More Equal Than Others: A Response

Raffael Fasel

Univeristy of Cambrigde

Having expressed my sincere gratitude to the respondents in the Introduction to this Symposium, I would like to start by addressing Alasdair Cochrane’s characteristically penetrating remarks. It may be an occupational hazard for academics to overstate rather than understate contrasts between their work and that of like-minded thinkers. It looks as though I am guilty of that myself as I seem to have given the impression that my argument for the Species Membership Approach (SMA) is intended to reject Cochrane’s theory outright. Far from it. I take his to be one of the most attractive arguments for why we should include animals in our moral and political circles. As such, it should be defended, not dismissed. However, I am more sceptical about its potential, at least in the short run, to bring on board those (I shall call them ‘the critics’) who are worried that extending fundamental legal rights and cognate entitlements to animals would water down the high status and equal rights of human beings. Convincing these critics is what I refer to as Salaville’s Challenge in the book. Cochrane’s powerful rejoinder in this symposium notwithstanding, I think that his theory is less likely to satisfy the critics than the SMA, for three reasons.

First, on Cochrane’s theory, when human interests conflict with animal interests, the latter win out when they are considered weightier. This can also happen under the SMA. However, it need not happen if the SMA is operationalised in ways that allow human interests to trump animal interests. Cochrane is certainly right to point out that there are situations in which we already accept that humans can lose out to animals. However, there are also situations in which many people would not find it acceptable if animal interests outweighed human interests. For example, following Cochrane’s theory, in a conflict between the right to life of an animal with great mental complexity and the right to life of a human with lesser mental complexity, the former would win out. This may be a feature in Cochrane’s eyes, but it will be a bug in the eyes of the critics.

Second, although the possession of sentience has become a widely used criterion for recognising animals morally and legally, an approach like Cochrane’s, which purports to ground rights and equality solely in sentience, is less likely to meet Salaville’s Challenge than the SMA. My qualms are less with Cochrane’s use of sentience as a criterion for moral and political consideration – I have myself used it in some of my work – but rather with his belief that grounding equal status and rights in sentience alone will be at least as compelling to the critics as the SMA. This is questionable not only because there are humans, such as persons with permanent brain damage, who fail to be sentient altogether and who would therefore presumably not be granted equal status in Cochrane’s theory. But the critics will also be worried that the jury is still out on whether sentience is indeed a binary property, which it would have to be for sentience to provide the solid foundation for equality that Cochrane needs it to be. As I suggest in my book, Cochrane can overcome this problem by stipulating that sentience should be taken to be a binary property, whether or not it really is, but in so doing, he effectively aligns himself with the SMA.

Finally, Cochrane compellingly flags some of the risks of using species membership as a criterion for assigning rights to animals. To be sure, these are not risks that the critics will be concerned about. However, for what it is worth, I agree with him that it is problematic to reify existing biases against factory farmed animals and animals belonging to species deemed less close to us than, say, chimpanzees. Still, it seems to me that some of these prejudices are just as likely to be prejudices based on the purposes for which we use these animals – e.g. animals used for food versus companion animals – rather than prejudices against specific species. Moreover, even if they were species-based prejudices, there is nothing inherent in the SMA that requires it to be applied only to those kinds of animals who are most like us. For instance, octopuses are likely to score high on both criteria of the SMA – merit (they are proven to be sentient creatures with complex interests) and feasibility (humans have few vested interests in them) – despite being as different to us as one could possibly imagine.

Jonathan Herring intriguingly suggests that my book might be a ‘good answer to the wrong question’. In particular, he is worried that my focus on the opposing fundamental rights conceptions of what I call the Aristocracy and Meritocracy neglects viable – and perhaps superior – alternatives. Recommending that we take humans with profound disabilities as our starting point, he arrives at ‘that which generates the highest moral status: relationships of care, interdependence, and mutuality’.

I share Herring’s view that a relational ethics – which I understand as an ethics centred on dependent and embodied creatures – is an appealing alternative to ethical theories that are focused on disembodied and atomistic individuals. However, I am less certain than Herring that relational theories represent an alternative to the Aristocratic and Meritocratic conceptions. While my book does not exclude the existence of alternative theories that cannot be located on the spectrum between the Aristocratic and Meritocratic ideal types, I believe that many relational theories can.

Of course, all depends on the exact nature of the relational theory at hand. However, as I understand them, many relational theories manifest both Aristocratic and Meritocratic elements. On the Meritocratic side, at least some relational theories, such as Maneesha Deckha’s, are willing to extend legal protection to the more-than-human world, for they recognise that non-humans possess relationality, too. What is more, relational theories are often presented as grounding the demand for such protection empirically in the relational nature of the creatures and the real and existing relations such animals have with humans and other animals. Yet, relational theories do not take this Externalist approach as far as other theories do. Some relationalists, for instance, resist the conclusion that animals who have fewer relationships – think for example of highly solitary animals like wolverines – are not deserving of any protection. Indeed, this is where relational theories tend to borrow from the Aristocracy: they adopt an at least partly Internalist approach by claiming that all relational beings matter, regardless of the degree to which they are actually relational. What is more, relational theories are Aristocratic insofar as they are willing to grant a high and equal status to all those who are deemed to possess relationality.

To be sure, analysing the relational approach with the aid of the Aristocracy-Meritocracy framework may neglect aspects that other framings capture. However, I hope the above still shows that my framework can be enlightening even when it comes to relational theories, and that it therefore does not entirely answer the wrong question.

Anne Phillips similarly takes me to task about what she views as an ‘overly simplistic division into two approaches’. She criticises my theory for neglecting the existence of egalitarians like her who reject the view that equality is necessarily connected with human dignity and rights.

While my book discusses Phillips’s theory at some length in Chapter 3, I am guilty as charged in this respect. She may be perfectly right that equality, dignity, and rights ought not to be conflated. However, this does not change the fact that, in human rights theory and practice, they virtually are always viewed as inseparable values – something I take to be echoed in Merris Amos’s contribution. Indeed, the connection between these values is one of the lynchpins of the post-World War II order. The UN Charter, for instance, declares in its preamble the need ‘to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small’. In a similar vein, the first preambular paragraph of the Universal Declaration of Human Rights states: ‘Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. Because the aim of my book was to construct the Aristocratic ideal type based on the central values and practices informing contemporary human rights theory and practice, I do not think it would have been judicious to introduce distinctions between dignity, equality, and rights that are not commonplace.

Phillips also queries whether applying the SMA might bring about a species hierarchy. This is a worry worth taking seriously, and it echoes Cochrane’s above-mentioned criticism. Phillips is correct that the SMA can, and probably will, be applied in ways that give different sets of rights to different types of species. However, a hierarchy does not necessarily follow from this, at least if by this we understand a type of ranking in which those lower down are considered less advantaged than those further up. Suppose for example that a society decided to grant the rights to life, bodily integrity, and family life to chickens on the basis that they are sentient and social creatures with an interest in continued existence. Suppose also that the same society granted the rights to life and bodily integrity, but not the right to family life, to tigers on the basis that tigers are solitary animals who only meet to reproduce. Has this society created a hierarchy between chickens and tigers? Considering that the tigers, on this assumption, have no interest in a right to family life, they cannot obviously be said to be lower down in any hierarchy.

Of course, Phillips has got a point insofar as any creation of different sets of fundamental rights bids farewell to the oft-encountered notion that human rights are indivisible, that is, that human rights come wholesale. However, this notion has been challenged on the ground that human beings already possess differing sets of rights – think for example of the different rights that children and adults possess. Even if the idea of indivisibility can be salvaged, it at most amounts to a conditional claim that a human being can be said to possess any given right (say the right to vote) although they may not currently meet the relevant conditions for exercising that right (say reach the age of majority and be a citizen). If this is what indivisibility boils down to, then bidding farewell to it is less of a price to pay than would appear at first glance.

I acknowledge in my book that the extension of rights and other legal entitlements via the SMA is bound to come with some arbitrariness of its own as the aim of the SMA is not to eradicate arbitrariness in law – a futile endeavour – but to help make laws that are less arbitrary. Amos and Phillips are right to press me on the many practical questions this raises. The book only gestures at how some of these questions might be answered and I will make no attempt to expand on it here. I hope that others will take up the baton and help shed more light on these issues.

Instead, let me end by briefly considering Amos’s last question, namely whether animal rights proponents are at risk of placing all (vegan) eggs in one basket by focusing on rights rather than other avenues for protecting animals’ interests, such as duty-based frameworks. I have some doubts as to whether a duty-based framework would be very different from a rights-based framework, considering that rights and duties can – and often are – conceptualised as correlatives. However, it would be intriguing to see how Amos would flesh out such a framework, not least because it also amplifies Herring’s call for a relational approach. As I say in the book, rights are no magic bullet. Securing better protection for animals will therefore require a multi-pronged strategy, with rights playing some, but by no means the only role. Above all, what this highlights is the need for those interested in improving the lot of animals to continue the conversation, and it is in this spirit that my response here was written.

Raffael Fasel is an Assistant Professor in Public Law and Fellow of Jesus College at the University of Cambridge.

Suggested Citation: Raffael Fasel, ‘More Equal Than Others: A Response’, IACL-AIDC Blog (18 February 2025) More Equal Than Others: A Response — IACL-IADC Blog