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Do Animals and Dead People Have Legal Rights?

Published online by Cambridge University Press:  09 June 2015

Matthew H. Kramer
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Abstract

This essay maintains that the question in its title is really three sets of questions: a conceptual inquiry, a moral/political inquiry, and an empirical inquiry. After devoting some attention to the relevant conceptual issues, the essay ponders in detail the moral/political issues. It suggests some answers to the germane moral/political questions, and it takes pains to distinguish those questions from other lines of inquiry with which they might be confused. Although only animals and dead people are mentioned in the title, the essay also considers whether infants, comatose people, lunatics, future generations, groups, trees, and natural phenomena such as rivers should be classified as potential holders of legal rights.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 14 , Issue 1 , January 2001 , pp. 29 - 54
Copyright
Copyright © Cambridge University Press 2001

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References

1. Kramer, Matthew H., “Rights Without Trimmings” in Matthew Kramer, H., Simmonds, N.E., & Steiner, Hillel, A Debate Over Rights (Oxford: Clarendon Press, 1998) 7 at 60–10 Google Scholar1.1 should note at the outset three points of terminology. First, throughout the present essay I use the terms “obligation” and “duty” interchangeably. Second, I likewise use “person” and “human being” interchangeably; I do not confine “person” to human beings who are capable of exercising moral agency. That is, I employ “person” as the singular of “people” rather than as the singular of “persons.” Third, I use the phrase “potential right-holder” (and cognate phrases) to denote any being that is capable of holding legal rights, whether or not he/she/it actually holds such rights. Still, although the status of “potential right-holder” does not entail the status of “actual right-holder,” the former is perfectly compatible with the latter and is in fact entailed by it. That is, I do not use the phrase “potential right-holder” to mean “merely a possible right-holder and thus perforce not yet an actual right-holder.”

Quite some time after writing this article, I came upon Joel Feinberg, “The Rights of Animals and Unborn Generations” in his Rights, Justice, and the Bounds of Liberty (Princeton, NJ: Princeton University Press, 1980) 159. Both in the range of topics covered and in several of the conclusions reached, Feinberg’s essay is broadly similar to my own. Likewise, some of his analyses are parallel to some of mine. However, many of my lines of analysis are markedly different from his, and are fairly often at odds therewith.

2. For a recent example, see Wells, Martin, Civilization and the Limpet (Reading, MA: Perseus Books, 1998) at 114–19 Google Scholar.

3. This is the factor to which Joseph Raz adverts when he opens his definition of “x has a right” with the clause “if and only if x can have rights.” Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986) at 166 Google Scholar. Raz proceeds aptly to state that someone “is capable of having rights if and only if either his well-being is of ultimate value or he is an “artificial person’ (e.g., a corporation).” Ibid.

4. For a very good collection of Stone’s writings in this area, see his Should Trees Have Standing? and Other Essays on Law, Morals, and the Environment (Dobbs Ferry, NY: Oceana Publications, 1996). Included, of course, is his classic essay which gives the collection its title.

5. For an elaboration of this point, see Kramer, supra note 1 at 58–59.

6. See, e.g., Rachel Nowak, “Almost Human” in 2173 New Scientist (Feb. 13, 1999) at 20–21.

7. I have argued at length elsewhere that corporate entitlements are not reducible to individuals’ entitlements, even though the workings of the former are fully explicable by reference to the workings of the latter. An account focused purely on individuals’ entitlements can in principle expound fully the ways in which any corporate entitlements operate, but cannot per se fully expound the effects which the operations of the corporate entitlements bring about (Kramer, supra note 1 at 49–57).

8. Ibid.

9. This description is true of only some comatose states. Comatose people who can undergo primitive experiences will be even more plainly classifiable as potential right-holders than comatose people whose capacity for experiences is completely absent.

10. Precisely because of the distinctness of these two questions (or sets of questions), I do not have to grapple with the formidable difficulties surrounding the notion of intergenerational justice that are highlighted brilliantly in Derek Parfit, Reasons and Persons (Oxford: Clarendon Press, 1984) ch. 16. Parfit’s arguments are clearly focused on the moral entitlements of future generations and are hence focused (at least implicitly) on questions about the kinds and degrees of legal protection that should be bestowed on the interests of those generations. Because I am not addressing those questions and am instead simply asking whether the bestowal of such protection consists in the conferral of legal rights, I can sidestep the conundrums which Parfit broaches.

If legal duties are imposed now for the benefit of future generations, there are legal rights correlative to those duties. In this essay I am arguing that those rights can perfectly well be held by the people who make up the future generations. What Parfit has shown is that, if legal duties are not imposed now for the benefit of distant generations, the interests of the people who will then make up the distant generations are thereby “protected”—because those people will thereby be brought into existence as the very people they ultimately prove to be, with lives that are better than no lives at all. Even so, although the unconceived people who eventually materialize as a result of present-day selfishness will have undergone a form of “protection,” that “protection” is not correlated with any legal duties. It therefore cannot consist in any legal rights, since rights and duties are always correlative (i.e., mutually entailing). Hence, we ought not to waste time by inquiring whether that counter-intuitive “protection” of unconceived people has endowed them with legal rights; it does not endow anyone with such rights. In short, the only contexts wherein future generations might be said to hold legal rights at all are contexts in which some legal duties have been established for the furtherance of the interests of the people who belong to those generations. Thus, for the purposes of this essay, we can ignore situations where no such duties have been established.

11. We should keep in mind the following well-known remarks from Willard Van Orman Quine, “On What There Is” in From a Logical Point of View, 2nd ed. (Cambridge, MA: Harvard University Press, 1980) 1 at 4: “Take, for instance, the possible fat man in that doorway; and again, the possible bald man in that doorway. Are they the same possible man, or two possible men? How do we decide? How many possible men are there in that doorway? Are there more possible thin ones than fat ones? How many of them are alike? Are no two possible things alike? Is this the same as saying that it is impossible for two things to be alike? Or, finally, is the concept of identity simply inapplicable to unactualised possibles? But what sense can be found in talking of entities which cannot meaningfully be said to be identical with themselves and distinct from one another?” As will be maintained shortly, however, the metaphysical issue pondered by Quine is separate from the moral issue pondered here. (I should perhaps add en passant that I do not unreservedly endorse Quine’s stance, by any means.)

12. Manifestly, the general sorts of difficulties described in this paragraph are not confined to statements about the future. If Mary says that the first customer who patronized Jane’s restaurant last week received a free bottle of wine, and if (unbeknownst to Mary) no one in fact showed up at the restaurant, then her statement is false or is neither true nor false.

13. For an apt and partly parallel way of reaching roughly the same conclusion in a somewhat different context, see Edward Page, “Intergenerational Justice and Climate Change” (1999) 47 Pol. Stud. 53 at 61–66.