Hercules unchained

Hercules was leased to the State University of New York at the age of one. He lived in a cage in a basement and contributed to studies of ambulation. It would be six long years before he came close to walking free. In the meantime, he would serve as a test subject of another sort, as a historic court hearing considered whether he had the right to bodily liberty. Was a chimpanzee like Hercules, as Judge Eugene Fahey asked in a related case, “an individual with inherent value who has the right to be treated with respect”?

Such questions were bound to escape the dusty libraries frequented by philosophers and emerge into the harsh light of courtrooms sooner or later. We live in a time of heightened concern for animal rights. It has become increasingly difficult to ignore the fact that human beings and nonhuman animals share morally significant faculties and interests. And it is thus increasingly difficult to accept the chauvinism of the law. Why should human beings be assured of freedom while Hercules is caged and treated as a resource for use?

Animals have long played an important role in theoretical attempts to define the circle of fundamental rights-holders. In a brilliant new book, More Equal Than Others, Raffael N. Fasel looks to this history and draws out two primary traditions of rights justification for scrutiny. He makes a case for granting fundamental rights (rights of the order of human rights, like the right to liberty) to at least some nonhuman animals. And he shows how the law can do this while skirting key pitfalls.

The first tradition of rights justification that Fasel addresses is “aristocratic”. It holds that human beings enjoy special rights in virtue of being human – they have a special status – an equal birthright from which all nonhuman animals are excluded. The second, “meritocratic” tradition identifies “rights-grounding” properties such as sentience and rationality, and says that individuals who possess these properties have corresponding rights.

Each tradition has its limitations. The aristocratic tradition defends all human beings as equally endowed with rights, but excludes all nonhuman animals. By contrast, the meritocratic tradition allows the circle of rights-holders to include anyone – angels, aliens, nonhuman animals, etc – who possesses rights-grounding characteristics. But even as the circle of rights-holders expands for meritocrats, it also contracts – human beings who are deficient in rights-grounding characteristics find themselves deficient in rights.

Thus, each approach limits the class of rights-bearers in troubling ways. If we are aristocrats, we exclude arbitrarily smart, feeling creatures who do not share our species status. If we are meritocrats, we struggle to recognize the rights of infants and people with certain disabilities.

Fasel’s solution is to chart a path between the two traditions. He suggests that we accord rights to individuals based on their species (an aristocratic move) where members of the species standardly possess rights-grounding characteristics (a meritocratic nod to desert). This solution allows human rights to exist in distinction from chimpanzee rights. It protects vulnerable human beings from being assimilated to animals in legal rights adjudication. And it ensures that members of species are treated equally within their species: disabled humans enjoy the full suite of human rights; disabled chimpanzees enjoy the full suite of chimpanzee rights.

Moral philosophers may sniff at Fasel’s species-membership approach. They will complain that it is arbitrary to assign fundamental rights to individuals based on species – on class membership in biological taxonomy (and with reason – after all, the species category was not created to carve nature at joints of moral concern, but to organize it for the practical purposes of biologists). But law and moral philosophy are not, as Raffael N. Fasel argues convincingly, subject to the same gods. And this pragmatic book, which is a triumph of scholarship and an impressive salvo at the evolutionary vanguard of law, offers real hope: a new path to better legal protections for kin such as Hercules.

Simone Gubler is Assistant Professor of Philosophy at Brown University

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