Empowering Animals with Fundamental Rights – the Vulnerability Question

Abstract

In the search of applicable methodological tools for analysing the phenomenon of empowering animals with fundamental rights, the question of animals as a vulnerable group has received (undeservedly) little attention. Animal rights is an area where sociological and legal sciences meet, making it an exemplary interdisciplinary research area. It appears that the question of attributing fundamental rights to animals has primarily been studied by legal scholars, who view this as an issue having strong ethical and philosophical component. The main legal theoretical approaches to animal rights – such as the welfarist, abolitionist and middle-position – avoid focusing on the question of vulnerability. This is probably because vulnerability is a sociological and not a legal criterion. What seems missing from today’s global discourse on animal rights is an empirical aspect of how the society understands the need for protecting animals. The doctrine of vulnerability may serve as one interdisciplinary tool to analyse the growing attention to animal rights. There are many examples from the history of mankind that demonstrate how some vulnerable human groups have been deprived of basic rights and subsequently have been gradually provided with full recognition of their rights (ethnic and gender minorities, women, people with disabilities). The author is not arguing that there is sufficient theoretical or empirical information to consider animals as a vulnerable group. Nor is there a consensus about what vulnerability means in legal terms. The author wishes to demonstrate that the matter of vulnerability of animals is a research question that needs to be explored in depth, using both sociological and legal methods.

More broadly, this article shows that the current stage of theoretical analysis of the reasons for animal protection inevitably leads to the fundamental rights questions of animals. Conversely to international law, where the ‘nuclear option’ means the exclusion or exit of someone or something, in the context of animal rights the ‘nuclear option’ means universal acceptance of the capability of animals to have fundamental rights, which will substantially change the human rights framework as we know it forever. The number of scholars who write about the need for change in theoretical and practical paradigms governing the protection of animals is reaching a critical point, which means that this shift is merely a matter of time. Recognising theoretically that at least some animals have at least some fundamental rights, and then proceeding to this recognition in soft and hard international law is inevitable, if my proposition of a paradigmatic change either on the horizon or already ongoing is correct.

As we will see below, during the short academic “excursion”, when exploring diverse replies to the question of whether animals have or should have fundamental rights, these replies all take a position on whether fundamental rights for animals can be justified. The question about justification of human rights is nothing new. Robert Alexy has written that the existence of human rights depends on their justifiability and on nothing else. What is justifiable is correct, according to Alexy. Once we can justify why animals should have fundamental rights, then at the same time we can have an argument of correctness requiring the global community to recognise that animals have fundamental rights. This, of course, will depend on whether fundamental rights for animals are justifiable.