Trilogy on a Legal Theory of Animal Rights

This research project is funded by the Swiss National Science Foundation (Advanced Postdoc.Mobility grant) and will be conducted at Harvard Law School and the Max Planck Institute for Comparative Public Law and International Law.

The overarching goal of this project is to develop a novel and comprehensive legal theory of animal rights. While the idea of animal rights has been developed extensively in the area of moral philosophy over the past decades, and has more recently entered the arena of political theory, a comparable body of animal rights theory is lacking in legal scholarship. This project aims to fill this gap by adding to moral and political theories a distinct legal theory of animal rights. By rethinking the idea of animal rights through legal methodology and theories, it aims to furnish a coherent conceptual vocabulary for legal animal rights. Theorizing the conceptual foundations of animal rights seems particularly important given that legally recognized animal rights are beginning to emerge and materialize in case law. This project is thus also relevant for informing legal practice, as it may help guide the further institutionalization of legal animal rights and avoid a fragmented ad hoc-theory building.

The project consists of three separate but interconnected parts each fleshing out one core aspect of a legal theory of animal rights: (1) a general theory of legal animal rights, (2) a human rights theory of fundamental animal rights, and (3) a novel account of the relationship of complementarity between animal welfare law and animal rights. These subject areas will be explored through three different theoretical lenses: (1) theory of rights, (2) human rights philosophy, and (3) international humanitarian law. Methodologically, this project undertakes conceptual, comparative and normative analyses; i.e. a conceptual analysis and meta-analysis of prevailing conceptions of the legal concepts of (1) rights and (2) human rights with regard to the potential application to animals and (3) a comparative analysis of animal welfare law and international humanitarian law with a view to discovering relevant parallels and identifying regulatory and normative shortcomings.

The first part of the trilogy develops a theoretical framework for discussions of legal animal rights in general and addresses three basic questions: Can animals have legal rights (as a conceptual matter), do animals have legal rights (as a matter of positive law), and do animals need legal rights (evaluative considerations)?

The second part of the trilogy zooms in on one particular aspect of legal animal rights: human rights-like fundamental animal rights. It examines whether basic animal rights can be fitted in the human rights framework, and whether human rights and animal rights can and should be integrated.

The third part of the trilogy supplements the legal animal rights theory developed in the preceding papers by connecting it to the established field of animal welfare law. By reconceptualizing the traditionally dichotomized relationship between animal welfare law and animal rights as one of complementarity rather than incompatibility, this final piece seeks to reframe and reinvigorate a debate which is increasingly perceived as having hit an impasse caused by the welfare/rights-dualism. Inspiration for this reconfiguration will be drawn from the complex relationship between international humanitarian law and human rights as distinct but complementary legal regimes.