In defence of sentient rights

The overall aim of Raffael Fasel’s excellent book More Equal than Others is to promote the ‘Species Membership Approach’ (SMA) as the way to award and protect ‘fundamental rights’ (the basic legal rights of individuals that are vital for securing their well-being). It is contrasted with the so-called ‘Meritocratic Approach’ (MA) that assigns rights based on individual characteristics, leaving those without said characteristics excluded from rights. And it is contrasted with the ‘Aristocratic Approach’ (AA) that assigns equal rights to all within a specified group, which traditionally has only been humans. The SMA offers a different way forward by keeping the egalitarian nature of the AA, whereby all humans are recognised as having equal rights. But, the SMA departs from the AA by recognising, akin to the MA, that humans are not the only group who can merit fundamental rights. Rather than assigning rights based on individual characteristics like the MA, the SMA instead extends them on the basis of species membership. This is a provocative and important new approach to our thinking on fundamental rights and it has numerous virtues. Nonetheless, while Fasel is right that some deference to groups is inevitable when assigning rights, it is crucial that we think carefully about the groups which count as relevant. And it is here where I believe Fasel’s argumentation goes astray. I maintain in this paper that sentience—both as an individual characteristic and a relevant grouping—is the proper basis for assigning fundamental legal rights. It further argues that Fasel’s own dismissal of sentience, a position with which he engages at some length, is flawed. In the first section of the paper, I briefly outline my own ‘sentient rights’ approach, and explain how it tackles the problems that Fasel identifies with alternative approaches for awarding fundamental legal rights. In the next two sections, I then confront and rebut the two objections that Fasel makes of this approach: that it inevitably leads to humans losing out to animals when their interests clash; and second, that it cannot award rights of equal value to individuals on the basis that sentience is scalar (comes in degrees). The fourth and final substantive section claims that the SMA’s prioritisation of pragmatism over moral relevance in the award of legal rights is flawed and may in fact stall progressive changes for non-human animals.