‘In Defence of Sentient Rights’ – A Response to More Equal than Others by Raffael Fasel

Alasdair Cochrane

University of Sheffield

More Equal than Others is a tremendous contribution to the literature on human and animal rights: it is lucid, clear and beautifully argued. It offers a genuinely new approach to the award of fundamental rights – the Species Membership Approach (SMA) – that is extremely compelling.

To summarise it briefly, and to help make sense of my comments, the ultimate aim of the book is to promote the SMA as the best way to award and protect fundamental legal rights. This in virtue of the fact that it offers a ‘third way’: taking benefits from so-called Meritocratic and Aristocratic Approaches (MA and AA). The MA assigns rights based on individual characteristics, asking whether an individual has the required ingredient – autonomy, moral agency, sentience, etc - to get rights. The AA assigns equal rights to all within a specified group; and in nearly all current legal systems, that group is human beings (but as we know, that can often be men, or propertied white men).

The MA has the benefit of being non-arbitrary in the way that it assigns rights, focusing on what really counts morally speaking. But it has the serious danger of having extremely harmful impacts on those who don’t have, or don’t have enough of, the meritocratic characteristic. Think, for example, about the impact on young infants if moral agency were the ground of fundamental rights.

The AA has the benefit of assigning equal rights to all within the relevant group, irrespective of their individual characteristics. But it has the problem of excluding from fundamental rights all of those outside of the relevant group, even when it seems they might deserve them. Think, for example, about the impact on nonhuman animals when rights are exclusively awarded to human beings.

The SMA offers a different way forward by keeping the egalitarian nature of the aristocratic approach, so that all humans have equal rights. But, like the meritocratic approach, it also recognises that more-than-humans merit fundamental rights – so extends them to other groups of species, as species members.

Let me focus on two specific attributes of the book that I think are especially useful. In the first place, its cross-disciplinary travels are incredibly illuminating. It impressively employs law, philosophy, politics and intellectual history (with a smattering of biological science too) to make its case. The intellectual history is especially noteworthy. When you hear the meritocracy and aristocracy mapped out like this, they not only resonate with current debates, but Fasel shows that they in fact go right back to the eighteenth century in a debate between the Enlightenment French philosophers, Jean-Claude Delamétherie and Jean-Baptiste Salaville.

Second, the search for a pragmatic and politically viable way forward for legal rights is important. Not only is it true that moral rights should not obviously map on to legal rights and the legal regime, for there may be good reasons socially, culturally, or politically not to do so; but I also think the point made that the law needs to work – to some extent – with group-based differentiations is important. Laws and rights cannot be sufficiently fine-grained that they can be assigned, attributed and protected bespoke for each individual potential rights-holder.

So, if Fasel is right and that some deference to groups is inevitable, it is crucial we think about which ones are relevant. Here is where my main criticism of the book begins. For I think, and have defended the view in my book Sentientist Politics, that the relevant group comprises all those who are ‘sentient’. Fasel, considers the sentient rights view I defend, but rejects it on two grounds. Before considering his objections, let me briefly summarise the approach below.

I try to resolve the problem Fasel identifies between the MA and AA through sentience (the capacity to have positive and negative experiences). Unlike the MA where individual capacities determine the relative weight and value of your rights, sentience gets you into the ‘rights club’ as an equal member. Like the AA, then, there is equal value and equal rights on a group-basis – but the relevant group is all sentient creatures. This is because all members of this group can experience their lives, have a stake in how their lives fare, and in other words, possess interests.

Fasel has two problems with the approach. First, he points out that sometimes humans will lose out to animals when their rights clash. I think that is true. But that is a virtue of the account rather than a vice – the human supremacism of existing political and legal structures is biased and unjustifiable. But Fasel points out, quite reasonably, that society is not ready for such a radical transformation yet; implementing a regime where humans will lose out is not only unsustainable but also very dangerous in current societies.

I understand the concern, but think it is probably overstated. Even in current societies, human interests can lose out to animal ones in some contexts: humans may have a right to kill animals, but that does not extend to certain endangered species; humans may have an interest in being entertained, but that does not extend to bear-baiting; humans may have a right to freedom of religion, but that does not extend to religious slaughter. Humans already lose out to animals – we can and do accept that – just in limited cases. Our aim should be to explore which other contexts animals’ interests should take priority.

Fasel’s second critique of sentient rights is to claim that sentience is not binary; rather, it is something you can have more or less of. We might legitimately surmise, for example, that a gorilla has very different experiences, both in terms of content, intensity and duration, compared to a goldfish compared to a gorilla. But if sentience comes in degrees, this approach does not and cannot lead to equality among sentient creatures, but ends up with the meritocratic problem of assigning more value and rights to the more sentient.  

I understand the point, and the claim about sentience coming in degrees has been made by others, but I think it rests on a confusion. It trades on the understandable and justified idea that different individuals have quite different forms of experience. As we have seen, a goldfish and a gorilla, for example, experience the world in very different ways. That’s true. Clearly, there are further and more radical differences when we extend our analysis to include the different experiences of many more animals: think, just as two examples, of whales who use echolocation, and or octopuses who basically have brains in each of their legs. 

Because of these different experiences, different sentient individuals have very different interests: some might be quite rudimentary (food, absence of pain, etc); while some might be quite complicated (dignified work, world peace, etc.). Furthermore, when creatures have the same interests, they may have different strengths of interests: for example, a gorilla’s interest in continued life may be stronger than a goldfish’s on the basis of the gorilla’s ability to project further into the future, and formulate plans about that future.

In spite of these differences in experience and in interests, an individual is either a sentient creature with interests and a stake in their own life, or they are not. It may be true that there are hard cases where we cannot be sure if sentience is present: insects, human foetuses, etc. But there is still this difference between whether an individual has positive and negative experiences, or does not. Indeed, while Fasel borrows the analogy that sentience is like a dimmer switch that you can turn up and down to make the light brighter or dimmer, as other philosophers of consciousness have said: a dimmer switch is still either off or on.

My point, then, is if the switch is ‘on’, even dimly, then that individual has a stake in their life, has interests, and has a right to those interests being considered equally.

Not only can the sentient rights view resist the objections that Fasel makes of it, but I also think that it offers advantages over his own SMA. The biggest and most obvious problem with the SMA is deciding which species get rights. Fasel claims that this should be done on the basis of two criteria: merit and pragmatism. But when it comes to merit (what makes an individual deserving) he says very little. This problem could be resolved by providing some account of what it is that makes any species deserving. So, more worrying than this absence is the fact that Fasel claims merit can be trumped by pragmatism.

If we are being pragmatic, as Fasel urges, it may be that only those species closest to us – in terms of attributes or in terms of our feelings towards them – end up getting fundamental rights. And it is telling that so many of the examples that Fasel uses – like Minnie and like Knuckles – are chimpanzees, elephants and other large charismatic animals that we are warmly disposed towards.

Where does that leave the overwhelming majority of animals who suffer the most serious harms: for example, the chickens, the pigs, the cows who are bred, confined, mutilated and slaughtered in industrial agriculture?

The answer, of course, is that society is not ready to grant them rights yet. And Fasel is quite clear that his is not the correct philosophical account of rights – it’s not intended to be. Instead, it is a pragmatic and politically viable way of attributing fundamental legal rights in current societies in a less arbitrary way.

I understand this point, and believe it is a worthy goal. But I worry whether his approach will really lead to a system that is less arbitrary. After all, by reifying ‘species’, the SMA provides a justification for entrenching existing biases. For example, under the SMA, it seems plausible to extend rights to chimpanzees because they belong to the right species, while denying them to chickens because they belong to the wrong one. In other words, existing prejudices based on species are not only left unchallenged, but are cemented and justified. This, in fact, may stall more fundamental change.

This is why I believe that when it comes to assigning fundamental legal rights, it is better to eschew species altogether and instead focus on what is morally relevant – sentience – and promote this as what should be legally relevant. That does not mean that we introduce and impose a full list of sentient rights wholesale with immediate effect; that would be unsustainable and damaging in the long run. Instead, we should use sentient rights as a rough blueprint to guide the changes and reforms we push for now.

Ultimately, I am not convinced that the SMA is necessarily the best practical proposal we have available for that task. Nonetheless, it remains a completely novel and provocative proposal that is sure to stimulate much debate across a range of fields.

Alasdair Cochrane is Professor of Political Theory, Department of Politics and International Relations, University of Sheffield

Suggested Citation: Alasdair Cochrane, ‘In Defence of Sentient Rights’ – A Response to More Equal Than Others by Raffael Fasel’, IACL-AIDC Blog (11 February 2025) ‘In Defence of Sentient Rights’ – A Response to More Equal than Others by Raffael Fasel — IACL-IADC Blog