Can Non-Human Animals Have Rights?

On a threshold for rights, and whether brokering rights to Nonhuman Animals is enough for an absolute grounding.

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Format of our Discussion

How did we get here?
A brief history (Antiquity-Now)

Prospects for a Threshold:

Rawls Contractarian Approach Tom Reagan Inherent Value - Subjects of a Life Richard A Epstein Rights via Property? Rosalind Hursthouse Virtue Ethics - Rights in Practice

A Brief History (Antiquity Medieval)

Ancient World Virtuous Behavior and Animals
Pythagoras
Human and nonhuman souls were reincarnated from human to animal and vice versa (Justice & Politics) Animals lacked reason (logos), thought (dianoia, nous), and belief (doxa) (The Great Chain of Being) The Robbing of Life (On Moral Characters) Non-violence as a virtue (Kalpa Sutra)

Aristotle Theophrastus Jainism

Medieval World Man as Caretaker

Christianity The Book of Genesis Mans Dominion over animals
St Augustine
Jesus allowed the 2,000 Gadarene swine to drown to demonstrate that man has no duty of care toward animals. "Christ himself shows that to refrain from the killing of animals and the destroying of plants is the height of superstition (The Catholic and Manichaean Ways of Life) Human beings should be charitable to animals only to make sure that cruel habits do not carry over into our treatment of other humans, or cause a financial loss to the animal's owner. "If in Holy Scripture there are found some injunctions forbidding the infliction of some cruelty toward brute animals ... this is either for removing a man's mind from exercising cruelty towards other men ... or because the injury inflicted on animals turns to a temporal loss for some man ... (Summa Contra Gentiles)

St Thomas Aquinas

Islam
Mohammed - Acknowledging internal states
To let an animal see you sharpen your knife is to kill it twice (Islamic Concern for Animals)

A Brief History (17th 18th Century)

17th Century Animal as Automata
Descartes Mechanistic Theory of the Universe (The Meditations)
Mind, for Descartes, was a thing apart from the physical universe, a separate substance, linking human beings to God. Hence, the nonhuman were othing but complex automata (NO souls, minds, reason; YES see, hear, suffer) Animals did have feelings, and that unnecessary cruelty toward them was morally wrong, but that the right not to be harmed adhered either to the animal's owner, or to the human being who was being damaged by being cruel "For the custom of tormenting and killing of beasts will, by degrees, harden their minds even towards men. (Some Thoughts on Mans Education)

Locke

18th Century Animal Sentience

Rousseau
" ... it is clear that, being destitute of intelligence and liberty, [animals] cannot recognize that law; as they partake, however, in some measure of our nature, in consequence of the sensibility wherewith they are endowed, they ought to partake of natural right; so that mankind is subjected to a kind of obligation even toward the brutes. (Discourse on Inequality) "Other animals, which, on account of their interests having been neglected by the insensibility of the ancient jurists, stand degraded into the class of things. ... The day has been, I grieve it to say in many places it is not yet past, in which the greater part of the species, under the denomination of slaves, have been treated ... upon the same footing as ... animals are still. The day may come, when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny. The French have already discovered that the blackness of skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor. It may come one day to be recognized, that the number of legs, the villosity of the skin, or the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being to the same fate. What else is it that should trace the insuperable line? Is it the faculty of reason, or perhaps, the faculty for discourse?...the question is not, Can they reason? nor, Can they talk? but, Can they suffer? Why should the law refuse its protection to any sensitive being?... The time will come when humanity will extend its mantle over everything which breathes... " (1789)

Bentham

A Brief History (19th Century Present Day)

19th Century Man as Animal
Schopenhauer
, because Christian morality leaves animals out of account ... they are at once outlawed in philosophical morals; they are mere "things," mere means to any ends whatsoever. They can therefore be used for vivisection, hunting, coursing, bullfights, and horse racing, and can be whipped to death as they struggle along with heavy carts of stone. Shame on such a morality that is worthy of pariahs (On the Basis of Morality)

Darwin
"Animals whom we have made our slaves we do not like to consider our equals. Do not slave holders wish to make the black man other kind? (1837) "There is no fundamental difference between man and the higher mammals in their mental faculties,"
attributing to animals the power of reason, decision making, memory, sympathy and imagination.

Nietzsche
"The sight of blind suffering is the spring of the deepest emotion. "For man is the cruelest animal. At tragedies, bull-fights, and crucifixions hath he hitherto been happiest on earth; and when he invented his hell, behold, that was his heaven on earth.

John Rawls The Contractarian Approach

Certainly it is wrong to be cruel to animals.... The capacity for feelings of pleasure and pain and for the forms of life of which animals are capable clearly impose duties of compassion and humanity in their case. I shall not attempt to explain these considered beliefs. They are outside the scope of the theory of justice, and it does not seem possible to extend the contract doctrine so as to include them in a natural way.(TOJ)
Rationality ends up being a criterion of membership in the moral community: because the procedure imagines that people are choosing principles for themselves.
But one might imagine things differently, including in the group for whom principles of justice are included many creatures who do not and could not participate in the framing. One may perceive the animal itself as an agent and a subject, a creature in interaction with whom we live, and broker rights to them on their behalf Martha Nussbaum argues that animals need a right to life, some control over their environment, company, play, and physical health. But is Brokering too weak?

Tom Regan Subjects of a Life

An animal's moral claim is equivalent to a moral right, any action that fails to treat the animal as a being with inherent worth would violate that animal's right and is thus morally objectionable. As such, to treat an animal as a means to some human end, as many humans do when they eat animals or experiment on them, is to violate that animal's right
animals are treated routinely, systematically as if their value were reducible to their usefulness to others, they are routinely, systematically treated with a lack of respect, and thus are their rights routinely, systematically violated. Thus, Any being that is a subject of a life has inherent worth and the rights that protect such worth, and all subjects of a life have these rights equally. Thus any practice that fails to respect the rights of those animals who have them, e.g. eating animals, hunting animals, experimenting on animals, using animals for entertainment, is wrong, irrespective of human need, context, or culture. Inherent worth Subject-of a life
[It] involves more than merely being alive and more than merely being conscious. ... individuals are subjects-of-alife if they have beliefs and desires; perception, memory, and a sense of the future, including their own future; an emotional life together with feelings of pleasure and pain; preference- and welfare-interests; the ability to initiate action in pursuit of their desires and goals; a psychophysical identity over time; and an individual welfare in the sense that their experiential life fares well or ill for them, logically independently of their utility for others and logically independently of their being the object of anyone else's interests. Those who satisfy the subject-of-a-life criterion themselves have a distinctive kind of value inherent value and are not to be viewed or treated as mere receptacles. there is something that it is like to be those individuals; they are the subjects of experience whose lives matter to them, even if they do not matter to anyone else Is this deontoligical approach too strong?
If it is, are we left interests of the animal (as mentioned prior), is this enough to guarantee rights?

Response

Richard Epstein Rights as Property

Animals that are left to their own devices may have no masters; nor do they have any peace. Life in the wild leaves them exposed to the elements, to attacks by other animals, to the inability to find food or shelter, to accidental injury, and to disease. The expected life of animals in the wild need not be solitary, poor, nasty, brutish, and short. But it is often rugged, and rarely placid and untroubled. Human ownership changes this natural state of animals for the better as well as for the worse. Because they use and value animals, owners will spend resources for their protection. Veterinary medicine may not be at the level of human medicine, but it is only a generation or so behind. When it comes to medical care, its better to be a sick cat in a middle -class U.S. household than a sick peasant in a Third World country. Private ownership of many pets (or, if one must, companions) gives them access to food and shelter (and sometimes clothing) which creates long lives of ease and comfort. Even death can be done in more humane ways than in nature, for any slaughter that spares cattle, for example, unnecessary anxiety, tends to improve the amount and quality of the meat that is left behind. perfect concurrence between the interests of humans and animals: Ownership is not tantamount to partnership. But by the same token there is no necessary conflict between owners and their animals. Over broad areas of human endeavor, the ownership of animals has worked to their advantage, and not to their detriment. Reply from Gary Francoine
Because animals are the property of humans, laws that supposedly require their "humane" treatment and prohibit the infliction of "unnecessary" harm do not provide a significant level of protection for animal interests. For the most part, these laws and regulations require only that animals receive that level of protection that is required for their use as human property. Animals only have value as commodities and their interests do not matter in any moral sense. As a result, despite having laws that supposedly protect them, Francione contends that we treat animals in ways that would be regarded as torture if humans were involved. We could regard animals better under a conception of property however the relationship between economic forces and property prevents any one person from maintain strict control over the animal-as-property right

Rosalind Hursthouse Virtue Ethics

I began to see [my attitudes] that related to my conception of flesh-foods as unnecessary, greedy, self-indulgent, childish, my attitude to shopping and cooking in order to produce lavish dinner parties as parochial, gross, even dissolute. I saw my interest and delight in nature programmes about the lives of animals on television and my enjoyment of meat as side by side at odds with one anotherWithout thinking animals had rights, I began to see both the wild ones and the ones we usually eat as having lives of their own, which they should be left to enjoy. And so I changed. My perception of the moral landscape and where I and the other animals were situated in it shifted.
A person striving for virtue comes to see that eating animals is wrong not because it is a violation of the animal's rights or because on balance such an act creates more suffering than other acts, but rather because in eating animals or using them in other harmful ways, we do not display the traits of character that kind, sensitive, compassionate, mature, and thoughtful members of a moral community should display. Rights grounded in Virtue?

Questions
Do Rights imply Obligations? Are members in the rights community obliged to be just? Do interests require belief states? Hence, a language? Thus, to have rights brokered to you, one must be able to communicate their interests? Possible other thresholds?