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Can we Have an Interest Theory of Rights for Animals, and a Will Theory for Humans?

By Luke Davies

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A recent article in the New York Times has advocated extending the notion of personhood, and the rights associated with that status, to dogs. Gregory Burns, the author of the article, argued for this position on the basis of the structural and functional similarity between the caudate nucleus of dogs and humans. The caudate nucleus, Burns tells us, is that part of the brain responsible for our feeling of anticipation of things we enjoy. More than this, the activity of the caudate nucleus is so consistent in MRI scans that he claims we may be able to use our monitoring of its activity to predict our tastes for certain things (he lists music, food and beauty). Importantly for Burns, activity in the caudate increased in dogs in response to positive stimulus: a gesture signaling food, or the appearance of the owner. The tentative conclusion to these findings is that the MRI images signal the possibility of canine emotion. Burns makes clear that without the capacity to communicate with us, which dogs certainly do not possess, the findings are still quite limited.  However, he views the existence of emotion as sufficient for personhood, and personhood as sufficient for being a possessor of rights. This leads him to conclude that dogs should be recognized as having the rights persons have.


Though there is good reason to doubt the argumentative moves Burns makes in his short article, that’s not what I’d like to do here. (A Letter to the Editor sent to the NTY regarding the article warns, for example, against assuming that complex emotional states–such as love, which Burns mentions–can be reduced to physical states. This alone should give us pause before asserting any larger similarities between human and canine consciousness.)  Rather, I would pose a question that came to me after reading the article: Is it possible that the rights animals possess have a different function the rights humans possess? 


The best way I can think to explain this question is as follows: There are two dominant theories of the function of rights. One, the Will Theory, maintains that the function of rights is to provide the right holder with control over the performance of a duty by some specified other (i.e., the duty bearer). The Other, the Interest Theory, maintains that the function of rights is to protect or further some interest of the right holder. The merits of each of these theories has been debated, in the words of one commentator, “literally for ages.” One feather in the cap of the Interest Theory, however, is that it has a wider scope than the Will Theory.[1] In order to possess a right on the Will Theory, you need to have the capacity to control the performance of the duty; this appears to immediately bar children, people with severe mental disabilities, and animals from the community of right holders. The Interest Theory has no such problem. Children, the severely mentally disabled, and animals clearly have interests, and on the Interest Theory this is sufficient to say they possess rights.


So, here’s a preliminary question: Does commitment to the belief that animals have rights also commit you to the belief that the Will Theory is false? I can see the pressure to give an affirmative answer here. It seems theoretically desirable that all rights have the same function. If there are rights we believe exist, but cannot be accounted for given some proposed function of rights, then shouldn’t that be sufficient grounds for rejection of that proposed function? I think, perhaps, not. (I’m leaving out the possibility that the right we want to exist does not in fact exist; for our purposes here it seems okay to err on the side of giving out too many rights, rather than too few).


While there are certainly problems for the standard Will Theory accounts of rights, there seems to me to be good reason to move to what can be called a Hybrid Theory.[2] A Hybrid Theory seeks to take the good aspects of both the Will and Interest Theories, perhaps by saying that a person has a right if either that person has an interest sufficient to hold others under a duty, or control over the performance of the duty would suitably advance the interests of the potential right-holder. I don’t think that this is the appropriate venue for figuring out the right formulation of a Hybrid Theory; however, if we think that such a theory is possible, then we also seem committed to the view that it is theoretically possible that the rights we ascribe to humans and to animals have different functions.


I think that if this is correct, if rights can have different functions, then we have more liberty when discussing rights than is currently believed. It could be, for example, that the current perspective of Interest Theory vs. Will Theory, is misguided. It might also provide more theoretical resources for the defense of certain rights (such as those of animals), and allow us to claim that some, fundamental rights, are overdetermined—given that they can be  derived from several different, accepted accounts of the function of rights.




[1] This also becomes a difficulty for the Interest Theory, on some accounts, as it appears to grant rights to too many people.


[2] I take this name from Gopal Sreenivasan’s 2005 paper “A Hybrid Theory of Claim Rights” (published in the Oxford Journal of Legal Studies). The (very) rough characterization I give of a possible hybrid view above has been influenced entirely by Sreenivasan, though the mistakes and vagueness in its explanation should be considered my own. I should note, also, that the motivation for Sreenivasan’s view, and I take it, other possible hybrid theories of claim rights, don’t relate to the possibility of ascribing rights to animals.

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3 Comment on this post

  1. Hey Luke,

    Great topic! First, on the Dog/MRI stuff: dogs certainly have the capacity to communicate with us, it is just non-verbal communication. We shouldn’t think that linguistic communication is the only way beings can communicate. It can be more difficult to interpret, of course, but dogs and other animals still can communicate their preferences/desires/etc.

    I think I agree with you that a Will Theory of Rights is consistent with an Interest Theory, and I also think a hybrid view like this is probably the most adequate. Several reasons support this. For one, a Will Theory of Rights doesn’t seem capable of securing certain, basic rights for ALL human beings at ALL stages of our lives (we are all, at one point, babies and infants, some of us are individuals with severe cognitive disabilities, and many of us at the end of our lives lose our cognitive capacities).

    There is also the problem of contextual relevance of holding the ability to waive/claim a right as a prerequisite for certain rights: the need for the protection from being killed, say, or made to suffer, doesn’t seem to require this capacity. So, if we recognize these interests, its unclear why the capacity to waive/claim a right is important to the protection rights afford. Further, it isn’t clear that all of the rights, even of paradigmatic human adults, fit the Will theory. Can I waive my right not to be tortured? Some might say I can, but I’m not so sure.

    1. Thanks, Dan, for your comment.

      You’re right, of course, to say that animals can communicate with us. But, I think the lack of verbal communication makes the imputation of complex emotional states, like our own, to animals more difficult. This might be what makes the strategy Burns is adopting quite difficult to pull off; it seems that he needs to demonstrate that similarity of brain function and structure is enough for salient similarity between emotive states, but cannot be helped by the reports of the subjects he’s testing.

  2. Hi Luke,

    It’s a very interesting topic, will vs interest, with in my opinion, interest having a broader application to rights than will. I do see the importance of a hybrid idea though. Contextually it is important to take into account actions but also the cause and effect. An example is earlier in the year 4 dogs attacked a girl aged 14 killing her when she was at her friends house. In this situation and many other situations the dogs have been fine all their lives, but suddenly turned. In a lot of these occasions these dogs are not trained properly or infact trained to be attack or ‘defense’ dogs.
    In this situation the dogs were put down and the woman who owned the dogs was charged but found not to be at fault.
    This situation favours the right of the human over the animal.
    The dogs had control over their actions or interests, but their rights were abused by their owner not training them effectively.
    A hybrid here would have to be taken into account as the lack of control was not solely accociated to the dogs.

    I think the question is not whether we can disregard one or the other, but how much the interest or the will is taken into account. And this is hugely dependent on context.

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