Between truth and power

With legal animal rights on the horizon, there is a need for a more systematic theorisation of animal rights as legal rights. This article addresses conceptual, doctrinal and normative issues relating to the nature and foundations of legal animal rights by examining three key questions: can, do and should animals have legal rights? It will show that animals are conceptually possible candidates for rights ascriptions. Moreover, certain ‘animal welfare rights’ could arguably be extracted from existing animal welfare laws, even though these are currently imperfect and weak legal rights at best. Finally, this article introduces the new conceptual vocabulary of simple and fundamental animal rights, in order to distinguish the weak legal rights that animals may be said to have as a matter of positive law from the kind of strong legal rights that animals ought to have as a matter of future law.

This chapter proposes a stipulative definition of fundamental legal rights that attempts to single out the most important features of those rights, which are discussed under four headings: the point, the structure, the content and the functions of rights. Mainstream theories of rights, such as the interest theory and the will theories are criticised and a status theory of fundamental legal rights is offered instead. More precisely, the chapter develops a theory that treats fundamental legal rights differently from ordinary legal and moral rights. Such a theory is centred on the idea of immunity given by fundamental legal rights which corresponds to the idea of disability on the part of the legislative power. In particular, fundamental legal rights give individuals a status of inviolability.

This chapter investigates the second of the two most obvious options of legally facilitating the required consideration of animals’ interests in liberal democracies. It focusses on the option of assigning sentient animals fundamental legal rights. First, it is elucidated that, despite spectacular reports in the media and even in some scholarly work, non-human animals around the world have not yet been granted legal rights. Subsequently, it is defined what type of legal rights is considered and what the effects of these rights would be. Due to the fact that legal animal rights would have a significant impact on society and could have significant economic, democratic, and liberty costs, a robust, threefold justification for these rights is also given. It is argued that the interspecies democratic theory in this book is not the only ground for assigning animals legal rights; an interest-based account of rights also offers such a justification, as well as the fact that animal rights would significantly improve the legal systems in liberal democracies. Subsequently, it is investigated whether legal animal rights could meet the criteria for animal enfranchisement in liberal democracies. The chapter concludes that the option of assigning fundamental legal rights to animals has good normative papers, since this institutional setup would bring all enfranchisement criteria into view, while also respecting liberal democratic principles and even improving liberal democracies.

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.

Rights to compensation are much invoked and much disputed in recent liberal debates. The disputes are generally about supposed fundamental (natural, human or moral) rights to compensation, whose recognition and legal enactment would transform some lives. For example, special treatment in education or employment are claimed as compensation for past denials of equal opportunity; special consideration for Third World countries in aid and trade terms is claimed as compensation for the injustices of the colonial past.We can make ready sense of the idea of legal rights to compensation. Legal rights to compensation guarantee (some) recompense for damage suffered. The damage for which compensation is given may or may not be produced by wrongdoing; it may also be negligent or accidental or due to natural causes. In law, compensation is not always contingent upon the victim having suffered injury as well as harm, nor upon saddling a wrong-doer with the costs of compensation. Insurance policies standardly cover damage due to accident and neglect. Legal rights to compensation may provide for payments to victims of violent crime, to those whose property is requisitioned or damaged, to victims of libel or malpractice, and even to victims of natural disasters such as floods or earthquakes. Legal rights to compensation are a standard way of dealing with the predicament of those who become victims, whether of others' (criminal) action, of their own negligence, or of natural catastrophe.None of this shows that there are fundamental rights to compensation. Legal rights to compensation may lack moral grounding: and if they are morally grounded, they may rest not on fundamental rights to compensation, but on background positions in which rights are derivative or inessential.

The principle of human dignity, as never before, has to be pulled out of its ethereal plane. Empty rights do not contribute to the true civilization progress coveted by all. So that mankind walks faster towards the achievement of the values settled along the slow process of political and legal awareness that resulted in the construction of catalogs of fundamental rights, the full effectiveness of legal rights shall not be avoided. The indispensable protection to human dignity must be enforced with conviction. The issue of the effectiveness of fundamental principles significantly affects workers' legal protection. The ILO Declaration on Fundamental Principles and Rights at Work and the guidelines on decent, healthy and safe work, which define minimum international labour standards, have not been complied with in different countries, severely compromising the protection to workers' dignity. The applicability and enforcement of fundamental labour rights must be guaranteed to fight contemptible cases of slavery-like work conditions, workers' discrimination, retrenchment to free labour union and collective bargaining, child labour, unsafe work or under degrading conditions, among several other unfair and infamous situations experienced in the work environment. In a globalized economic scenario, where financial capitalism is emphasized, governments have to assume, as never before, their role in the effective protection of human rights at work. Accordingly, in view of the supremacy and inalienability of fundamental rights as essential principles of administrative activities of the Rule of Law, the role of the Government is to induce and shape social conducts. The present academic paper argues and claims that governments should have a decisively active role, fomenting and enforcing the effective compliance with fundamental rights at work, notably by applying legal instruments as the labour clause in public contracts. The labour clause expresses and affirms the cogent and binding force that arises out of public contracts and contractual provisions, and pulls subjective rights out of their abstract plane, establishing an actual and mandatory connection grounded on specific obligations immediately enforceable and aimed to realize fundamental rights at work and protect the dignity of workers, and applying immediate sanctions on the offender of such legal provisions. Therefore, it produces real and concrete legal developments to labour protection. The outlines of the contemporary conception of socially responsible public contracts require the adoption of the labour clause for the enforcement of fundamental labour rights at work. The characteristics and specificities of the new legal regime, which comprises administrative contracts, express and legitimize the full pertinence and legality of including the labour clause among their provisions. In this context, the compliance with international workers' protection standards is mandatory to a sustainable development. Socially responsible public contracts that value and enforce the protection to workers' dignity may effectively influence economic activities, promoting social justice in labour relations that emphatically claim for the structuring of employment and labour standards that respect human rights at work.

Jurisprudence of Legal Rights and Duties

Technical mediations are commonly used by remote persons to exercise legal rights in distant places, but the legal ability of remote persons to substitute their physical presence using technical mediations is broadly shaped by whether the public accepts that a specific form of technical mediation of a remote person is tantamount to their physical presence. In telepresence robot markets, local users already accept that remote robot operators can exercise serious professional rights via telepresence robots. It is likely that the public acceptance of local rights of remote operators via telepresence robots in workplaces may at some point be expanded to include more fundamental human rights in social life. To verify the superior potential of remote operators mediated via telepresence robots to be socially accepted as bearers of fundamental rights, which theoretically qualify the juridical concept of “person” as bearers of rights and following duties, this study compared public acceptance of remote operators to exercise fundamental rights via a telepresence robot with physical control and a stationary video call stand without physical control. In experiments with 210 Korean participants, responses to whether a remote operator mediated via a telepresence robot should be granted fundamental rights were close to neutral, which was generally higher than the responses received for a remote person mediated by a stationary video call stand. The result shows that a remote operator with physical control on a technical mediation has more potentials to evolve into legal persons with greater fundamental rights in a local environment.

This chapter deals with the central problem concerning conflicts of rights: both parties have an exclusive claim to something of value protected by a fundamental right and we are left with no guidance on how to solve the clash. There is not only disagreement, but also a deadlock as both claims are rationally defensible. In other words, the adjudicator faces a dilemma, which cannot be solved in a way that avoids the loss of something of value. To cope with this issue, some suggest that fundamental rights are principles and not rules and as such they can be weighed when in conflict. It is argued instead that fundamental rights are broad permissive rules. As a consequence of such a conception of fundamental rights, the role played by morality in shaping the answer to dilemmas is narrowed down. Ultimately, to deny that genuine conflicts of rights exist is incompatible with a strong understanding of fundamental rights and with value pluralism.

What would fundamental rights look like in a constitution devoted to protecting all sentient beings, both human and non-human? This chapter focuses on constitutional texts and doctrines relating to fundamental rights and argues that, in principle, no new catalogues of rights would be necessary. This is because existing fundamental legal rights can be extended to animals since many of these rights protect interests that are not uniquely human. To develop this argument, the chapter first sheds light on four key phenomena that characterize current fundamental rights and that help explain why these rights can be extended to animals: rights have been expanding progressively; no rights-holder is regarded as hierarchically superior to another; rights catalogues already include rights that are not applicable to all rights-holders; and rights are phrased in general language which lends itself to more expansive interpretations. The chapter then exemplifies how the extension of fundamental rights to animals could work. To do so, it focuses on a small but illustrative selection of rights—the right to life, the prohibition of torture and inhuman or degrading treatment, and the right to freedom—and shows how and to what extent they can be extended to animals.

Religious freedom is, in various legal documents, stipulated as a fundamental legal right. The European Convention on Human Rights prescribes that everyone has the right to freedom of thought, conscience and religion. When we glance through the constitutions of countries of western legal order, we find that most of them prescribe freedom of religion as a fundamental right. However, there are authors who argue that freedom of religion does not warrant protection by a special right. Their principal argument is that the right to freedom of religion can be derived from more basic rights, and that this right should be protected as a right derived from such rights. The aim of this paper is to determine whether freedom of religion merits protection as a fundamental legal right or should it be protected as a derived right in which case it should be protected while protecting other fundamental rights such as the right to freedom of thought or conscience.

This book deals with one of the most important issues of philosophy of law and constitutional thought: how to understand clashes of fundamental rights, such as the conflict between free speech and privacy. The main argument of this book is that much can be learned about the nature of fundamental legal rights by examining them through the lens of conflicts among such rights, and criticizing the views of scholars and jurists who have discussed both fundamental legal rights and the nature of conflicts among them. Theories of rights are necessarily abstract, aiming at providing the best possible answers to pressing social problems. Yet such theories must also respond to the real and changing dilemmas of the day. Taking up the problem of conflicting rights, Zucca seeks a theory of rights that can guide us to a richer, more responsive approach to rights discourse. The idea of constitutional rights is one of the most powerful tools to advance justice in the Western tradition. But as this book demonstrates, even the most ambitious theory of rights cannot satisfactorily address questions of conflicting rights. How, for instance, can we fully secure privacy when it clashes with free speech? To what extent can our societies assist people in dying without compromising the protection of life? Exploring the limitations of the rights discourse in these areas, Zucca questions the role of law in settling ethical dilemmas helping to clarify thinking about the limitations of rights discourse.

So far, the question regarding literature’s autonomy has predominantly been discussed from a poetological and historical perspective, with legal manifestations and possibilities of aesthetic autonomy usually being neglected by literary theory. However, in no other area than in (German) jurisprudence it becomes more evident that the concept of an autonomous literary practice, or more precisely the attempt to guarantee it legally, is highly challenging and therefore comes with restrictions. On the one hand, literary practice is legally regarded as a free and autonomous social subsystem. On the other hand, it can easily lead to violations of fundamental rights, meaning that the freedom of art cannot be considered unrestricted and autonomous on a closer look. In the following, the legal challenges of guaranteeing an unregulated literary practice will be discussed based on two fundamental legal rights, namely the freedom of art and copyright laws. The discussion proves to be significant for literary studies as well, as the legal tensions that are connected to the concept of literary autonomy have an influence on the practice of literature and thus also affect its theoretical reflection in literary studies and criticism. Because autonomy can mean several things, it is necessary to define the term ›autonomy‹ as used in this article first. After clarifying the concept of autonomy for the literary context, the focus lies on the legal discourse: The legal regulations in Germany regarding freedom of art and copyrights are first presented individually. Following this, the respective difficulties in guaranteeing the aforementioned legal rights are explained. A closer look will reveal that collisions are unavoidable, and that freedom of art and copyright laws sometimes even happen to be mutually exclusive. The challenges of literature’s autonomy in legal terms becomes particularly apparent by presenting the following two potential conflicts: The first conflict concerns collisions between freedom of art and a legal right of constitutionally similarly high rank, such as personal rights. The second potential conflict demonstrates why the freedom of art can hardly ever be reconciled with copyright provisions. The first case illustrates that the freedom of literary practice sometimes collides with other legal interests and can therefore be restricted, while the second one proves that a self-contradiction within the legal system exists when it comes to the notion of unrestricted autonomy. The first conflict is discussed by revisiting the decision of the German Federal Constitutional Court regarding Maxim Biller’s novel Esra in 2007. The decision, albeit highly controversial, helps to understand why legal barriers are sometimes imposed on works of literature. Additionally, the Esra case shows the legal difficulties of enforcing a ban on novels without fundamentally calling into question the freedom of art. This is also demonstrated by the votes of the dissenting judges at the Federal Constitutional Court which further illustrate the irresolvable challenge between guaranteeing not to impose any legal restrictions on the practice of art, but sometimes doing so whenever the freedom of art collides with personal rights. As a second example, the potential conflict that can arise when using the technique of literary collage or any other that involves adopting elements of existing literary or non-literary texts is discussed. Such a case is even more likely to result in a legal dilemma as there generally is a tension between freedom of art and copyright laws: although copyright laws can be subsumed under freedom of art and even serve as supportive of it, insofar as they aim at protecting the author as the intellectual owner of a work, they are not always beneficial to the freedom of art. This is best exemplified by the aesthetic technique of literary collage, for which the implementation of elements from other texts and media is characteristic and thus might easily conflict with copyright provisions. The example of literary collage demonstrates that without legal regulations some aesthetic practices might run the risk of infringing the respective copyrights as soon as an existing work of art is utilized partially for a new one. This article concludes that the notion of literary autonomy shows to be self-contradictory when discussed from a legal perspective. This observation is not irrelevant for literary theory, insofar as literary autonomy, understood as an unregulated literary practice, thwarts its promise of freedom. As this article argues, the idea of literary autonomy therefore needs revision in literary studies, not least because of its challenging legal dimension.

With the passing of the Universal Declaration of Human Rights, 1948 and signing of the International Covenants on Civil and Political Rights, 1966 and the Economic, Social and Cultural Rights, 1966, there has been a global emphasis on human rights. The issue of patients’ rights has also been brought to prominence with the advent of modern technology and the availability (and use) of artificial measures to prolong life; the evolution of legal rights and duties of patients, an increased concern for the rights of the patients, the increase in number of people affected by HIV/Aids, and a growing population of elderly patients. However, apart from those international instruments setting out human rights, most national Constitutions have equally set out fundamental rights of individual. In this category is the Constitution of the Federal Republic of Nigeria, 1999 which sets out fundamental human rights enjoyable by everyone (any patient inclusive) within the territory of the country. Violation of these rights is enforceable in court and the violator may be liable to pay heavy damages and compensation. This article discusses those rights that centre on the relationship of a patient and his/her healthcare providers, specifically, the rights of a surgical patient in relation to his/her medical doctors, nurses, other health personnel and health institutions. Key words: Surgical patients, human rights, legal rights, autonomy, self determination

In recent years, the most widespread doctrine about the conflicts between fundamental (usually constitutional) legal rights could be summarized in the following three main theses: (1) The elements in conflict are legal principles, as opposed to legal rules; (2) Those conflicts are not consequences of the existence of inconsistencies or antinomies between the norms involved, but rather depend on the empirical circumstances of the case. In other words, the norms are logically consistent and the conflicts are not determinable a priori or in abstracto, but only in concreto; and (3) The classical criteria for solving conflicts between norms, such as lex superior, lex posterior and lex specialis, are not suitable to solve conflicts among fundamental legal rights. Indeed, they require a specific method known as ‘weighing and balancing’. Although all three theses could be (and indeed have been) regarded as problematic, in this paper I address mainly the second one. I try to show that there is room for a tertium genus between antinomies (deontic inconsistencies) and conflicts caused by strict empirical circumstances that I call ‘contextual antinomies’. There are situations in which the norms involved are not inconsistent but the conflict arises for logical reasons. My thesis is that many conflicts between fundamental legal rights fall in this category. I offer, in an appendix, a proposal of formalization of this kind of conflict and the elements involved in it.