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11 J. Hum. Rts. & Env't. 156 (2020)
Animalhood, Interests, and Rights

handle is hein.journals/jhre11 and id is 156 raw text is: 




Journal of Human Rights and the Environment, Vol. 11 No. 2, September 2020, pp. 156-172



Animalhood, interests, and rights*



Juan   Pablo  Mahalich  R.
Universidad de Chile

A being to which intentional states - such as desires or preferences - may be ascribed is a
being capable of having (actual) interests, whereas to be the subject of interests of some
kind is both a necessary and sufficient condition to be the holder of individual rights. After
clarifying the sense in which, according to the 'interest-theory', the notion of a rights-
subject specifies a distinctive normative status, this article will highlight the importance
of distinguishing between subjectivity-dependent interests capable of being attributed to
conscious beings, on the one hand, and biologically structured needs of conscious and
nonconscious  living beings, on the other. This distinction allows one to see that the
moral  requirement of recognizing legal rights for (individual) animals ought not to be con-
flated with biocentric demands of ecological justice. However, the argument thus deli-
neated will not, without more, answer the crucial question of which specific legal rights
ought  to be ascribed to nonhuman  animals. The article closes with an exploration of
the need for holding onto the distinction between rights-subjecthood and personhood by
analyzing some  implications of Tooley's 'particular-interest principle'.

Keywords: animal rights, theories of rights,   particular-interest principle, rights-
individuation, moral and legal personhood


1  SUBJECTIVITY, INTERESTS, AND RIGHTS

1.1  Introducing  the interest-theory of rights

The  argument  below  aims to support the thesis that the notion of a 'rights-subject'
adequately  captures the distinctive normative status that we should recognize, in gen-
eral, as possessed by every animal to which we can attribute subjectivity. This propo-
sition finds a strikingly precise formulation in some passages of the first volume of
Rudolph   Ihering's monumental   Der  Zweck   im Recht, published  in 1884. Ihering
addressed  the way in which the disposition to pursue ends of a certain kind, predicable
of nonhuman animals, would mark the starting point for analyzing the 'problem of
purpose'  in the legal realm.i Put  otherwise, Ihering's point can  be stated in the


*    An  early draft of this article was presented at the special workshop '(Legal) Animal
Rights', held in Lucerne on July 11th and 12th during the IVR World Congress 2019. I am espe-
cially grateful to Visa Kurki, Tom Sparks and Saskia Stucki for the remarkable organization of
the workshop and for their very valuable comments on the paper. A later version was then pre-
sented at a workshop celebrated in Oslo on September the 27th. I owe special gratitude to
Alfonso Donoso  and Alejandra Mancilla for their feedback on various aspects of the paper.
1.   R. Ihering, Der Zweck im Recht, vol II, 2nd ed (Breitkopf & Hartel, Leipzig 1884) 26 ff,
whose  insights hereto seem to find an impressive corroboration in contemporary philosophical
discussions of the goal-directed behavior of nonhuman animals; see E Saidel, 'Attributing Men-
tal Representations to Animals' in R Lurz (ed), The Philosophy of Animal Minds (Cambridge
University Press, Cambridge 2009) 35, 41 ff, 45 ff.

© 2020 The Author                           Journal compilation © 2020 Edward Elgar Publishing Ltd
                                    The Lypiatts, 15 Lansdown Road, Cheltenham, Glos GL50 2JA, UK
                          and The William Pratt House, 9 Dewey Court, Northampton MA 01060-3815, USA

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