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Legally
protected rights and interests
Every right protects a particular interest. The legally granted
right to protect such interest doesn't depend on others beings
able to benefit with the loss of that right. It means a barrier,
a specific limitation in the actions of others, that only
gives way in predetermined circumstances in which the holder
of that right is the one that loses it. In the juridical system
the basic rights -that include not being treated as means
for other’s ends – has its origins in the person’s
juridical categorization.
Although some laws can look as if they granted rights to animals,
they aren't considered more than means for ends, granting
the " right " to be treated in a humane way, which
in practice means that the interests of the non human animals
and humans will be weighed and, as things (animals) cannot
be compared to persons (human), the animals will always lose.
Here, then, lies the reason for welfare laws not being protective
of animals. In fact, they promote tendencies to sell them,
to kill them, to eat them, to obtain earnings even at the
cost of their pain, to torture them, all of this under the
protection that the right of property grants over them, to
which the anti cruelty statutes can hardly react against.
Can animals have rights?
Historically, rights were created to favor the privileges
of a certain group. The theory of rights is secured with the
era of illumination in the western socio-political theory.
After that, many rights were extended further to include children
and those mentally incapacitated, even if these groups cannot
enter into obligations.
We are so used to the term 'animal' working as barrier to
separate humans from animals that, in addition to forgetting
that humans are also animals, we also forget that the term
animals includes about thirty million species. If there were
some dividing line to be traced, this would be the one that
separates sentient beings from non-sentient ones. Certainly,
as long as the beings in question are endowed with sensation,
we have duties towards them if we can harm them with our actions.
To state that we cannot kill or harm a human being but we
are allowed to do so to an animal, enlists us in an illogical
statement impregnated with arbitrariness. On the subject,
the inconsistency is rooted in speciesism. An animal endowed
with sensation should integrate our moral circle for reason
of justice. It is not necessary to feel special affections
to consider the interests of any sentient animal to live in
freedom and not be subjected to torture. This doesn't mean
to ignore relevant differences among the different species,
but rather that none can be enslaved institutionally to be
at the service of another.
From the perspective of Kelsen, holder of right is a construction
that relates to ' holders of duties’. That is, I am
entitled to a right to the extent that others have certain
obligations toward me tending to protect a certain interest.
In this sense, there are no problems in that the subjects
of rights are beings other than human beings. In the modern
legal philosophy this rights concept prevails. And it is in
this way that the American philosopher Tom Regan presents
it. We have the obligation of not harming beings with an inherent
value.
The Italian philosopher Norberto Bobbio said in “El
tiempo de los derechos” (The time of Rights), 1991: "The cast of the human rights has been modified and
is being modified with the change of the historical conditions,
that is, the needs, the interests, the classes in power, the
available means for its realization, the technical transformations,
etc. Rights that had been declared absolute at the end of
the eighteenth century, as the sacrée et inviolable
property , have been subjected to radical limitations in contemporary
declarations; rights that the declarations of the eighteenth
century didn't even mention, as the social rights, are now
proclaimed with great ostentation in all the recent declarations.
It is not difficult to foresee that in the future new claims
could appear that we don’t even can anticipate, as the
right to avoid carrying weapons against their will, or the
right to respect the life of animals also, and not only those
of men’s."
Once it is acknowledged that an animal can have rights, we
will have to determine which ones are entitled to them. Doubtless,
the first right that they deserve as sentient beings is the
right of not being a thing, not to be considered as property.
In such a case it is practically impossible to justify the
systematic use of animals in experiments, their use as food,
as clothes, for entertainment, etc. This would take justice
to the animal kingdom. But humans would also benefit enormously.
From the decrease of illnesses related to the consumption
of animal products, to an impressive reduction of the environmental
pollution, and finally to the recovery of an atrophied sensibility
that rebounds in the treatment given to our species partners,
increasing and/or allowing violence, as has already been noted
by philosophers of different eras and prominent contemporary
psychiatrists. The animal rights movement is thus joined to
that of all the oppressed human groups, because those who
reject speciesism also reject other forms of exploitation
and discrimination.
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