in the wake of philosophical developments prompted by growing movements for democratic change, animals have been at the center of an intense philosophical debate. In particular, many authors have criticized traditional morality, maintaining that the way we treat members of other species is ethically indefensible. We routinely use animals as means to human ends in fact, we treat them in ways in which we would deem it immoral to treat human beings. Though they are moral patients that is, beings whose treatment can be morally evaluated their status is infinitely inferior to ours. Are such double standards justified? And, if so, on what grounds? Though in our history the differential treatment of beings has often been determined on the basis of idiosyncratic super-scientific belief-systems, luckily this is no longer acceptable and just as we cannot today appeal to alleged ontological hierarchies to treat humans as inferiors, we cannot appeal to specific metaphysical views to treat nonhumans as inferiors. Thus, we shall stick to contemporary justifications. At the social level, the first answer to the question of what may draw the moral line between us and the other animals is: the fact that they are not human. On such perspective, what makes the difference is the possession, or lack, of a genotype characteristic of the species Homo sapiens. Is this a good reply? No. For, confronted with the sort of biological discrimination against some human groups which has marked our recent past, philosophical egalitarianism has openly condemned both racism and sexism. But, clearly, also the discrimination based on species membership is a form of biologism, which appeals to a difference in genetic make-up. As a consequence, any moral perspective that, while rejecting racism and sexism, accepts speciesism the view that grants members of our own species special moral status is internally inconsistent. (2) Unlike the public at large, on the other hand, philosophers feel the need to offer arguments in support of the views they advance. Thus, the justifications for our current double standards to which they tend to turn are more sophisticated. According to most of them, it is not species membership, but rather the possession of rationality, that plays a central role. We can set aside for the sake of argument the (questionable, and widely questioned) assumption that rationality is a human prerogative, in order to focus on the moral relevance attached to rationality. A deep-seated argument, whose clearest formulation is Kants, but which was already present in the Stoics, rests on the idea that rational beings are the existence condition of morality. Ethical norms are addressed to a particular kind of beings moral agents. Moral agents are those rational beings whose behavior can be morally evaluated. If moral agents did not exist, there could be no ethical norms. Therefore, ethics is an internal affair of moral agents. (3) This argument is based on a misunderstanding. Its conclusion is reached only by the shift from the idea that only rational beings can be morally responsible to the idea that only what is done to rational beings has (full) moral weight. But one thing is the how, that is, the possibility of morality, another is the what, that is, the object of morality. To acknowledge that moral agents make morality possible does not mean to make them the only (full)

moral patients. That we do not really hold this view is shown by the fact that we dont think that small children, or intellectually disabled individuals, insofar as they are unable to conform to ethical norms, should be excluded from full moral status.(4) A different version of the argument from rationality, prefigured by the Epicureans, ascribes instead to this characteristic a particular kind of instrumental value. The idea is that the introduction in the moral community can be justified through some sort of agreement. Since to abide by the agreement one must be rational, the agreement will include only rational beings, who will be the only moral patients. If the previous argument suggests the contemporary position of John Rawls, here we see the influence of the Hobbesian mutual advantage account of contractarianism recently revived by David Gauthier. (5) This approach too, however, is unacceptable. Hobbesian contractarianism, though defensible in the case of similar beings, becomes a mockery when it comes to the treatment of less endowed beings. In fact, since self-interested contractors gain no advantage from accepting principles that offer guarantees to individuals unable to give any guarantee in return, they can ignore the interests of those unable to reciprocate. But if the golden rule treat others as you would have them treat you is replaced by the silver rule, treat others as they would treat you, (6) mutual advantage has the devastating effect of driving ethical impartiality off the stage. Once more, we show that we clearly grasp this when we do not deprive of rights those juvenile or impaired human beings who cannot have duties to us. Deeply engrained moral doctrines do not lose their hold from one day to the next. Thus, in the face of the contemporary philosophical challenge, other defenses of the doctrine of human superiority have been proposed. However, the appeal to species membership and the appeal to the possession of rationality either as a precondition of morals or as a means to intersubjective agreement remain the most basic. (7) If neither of them can justify maintaining nonhuman animals in their inferior moral condition, we can plausibly infer that our current attitude is deeply flawed. But what perspective should replace it? To tackle this problem, it is better to avoid appealing to any eccentric normative positions, as only an argument proceeding from shared premises can grant its conclusions the generality needed for moral reform. Accordingly, we will directly start from the most widespread and accepted among contemporary moral theories the universal doctrine of human rights. At the core of such doctrine lies the protection of the vital interests in welfare, in freedom and in life of some beings. Of which beings, exactly? Although the most common, and apparently tautological, answer is of human beings, such a move is, as we have seen, precluded by the fact that discrimination based on species is analogous to the forms of discrimination that the very doctrine condemns in sexism and racism. And in fact, when called into play, reference to species is introduced in a hurried and oblique way. (8) What, then, plays in an effective way the role of illuminating what it is that, in human beings, justifies the attribution of equal fundamental protection? The most defensible among the answers to this question is no doubt the one put forward by a line of argument appeared at the beginning of the 1960s, (9) and culminating in the elaboration more recently offered by the American philosopher Alan Gewirth. (10)According to such a line, the criterion for the access to the protection of human rights lies only in being an agent an intentional being who cares about her goals and wants to achieve them. All intentional beings have the capacity to enjoy freedom and welfare (and life which is a precondition for them) both directly, and as prerequisites for action; and, for all these beings, the intrinsic value of their enjoyment is the same. To choose as a criterion, instead of intentionality, any other characteristic be it rationality or any other cognitive skills traditionally seen as superior would be arbitrary, as it would exclude from consideration interests which are relevantly similar in that they are equally vital for their bearers. Once articulated, such an answer appears obvious. And yet, it involves a corollary which is not equally obvious: i.e. that, on the basis of the very doctrine that establishes them, human rights are not human. For not only the implicit acceptance of the idea that species membership is morally irrelevant has eliminated from the theory any structural reference to the possession of a genotype Homo sapiens, but the charge to secure equal fundamental rights for all human beings, including the non-rational ones, implies that the criterion for the ascription of such rights must lie at a cognitive level accessible to a large number of nonhuman animals. What can it mean to extend fundamendal rights beyond the boundaries of our species? In this regard, it should be noted that the particular class of moral rights that we label as human rights is defined by two main features. On the one hand, in spite of the attempts to embody in the doctrine some positive rights, or rights to assistance, human rights remain fundamentally negative rights, or rights to non-interference. (11) On the other, since human rights developed as an answer to the forms of institutionalized violence and discrimination which marked the first half of

the twentieth century, the model both of their implementation and of their violation is based on the organization and the action of the state. (12) Lets therefore reconsider the present situation in the light of these aspects. Billions of animals who meet the requisite of intentionality are harmed, confined and killed in the pursuit of human goals. But codified harm, confinement, and killing are just the opposite of that protection from institutional interference that human rights theory aims at granting. Consequently, a fair implementation of the theory in our democratic societies would require a legal change aimed at removing in the status of property the basic obstacle to the enjoyment of the denied rights. (13) In other words, it would imply for these animals the shift from the condition of objects to that of subjects of legal rights, and, as a consequence, the prohibition of all the exploitative practices that are today made possible by their current status, from raising for food to scientific experimentation to the most varied forms of commercial use and systematic extermination. (14) Thus, it seems safe to conclude that we have today returned to the original Greek appraisal of the worth of other animals. Not only has the status of nonhumans as slaves been challenged, but the idea has been defended that animal lives have value that it is wrong not merely to inflict suffering on them, but also to kill them. In a sense, a circle has been completed. After more than twenty centuries, nonhuman beings are once again presenting themselves at the doors of the Polis. I would like to thank Franco Salanga and Harlan B. Miller for their helpful comments on drafts of this paper. (1) See Margherita Isnardi Parente, Le tu ne tueras pas de Xnocrate, in Histoire et Structure: A la mmoire de Victor Goldschmidt, ed. J. Brunschwig, C. Imbert and A.Roger, Vrin, Paris 1985, pp.161-172. (2) Cfr. Peter Singer, Animal Liberation, 2nd edn. (New York: The New York Review of Books, 1990), p. 9. For the moral irrelevance of biological characteristics, see e.g. Michael Tooley, Speciesism and Basic Moral Principles, Etica & Animali 9 (1998), pp. 5-36. (3) See in particular Immanuel Kant, Foundations of the Metaphysics of Morals, trans. Lewis W. Beck (Upper Saddle River, NJ: Prentice-Hall, 1997), p. 45. (4) A comprehensive survey of the discussion of the case of non-paradigmatic members of our species can be found in Daniel A. Dombrowski, Babies and Beasts. The Argument from Marginal Cases (Chicago: University of Illinois Press, 1997). (5) John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1971; David Gauthier,Morals by Agreement (Oxford: Oxford University Press, 1986). For the similarities and differences between Rawlsian impartial contractarian theory and Hobbesian mutual advantage approach, see Paola Cavalieri and Will Kymlicka, Expanding the Social Contract, Etica & Animali 8 (1996), pp. 5-33. (6) I borrow the expression silver rule from Edward Johnson, Species and Morality (Ph.D. diss., Princeton University, July 1976 [University Microfilms International, Ann Arbor, MI]), p. 134. (7) I develop a concise critique of many minor arguments in Paola Cavalieri, The Animal Question. Why Nonhuman Animals Deserve Human Rights (Oxford: Oxford University Press, 2001), chapters III and IV. (8) See e. g. Hugo Adam Bedau, International Human Rights, in And Justice for All, eds. Tom Regan and Donald VanDeVeer (Totowa, NJ: Rowman & Allanheld, 1983), p. 298. (9) Its first seeds are to be found in Gregory Vlastos, Justice and Equality, in Social Justice, ed. Richard B. Brandt (Englewood Cliffs, NJ: Prentice-Hall, 1962). (10) See Alan Gewirth, Reason and Morality (Chicago: University of Chicago Press, 1978). (11) In his Human Rights, Old and New, in Political Theory and the Rights of Man, ed. D. D. Raphael (London:

Macmillan, 1967), D. D. Raphael plausibly claims that positive rights rather than as human rights, are to be classified as citizens rights. (12) See Thomas Pogge, How Should Human Rights Be Conceived?, Jahrbuch fr Recht und Ethik 3 (1995), pp. 103-120. (13) For a discussion of this problem see e.g. Gary L. Francione, Animals, Property, and the Law (Philadelphia: Temple University Press, 1995). (14) For a first initiative in this direction, see P. Cavalieri and P. Singer (eds.), The Great Ape Project. Equality beyond Humanity (London: Fourth Estate, 1993).