William A. Edmundson (Georgia State University College of Law) has posted Do Animals Need Rights? (The Animal Turn and the Law: Interdisciplinary Perspectives and New Directions in Animal Law Conference, April 4-5, 2014) on SSRN. Here is the abstract:
The idea of animal rights makes many people skittish. Even many advocates of better treatment of animals sense that the language of rights is misplaced and unhelpful in the forum of debate about the ethical treatment of animals. Rights theory is the intellectual home of these misgivings. This paper has two parts. In the first, I speak through a composite figure I call the animal-rights skeptic. The skeptic weaves views taken from the “will” (or “choice”) theory of the conceptual nature of rights together with substantive normative argument that emphasizes reciprocity and autonomy as the justificatory basis for assigning rights. The skeptic concludes that the interests of animals in avoiding mistreatment can be fully served without assigning them rights, and that therefore nothing is denied to them by recognizing that they are not capable of rights holding. In short, animals do not need rights. The second part of the paper counters the skeptic, and points to important, needed advantages that rights can offer animals. In particular, I argue that rights have a generative nature that makes them more valuable that the duties correlative to them at any time. Moreover, rights express respect for the right holder in a way that no ensemble of protective indirect duties can duplicate. Animals, I conclude, do need rights.