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Posted by on Jun 29, 2009 in Politics, Society | 8 comments

Note to Cass Sunstein: Animals Don’t Have “Rights”

President Obama’s selection to head the Office of Information and Regulatory Affairs, Cass Sunstein, is running into a stiff headwind regarding some previous writings on the subject of animals’ rights.

Sen. Saxby Chambliss (R-Ga.) has blocked President Obama’s candidate for regulation czar, Harvard law professor Cass Sunstein, because Sunstein has argued that animals should have the right to sue humans in court.

Indeed, in his 2004 book, Animal Rights: Current Debates and New Directions, Sunstein wrote: “I will suggest that animals should be permitted to bring suit, with human beings as their representatives, to prevent violations of current law.

As strange as it may sound, I happen to agree with the intents and goals of what Sunstein is saying, at least in some circumstances, but the phrasing is simply all wrong. This may sound like nothing more than an exercise in semantics, but the distinction is an important one.

I’ve spent a fair amount of time working as a volunteer for couple of Humane Society animals shelters and various cat rescue operations. That’s why it often comes as a surprise to some of my friends when I begin complaining about the antics and occasional borderline terrorist operations of groups like PETA.

Don’t you care about animal rights?” they ask me? I’m sorry to say, the answer is no. Because when it comes to affairs of human courts of law, animals don’t actually have any sort of inherent “rights.” What they have are protections, and even those are strictly limited to the specific protections we choose to assign to them. To be sure, I tend to come down heavily on the side of all the protections we can reasonably afford for our animal friends. Pets and livestock are in their current conditions because of systems we designed, and I do not wish to see any of them put to any discomfort which can reasonably be avoided.

But make no mistake… in terms of human courts of law, we hold all the cards by virtue of the place we carved out at the top of the food chain by dint of our overly large, meat fueled brains. And while I don’t want to see chickens, cows and pigs suffer needlessly, they are still food.

A helpful analogy can be constructed if you ever take one of those eco-exploration trips to the Indonesian island of Komodo. Should you wander away alone into the bush unarmed and come across a Komodo dragon, you will quickly develop a new perspective on rights. In American courts, as a U.S. citizen, you have a plethora of inviolable rights and many avenues to exercise and ensure them. In the situation described above, your list of rights quickly shrinks down to:

– your right to run as quickly as you possibly can, or
– your right to hope that you’ve stumbled across an extremely elderly Komodo Dragon with advanced arthritis.

Failing either of those, your sole remaining right will be to be bitten by the dragon and, shortly thereafter, die an agonizing and fairly horrific death. And if you don’t have a support team around you, you will also be eaten.

All rights are circumstantial and can change depending on the time and the framework. Our animal friends, I’m sad to say, don’t actually have rights. They can certainly have energetic, well intentioned human defenders who can bring suit in court, but the animal is never going to be the plaintiff in a sane world.

UPDATE: Steve Benen doesn’t take time to focus on the animal “rights” aspect, but has some interesting thoughts on how and when holds should be placed on nominations.

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  • GeorgeSorwell

    Thanks for the update to Benen.

    The real scandal in this, I think, is the ability of one Senator to shut down the whole process.

  • DLS

    Animals are not people. The activists, of course, are wrong again.

    A side note but one worth mentioning here is once again we see a “czar,” another manifestation of a disturbing phenomenon (is the administration dysfunctional, childish _and_ over-bureaucratic, or just euphemistic about a figurehead in order to manipulate again the opinion of manipulable people?).

  • JSpencer

    Great post Jazz, I believe you hit the nail on the head with this statement:

    All rights are circumstantial and can change depending on the time and the framework.

    In some cases I don’t view the idea of animals having “rights” to be necessarily far-fetched. Specifically, should some large intelligent creatures have the “right” to exist in the ecosystems they evolved in, at least to the extent they don’t become extinct? Of course a Tiger, a Gorilla, or a whale can’t got to court and advocate for it’s species, but he idea of “rights” is an ideal, not a promise and we choose where to draw the line. Placing the limits exclusively at one species strikes me as unimaginative at best, and unforgivable at worst. I’m no PETA member (I shoot a deer most years so I can have venison in the freezer) my opinions are informed by a lifetime of observing and reading about nature, and of course being a cat and dog owner. Somewhere between the absurdity of worrying about slapping flies, and the driving of some magnificent species to extinction, there has to be some rational middle ground.

  • satyadaimoku

    The whole Kimono dragon thing seems like a complete non-sequitor. You could be dropped in the middle of the jungle in New Guinea and find yourself on the run from a hostile indigenous tribe, and your argument would apply to them in equal force.

    The question of animal rights obviously cannot be answered without first establishing where rights come from. If you have a view that rights are derived from an implicit social contract, based on the possibility of mutual consent, then animals are not likely candidates, since an animal and a human cannot come to an even implied mutual agreement on rights. If you have a more positivist view based on the ratification of the Constitution, then needless to say animals aren’t going to win out there either. But OTOH, if you view rights as based on sentience or cognition, then it makes sense to suggest that higher animals might have some rights, although presumably not as many as human beings.

    Of course, it would be helpful in all of this to actually have read Sunstein’s argument, which I haven’t, and I suspect you haven’t either. I doubt that Sunstein believes that animals have, say, the right to be protected against unreasonable search and seizure or the right to free speech. I would guess, rather, that his argumetn is that animals have a more rudimentary form of rights – like the right to be protected against unnecessary cruelty, etc.

    I don’t really get your distinction between “protections” and “rights”. Could you make that clearer? If we as humans have a duty not to subject animals to unnecessary cruelty, then by definition animals have a right to be protected against such cruelty.

    • satyadaimoku, thanks for your reasoned comments and I’d be happy to expand on the idea. Our laws still stand, at different levels, in recognition of human rights. These do, in fact, vary. If you are not a citizen of the United States, you don’t have the same full measure of rights that citizens do, but you will get some of the very basic rights which are ascribed to “all men.” Of course, today we expand that to include all women and children, but they are all still humans. Defending the “rights” of animals is still taken as a failure of the human to act properly rather than a violation of any inherent rights of the animal in question.

      If we were to recognize ANY legal “rights” of animals, then surely the right to not be killed and eaten would be at the forefront. But we do not recognize that, because many of these animals are, in fact, food. We can take it to an extreme and ask if flies have any sort of inherent rights. Should people be prosecuted for swatting flies or putting out no-pest strips which doubtless result in the fly dying a slow, agonizing death? We do not.

      But we make the CHOICE (and “choice” is the key word here) to extend certain, variable protections to some of the animals under our care, our charge or those we encounter under normal circumstances. I suppose that’s the key distinction I’m trying to make here. We extend protections, perhaps not in an inconsistent fashion, to various animals because it seems the right thing to do.

      But reading what little I’ve found so far of Sunstein’s comments, (perhaps out of context?) that animals could act as a plaintiff with a human working as their representative in court. Again, it may sound like semantics, but it’s an important distinction.

  • EEllis

    I’m about to get a burger and I don’t want to get sued for eating someones mama. I’m mean really, “you have the right to be eaten”. The whole idea is such a legal stretch it’s absurd.

  • Jazz said: “If we were to recognize ANY legal “rights” of animals, then surely the right to not be killed and eaten would be at the forefront. But we do not recognize that, because many of these animals are, in fact, food.” And I challenge that last sentence. “These animals”, (cows, pigs, chickens, etc) are “food” because we make this so. Yet, these animals are not our only means of survival… unless you’re an Inuit or a bushman. Other than this, we all have a choice to opt for different means of sustainance. Indeed ones, that are healthier for our bodies and better for our ecological future.

    And if the only reason that we don’t recognize animal’s rights is that they are “food” – Then what of cats & dogs in “modern” Asia? and horses in Europe? Beyond “survival” we’ve evolved to a point of progress that “meat” is not “necessary”… It is whim and habit that this practice continues – hardly justification to deny an innocent, sentient being a “right” to not be killed. It sounds like you’ve manufactured an extremely arbitrary reason to refuse recognition of rights.

    There has to be more than “they are food”… Please elaborate. Thank you.

  • drrosset

    The assumption you have made is that no one needs to eat meat. However that is not true. There are many people in this world who cannot eat grain or get their needed nutrients from plants due to the way the human digestive track is formed in 1 out of 5 people. There are many nutrients that only meats supply and to make an assumption that all human beings can exist without meat is where your argument of choice falls down. Even the most ardent vegan gurus now tell us in their blogs that they we need to ocassionally eat diary or meat products to prevent damage to our bodies especially preganant women and children in the growing stages. Yes your children may survive, but to what extent have you created future problems for their health. You need to check out the research by Chet Day are prominent vegan supporter about the problems with a strict vegan diet. see

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