• Mihir Vashishtha

The Animal Rights Conundrum

Updated: Feb 3

By Mihir Vashishtha


Poor description of any legal and social setting(s) is one of the major causes of non-concrete resolution of issues arising out of such social or legal setting(s), and the issue of animal rights is a victim of the said vice. Animal rights activism is not a nascent concept and has been looked forward to with consensus among the masses. However, the idea of what animal rights essentially entails still lacks clarity in itself or a consensus through which it can inherit clarity.

Adding to the problem is the conflation of two distinct ideas namely animal rights and animal welfare. It is commonly observed that these two words are used interchangeably and their social recognition is catching up lately, however, it is contended that the interchangeable use of these words can potentially spawn another issue because the ambit of protection under the scope of the term -‘animal rights’ is rife, whereas, the idea of ‘animal welfare’ as explained by (Priyadarshani, 2017) is limited to that of minimizing suffering (p.384). Meaning thereby, animal welfare can be very well included under the umbrella of animal rights, however, for vice-versa to be true, one must be aware of the scope of protection guaranteed under the idea of animal rights, which is hitherto in a grey area (Edmundson, 2014). Therefore, until and unless there is no clear and concrete definition of ‘animal rights’, using these two terms interchangeably can be perilous for jurisprudential development.


Before delving into any discussion over the tenacity of claims of animal rights, we must, for the sake of clarity, look into the jurisprudential aspect of the idea of right. Rife theories ranging from Social Contract Theory to Natural right theory have been propounded to trace the origin as well as nature of the concept of right. But rather than discussing which theory aptly represents the idea of right or how thereof came into being, we shall move forward while being mindful of an important observation that flows common among all these theories of rights, the underlying moral aspect of human beings which enables thereof to distinguish between the right and wrong, and sans which (ability to make basic moral choices) there can be no idea of right coming into force, be it through any theory.

Therefore, what can be logically be presumed is that the basic right(s) of an individual (suppose an individual A) emanates from the moral inclination of the other(s) to abstain from engaging in such acts which can cause harm to basic freedom and liberty enjoyed by individual A. And when this moral inclination found consensus among the masses as being very fundamental, from which no moral being is supposed to digress, it was eventually crystallized into fundamental rights recognized by law (through the state). Thereby, meandering a little from what has been propounded in the theories of rights (concerning its source of origin) hitherto, I shall propose that although the nature of other beings (who are bestowed upon with rights), be it humans or non-human animals, evokes the idea of morality in moral human beings, however, it is not the source from which right originates. Rather, the idea of right is essentially a reflection of the ability of moral beings to make choices that do not harm other beings, albeit, at the cost of repetition, I must say, the reason for that choice(s) can be attributed to the sentient nature of the other being(s).

To exemplify the same, it can be said that in a situation where there is only a single moral being (a human) is left (an individual A) and all the other humans by some reason lost their moral capacity, individual A ceases to have any (moral) rights (Against whom A will claim? An immoral being who does not know what is right or wrong?), however, in contrast, A continues to have a moral duty towards others as A still has the ability to distinguish between right and wrong, and ought to abstain from the wrongdoing, thereby virtually giving the benefit of this moral ability to other beings (the reason why only moral rights/duty have been referred to is because when only a lone moral being is left, there can be no state, and without the state, as stated by (Mahajan, 2012) at (p.91), no moral right, howsoever fundamental, can be crystallized into legal right).


Now, I will try to analyze the issue of whether non-human animals can have rights or not in the light of the aforementioned idea of right.

It is undisputed to state that all the non-human animals are sentient beings and hold an interest in avoiding pain or cause associated thereof which evinces their ability to feel the pain and suffering, though the extent may differ from one being to another (Kagan, 2015). If one is to ask the reason behind the moral inclination of human beings to not harm other individuals (as stated above), the answer will be in simple terms of compassion and empathy (Hildebrand, 2016), discussed further in the forthcoming section which causes moral beings to abstain from making choices causing pain and suffering (for which they have reason to believe). Therefore, analogous to the sense of empathy towards fellow individuals (homo-sapiens), human beings also have a sense of sympathy and compassion towards non-human animals which is evoked due to their sentient nature, i.e., ability to feel pain and suffering. And it is owing to this reason, animal welfare laws are coming into force in order to protect the interests of animals to not get harmed unnecessarily and to minimize pain and suffering as much as possible (Edmundson, 2014; Parrish, 2005).

The first objection which comes to mind of many people when they first hear about the potential capability of animals to have rights is that an entity cannot have rights if it does not have the capacity to bear the duty which is based on Hohfeldian’s principle which states that “one’s right is another’s duty and another’s right is one’s duty”. Although this may be true for relations among moral beings or between state and moral being, however, this shall not limit the capacity of an entity (individual or non-human animal) to hold right(s) because right(s) in others is the ability of moral beings to make a moral choice of not harming other and the other person’s moral status is immaterial in this process (Kramer, 2001; Stucki, 2020).


Rights, in a sense as discussed above, especially in the context of non-human animals, may appear to be attributions made by human beings over other entities thereby flavouring it with complete Anthropocentrism. However, this is not the case when we delve into the niceties of the origination of these rights. As already mentioned above that although the source of this right, or for that matter any right, is the moral capacity of an individual (to distinguish between right and wrong, and thus to abstain from wrongdoing), however, it is eventually the intrinsic nature of sentient beings which appeals to the moral nature of human beings, which then in effect, causes moral beings to restrain from engaging in immoral activities which are against the interests of sentient beings. Therefore, since it is the intrinsic value (in the form of sentient nature, which non-human animals hold) from which the process of bringing right into force commences, these rights are Eco-centric in nature and confusing them with Anthropocentricism would result in disregarding their sentient nature, thereby causing them to be treated as entitlements or property (Schmidt, 2018) which has been the case for a long period and continues to be, but with few exceptions now.


It has been well argued that the extent of the sentient nature of the creatures or nervous complexity thereof decides the ambit of protection provided to those sentient creatures. In other words, the more a creature is sentient, the more appealing it will be to the moral faculties of human beings, thus evoking higher consideration which in turn will result in a higher degree of rights (Singer, 2015). However, what runs as an underlying common understanding among every sentient creature, is the idea to avoid unnecessary pain and suffering.

In addition to the aforesaid, there is another school of thought which even furthers the idea of animal protection to such an extent as to claiming animal rights analogous to that of human beings (in various aspects), and unequal treatment of members of different species has been regarded as a discriminatory practice. One of the prominent philosophers, Peter Singer in (Singer, 1975) republished in (Singer, 2015), claims the practice of keeping human interests above the interests of animals, namely Speciesism, as discriminatory and compares it to other abhorrent practices such as sexism and racism. He substantiated his argument by relying on a marginal case model illustrated by him as a human orphan who is brain-damaged thus lacking cognitive abilities. With respect to this marginal case, he contends that “If the experimenters would not be prepared to use a brain-damaged human infant (marginal case), then their readiness to use nonhuman animals reveals an unjustifiable form of discrimination on the basis of species, since adult apes, monkeys, dogs, cats, rats, and other animals are more aware of what is happening to them, more self-directing, and, so far as we can tell, at least as sensitive to pain as a brain-damaged human infant”. Although I do not support the practice of subjecting animals to harsh experimentation, however, it is difficult for me to concede with the line of reasoning given by Singer. He puts forth an argument which is completely based on the hypothesis that it is the ability of a living being to feel pain and suffering (its potential sentient nature) which enables it to be a potential candidate to have rights, however, this hypothesis is tempting but fallacious. At the cost of repetition, I must say that is not the potential sentient nature of a living being that decides whether that living being is capable of having rights, but it’s the moral reflection of a human being (moral being) or, in other words, moral consideration given by a human being (with cognitive abilities) to such sentient creature and/or suffering concerning thereof which decides the scheme of rights for that particular sentient being.

However, it is pertinent to observe that this moral consideration remains the same for every human being (as each human being’s interests are considered at equal footing and factor of empathy virtually generalizes moral consideration of suffering of each & every human being as same (Hildebrand, 2016), thereby paving a path for equal fundamental rights, therefore securing the interests of brain-damaged human beings, even though they have lower sentient value, will not amount to discrimination. It cannot be denied that this idea has a touch of anthropocentrism but one must not forget that it is the state which effectuates the moral rights as legal rights, and state is primarily a manifestation of human will, thereby limiting the idea of rights to be a representation of crystalized human morals (Mahajan, 2012).

Now, in order to further comment on the fate of the accusation of speciesism, it is imperative to answer the question of whether it is immoral to put the interest of humans above other sentient beings or is it immoral to secure the interests of a human who is brain-damaged and not of other non-human sentient beings even if former has less potential sentient nature than latter?

To answer this, we must consider an analogous situation. It is conspicuous that few non-human animals are given special protection because they are associated with human interests (for example, protection laws for cows in a majority of Indian states as they are believed to be sacred by Hindus). It is also equally true that the laws of India allow experimentation and even slaughter of other non-human animals which have higher potential sentient nature than that of cows. Here, in this case, it is not because of the potential sentient nature of the cow that special protection or rights are granted to it, rather it is its higher moral consideration by human beings (moral beings) which results in these special measures. Therefore, it convincingly depicts that putting human interests in a higher position is a common practice and cannot be regarded as immoral.

And it is also true that along with a sense of empathy and compassion towards every other human being, thereof also have an additional interest in securing the rights of even brain-damaged fellow human as they seek protection of a similar nature (of non-experimentation and security of basic fundamental rights in the present context) towards themselves in case of as their child or, for that matter, any concerned individual who lacks brain-damaged fellow human as they seek protection of a similar nature (of non-experimentation and security of basic fundamental rights in the present context) towards themselves in case of as their child or, for that matter, any concerned individual who lacks


After taking insights into the idea of rights, it can be convincingly said that animals are potential bearers of rights and the mere fact that no duty can be imposed upon them does not dis-entitle them from having rights. Additionally, in a legal context, there must be a paradigm shift of realization that non-human animals are not property and constitute a valid legal entity whose interest can and should be given consideration, not because human beings have a space for compassion towards them but because of their ability to create this space by the means of their intrinsic sentient nature. However, even after agreeing with the fact that animals do have and deserve rights (although the extent of the same still remains unclear), if rights of human beings are put at a higher pedestal, this shall not amount to any discriminatory practice, if such preference is reasonable, which is the present case as by limiting experimentation to animals only, the behaviour of human beings towards animals is not further deteriorated, rather it is only improved (or not deteriorated as that of other animals) for few human beings (who are brain-damaged).

Mihir is a 3rd year law student of NUSRL, Ranchi and has keen interest in developing legal philosophies.


  1. Jena, N. P. (2017). Animal Welfare and Animal Rights: an Examination of some Ethical Problems. Journal of Academic Ethics, 15(4), 377–395.

  2. Carl Hildebrand, Compassion and the Moral Law in Dalai Lama Centre for compassion, 2016.

  3. Kramer, M. H. (2001). Do Animals and Dead People Have Legal Rights? Canadian Journal of Law & Jurisprudence, 14(1), 29–54.

  4. Schmidt, A. T. (2018). Persons or Property – Freedom and the Legal Status of Animals. Journal of Moral Philosophy, 15(1), 20–45.

  5. Kagan, S. (2015). What’s Wrong with Speciesism? (Society for Applied Philosophy Annual Lecture 2015). Journal of Applied Philosophy, 33(1), 1–21.

  6. Stucki, S. (2020). Towards a Theory of Legal Animal Rights: Simple and Fundamental Rights. Oxford Journal of Legal Studies, 40(3), 533–560.

  7. Singer, P. (2015). Why Speciesism is Wrong: A Response to Kagan. Journal of Applied Philosophy, 33(1), 31–35.

  8. Mahajan, V.D. Jurisprudence & Legal Theory (Eastern Book Company) in Fifth Edition, 2012.

  9. Parrish, R. (2005). An introduction to rights. Human Rights Review, 6(2), 114–117.

  10. Edmundson, W. A. (2014). Do Animals Need Rights? SSRN Electronic Journal. Published.