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1998 UCL Jurisprudence Rev. 144 (1998)
Animal Rights: A Test Case for Theories of Rights

handle is hein.journals/ucljurev5 and id is 156 raw text is: UCL Jurisprudence Review Animal Rights: A Test Case for Theories of Rights' Michael Wilkinson Consider the following three statements: a. It is morally wrong to treat animals cruelly. b. Humans have a duty not to treat animals cruelly. c. Animals have a right not to be treated cruelly. Aside from the problem of what exactly is meant by cruelty it is likely that most people would agree with at least one of these statements. Animal rightists might immediately leap to advocating statement c. But what is the relationship between these statements and what do they mean? Are b and c simply two sides of the same coin? The analytical theories of right attempt to explain the relationship between rights and duties. In short, the will theory connects rights to a power over the correlative duty-bearer. Hence the duties we might owe to animals could not translate into animals having correlative rights since they have no power or choice over the exercise of our duty. The benefit theory, on the other hand, deems it sufficient that the right-bearer benefits from or has an interest in the imposition of a duty correlative to the right. It is compatible with the notion of animal rights, assuming it could be established that animals have a sufficient interest in our duty. Described in this fashion, both theories presuppose the existence of duties but make no attempt at explaining from where these duties arise. In effect they beg the most important question of all, namely why it is wrong to treat animals cruelly. To answer this question it is necessary to resort to normative jurisprudence and the classical debate between utility and rights. On a traditional utilitarian analysis it would be wrong to treat animals cruelly if to do so reduced the overall pleasure in society. The question is then whether animals feel the necessary pain or pleasure to be counted in the utilitarian calculation. A rights-based philosopher might argue that it is wrong to treat animals cruelly because they have a right not to be treated cruelly, and that this right is intrinsic to all sentient beings and is independent of utility. In the first part of this paper I will examine the two theories of the nature2 of rights and reject the will theory of rights as being under-inclusive. It ' For the title I am indebted to N. MacCormick 'Legal Right and Social Democracy', Ch.8, Children's Rights: A Test Case for Theories of Right. 144

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