There are convincing arguments that animals deserve the protection of basic rights because of their capacity to suffer. The Harvard philosopher Christine Korsgaard makes the case for our duty to animals based on a Kantian theory of ethics in Fellow Creatures: Kantian Ethics and our Duties to Animals, but there are many other philosophical bases for animal rights. The philosophy of Ahimsa (meaning, roughly, “compassion” or “non-harm”) has been used by Jains, Buddhists, and Hindus for thousands of years as a justification not harming animals.

What does animal rights entail?

A frequent criticism of animal rights, usually from those who do not have a firm understanding of classical theories of rights, is to point out the absurdity of giving animals the right to vote or the right to a secondary education. But this is missing the point. These rights would not benefit non-human animals, any more than they would benefit a two-year-old child. However, other rights would benefit them: the right to not be tortured, the right to be free of unnecessary confinement, the right to representation. For this last right, it’s worthwhile to note that even though two-year-olds cannot vote, they are counted in the apportionment population for the US House of Representatives, giving them representation by proxy (although this is somewhat imperfect).

Animal rights advocates believe that animals should be given rights similar to those of human children. Young children and animals do not have all the same mental capacities, but they do have the ability to feel pain, to suffer from harm, they have desires and intentions. A common mistake is to think that rights should depend somehow on the ability to reason. This is not so: young children do not have the same capacity for reason as adults do, but we still give them basic rights. In fact, the lack of reason should be considered cause to give them more protections. A child who accidentally kills someone with a gun is not treated by our legal system the same way an adult is, precisely because they lack the ability to make moral choices in same way adults can.

Approaches

The Harvard Animal Rights & Policy Program is at the forefront of trying to push for animal rights to be recognized by our legal system. Currently, they are focusing on animals of high intelligence, such as cetaceans (e.g. dolphins) and chimpanzees, but mostly because these are easier cases to fight in court. The hope is that by winning such cases, it may open up the door to representing other animals in court. However, there are some criticisms of the approach these current cases make: they argue that dolphins and chimpanzees should be considered ``persons" under the law. (“Person” is a legal term, which has a different meaning than “human”) The risk is that this broadened definition of “person”, which seems to be based on intelligence, rather than the ability to suffer, may exclude many animals who are still capable of great suffering.

Why Rights over Welfare Laws?

Rights are a much stronger form of legal protection than laws. The current problem with animal welfare laws is that they are often influenced greatly by the financial interests of the animal agriculture industry (which often writes them in the first place). With a system of rights, it is possible to argue against an unjust law by appealing to more fundamental rights. This happened in the case of Brown v Board of Education, where the Supreme Court struck down the “separate but equal” segregation policy. Rights exist to protect the powerless against tyranny of the majority. When the majority has strong interests in protecting injustices and exploitation, there is no legal recourse left except appealing to basic rights.