Reciprocation and social contractarianism as the basis of rights

The single most compelling argument against animal rights, IMHO, is that the construction of rights is based upon the ability to reciprocate and social contractarianism. It is an argument that I do not feel that ARAs, even the most well-spoken academics among them, have a sufficient answer for. In response to another earlier post, a reader, Carol, left some outstanding comments that do an excellent job of explaining this concept. That entire thread can be read here, but I have also re-posted Carol's comments, unedited, in today's post because I feel an understanding of this is so vital to the AR debate, and also in hopes of perhaps facilitating a discussion of it. These comments are quite lengthy, but are an important and worthwhile read if one wants to truly get a grasp of this concept. A big "thank you!" to Carol for taking the time to leave such well thought out and insightful commentary.

Hi Grizzly and Gary – Sorry I’m late coming into the conversation on reciprocity and rights. I’ve been exceedingly busy with work, veggie gardening, and whatnot.

Yes, Grizzly, I am a vegetarian and a former animal rights advocate.

I have much to say on the reciprocation as the basis of rights. Please feel free to edit if this is too long a post.

Gary, you wrote: “Not only do I consider the "animals don't deserve rights unless they can reciprocate them" argument to be shamefully weak and immoral on its face, but it has been thoroughly rebuked in a hundred animal rights sites and philosophy texts that have nothing to do with animal rights.”

How can the reciprocity argument as the basis for having rights be weak? After all, look what happens/should happen to anyone with rights – an adult human, a juvenile, and a so-called “marginal human,” even inanimate entities/artificial legal persons (trusts, corporations – that does not reciprocate rights, as in when they commit a crime/violating the basic legal rights of another. They lose some or all of their rights. Reciprocity is necessary, then, because those who refuse to reciprocate (criminals) we agree that they should forfeit some or all of their rights. For those who cannot reciprocate (“marginal human cases”) we agree can only have limited rights based on their limited capacity to reciprocate or have rights in custody that are “released” as they develop the ability to reciprocate rights (rights that they also shall lose, or they shall be disciplined in other ways, if they fail to reciprocate), or they do not have rights at all, but are instead given special legal protections (e.g., infants and very young children), until they can take on adult responsibilities and rights, or they never have rights (e.g., anencephalic infants).

Probably not my place to make a fair judgement on this, but rights theorists and philosophers who refute the reciprocity requirement argument made as a basis for having and maintaining rights as well as to deny basic legal rights to animals and humans (like babies and children, e.g.) are actually quite few. Far more animal rights texts seem to refute the reciprocity requirement argument. Both, in my opinion, have a hard time invalidating it. I think both animal rights and human rights philosophy texts do acknowledge that rights are essentially contractual, thus, reciprocal, relationships. That is, we observe rights as assurances or guarantees of behaviour that enable human individuals and groups to live, develop and flourish in conditions necessary to maintain social equilibrium. Social/legal rights are defined by corresponding direct duties, positive and negative so as to fulfill the other’s right. You, for example have a right to life, which means that I have a duty not to murder you or violate that right to life without just cause, and vice versa. We have the same right to life and we are reciprocally bound to honour each other’s right to life. We can opt out of this reciprocal agreement, and then we may lose our rights or have them seriously curtailed. By devising and wanting the benefits of rights protections and appealing to rights when we feel we have been wronged, we have indeed contracted with each other to participate in and respect each other’s basic rights.

One objection made by animal rights of the reciprocity requirement for having rights argument is that rights in this way are seen to be grounded in the notion of contractarianism or the social contract theory or ethics. In my opinion, contractarianism has, however, had a worse rap than I think it deserves. Philosophy writings, both human rights and “AR”, has sometimes interpreted quite differently what the nature of reciprocity in contractarianism is and what the social contract view is. From what I have read, commentary has varied from just different interpretations made to an outright misunderstanding of the reciprocity argument in the contract theory of ethics and rights.

There is just as much modern philosophical writings supporting the rationale of contractarianism by re-explaining the background and elements of the social contract tradition, and the reciprocity argument and rights grounded within. Some philosophers remark that the contractarianism/reciprocity argument does have a number of attractive features to explain the fundamental questions of what morality demands of us and why we should be obliged to obey those demands, as well as its application to rights and other social realities. While the contract view of morality/ethics and rights may have flaws, and arguments against it may be quite compelling, these criticisms are no more impressive than the objections that have been directed at other, more popular views. There is certainly not consensus about the theory of rights and I think with most ethical theories one can find both legitimate problems and also veracity to them.

A few sources concerning such include:

A short chapter on The social contract tradition by Will Kymlica in Blackwell Companions to Philosophy, A Companion to Ethics, Edited by Peter Singer;

Chapter 11, The Idea of a Social Contract in The Elements of Moral Philosophy, by James Rachels;

From the Against Politics web, The Contractarian Theory of Morals:
FAQ http://www.againstpolitics.com/contractarianism_faq/index.html

Theories of Rights, edited by Jeremy Waldron, Oxford Reading in Philosophy.

As to the reciprocity requirement argument being a guide for our moral behavior towards each other and animals, “AR” has argued that animals should have rights to life and have rights claims against us not to be made to suffer “needlessly”, e.g., as a matter of moral conscience. Moreover, reciprocity does not explain our moral behavior and how we regard the moral wrongness of killing another person without just cause, or stealing from your neighbour, etc. It is not that I do not do nasty things to you on the condition that you don’t do nasty things to me. It is that doing nasty things to people is just plain wrong and causes unjust moral injury. I think this is fine and works only so far. Though people can know by moral intuition and by reason that certain behavior is immoral, we need to be motivated by something else to ensure that people behave accordingly and consistent to their moral reasoning and/or moral intuition. For me, moral conscience and moral sensitivity is not enough. People cannot simply be trusted to act on their moral conscience to do good or to punish themselves/others for doing wrong and will others to do the same. Something else must motivate us to behaviorally uphold our moral conscience. One may know it is wrong to take four apples and only pay for three, but if there is no mechanism by which to first negotiate with others the benefits of good behaviour and then enforce that behavior with a threat of punishment or appropriate penalty for misbehaving, and so, if we know there shall be no serious consequence, we shall try to get away with it. Also, a consequence of punishment/loss or curtailment of benefits that come from playing by the rules shows that a behavior is seriously wrong and unjust, whereas no consequence like punishment endorses that the behaviour is not really immoral. In other words, it is not only that we are unjustly hurting the other when we do bad things, but also that we need to be able to reasonably hope and demand that the other will show us the same respect that we show them. Actually, rights to be had and maintained aren’t really dependent on moral conscientiousness of those who shall possess and uphold rights. Hence, the most wicked and odious human beings can maintain rights, and hence we have duties to them even though we may reasonably loathe them. So, for example, it matters not to me that you respect my rights because of some moral concept of “inherent value” you feel I have, or that it is out of compassion or empathy for my suffering. It also matters not if you have no moral regard for me. What matters is that you can reciprocate and so don’t unfairly hurt me, but also that if you do violate me I can appeal some way to have your behavior judged as wrong, have my injury be taken into meaningful account by receiving appropriate reparations and having you appropriately punished.

Though moral conscience and moral concepts, such as inherent value, compassion, and empathy for another’s suffering that validates the wrongness of doing moral damage to another, are important, we are motivated to come to respect rights and hold people accountable also through an enforced social agreement – i.e., reciprocity: I don’t unjustly kill you, so I have the right to life and other freedom rights, and the benefits of have such rights include knowing that you won’t unjustly murder me. You don’t unfairly kill me, so you keep your rights and other basic rights, and the benefits of having those rights guarantees that I won’t unfairly kill you. Should one of us unduly kill or attempt to kill the other, one is in breach of the compact – a mutual, reciprocal agreement - and we lose some or all of our rights, depending on how the courts deem the heinousness of the crime, the victim’s injury is taken into moral and legal account and duly compensated, and the transgressor appropriately punished in the event that s/he may be “purged” of the wrong they committed and resume – if ever again - their place in the moral community of rights. That is what we philosophically have agreed upon in terms of rights.

Similarly with moral rights versus legal rights. Much of “rights” talk in “AR” is in the vein of “intrinsic”, “inherent”, “natural”, or “moral” rights. If I understand properly the meaning of natural or moral rights and leaving aside the arguments as to whether human and nonhuman animals have such rights, the problem I have with philosophical talk of moral rights is that there is no objective mechanism by which to demand basic moral and nature-given rights to be acknowledged and respected in practice. There is nothing like a mutually agreed upon contract which is then enshrined in some apparatus (law, e.g.) to properly enforce it. That is, there is no mechanism for reciprocity or social contract, which is the means by which such rights can be demanded and maintained. Moral rights even if they “naturally” exist or ought morally to be had can only be honoured from an internal sense of sympathetic moral duty or good conscience, and if violated there is no recourse to hold the transgressor responsible and to secure reparation for the violated through formal and objective means, like the legal system.

On the animalrights.net discussion forum someone posted to the effect that people, over time and in general, attracted by advantages arising from associations and the conditions necessary to maintain social equilibrium, have negotiated exchanges of their so-called natural rights for social ones. Unlike natural rights which are defined by our nature and sheer physical capabilities, social rights are defined by duties, positive and negative. I acknowledge that certain basic legal rights are also seen as moral rights (the right to life, e.g.) and moral rights can be justification for having them enforced or turned into legal rights. My point is, though, legal rights, unlike moral/intrinsic/natural rights, are enforceable by legal procedures, and function as a mutual exchange so that if one respects in return the rights of another one has full rights, and if such rights are violated there is a system in place to have the injury taken into moral and legal account, punish the wrongdoer, and compensate the wronged.

The key to any substantive basic rights theory is the ability to reciprocate (on a societal level, not just reciprocate on a personal and instinctual level) rights. Because that is the way rights work and must work to sustain them and make them effective for those who shall have them. (Another key element to basic rights is that they are trumps; rights cannot – except under the most exceptional circumstances, and which must be justified - be overridden by the interests of another or others for perceived consequence, even if that consequence is death). It would not be a stable society where individuals permitted to fail to recognize the right not to be killed by another rights-holding being. Rights being essentially contracts means they are mutually binding, and so can only be had by people who can and will reciprocate. Because, without that capacity to reciprocate it would destroy the whole concept of rights altogether. If we say we have rights but then we didn’t respect each others’ rights and never punish those who violate rights because these “violators” are moral patients, unable to understand what it means to reciprocate on a societal level, then having rights would be meaningless.

Rights and responsibilities are a two-way street. That is, rights function on a mutual exchange basis. Not on an I, being a full reciprocating moral agent, must respect your rights; but, you can infringe my rights without serious consequence because you don’t have the capacity to respect my rights in return. Among humans, whether they can understand right from wrong or whether they have the capacity to reciprocate or chose not to reciprocate rights, they lose the benefits afforded with having rights if they infringe upon other people’s rights. Rights are moral equalizers, meaning rights-holders stand in equal moral and legal relation to each other. That is, if I’m expected to respect an other’s rights, then that other I expect to honour my rights as well, and we are both treated equally under the law should either one of us violate the other’s rights. As such, both parties must somehow be able to respect the other’s rights, because having rights demands that the violator of rights be held morally and legally accountable, that the injury done be morally and legally counted, and that the victim be duly compensated, and that the transgressor be appropriately punished. If any elements were to be dismantled, it would weaken the notion and value of rights. Not many of us, justifiably, would be motivated by such one-sided reciprocation of rights and clear erosion of the true meaning and import of rights. “AR” seeks to apply to certain animals the same basic rights (I’m not referring to conditional rights, like the right to vote and the right to a college education) that humans have maintained. But, “AR” wants rights to be a one-way street only, conferring rights in animals but eliminating the reciprocal element in rights for them.

Recognizing animals’ rights imposes a moral obligation not only on us as humans to protect and recognize the rights of animals, but also imposes the same obligation on animals towards other rights-holding animals and towards rights-holding humans as well. Rights conferring moral and legal equality and being a two-way street means that if it’s wrong for me to kill a rights-holding nonhuman animal, it is also wrong for a rights-holding animal to kill me, and both must be held equally morally and legally accountable. Thus, animals, too, must be able to respect the same basic rights of their conspecifics and of other nonhuman animal species, as well as the similar or same basic legal rights of humans. If failure to reciprocate is sufficient cause to deny basic rights to humans, then animals, who shall be in the same moral category of rights-holding entities, and by virtue of having rights should be no different. That is how it is with all human beings and their basic rights, whether we can understand right from wrong or not, reciprocate or not. That the fundamental nature of rights are that of being trump cards that cannot be overridden and that of being a two-way street, or contract, is very, very important, in my opinion, and should not be trivialized.


Animal rights writings suggest that human guardians should ensure that the rights of humans and other animals are respected by animals, the way they are able to ensure human children and mental incompetents do not violate rights and other legally protected interests. Further, if the animal’s rights-protected interest is violated, the human guardian can invoke the animal’s rights and a legal suit on behalf of the animal can be brought in the animal’s own name, making the defendant legally and morally obligated to make reparations for the damages directly to the animal, rather than the human acting on behalf of the animal or animal’s owner. There would be damages to the animal, independent of any damages natural persons may suffer on account of what is done to the animal that affected negatively its welfare and violated its rights. I’m not sure how humans shall ensure animals to not violate the rights of other animals – if rights shall be truly “rights” - and how we shall make claims for the victims of rights violation. Considering animal conduct is amoral, meaning that the victim cannot be said to have their rights violated by another animal. This is wholly different in human-to-human cases, including marginal humans, whom “AR” say are morally the same as animals, thus, justifying animals having rights. Yet, we in practice would treat these “morally same beings” (according to “AR”) differently. That is not ethical, in my opinion.


Of course, “AR” advocates mean abuse and rights violations caused by humans against animals, not rights violations caused by nonhuman animals against other animals and humans. Again, in order to maintain their true meaning and sacred value, their power and efficiency, rights should not be separated from their correlative duties. Rights and responsibilities function as a two-way street, and it is essential that they function as such lest we render them weak and essentially meaningless. Rights impose upon the one who shall have that right a direct duty. Not a guardian. Finally, that rights reciprocating human moral agents can ensure their conspecific children do not violate the rights of others, and that human moral agents can by proxy make claims for children when their rights or legal protections are damaged does not logically mean that humans are morally-bound to do the same for nonhuman animals. For one thing the “marginality” of “marginal” human beings and animals is profoundly different and so are their situations in relation to themselves, to other animals, and to humans. We count on the agency or ability to reciprocate. We don’t depend on a rights-holder’s guardian, and what if the guardian cannot always be there at every interaction with every being the moral patient right-holder comes into contact with? Also, there would be far more nonhuman animals who shall have rights, yet we expect to place the entire onus of rights being respected by animals onto fewer human moral agents, as well as appoint even fewer humans as guardian ad litem to prosecute or defend a suit on behalf of animals incapacitated by their inability to reciprocate rights and make claims against others who violate their rights.


But also, some “AR” say, by us recognizing rights of the weak (animals) with correlative duties only for the strong (humans) but without correlative duties for the weak, such an arrangement shall help make the world a fairer place (per Morals, Reason, and Animals, by SF Sapontzis). But, in my opinion, this would be unjust because it would diminish the moral importance of basic rights. Again, rights confer a duty in every rights-holder – not a guardian - to respect and uphold others’ rights. The notion of rights fails if the only rights-holding individuals being asked to observe rights are those who can and do reciprocate, because such means that their rights can be violated and denied by special groups of individuals who are without duties to reciprocate. Therefore, for rights to exist or to be maintained at all, rights require reciprocity. Without reciprocity there can be no rights structure, or a very diluted and ineffectual rights structure. Reciprocity or societal expectations that rights will be respected is required in order to maintain rights at all. If individuals cannot reciprocate, the notion of basic legal rights becomes meaningless. Rights involve a special relationship between beings, a moral binding. Again, we count on the other’s agency or ability to reciprocate. We don’t depend on a rights-holder’s guardian. The ability to reciprocate on a societal level is what makes rights work. Rights depend on recognizing and upholding the rights of other rights-holding entities. My right not to be killed without just cause by you is a right if there is legal entitlement, but also if there is a correlative obligation imposed on you to fulfill that entitlement and refrain from denying me it. In this way, rights are reciprocal. Rights without responsibility or binding duties between rights-holders are valueless. Rights being moral equalizers have to be practiced reciprocally by all rights-holders – who are morally and legally in same relationship, thus, also bound to reciprocate – in order for rights to exist and be maintained at all.


Moreover, it is not a fairer place when one rights-holding group (animals) gets off scot-free for infringing rights where the other group (humans, including marginal humans) does not. Marginal humans lose their rights if they don’t reciprocate rights.


If marginal humans are so morally similar to animal beings, why should animals retain their rights when we deny marginal humans rights for infringing the rights of others? In the world of human-human rights if you don’t reciprocate rights, whether you are a moral agent or a marginal human case, you are punished by having to forfeit your rights. Whereas in the world of animal-human rights, humans, including marginal humans, would still be denied rights if they violate animal rights just as if they violate the same human rights, while animals are excused and deemed unable to violate rights. That is not fairness or justice. If animals shall be accorded rights as a matter of justice, because they are morally similar to marginal humans according to “AR” and since rights bring rights-bearers into equal moral relationship, then animals breaching human and other animal rights would be an injustice.

For “AR”, the reciprocity requirement implies that only the strong or a dominating species or group can gain rights. This notion may be a throwback from more ancient contractual rights that were often, it has been written, did not involve reciprocal supportiveness. For example, the belief that a father was owed as a matter of right the respect of his children did not necessarily denote a duty upon the father to return that respect. Today’s contractual rights, however, are mutual and equal. Still, some argue that even in modern day, rights are still one-sided because the rights of children remain in dispute. I will get to children rights in a bit. In the meantime, I argue that rights are not based on power. Rather, rights are based on reciprocity. There are many weak, powerless, poor, sickly people who have the same rights as the strong, powerful, rich, and robust. Rights are moral equalizers and rights cannot be overridden for narrowly utilitarian reasons or some perceived net good. One could argue that it is more likely that when rights are a one-way street, we cannot trust others not to respect rights or basic interests whenever they judge that some net good or personal good might result, and when there is no effective system to punish those who do override basic rights of others, then social relationships would become more difficult and the lives of all but the most powerful would be impoverished. But, when rights function as they should, as social contracts based on two-way, mutual reciprocity, then rights do inhibit the strong and strengthen the weak. To be a rights holder is to have the same basic rights and to recognize and accept the duties conferred, along with the threat of punishment for violating them. Rights, thus, protect the weak against the strong, allowing the weak to have a fair chance of fulfilling those basic interests of theirs that are now protected by rights. The weak have the same basic legal right to life, e.g., as the strong, they have the same duties towards one another in terms of respecting each others’ rights, and both shall lose some or all of their rights the same way should they infringe upon the others’ rights.

Rights are had not because of physical, economic or political power, species membership, huge intelligence, and the like, but because people have been able to construct rights of a very specifically important nature and function and have agreed to have them and are willing to act accordingly. That is, because one can reciprocate. One can chose to eschew this social agreement at any time and free oneself of the obligation to reciprocate, and in so doing one loses rights. But, if rights were not respected and could be violated as a matter of course without recourse to establish moral and legal damage, punishment for the wrongdoer and recompense for the wronged, then rights and their purpose are rendered meaningless.

The appeal for “AR” saying the reciprocity requirement implies the strong have rights is that rights should be derived from the idea of fairness, and so it would only be fair that the reciprocity requirement not apply fully to animals, whereby rights to life for animals would be only with correlative duties for the strong, but not for the weaker nonhuman animals. It’s not fair, in my opinion, that rights be a one-way street, where one party can hold onto rights without having to reciprocate respect for others’ rights, even holding on to rights having infringed upon another’s same rights, because it diminishes the importance of the moral and legal dynamics of rights.

Animal rights and other philosophical writings argue that the reciprocity requirement argument is like a club one can join only if one is capable of knowing the rules and can or wants to abide by those rules. This would have to leave out humans, like babies and young children, as well as the severely mentally disabled, and, of course animals, who obviously cannot contract at this level. Just because not all humans can reciprocate does not mean that they are left without protection. One makes the distinction between being protected as a basic part of the social agreement, and being protected by rights by virtue of having the capacity to reciprocate and thus having the ability to create and participate in the rights contract. E.g., humans have the right to protect their property. Protection of our property includes protection of animals whose legal status is one of property. Pets don’t have rights, but they have protections in so far as having such protects our property rights. Similarly with regard to children. Adults have the right not to be caused moral injury without just cause, a requirement that extends to refraining from injuring those who are in the care of rights-bearing adults. Your injuring my child will be a case of your injuring me. Children may not have the legal autonomous right to not be caused injury because they can’t reciprocate rights the way adults can, but they do have protections not to be caused that which imposes a duty on those who can reciprocate to not cause them unjust injury.



Another line of argument being that denying rights because an entity is unable to reciprocate is to fail to properly acknowledge the distinction between the capacity to respect and reciprocate rights of others (full moral agency) and the capacity to benefit from rights (moral patienthood or moral beneficence). The point being that, individuals who are moral agents (able to reciprocate at a societal level and so able to reciprocate rights) can recognize that they have the capacity by their choices of action to effect positively or negatively the well-being of others (so-called “nonmoral agents” who cannot permanently or temporarily reciprocate rights). As such, moral agents are, therefore, morally obliged to take into moral and legal regard the effects of their behavior on the well-being of those vulnerable others who are affected by choices of actions of moral agents. On this view, it is morally irrelevant, then, that nonmoral beings don’t have the capacity to reciprocate. What is morally relevant is that nonmoral beings, both animals and humans (though, in my opinion, humans are not “nonmoral”, except for anencephalic infants), have a well-being that can be positively or negatively affected, making them morally considerable for having rights.



Indeed, it is argued in both human rights philosophical writings and “AR”, even within the class of humans (full moral agents and “moral patients” or “marginal humans”) the characteristics for being a bearer of rights are not necessarily the same as the characteristics for having an obligation to honour those basic rights in others. This being so, it is alleged, has not disqualified all humans from having rights. Or it should not disqualify them, for there is dispute about children rights, for example. At any given time there are going to be humans who are going to have more rights than responsibilities (the adult mentally handicapped, the senile, e.g.) , or rights without responsibilities (e.g., babies and children). This subgroup of human beings are not able to recognize rights and reciprocate rights, and yet are capable of having their well-being affected negatively or positively by the choices of other peoples’ actions toward them. That is, these special human cases (or “marginal human cases” as per Jan Narveson who gave the argument from marginal human cases from its name – source: Babies and Basts: The Argument from Marginal Cases by Daniel A. Dombrowski, p. 51) are capable to having and benefiting from rights. We all, it is alleged, tacitly recognize, or ought morally to recognize, the non-equitability of rights with responsibilities. True, rights and responsibilities are related in that responsible humans will forfeit some or all their rights by violating the rights of others. But, it is argued, this relationship of rights and duties is a conditional linkage on whether one is a moral agent who can have responsibilities. Rights and responsibilities, it is argued, can be separate and does not depend on all having the capacity to reciprocate. Responsibility is the price for those who have that particular capacity – the capacity to reciprocate rights. It’s not the price for everyone, however. Most of the time rights and responsibilities happen to go hand in hand, because most humans are or will mature into full moral agents with an awareness of right and wrong, an appreciation of probable and possible outcomes of actions, and a choice and the knowledge that there is a choice for a better or worse course of action. And because most humans do possess or will possess contractual capacities, i.e., the capacity to understand the nature of the arrangement within the contract, able to reach conscious agreement with a genuine concurrent intention to simultaneously carry out their binding duties or obligations in such a way as to confer the benefits outlined in the agreement on the other, so as to make the contract meaningful, and if one party should fail to act this way, then that person forfeits their position in the contract and forfeits the benefits of the contract. But, moral agency and the capacity to reciprocate at a societal level is not, in reality, universal among humans.



The capacity (of human and animal moral patients) to be positively and negatively affected by the actions of others, particularly moral agents, does not necessarily confer a right in one. There are plenty of goods and harms that are not even protected by rights, and rightly so. The fact that beings who are not full and mature moral agents can benefit from rights, alone, does not mean that such individuals ought or should be holders of rights. It only means that they could benefit from having rights. It is not enough to be able to benefit from rights. Anything can benefit from rights or rights claims against us to leave them alone or preserve them intact. Trees, mountains, bioregions, fossils, riparian systems, cabbage loopers, the list goes on. But rights, and the kind of society and community relationships that can maintain rights, is conditional upon those who shall bear rights to uphold rights, i.e., reciprocate. That’s why babies and children who are not fully rational agents because they are still developing, as well as the severely mentally vulnerable who have lost temporarily or permanently their ability to reciprocate on a societal level, don’t actually have rights. Instead, they have special legal protections, which are not the same as rights. Or, such special human cases have rights in custody or have limited rights based on their limited capacities of reciprocity and rationality. Whatever, a right has a corresponding binding obligation: In order for me to have a right, I must respect the right of others, otherwise I lose my right. That rule goes for special human cases as well. If such humans have rights at all, their strength are based on the capacity of the holder to reciprocate, and if the holder does not reciprocate they lose rights just as full moral agents do. A protection, on the other hand, has no such corresponding obligation on the one being protected, only on those who can have duties to and make decisions on behalf of another. The point is duties and responsibilities cannot be separated and that is why special human cases are treated differently, by rights in custody, limited rights, and/or legal protections.


So, the animal rights use of argument from marginal human cases does not hold and is no justification for giving animals rights. Because marginal human cases have legal protections instead of rights, or they have partial rights or rights held in custody that are released and lost upon the ability to reciprocate. Moreover, the “mariginality” and incapacity to reciprocate rights in marginal humans is very different from that of the marginality and permanent incapacity to socially reciprocate in animals. Marginal humans fall in the special category of “developing” or “sick” human beings. Human marginality is temporary or permanent and comes from mere accident in the middle of their lives, or their marginality comes at the end of their lives. Or, because these humans are immature, their marginality is a temporary stage in their human development. They shall be able to reciprocate rights, or they did but lost the capacity, or they did but lost the capacity and shall regain the capacity. Nonhuman animals never had nor shall they ever have the capacity to reciprocate rights.


A note on children rights. I am not that well versed on the legal status of children and other vulnerable, special human cases. There are different kinds of philosophical views and criticism on the subject of children as moral and/or legal rights holders, particularly as they lack the kind of autonomy and moral agency/reciprocity presumed by the idea of right, and therefore require supervision from adults. E.g., worries that children’s rights would undermine parental rights, separate children’s interests from those of their parents to whom children are dependent upon, and give more power to governments and court systems. But also that because children are powerless in virtue of their dependency on adults, rights serve as a moral, legal and political mechanism to ensure the needs of children are being met by their adult providers and protect them from bad families and other unjustified harms and serve the best interests of the child.


Advocates for children’s rights seem to refer to international treaties and agreements, such as the UN Convention on the Rights of the Child, which I don’t think has been ratified by the US, and also the Universal Declaration of Human Rights mentions children being entitled to special care, protection and assistance. There is also the Equal Protection Clause of the 14th Amendment of the US Constitution, which is said to apply to children, as well as family law in which children are supposed to have a number of legal “rights.”


But, not all humans have rights. Humans that do not have the lifetime potential to recognize and understand rights do not have rights. For example, infants born with anencephaly, a congenital absence of the brain and cranial vault, with the cerebral hemispheres missing or reduced to small masses. Most infants with anencephaly do not survive for more than a few days after birth. Such humans born without consciousness and without the potential for conscious choice have no rights; my understanding is that if the parents want, they can let their so-afflicted infants die by withholding nourishment and treatment. There is even debate about harvesting their organs. Parents may chose to protect their anencephalic infants, however. Whether, in this instance of parents wishing to protect such infants, the infants have rights is debatable. More likely, they have special legal protections granted and based on the rights and protections of their parents.


Developing children and the handicapped are said to have a variable set of rights based on their ability to understand the reciprocal nature of rights and the law and their own ability to reciprocate rights. Children are said to not have access to their full set of rights. Described as having the potential to uphold rights, children have limited rights or rights held in custody by a parent or legal guardian. This is why parents have jurisdiction over their children until they become independent and mature enough to take on adult responsibilities, at which time they have those rights “released” to them. Those who become mentally incapacitated may lose certain rights and those who are permanently mentally handicapped also have limited rights based on the limitations or loss of those faculties that have been damaged or destroyed by the disease or injury. Some say these rights for children and mentally handicapped are based on needs (calling them needs rights), which are a less restrictive conception of rights, linking rights to the protection of needs. Criticism of such includes that it leads to a proliferation of rights and dilutes the ethical and normative importance of basic autonomous human rights characterised by corresponding duties and the need for moral agency and reciprocity.


I am of the notion that although marginal humans (apart from infants with anencephaly) are in no way “amoral” and not “moral patients” in the way animals are, marginal humans who cannot properly understand and reciprocate rights, do not have the rights we give to responsible humans in the same society. Rather, they are provided legal protections – not rights - based on their needs. We misperceive them as rights, but they are not rights. We give human babies, for example, legal protections, but not rights. Their moral and legal status, which we mistake as “rights” comes from their belonging to a class (H. sapiens that typically and by nature reciprocates rights) that will eventually be able to reciprocate, and then have rights. Because children, mentally handicapped individuals, and other vulnerable groups of people cannot be truly rational agents and reciprocate rights, though it leaves them outside the purview of rights, they can still be protected (as already mentioned above) by strong protections which, as Kenan Malik says, “we use to ring-fence those incapable of bearing rights” (in letters between Peter Singer and Kenan Malik, “Should we breach the species barrier and grant rights to apes” http://www.kenanmalik.com/essays/singer_debate.html ). A right, Malik says “requires us to make our own decisions. A protection requires us to make decisions on behalf of another.” I would similarly say that a right has correlative duties, thus, requiring rights-holding parties to reciprocate, whereas a protection is with correlative duty only to the protector and no corresponding duty to the protected.


Actually, sometimes one might have to first discern what animal rightists and animal liberationist advocates mean by “rights.” Whether it is really rights they want for animals, and what kind of rights (moral or legal), or if they refer to the same kind of fundamental protection of life and freedom from certain treatment and harms that we afford to vulnerable humans, protections that have similar, and some argue same, moral and legal dynamics when they are claimed or had and when they are violated. Sometimes “AR” advocates and animal liberationists may refer to rights when they really mean protections. In letter conversation with Malik, Peter Singer states, “Rights have never been fundamental to my ethical scheme. I use the term as shorthand for the kind of protection that we give to all members of our species, not only to rational agents. All I want is that we protect apes in the same way that we protect vulnerable humans …” Malik also points out that, “The conflation of rights and protections is one of the ways in which rights for humans are being degraded.”


Either way, I don’t think it is argument enough for giving animals the same basic rights, or protections, that humans and marginal human cases have. Whether marginal humans are denied rights altogether because they can’t reciprocate ever and just have protections, with only duties imposed on the rest of us and none upon the marginal human. Or, that some marginal humans have only limited rights based on their limited capacity to reciprocate, and which they can still lose if they violate the rights of others. Or, that such humans have protections, until they can reciprocate at which time they get rights. Marginal humans having rights does not debunk the reciprocity argument for rights, because those rights can be and are denied if these human groups fail to reciprocate and violate rights of others. If marginal humans have protections instead of rights, that doesn’t discredit the reciprocity argument either, because they have legal protections instead precisely because they are said to be unable to reciprocate. Both shoot down the argument that because marginal humans have rights or protections, then animals should too, because they are – in terms of their incapacity to reciprocate – morally the same.


Other reasons why the “AR” use of argument from MHC is inadequate for justifying rights to animals is that humans have selfish/egoist reasons (which is also reason for our need for reciprocal agreements – social contracts) for including marginal humans in the purview of rights and/or legal protections, which are mainly based on reciprocity and the benefits therein. We include marginal cases because we all have been marginal cases (babies and children) and know that we may or will again become marginal cases ourselves (incapacitated by injury or biological accident in midlife or incapacitated by old age).


E.g., we were all babies and children once, and we must all grow from a stage of minimal cognitive consciousness to the mature and fully reciprocating agents we are now. So, we take an interest in having children grow up to becomes responsible members of society and respect other people’s rights and act within the law. They are our future and they are the ones who shall be the leaders in society and who shall be looking after us when we are incapacitated in mid life or in old age. Also, because children shall grow up to make rights claims autonomously, it would do well that we extend rights to them and make rights claims on their behalf until they reach that level of maturity to take on those responsibilities themselves. For children born permanently handicapped, they are entitled to care because that is what the parents want. We oblige because some of us could ourselves one day be parents or relatives of severely handicapped children, or some of us, too, are relatives or friends of such children and parents. We extend the same considerations to orphan children because some of us may have been orphans, or we might die unexpectedly and our own children may become orphans. Including all marginal human groups in the purview of rights or special legal protections is mutually beneficial, more so than not to include them.


We have moral obligations to adult marginal human beings also out of deference to the feelings and wants of their family and friends and other interested conspecifics. Adult marginal humans are the children, parents, other relatives, friends, etc. of others whom we have moral obligations to in relation to the value these interested parties upon these marginal beings. Some of us, too, are the children, relatives, friends and acquaintances of people with conditions rendering them as marginal humans, and we do care about them and we want them protected. It’s reciprocal. Being injured, sick, or having an age-related illness that incapacitate us physically and mentally or prevent us temporarily or permanently incapable of normal human functioning, are conditions that come in the mid or later stages of adult humans. So, we place such vulnerable adult human cases in the same moral category as normal human beings with at least partial basic rights and/or special legal protections because we know that any of us may become mentally debilitated as well by accident or with age. Reciprocity again. Moreover, many of these are people who are still interested in and capable of thinking about their own futures.


Maintaining rights, or special generalized protections, is important to protecting all of us from abuse should we fall into the same unfortunate or inevitable circumstances ourselves. Indeed, as human beings in a society where rights are fundamental we all have certain basic rights, equally and regardless of our intrinsic differences, including differences in the level reciprocity, which are only temporary or come at the end stage of human life or come in between as mere accident and unfortunate circumstance. We don’t justify unequal treatment to avoid mistreatment and what some suggest as Singer-esque justifications for infanticide and euthanasia campaigns (I don’t believe, however, that Dr. Peter Singer is at all trying to justify infanticide or elder euthanasia) for those who, through no fault of their own, do not or who have lost the capacity to reciprocate. Still, ethically and enforced legally, temporary or permanent conditions such as childhood or profound intellectual disability does not cancel association to the community of rights, only to avoid any such justification. For, if we don’t draw a clear boundary and enforce with some binding obligation to provide a protective shield around the whole group of human rights community, we may otherwise find ourselves on a slippery slope of denying equal moral consideration, rights and/or protections to those whose care is a burden on their family and the community.


It is not out of just sentimental attachment that we treat marginal human cases fairly well and with protection, or rights, and yes we believe it is morally wrong and unjust to abuse and kill vulnerable adults and children, but largely because of reciprocity. Indeed, parents and other adults do abuse children and medically vulnerable adults, but that is a breach of our social compact, and we punish those wrongdoers accordingly.


Marginal humans also still belong to the kind that does by nature and design reciprocate rights. The notion that marginal humans belong to the species or group or kind that typically does by nature reciprocate rights, has been criticized by “AR” as the Right-Kind argument, formulated by Tom Regan in response to Carl Cohen. This argument basically goes, 1. Individuals have rights if, and only if, they are a kind of being whose lives will be, have been, or remain essentially moral. 2. All, and only, humans are this kind of being. 3. Therefore, all and only, humans have rights. 4. Other animals are not human. 5. Therefore, other animals do not have rights. This is false vis a vis the reciprocity requirement. One is not basing rights on being human, per the conclusion that only humans have rights, other animals are not human, therefore, other animals do not have rights. One is saying that the capacity to reciprocate rights is the basis for having rights. Thus, being of a kind – that is of the kind that by nature and design - that possess the capacities necessary to reciprocate rights shall have rights. Humans have such capacities. Marginal humans who do not possess the capacity to reciprocate rights, still belong to the kind that does by nature and design reciprocate rights. Rights are not based on human species membership, as “AR” persistently argues. Rather, they are based on the capacity to reciprocate rights, so any species can have rights. It is just that for the present no other species besides humans can reciprocate at this level. Extant animal species cannot at all reciprocate at a societal level, only personally/instinctually. Reciprocity is the basis for rights, regardless of one’s species. Of course, when entities possess the capacity to reciprocate rights they are of a species that by design has that capacity or they belong to a species whose members typically have that capacity. Animals by nature and design do not have the capacity to reciprocate rights. If animals could reciprocate rights, even marginal animal cases would be included under rights of some kind and/or special legal protections the way humans are.


Marginal human cases cannot reciprocate or cannot tell right from wrong, thus, are not fully moral agents, just as animals are cannot and are not. This being the case, animal rights argue, as a matter of justice similar cases should be treated similarly. Thus, if marginal humans have rights, or partial rights, or legal rights-like protections regardless of the moral patienthood, then so should animals. As a rejoinder, others argue that animals and marginal human cases are not morally alike and, therefore, cannot be treated morally and legally alike in similar situations.


Indeed, if animals are morally similar to marginal humans with regard to both being “moral patients” and both being unable to reciprocate rights, as some animals rights advocates do declare, then rights would function the same way for both. Yet, in practice we do not intervene and discipline in the same way for both during similar situations, so there is no way that animals and children are similar in morally relevant respects. We know animals negatively exploit, attack and kill each other on a regular basis, but we do nothing. If we have any information that suggests that one child might kill another human being, we intervene. In the human-to-human situation, even a child will lose their freedom of bodily movement if they violate another child’s right or special legal protection to freedom from bodily harm. Unfortunately, there are such cases of child against child violence. In a similar intra-specific case, would a rights-holding chimpanzee lose his freedom of movement for violating another rights-bearing chimp’s right to freedom from bodily harm? Remember chimps are moral patients just like children, thus have basic rights, according to animal rights advocates. If a child tormenting and killing a kitten is certainly not morally right, is a well-fed house cat tormenting and killing a bird not right as well? Since human moral agents would have a moral duty to intervene if we see a child being stalked for attack by a mountain lion, would we not have the same duty to intervene if we see a deer being stalked for attack by a mountain lion? According to “AR” both children and deer are moral patients with basic rights and similar situations should be treated in a morally like manner, as a matter of fairness, ethical imperative, logical consistency, and justice. If you are attacked and eaten alive by a grizzly bear, did the bear violate your rights?


In practice, no human who maims and kills another human ever goes unpunished. Even among vulnerable human beings who cannot reciprocate rights are never as “innocent” as an animal that maims and kills another animal or human (granted though, some animals pay more dearly than humans for injuring and killing. E.g., in dangerous dog bites and mauling, a dog often pays with its life for injuring or killing people. But, the dog is still not considered morally or legally blameworthy). With humans that cannot or do not reciprocate rights, when they pose a threat to others or violate the rights of others, their conduct is never seen as “amoral” nor completely guiltless, and so the rights of others who have been wronged are said to be “violated” when infringed by said non-reciprocating human groups. The harmful acts of marginal humans are not considered amoral in the same way as the same or similar harmful acts of animals are. Though a child may be too young to recognize and respond to moral obligations, the child’s action does not lead us to conclude that there is nothing morally wrong with what she did. The capacity or degree to which the child is able to distinguish right from wrong shall influence our evaluation of her responsibility for her actions and of whether she deserves punishment or penalty and in what degree and form that punishment/penalty should take. But, it does not and should not lead one to conclude that there was nothing wrong or amoral with her action. In children, even the inability to distinguish right from wrong, though it may hold the child “innocent” in the sense of “not culpable” and not acting out of guilty mind, it does not leave the child’s actions innocent in the sense of being amoral or morally neutral, only that the child cannot or has limited ability to recognize right from wrong. Normally, we would discipline the child or explain that her action was not the right thing to do, and we would monitor more closely the child’s future behavior in that regard. That is because children do possess a rudimentary sense of right and wrong and over time the ability for reciprocity at a societal level. Right and wrong and reciprocity ares already there, wired into them. It just needs to be developed and refined.


If we treat actions by marginal humans differently and if we have no moral duty to intervene when animals do the same thing, there is no way we can claim that animals and marginal humans are equally deserving of moral regard and thereby, must have equal basic rights to life and freedom. If a very young child does commit a wrong it is appropriate to look upon her actions as morally wrong. In the case of a juvenile who commits a serious wrong in the form of a crime it is appropriate to deny or curtail her rights accordingly. The capacities of reasoning and understanding of rights by human children is far superior to that of the brightest nonhuman animals. Animals do not possess morality by nature, nor potential capacity for reciprocity, except on a personal or instinctual basis, but not a societal level which is needed for rights to be had and maintained. Thus, unlike with all humans, we don’t normally look upon animals as having the capacity to do moral wrong or commit a crime and so their actions don’t have moral and legal consequences. So, it makes no sense that they be accorded rights, because rights are a standard by which we judge behavior as right or wrong morally and legally, and if they are wrong, holders of rights must be liable and penalized by forfeiting some or all of their rights.


Some “AR” advocates point out the fact that our legal system treats “inanimate” entities such as trusts, corporations, and associations as legal persons with rights that may, therefore, sue and be sued. (Should Trees have Standing? Toward Legal Rights for Natural Objects, by Christopher D. Stone). These “artificial persons” are held to have the same legal rights as we natural persons. The definition of a corporation, trust, association, partnerships, etc., comes from the idea of them being social entities, similar to groups of human beings. The fact is social entities are groups of natural persons (human beings) that function for the benefit of people, and it is this fact that gives the basis for according such entities (they are not that “inanimate”) legal personhood and, therefore, rights. Though, one would prosecute the company in name as distinct from its people executives. The bottom line remains, corporations are made up of people who reciprocate and, therefore, can have rights, and if they violate rights, they can be sued – though in name of the company - and people are punished and lose rights and other privileges. In other words, artificial persons must reciprocate to be in the social contract of rights. So, it is not much of an argument to justify animal rights in the way that corporations have rights.


Lest this turn into a book (I actually have more to say, but won’t), I’ll just end by saying that one does not have to be a fan of contractarianism or the social contract theory of ethics to recognise reciprocity as an important element in civilised human life (i.e., expectations of conduct enabling us individually and as a community to coexist and so thrive), and to recognize reciprocity as an important component to the concept of and preservation of rights. In animal rights philosophy, however, I believe that this two-way reciprocity element in the nature and function and maintenance of rights structure is sometimes ignored, or it is downplayed and trivialized. Rather than being a two-way street, “AR” wishes to have a separation of responsibilities from rights in one party who shall benefit from rights. I, personally, don’t think we should allow such decoupling of rights and responsibilities. Because the idea of separating rights from responsibilities would weaken the true meaning and efficacy of rights. I don’t think certain animals, in particular certain domestic food animals like chickens and pigs, have it good in this world. I still have not found a good argument for not killing animals for food and other human uses. But, my simple mantra is if your going to use and/or kill them, properly justify (which needs to be defined) that use/death to begin with and when so justified do it humanely. I think we can come up with a better way to institutionalize moral and legal considerateness for animals and provide a much higher and reasonable measure of legal protection by creating enforceable moral and legal duties more directly in regard to animals, increasing penalties for violations, much better enforcement, all without having to create a right in them, but something more than mere legal property, and without diluting the moral and legal impact of the true concept and proper function of rights.

May 6, 2007 11:24 AM