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Natural Law and Animal Rights

Published online by Cambridge University Press:  20 July 2015

Gary Chartier
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Extract

The new classical natural law theorists have been decidedly skeptical about claims that non-human animals deserve serious moral consideration. Their theory features an array of incommensurable, nonfungible basic aspects of welfare and a set of principles governing participation in and pursuit of these goods. Attacks on animals’ interests seem to be inconsistent with one or more of these principles. But leading natural law theorists maintain that animals do not participate in basic aspects of well being in ways that merit protection, that the so-called “argument from marginal cases” is unsuccessful as a basis for claims that animals have moral standing, and that affirming that animals have rights leaves one with no basis for maintaining that humans do as well. In response, I suggest that animals can be understood to participate in some aspects of well being, defend the argument from marginal cases, and offer reasons why we might believe that affirming that animals have rights does not undermine the claim that humans have rights.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 23 , Issue 1 , January 2010 , pp. 33 - 46
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2010

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References

1. Hereinafter, I will use “NCNLT” to mean “new classical natural law theory Grise” and “NCNLTs” to mean new classical natural law theorists.

2. Humans are animals. It would be nice, in the interests of accuracy, to say “non-human animals” repeatedly, rather than “animals,” since the use of the latter might be seen to imply a rigid dichotomy between human and non-human which I would prefer to contest than to endorse. I will, how, avoid the constant use of “non-human animals” simply because it is overly long and implicitly preachy.

3. I owe the phrase “the Pauline principle” to Donagan, Alan, The Theory of Morality (Chicago, IL: University of Chicago Press, 1977) at 149.Google Scholar For its use by NCNLTs, see Finnis, John, Fundamentals of Ethics (Oxford: Oxford University Press, 1983) at 109 Google Scholar [Ethics]. The use of “Pauline” reflects St. Paul’s passionate rejection, in Romans 3:8, of the injunction, “Let us do evil, that good may come.”

4. Finnis, John, Natural Law and Natural Rights (Oxford: Oxford University Press, 1981) at 194–95 [Law].Google Scholar To be clear: Finnis’s primary goal here is not to articulate a position regarding the moral status of animals but rather to argue against the treatment of human beings with limited capacities as if they were no different from non-human animals. His argument is thus less well developed than it would be were animal rights his focus. I believe, nonetheless, that I have fairly represented the points he wants to make in the cited passage against any sort of moral equivalence between human and non-human animals.

5. Finnis does not articulate this assumption, but his argument seems to me to depend on it. Otherwise, the claim that sentience is the only thing humans and animals with rights have in common would seem to be irrelevant.

6. Compare Clark, Stephen R. L., “Enlarging the Community,” The Political Animal: Biology, Ethics, Politics (London: Routledge, 1999) at 155–66 Google Scholar; Clark, Stephen R. L., The Moral Status of Animals (Oxford: Oxford University Press, 1977) at 24–25 Google Scholar; Hess, Elizabeth, Nim Chimpsky: The Chimp Who Would Be Human (New York: Bantam, 2008).Google Scholar

7. Compare Clark, Stephen R. L., The Nature of the Beast: Are Animals Moral? (Oxford: Oxford University Press, 1982) at 59.Google Scholar

8. Compare Clark, ibid. at 16, 30.

9. As I have indicated I think there is some reason to prefer a different list of basic aspects of well being than the one for which the NCNLTs opt. However, because the NCNLTs themselves do not acknowledge as basic aspects of well being aspects of existence which seem to me to be basic dimensions of well being and in which I believe non-human animals arguably participate, I want to avoid the appearance of introducing them here to salvage an argument incapable of being defended on other grounds. I do not need to introduce these elements to ensure that my argument is viable.

10. See Grisez, Germain, The Way of the Lord Jesus 1: Christian Moral Principles (Chicago, IL: Franciscan Herald, 1983) at 122–23 Google Scholar; Finnis, Law, supra note 4 at 51-99; Finnis, John, Aquinas (Oxford: Oxford University Press, 1998) at 58–61 Google Scholar [Aquinas]; Finnis, Ethics, supra note 3 at 51-52. Compare Gómez-Lobo, Alfonso, Morality and the Human Goods: An Introduction to Natural Law Ethics (Washington, DC: Georgetown University Press, 2002) at 9–10 Google Scholar; Chappell, Timothy, Understanding Human Goods: A Theory of Ethics (Edinburgh: University Edinburgh Press, 1995) at 35–36 Google Scholar; Murphy, Mark C., Natural Law and Practical Rationality (Cambridge: Cambridge University Press, 2001) at 40.Google Scholar

11. Finnis, Law, supra note 4 at 195.

12. Finnis, Aquinas, supra note 10 at 82, note 110; Grisez, Germain & Shaw, Russell, Beyond the New Morality, The Responsibilities of Freedom, 3rd ed. (Notre Dame, IN: University of Notre Dame Press, 1988) at 24.Google Scholar On the meaning of “radical” here, see Finnis, Aquinas, supra note 10 at 179: “the essence and powers of the soul are given to each individual complete (as wholly undeveloped radical capacities) at the outset of his or her existence as such. This is the root of the dignity we all have as human beings” [footnotes omitted].

13. Of course, if sensory pleasure is rightly regarded as a basic good then, because the bare sentience considered here could participate in this good an entity possessed of this sentience could reasonably be understood to be a right-holder. But I do not think I need to show that sensory pleasure is inherently valuable to establish the claim I am trying to defend here.

14. The sentience criterion helps to explain why babies are moral subjects and plants are not. The relationship between sentience and participation in goods other than life helps to make the appeal to sentience here non-arbitrary.

15. Finnis, Law, supra note 4 at 194-95.

16. See Stephen R. L. Clark, “Is Humanity a Natural Kind?” Animal, supra note 6, at 40-58.

17. Finnis, Aquinas, supra note 10 at 176 [footnote omitted; italics added].

18. Finnis, ibid. at 176, note 206.

19. Finnis, ibid. at 79.

20. Finnis, Law, supra note 4 at 195.

21. Finnis, Aquinas, supra note 10 at 176.

22. But compare Timothy Chappell, supra note 10 at 127-42 (see esp. 141, note 37).

23. Finnis, Aquinas, supra note 10 at 82, note 110 (“only rational beings, capable [at least radically] of participating in these goods by understanding, deliberation, and free choice, can in the focal sense have goods and so, by sharing them live in societate and friendship with each other”).

24. The question whether human nature is possessed by each human individual from the moment of conception is obviously highly controversial. But acknowledging that non-human animals have rights is compatible with conflicting answers to this question, so it can be left to one side.

25. Finnis, Aquinas, supra note 10 at 179-80 [footnotes omitted].

26. Plotnik, Joshua M., de Waal, Frans B. M., & Reiss, Diana, “Self-Recognition in an Asian Elephant” 103.45 (Nov. 7, 2006) Proceedings of the National Academy of Sciences at 17053–57.CrossRefGoogle Scholar

27. For instance, farm animals obviously have not generally been bred for cleverness and independence of thought.

28. Compare Clark, “Humanity”, supra note 16.

29. The requirements of practical reasonableness “direct action only toward intelligible human goods, and lower animals simply cannot be fulfilled by sharing in those goods”: Grisez, Germain, The Way of the Lord Jesus 2: Living a Christian Life (Chicago, IL: Franciscan, 1994) at 785.Google Scholar

30. Grisez, ibid. at 784-85. Grisez does not make the explicit allegation of self-contradiction I make here; instead he appeals to a belief he assumes he shares with his readers—that there are objective moral norms—and suggests that the affirmation of animal rights undermines this belief

31. Compare Grisez, ibid. at 785.

32. Finnis, Aquinas, supra note 10 at 111.

33. See Finnis, Aquinas, supra note 10 at 111-12 (noting how friendship and cooperation counter egoism).