Though this widely-reported news is nearly two weeks old now, I haven’t yet written about the Spanish parliamentary resolution to grant great apes the right to life and freedom. This is due in part to my posting schedule, but mainly I wanted to see how this all shook out. Then last week I heard about a piece by William Saletan at Slate that I wanted to read, which I finally remembered to do this morning when it reappeared at Philly.com (via my news alerts) as an opinion piece.
Time to get to this one, I suppose.
The good news: It seems very likely that Spain will be the first national legislature to grant any animals the legal right to life and freedom.
The Great Ape Project, co-founded by philosopher Peter Singer, has been pursuing this goal for about 14 years now. Singer rejects the validity of moral rights (he’s an act–and presumably occasionally a rule–utilitarian) but he believes that certain animals should have legal rights in order to protect them from harm. At the GAP website, a news release states that, “Under most government structures, legal rights are the only way to insure that non-human great apes are free from torture, unnecessary death and capture.”
Of course, Spain is not about to turn loose the 315 great apes kept in its zoos, though evidently the law’s specifications would require dramatically improving conditions at 70 percent of them. Keeping apes for use in entertainment will be forbidden, backed by Spain’s penal code. As of now, there don’t appear to be any great apes being used for vivisection in Spain, but there are no laws to prevent that from happening, so the government will update the legal code to outlaw “harmful” experiments on apes in Spain. I haven’t been able to turn up the text of this resolution with a quick skim of Google results, but I think that last bit about “harmful” experiments is a some cause for concern. It seems to leave open the option to use great apes for non-invasive/non-“harmful” experiments (behavioral research?). So, with one caveat already noted, this is the good angle on the news.
The bad news: This leaves the vast majority of nonhuman animals completely in the lurch, still waiting at square one. Do we protect humans from torture, death, and restriction of liberty based on cognitive capacity? No, we legally protect all sentient humans with rights. Of course, this protection is generally exclusive to our own species, an arbitrary distinction when it comes to determining which beings merit legal protection for their moral rights. We don’t legally give some humans preferential protection from torture, death, and the restriction of liberty on the basis of race or sex, but for some reason we think it makes sense to discriminate against nonhumans simply because they are not human, even though they have the same interests we do in not being tortured, confined, or killed. GAP and others discriminate based on cognitive characteristics.
So, supposedly species membership would no longer be the key criterion for inclusion in the moral community, but GAP’s stance and Spain’s resolution still advance a hierarchy based on criteria unique to certain species, and which go well beyond the criteria necessary for moral consideration, i.e., sentience. As Saletan notably remarks, “the arguments GAP has deployed in Spain don’t advance the idea of equality among animals. They destroy it.” GAP and others claim that this is the point of a spear that has broken the species barrier, making it easier for other species to eventually be included within the sphere of legal rights protection. But how can far can this go if we base such rights on how similar animals’ cognitive capacities are to humans?
Modern conceptions of rights are generally egalitarian. We have extended fundamental legal rights to all humans, regardless of race, sex, or cognitive capacity. Notions of egalitarianism play directly into animal rights theory, which looks at the reasons for excluding nonhumans from legal rights protection and finds that there are some arbitrary distinctions that lead to grave inconsistencies.
When Tom Regan pioneered actual animal rights theory in The Case for Animal Rights, he focused on equality based on the inherent value of animals who are “subjects-of-a-life,” or that they have value in themselves unrelated to how they might be valued by others. If all animals have inherent value (humans and nonhumans alike), then they all have it equally, according to Regan, and they have the moral right not to be treated merely as a means to the end of others.
However, he did stop short of a totally egalitarian approach, requiring animals to meet certain cognitive criteria in order to reasonably be considered a rightholder. His subject-of-a-life requirement is not all that dissimilar from Singer’s notion that some animals value their lives more than others. Regan also believes that death is a greater harm for humans than for nonhumans. Both philosophers appear to accept that the more like humans nonhumans are, at least in terms of cognition, the more likely that the nonhumans in question are to qualify for protection for his or her interests. GAP perpetuates discrimination, according to Saletan:
GAP’s mission statement says great apes are entitled to rights based on their “morally significant characteristics.” It says they enjoy a rich emotional and cultural existence in which they experience emotions such as fear, anxiety and happiness. They share the intellectual capacity to create and use tools, learn and teach other languages. They remember their past and plan for their future. It is in recognition of these and other morally significant qualities that the Great Ape Project was founded.
Morally significant qualities. Morally significant characteristics. These are appeals to discrimination, not universal equality. Most animals don’t have a rich cultural life. They can’t make tools. They don’t teach languages.
Animal activists often take approaches like GAP to be tactical means to the end of extending rights to all animals some day (as points of spears and such), but this kind of thinking misses the mark. We don’t need to extend the hierarchy, we need to erase that hierarchy entirely. I’ll let Saletan’s conclusion, eloquent as it is, serve as my own:
George Orwell wrote the cruel finale to this tale 63 years ago in Animal Farm: “All animals are equal. But some animals are more equal than others.” That wasn’t how the egalitarian uprising in the book was supposed to turn out. It wasn’t how the animal rights movement was supposed to turn out, either.
FYI, I will publish my next AR101 post this week. In it, I discuss the concept of animal rights in more detail.
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