A Non-Human Theory of Rights from Latin America

2.1 A Brief History of Human Rights: Human, all Too Human

Contemporary human rights, as we now understand them, have their origins in the Enlightenment movement. Although modern rights^[16] are quite different than the Enlightenment’s ‘rights of man’, the conceptual foundation is the same: both are motivated by a conception of what it means to be ‘human.’

The Enlightenment was the intellectual movement that spans at least from 1680 to 1800, and it came after the scientific revolutions and achievements of the previous century by scientists such as Johann Kepler, Francis Bacon, Rene Descartes, Galileo Galilei^[17] and Isaac Newton (1642–1727), all of whom contributed to developing the idea of the rational character of nature.^[18] The Enlightenment emphasized the universality of reason, as well as the belief that its application would bring social benefits. Enlightenment thinkers characteristically held that social structures ‘ought to be justified rather than blindly accepted from habit and custom’.^[19] Although not a homogeneous movement, and one that encompassed both rationalist and romantic thinkers^[20] as well as a radical and moderate tradition,^[21] its core thinkers nevertheless coalesced around a need for a revolution in the legal world, primarily by discarding religion as the foundation of social organization. The liberal subject of human rights was created, and with it, as I will explain below, animals and less rational humans were configured as the non-subjects of rights.

Thus, Rene Descartes famously positioned the human being as the center of creation when justifying his ego cogito.^[22] By affirming in his famous Discourse of Method that ‘I think, therefore I am’ and that we are ‘a substance the whole essence or nature of which is simply to think and which, in order to exist, has no need of any place nor depends on any material thing’,^[23] he effectively defined human nature based on a very disembodied rationality.^[24] It is through our capacities for reason and knowledge that we make ourselves the masters and possessors of nature.^[25] The self-sufficiency of reason,^[26] as proposed by Descartes, combines an indubitable starting point (the particular ideas in the mind) with an infallible method (clear and distinct ideas) that lead to reliable and objective conclusions.^[27]

Immanuel Kant, in turn, basically invented the ideal of autonomy. The autonomy that is so well known today, and which constitutes the bedrock of international human rights law, owes its origin to Kant. In ‘What Is Enlightenment?’ Kant underscores that the main point of the movement, as he understands it, is ‘man’s emergence from his self-imposed nonage,’ by which he meant, put positively, the inability to use one’s own understanding without another’s guidance. Dare to know! (Sapere Aude) is, thus, the Kantian and Cartesian the motto of the Enlightenment.^[28] In what is perhaps Kant’s most famous holding, the individual ascertains for himself the moral law using his reason.^[29] From there, the autonomous individual enters a social contract with other individuals, effectuating what then becomes only possible foundation of political authority.^[30]

Kant and his Critique of Pure Reason provides a standard account of how to interact with non-human entities. According to Kant we have no way of knowing ‘things in themselves’ because perception is mediated by time, space, and causation. Science only talks about how things appear to us, not how they really are. Thus, non-human beings are never more than images or representations and as Kirsch argues ‘we can never have access to their inwardness, to the worlds they inhabit. This is the real Severing, trapping us in our own subjectivity, and its inevitable consequence is the Anthropocene- a world in which nature exists only for us, not in its own right’.^[31]

And finally, Rousseau contributed a definitive and explicitly anthropocentric revolution in jurisprudence. In his Social Contract, he developed the idea that the basis of authority is the social contract and that laws are essentially the conditions of civil associations. The purpose of this contract is the preservation of the contracting parties. Religion should no longer be understood to be the source of law – religion should be confined to the private sphere and a source of private morality.^[32] In his words ‘each man, while uniting with all, nevertheless obeys only himself and remains as free as before.’^[33] In a similar vein, Montesquieu argued that ‘Law in general is human reason, inasmuch as it governs all the inhabitants of the earth: the political and civil laws of each nation ought to be only the particular cases in which human reason is applied’.^[34]

With these new ideas of human nature based on rationality (Descartes), autonomy (Kant) and freedom (Rousseau) the justification of socio-political orders was transformed. In 1789 the National Assembly of France proclaimed the ‘natural, unalienable, and sacred rights of man’, and established that ‘the aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression’ and that law should be ‘the expression of the general will’ and therefore ‘it must be the same for all, whether it protects or punishes’.^[35] It was a turning point in history, and from now on, Man, not God or the customs of history, would be the source of law.^[36]

More than 10 years before the French National Assembly spoke, in 1776, the American Declaration of Independence and the Virginia Declaration of Rights were proclaimed. The 1776 Declaration of Independence established that ‘all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness’.^[37] For its part, according to the Virginia Declaration, ‘all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety’.^[38] There are several important differences between the French and American tradition of rights, the American version for instance remained dependent on an antique tradition of aristocratic rights stretching back to the Magna Carta, which merely reserved prerogatives ‘negatively from the king rather than actually founding the polity ‘positively’ on rights principles’.^[39] The French declarations of rights were not encumbered with this history of negativity. Further, the French allowed more room for equality and fraternity whereas the Anglo-American language of rights emphasized individual liberty and initiative more than equality or solidarity and was infused with a greater mistrust of government.^[40] Notwithstanding these differences, they both relied on variants of the same liberal principles, and they were equally indebted to the same philosophical precursors of an anthropocentric understanding of the rights that were at their heart.^[41]

2.2 Of Humans and Sub-humans

Proclaiming that the essence of human beings is rationality, and that the basis of authority and law is human reason, completely changed the previous foundation of laws whose main source was religion. However, it did not immediately change social inequalities. The ‘rights of man’ meant, literally, men. The social structures assumed that the rational subject par excellence was a man, not simply a human. Thus, we could say that the rational was equal to the masculine and the masculine was equal to the rational. Further, as suggested by Mills ‘European humanism usually meant that only Europeans were human’.^[42]

This hierarchy of the social structure was not new. Medieval Christianity, drawing from the thinking of Plato and Aristotle, had developed a ladder or chain of being that had God at the top and then descended from angels to humanity, men to women, then animals to plants and finally minerals. For Plato, ‘men who fail in the effort of philosophy are punished by becoming women in their second lives. No woman can become a philosopher she must wait until after death, when her soul might be reincarnated in the body of a man’.^[43]

Thus, the Enlightenment thinkers did not create this hierarchy of beings, and to some degree they contested it. Indeed, it was expected that after the dismantling of the divine foundation of laws and the recognition of the rights of man based on freedom and autonomy, more substantive equality would come. The rights of man were supposed to be completely ‘incompatible with all ancient regime notions of social, racial, and religious hierarchy (…) the implications for women, religious minorities, the illegitimate, ethnic minorities, and homosexuals, as well as free blacks and black slaves, were bound to be far-reaching’.^[44]

However, the emancipatory force of the Declaration of the Rights of Man was compromised. The philosophical foundations of rights were not equally emancipatory. To some extent only men could fulfill the fiction of disembodied reason, the central foundation of human freedom in this historical period. Thus, despite these new ideals of leaving behind traditional or religious justifications of law, old ideas about the social role of men, women, and the role of domination of man over animals and nature were consolidated or at least not changed.^[45]

As Robin West explains, the ideal of rationality that presupposes the separation of human beings from the rest of natural world and human life becomes irretrievably masculine^[46] because ‘women are materially or potentially connected to other human life by the experience of pregnancy, the invasive and connecting experience of heterosexual penetration which may lead to pregnancy, the monthly experience of menstruation, which represents the potential for pregnancy; and the post-pregnancy experience of breast-feeding^[47]‘, so they can never fulfill this standard of separation of the autonomous individual. According to West, women ‘transcend physically the differentiation or individuation of biological self from the rest of human life trumpeted as the norm by the entire Kantian tradition’.^[48]

For several decades, the feminist movement has shown that the idea of knowledge as independent of the subject, is the translation or naturalization of male political and social power.^[49] It can be argued that the Enlightenment did not keep its promises for the emancipation of women, and they remained apart.^[50]

But it is not only women who suffered because of this new ‘rational’ chain of beings. All individuals who needed to be taken care of, or who depended on others, or who could not exercise full autonomy, or who were perceived of as not having the capacity to use reason, or the same degree of rationality, became part of the category of sub-humans. This was the case or became the case, for example, for children, people with disabilities, black and indigenous individuals. All were somewhat protected, but they were not fully legal subjects. John Locke, who heavily influenced the epistemology of the Enlightenment, was of the view that if someone did not have a sufficient degree of reason as to be capable of knowing the law, he was not a free man. Therefore, he concluded, ‘lunatics and idiots’ are never set free from the government of their parents.^[51] Further, in his view, lack of reason is equal to being legally and morally dead.^[52] Traditional social contract theories from Rosseau to Rawls exclude persons with disabilities as active members of society for not being rational and autonomous enough to enter into a contract.^[53]

Infamously, another category of sub-humans during the Enlightenment were black and brown people. Perhaps surprisingly, slavery not only continued but flourished during the Enlightenment.^[54] This is in part because the prosperity of the colonies depended on the work of black enslaved people, but ideas mattered as well as dollars, and black people was presumed to have less reason. One can recall for instance that according to Rousseau, ‘humans only achieve their full potential in temperate climates’.^[55] He had also declared that ‘the organization of the brain is less perfect at the two poles. Neither the nègres nor the Laplanders have the intellect of Europeans’.^[56] Kant had a similar view.^[57] Furthermore, in L’Esprit des Lois, Montesquieu argued that ‘there are countries where the excess of heat enervates the body, and renders men so slothful and dispirited that nothing but the fear of chastisement can oblige them to perform any laborious duty: slavery is there more reconcilable to reason (…)’.^[58] In fact, several white planters who opposed the abolition of slavery employed Montesquieu’s relativism of climate and conditions as counter-arguments to the Enlightenment-sounding claims of abolitionists.^[59]

Similarly, Voltaire, although he denounced the injustice of the system of slavery, considered blacks to be inferior in intelligence. For example, in his Essay on the Custom and Spirit of Nations (1769) he argued that ‘their round eyes, their flattened nose, their lips which are always large, their differently shaped ears, the wool of their head, that very measure of their intelligence, place prodigious differences between them and the other species of men (…)’.^[60] In words of Sala-Molin, ‘European Enlightenment philosophers railed against slavery except where it literally existed’.^[61]

It is important to note that in spite of the rhetoric of the hierarchy of humanity, the Enlightenment did produce different efforts to abolish slavery, such as the one led by Condorcet, who through the Societe des Amis des Noirs, made a series of efforts to eliminate it gradually, especially in the French colonies.^[62] Nevertheless, even the members of the society were convinced that Africans were inferior to them.^[63] Even after abolishing slavery they did not expect blacks to obtain the same treatment as whites. How could that be if they were not as rational as them?

To summarize, the new definition of the human also created sub-humans. Most importantly for the purposes of this article, however, by linking subjective rights to agency and cartesian rationality, the non-human was completely excluded from the idea of rights.

2.3 Beasts and Nature

At the base of the Enlightenment philosophy’s chain of being we find animals followed by nature. Man was a little secularized God who, with his transparent reason, sees everything, transforms, dominates, and oversees his less rational cousins. On the margins, these cousins at least retain a little humanity and a few rights, as long as they are well directed and governed.^[64] But animals, unlike the sub-humans, were automata, like a clock, and nature a resource to be exploited and transformed.

Thus, human beings became more valuable than any other creatures.^[65] For Kant, only humans have dignity, that concept so central to modern human rights discourse. In the Groundwork to the Metaphysics of Morals (1785) he explains that,

Now, morality is the condition under which alone a rational being can be an end in itself, since only through this is it possible to be a law-giving member in the kingdom of ends. Hence morality, and humanity insofar as it is capable of morality, is that which alone has dignity.^[66]

According to Kant, ‘the fact that man can have the idea ‘I’ raises him infinitely above all the other living beings on earth. By this he is a person (…) a being altogether different in rank and dignity from things, such as irrational animals, which we can dispose of as we please’.^[67] Thus, animals are man’s instruments, and since they lack self-consciousness, or will, they cannot have an intrinsic worth. Only humanity and rationality are worthy of respect. The rest of nature is a set of tools.^[68] This does not mean that Kant condoned cruelty to animals. On the contrary, he argued that violence and brutality against animals stupefies human compassion.^[69] However, violence and brutality were to be condemned because of their deleterious impact on compassion, not because of the intrinsic worth or dignity of animals.

For Descartes, animals lack reason and for that reason alone we should be able to treat them however we choose.^[70] For him, what confirms the point is that they lack language, which even stupid and dull men are capable of.^[71] Thus, we could say that for Descartes, as for the liberal tradition, what does not speak has no rights.

Other Enlightenment thinkers showed considerable care for animals.^[72] For example, in ‘Animals’ Voltaire presents a response to the Cartesian argument of animals as machines. In his words,

What a sorry thing to have said that animals are machines bereft of understanding and feeling, which perform their operations always in the same way, which learn nothing, perfect nothing, etc! (…) That bird which makes its nest in a semi-circle when it is attaching it to a wall, which builds it in a quarter circle when it is in an angle, in a circle upon a tree, that bird acts always in the same way? That hunting-dog which you have disciplined for three months, does it not know more at the end of this time than it knew before your lessons? Does the canary to which you teach a tune repeat it at once? Do you not spend a considerable time in teaching it? Have you not seen that it has made a mistake and that it corrects itself?^[73]

Similarly, in his Discourse on Inequality, Rousseau argued that our treatment of animals should be guided by sentience, not rationality. He even went on to say that animals have a certain intelligence; he called them ‘ingenious machines’.^[74] For Rousseau, a central element in the education of a child was to become sensitive and compassionate, and to do this he needs to learn how to treat animals.^[75] For Rousseau, animals were also important to teach children about their own mortality.^[76] The point for Rousseau and Voltaire was not so much that animals should have rights, but that the mistreatment of animals is evidence of human corruption.^[77] Even for them, animals had no agency and therefore no rights.

Jeremy Bentham, however, did indeed advocate for animal rights when he announced that a day will come in which we will grant animal creation the rights they deserve. And he argued that the threshold for this should be sentience, not rationality.^[78] However, he represents an exception and not the rule to most of the liberal thinking regarding animals. Moreover, sentience is important but should not be the ultimate or only criteria for granting rights in an interspecies justice model. Otherwise, we fall back into the trap of reason or some other capacity, such as sentience, as ‘threshold’. Who defines who has it and the extent to which it is possessed? How might we define sentience in relation to nature?

Nature, along with animals, was degraded during the Enlightenment. It came to be viewed as a resource. It was at best a challenge to the imagination of the ego cogito. Francis Bacon and Hume shared the belief that if humankind was distinct and above the natural world, then nature should be treated as our servant.^[79] Bacon even compared the relationship between man and nature with the one held by a torturer and its victim. In his view, the scientist ‘must force the apparent facts of nature into forms different to those in which they familiarly present themselves; and thus, make them tell the truth about themselves, as torture may compel an unwilling witness to reveal what he has been concealing’.^[80]

Carolyn Merchant has argued that there is a relationship between the sub-humanization of women that occurs during the Enlightenment era and the treatment of nature. Although in the past both western and non-western cultures personified nature as a nurturing mother, with ethical implications, because one does not slay a mother or dig into her entrails for gold,^[81] the Enlightenment gave way to a mechanistic world view, in which nature was reconstructed as dead and passive, to be dominated and controlled or transformed by humans. This did not necessarily mean leaving behind the image of nature as female. However, it comes to be conceived as a subject that must be subdued under a patriarchal structure. In this sense, Merchant explains that when Bacon uses the example of torture to show man’s new relationship with nature, he seems to have in mind the interrogations of the witch trials and the mechanical devices used to torture witches.^[82]

In the Enlightenment, nature is a source of discomfort, something that needs to be transformed by human reason.^[83] For most of the Enlightenment thinkers, the beauty of nature is linked to its fruitfulness and productivity.^[84] During the Enlightenment, gardens became the symbol of the ideal relationship between man and nature. They are the maximum expression of the domestication of nature. The garden means literally to put nature in its place, domesticated and useful.^[85] Nature is de-souled, and the non-human world comes to be seen as a mechanism to be exploited.^[86] This contrasted with older views: Plato, for example, believed that the world had an ‘anima mundi’ that gave it unity, an idea that prevailed until the seventeenth century.^[87]

It is true that thinkers like Rousseau had a more positive view of nature. Rousseau expressed an ‘idyllic passion’ for a solitary existence and, in his words, ‘in living with myself and with nature, I tasted an infinite sweetness in the thought that I was not alone… .^[88] He condemned the paradigm that insisted on man’s right to exploit nature.^[89] Nevertheless, he did not cease to enthrone reason, and he continued to maintain that man is at the top of the evolutionary scale due to his ability to reason and his freedom to act, in contrast to other forms of life.^[90] That is, he was an anthropocentric thinker who loved nature but did not recognize its intrinsic worth.^[91]

2.4 The Enlightenment, Philosophical Liberalism, and Human Rights Today

The Enlightened understanding of the subject of rights is still alive in contemporary human rights discourse, in two senses. First, the model for most human rights instruments today is the Universal Declaration of Human Rights (UDHR). The UDHR was based on the French and Anglo-American traditions of rights. Second, most contemporary, and influential justifications of international human rights law come from philosophical liberalism, which is itself a reformulation of Kantian philosophy. Let me briefly address this second point.

Liberal theories of personality are based on at least four foundational claims. The first is autonomy, the idea that because I am separate, my ends, life, path, goals, are necessarily my own (the separation thesis explained by West). The second is rationality as discussed above: rights holders are rational, which in turn is what grounds their claims to both rights and dignity. The third is equality of the person, the assumption that politics should owe equal respect to every person, and the fourth is liberty, of being able to choose one´s life path without undue interferences.^[92]

This is basically the same ‘human’ that was discovered or created by the Enlightenment, comprised of Cartesian Rationality, Kantian Autonomy, and Rousseauian liberty. The original position in Rawls’s theory, for example, according to Forst, is basically a reformulation of the Kantian moral standpoint of impartiality and universalization, although an improved version in which formal and material equality will follow from the experiment.^[93] Others, such as Forrester, see in Rawls a revival of Rosseau and the liberal social contract tradition. In the original position, persons behind a veil of ignorance agree on the principles of how a just society should be organized.^[94]

Thus, although there are significant departures, Rawlsian liberalism reinvigorates and modernizes the Enlightenment idea of the human as the possessor of rights and the beneficiary of a just regime. By so doing, he emphasizes, as did the Enlightenment thinkers, the importance of rationality and the capacity for moral choice as foundational to rights. And it is precisely because of this that he denies the possibility that his theory of justice could be extended to animals.^[95]

Likewise, both philosophical liberalism and our international human rights law embrace an Enlightened understanding of autonomy. As Sandel explains, rights are overly indebted to Kantian autonomy. Rights are prior and independent to any good. Thus, moral law does not consist in the fact of promoting some goal. It is an end in itself.^[96] Rights are important, not because the activities they protect are especially worthy, but because they respect the capacity of persons to choose their own beliefs.^[97] He recalls that for Rawls, ‘rights secured by justice are not subject to the calculus of social interests’ and for Dworkin, rights are ‘trump cards held by individuals’.^[98]

Defending autonomy this way leads to a very individualistic approach to rights, or a kind of rightism, as Greene calls it,^[99] because it closes the deliberative process and even the balancing between rights. In my view, this is a consequence of understanding rights as trumps and defending autonomy as the untouchable sphere of the individual self, which not only reproduces but even goes beyond the Kantian understanding of autonomy. Kant himself viewed moral law as self-given but importantly connected to certain social goods. It was not merely, as today, the capacity of individuals to choose the course of their own lives.^[100]

Of course, much has changed since the adoption of the French Declaration, the Declaration of Independence, and the Universal Declaration. In a sense, it can be argued that the entire human rights boom since the promulgation of the Universal Declaration of Human Rights and especially since 1970 has been an attempt to deconstruct the subject of human rights of the Enlightenment. In the past ‘women, children, non-European and so on, were not proper subjects of rights, but nowadays in international human rights law we talk about children rights, LGBTIQ rights, women rights, disability rights, indigenous people’s rights, collective rights and so on’.^[101]

As a matter of fact, according to some authors the problem we face nowadays is that we have too many rights, and in the past few decades, ‘the rights industry has grown faster than an Internet IPO in the late 1990s’.^[102] The human right catalogue has become very expansive and can include anything from the right to internet^[103] to the right to job security.^[104] For these authors, the proliferation of types of human rights claims has the appearance of a reductio ad absurdum that threatens the very foundation of the concept’s legitimacy’.^[105]

Without a doubt, human rights have developed and expanded. For instance, we now have four regional systems for the protection of human rights. The United Nations universal system supervises compliance with at least 11 human rights treaties^[106] and has 45 thematic mandates^[107] and 13 country mandates^[108] to monitor human rights around the world. The European System of Human Rights includes at least 25 human rights treaties,^[109] the Inter-American System includes at least 11 treaties,^[110] the African System enforces at least four human rights treaties^[111] and two other regional systems are starting to slowly develop: the Arab System, born out of the Arab Charter on Human Rights (2004)^[112] and ASEAN, which approved in 2012 the non-binding ASEAN Human Rights Declaration.^[113] However, this expansion does not mean that we have overcome the deficits of the subject of rights of the Enlightenment-liberal philosophy. The deconstruction of the subject of human rights is still incomplete since the overall strategy for ascribing rights to individuals or collectives is still too embedded in the logics of liberalism: the more autonomy and reason the more rights one can get. Thus, we still have the burden of showing our humanity via our capacity for reason and our ability to choose our own destiny.

It is important to note that from the early stages of the drafting process of the Universal Declaration of Human Rights, members of the drafting committee tried to overcome this ‘liberal bias’. A universal statement of rights could not be conceived only in terms of the values of Western Europe and America.^[114] Thus, for example, the proposal Article 1 of the Declaration was that ‘All men are brothers. Being endowed with reason and members of one family, they are free and equal in dignity and rights.’ But as Glendon recalls, one of the most influential framers of the Declaration, Peng-Chun Chang, a Chinese philosopher, insisted that Article 1 ought to include the word ‘ren’ in addition to reason, which meant ‘two-man mindedness which might be expressed in English as sympathy or consciousness of one’s fellow men, a word which expressed an entire worldview.^[115] However, due to a lack of an equivalent English word, his idea ‘was rendered awkwardly by adding the words ‘and conscience’ after ‘reason’ and the approved text reads that ‘all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’.^[116]

Further treaties also tried to move beyond liberalism. For example, the African Charter on Human and Peoples’ Rights recognizes not only the rights of individuals, but of people as well, and asserts that the values of African Civilization should inspire their concept of human and people’s rights.^[117]

As philosopher Jacques Maritain said, to allow for pluralistic interpretations of human rights, the Universal Declaration has an open texture of rights, and in his words, ‘many different kinds of music could be played on the document thirty strings (articles)’.^[118] Nevertheless, it seems that we ended up again playing the concert of philosophical liberalism. It might be time to go back to the dream of accommodating different cultures and philosophies in the implementation of human rights throughout the world. Those different cultures may in fact provide us with a more sustainable way of living.

The Enlightenment is the philosophy of man’s dominion, and still is the core of mainstream philosophical liberalism. Although it is the great invention of the eighteenth century, and in large measure we owe to them the individual rights that we can now enforce nationally and internationally, it has also had undesired consequences: its overemphasis or obsession with autonomy, or its idolization of rationality, lead to the exclusion of several individuals as proper subjects of law, given that for their set of beliefs, not all human beings had the same degree of rationality or autonomy. Still today, the yardstick against we measure legal subjectivity is male rationality and autonomy. The more a subject resembles that ideal, the more rights it can claim and enforce.

By the same token, for most versions of philosophical liberalism, and certainly for the strand that has had more influence in law, non-human subjects get virtually no protections because rights belong exclusively to humans, the only beings that can guide their destiny by their practical reason.

In brief, Enlightenment, and for that matter philosophical liberalism as well, can become the tyranny of one species over others. It puts man above other creatures and living beings and consolidates an ethics of domination over the world by a supposed transparent rationality. It has become a type of speciesism.

I do not blame the human rights movement for the tremendous environmental degradation and destruction that we are seeing today in the world, but I think its philosophical justifications and practice render it completely unable to fight against several catastrophes taking place. What is the point of having thousands of rights if we are without a planet? If human rights truly want to be the last utopia,^[119] they need to be able to see the world through different eyes. Living beings are more than tools, more than resources, more than machines, more than property.

3.1 Martha Nussbaum and the Capabilities Approach

As stated above, the Enlightenment-liberal philosophy justified human rights based on the triad rationality-autonomy-freedom, which for the reasons explained, excludes non-humans. However, Martha Nussbaum, an American moral philosopher influenced by Amartya Sen, recovers a tradition of capabilities that goes back to Aristotle, and presents a political justification of human rights that revitalizes the Rawlsian liberal tradition.^[125] For Nussbaum, human rights are essential human capabilities to function or substantive freedoms that ‘should be respected and implemented by the governments of all nations, as a bare minimum of what respect for human dignity requires.^[126] This articulates an anti-metaphysical and political justification of human rights in which the basis of human rights claim is a person’s existence and their aspiration to flourish within the community.^[127] In her view,

we can arrive at an enumeration of central elements of truly human functioning that can command a broad cross-cultural consensus (One way of seeing this is to think about the ways in which tragic plots cross cultural boundaries: certain deprivations are understood to be terrible, despite differences in metaphysical understandings of the world). Although this list of central capabilities is somewhat different in both structure and substance from Rawl’s list of primary goods, it is offered in a similar political-liberal spirit: as a list that can be endorsed for political purposes, as the moral basis of central constitutional guarantees, by people who otherwise have very different views of what a complete good life for a human being would be (…).^[128]

Nussbaum argues that ‘there is waste and tragedy when a living creature has the innate or basic capability for some functions that are evaluated as important and good, but never gets the opportunity to perform those functions.^[129] For example, she argues that ‘failures to educate women, failures to provide adequate health care, failures to extend the freedom of speech and conscience to all citizens-all these are treated causing a kind of premature death, the death of a form of flourishing that has been judge to be worthy of respect and wonder’.^[130] Nussbaum’s list of capabilities is not exhaustive, but includes at least 10 capabilities:

1. Life, being able to live to the end of a human life of normal length; not dying prematurely, or before one’s life is so reduced as to be not worth living.

2. Bodily health. Being able to have good health, including reproductive health; to be adequately nourished; to have adequate shelter.

3. Bodily integrity. Being able to move freely from place to place; having one’s bodily boundaries treated as sovereign, ie, being able to be secure against assault, including sexual assault, child sexual abuse, and domestic violence; having opportunities for sexual satisfaction and for choice in matters of reproduction.

4. Senses, Imagination and Thought. Being able to use the senses, to imagine, think, and reason-and to do these things in a ‘truly human’ way.

5. Emotions. Being able to have attachments to things and people outside ourselves; to love those who love and care for us, to grieve at their absence; in general, to love, to grieve, to experience longing, gratitude, and justified anger.

6. Practical Reason, being able to form a conception of the good and to engage in critical reflection about the planning of one’s life.

7. Affiliation, being able to live with and toward others, to recognize and show concern for other human beings, to engage in various forms of social interaction.

8. Other species. Being able to live with concern for and in relation to animals, plants, and the world of nature.

9. Play. Being able to laugh, to play, to enjoy recreational activities.

10. Control over one’s environment: A. Political. Being able to participate effectively in political choices that govern one’s life, having the right of political participation, protection of free speech and association. B. Material. Being able to hold property (both land and movable goods), not just formally but in terms of real opportunity; and having property rights on an equal basis with others; having the right to seek employment on an equal basis with others; having the freedom from unwarranted search and seizure.^[131]

Nussbaum proposes to extend the capabilities approach to animals. This is based on her idea that law should value our animality, and not just our rationality. She claims that our dignity and rationality precisely are those of a certain sort of animal. In her view, Kantian starting points distort this and give us a mistaken view of our ethical relation to other animals.^[132] But she argues that ‘there is something wonderful and wonder-inspiring in all the complex forms of animal life’.^[133]

For Nussbaum each creature capable of having ‘a subjective point of view on the world and feeling pain should have the opportunity to flourish in the form of life characteristic of that creature’.^[134] Further, she notes that species are becoming extinct because human beings are killing their members and damaging their natural environments, therefore, this individual damage should be the focus of the ethical concern within the capabilities approach.^[135] Thus, Nussbaum proposes this list of basic capabilities that should be granted to animals:

1. Life. All animals are entitled to continue their lives, whether or not they have such a conscious interest. All sentient animals have a secure entitlement against gratuitous killing for sport […] Respectful paternalism supports euthanasia for animals in pain.

2. Bodily health. Laws banning cruel treatment and neglect […] in current practice animals being raised for food are not protected in the way other animals are protected. This asymmetry must be eliminated.

3. Bodily integrity. Animals have direct entitlements against violations of their bodily integrity by violence, abuse, and other forms of harmful treatment […]

4. Senses, imagination and thought. Free movement in an environment that stimulates and pleases the senses […] reject close confinement and regulate the places in which animals of all kinds are kept for spaciousness, light and shade, and the variety of opportunities they offer the animals for a range of characteristic activities […]

5. Emotions. They are entitled to lives in which it is open to them to have attachments to others, to love and care for others, and not to have those attachments warped by enforced isolation or the deliberate infliction of fear.

6. Practical reason. Capacity to frame goals and to plan its life […] to the extent that this capacity is present, it ought to be supported.

7. Affiliation. […] Animals are entitled to opportunities to form attachments and to engage in characteristic forms of bonding and interrelationship. They are also entitled to relations with humans, where humans enter the picture, that are rewarding and reciprocal, rather than tyrannical.

8. Other species […] gradual formation of an interdependent world in which all species will enjoy cooperative and mutually supportive relations with one another.

9. Play. […] Provision of adequate space, light, and sensory stimulation in living places, and, above all, the presence of other species members.

10. Control over one’s environment. […] entitlements directly, so that a human guardian has standing to go to court, as with children, to vindicate those entitlements […] the analogue to property rights is respect for the territorial integrity of their habitats, whether domestic or in the wild.^[136]

The capabilities approach has many strengths and a few weaknesses. Nussbaum takes us from the liberal tradition of rights based on rationality-autonomy-freedom, towards an alternative liberal tradition based on capabilities-autonomy-freedom. This means that rights will no longer be granted based on rationality, but on the faculties that agents, including non-human beings, can develop throughout their existence for their flourishing and happiness. This approach presents a better justification for animal rights than those that currently exist. Namely, it goes beyond the traditional approaches, the Benthamite, that would grant rights based on sentience, and the negative rights approach that would only advance the rights of animals to not suffer violence. It is also an improvement with regards to the ‘like us’ approach advanced by authors such as Steven Wise, that would grant rights to animals because they are similar to human beings. The limitation here is that it is deeply anthropocentric, and it would lead us to protect only the ‘More Human’ Animals, completely ignoring the Otherness of the Animal Kingdom and the fact that each form of life is different.^[137] In some instances, the capabilities approach requires leaving animals alone, but in some other it would mean the active intervention of humans for the betterment of their lives. Sentience is relevant, but the ultimate criteria is potential, what agents can become with or without human intervention.

Furthermore, Nussbaum also goes beyond the idea of thin social goods of philosophical liberalism, or the list of primary goods proposed by Rawls.^[138] For Rawls, not even the human rights recognized in the Universal Declaration of Human Rights could be justified, much less all the new rights recognized today, let alone non-human rights.^[139] Since his aim was to propose rights that would be acceptable by all people, he relies on a sort of minimalism that leads him to consider human rights to be a very restricted class of urgent rights that would be acceptable to non-liberal peoples, such as the right to subsistence and to security, the right to liberty, the right to personal property and liberty of conscience.^[140] For the capabilities approach, the list of primary goods is thicker. However, this is also not a comprehensive theory since it still works with the framework of an overlapping consensus across cultures to agree on the list of human rights law.

In addition, with Nussbaum we also leave behind the Kantian-Rawlsian experiments in which only abstract people intervene. The capabilities approach/list is based on the experience of the author talking with disadvantaged people in India and other places.^[141] This is not the original position, in which the participants suspend their backgrounds and position in society. Thus, the point of departure seems to be formal and substantive equality. As Nussbaum notes, a judge needs to hear real people’s problems to understand how the law should react. For example, ‘if one cannot imagine what women suffer from sexual harassment on the job, one won’t have a vivid sense of that offense as a serious social infringement that the law should remedy’.^[142] For Nussbaum, then, the distribution of social goods and capabilities are inspired by the needs and suffering of people that she saw in other cultures. This is important because in real life the point of departure is not formal and substantive equality, but on the contrary, radical inequalities and the unjust distribution of goods.

Interestingly, Nussbaum notes that although Rawls’s original position is not supposed to be an actual historical situation, it might be a fantastic way to understand the bargain or contract process involving both humans and nonhuman animals.^[143] Thus, in a quasi-literary way, Nussbaum draws an image in which we can picture humans and animals coming to a table to articulate the position that would correspond to them and to us in a just society.

Now, a central weakness of the capabilities approach for a theory of non-human rights is that she still puts great weight on the value of liberal autonomy,^[144] a concept that I have criticized throughout this article.

The early Nussbaum (1992) justifies her list of capabilities through an analysis of what can be considered essential human traits. The later Nussbaum (2011) holds that her list of capabilities is justified because they promote human dignity.^[145] But reading the human capabilities list, it still seems that she is promoting some sort of human homogeneity, ‘the liberal human’,^[146] that I criticized previously.

There are other critiques against the capabilities approach applied to animals. For example, Donaldson and Kymlicka argue that the problem with Nussbaum theory is that it tends to focus on the flourishing of animals as if they were living completely separately from humans, when it is the case that we are living in interspecies communities. Therefore, they argue that we need a conception of flourishing that is more sensitive to interspecies community membership and intraspecies individual variation that is also open to evolution.^[147] However, this criticism can be remedied, as Nussbaum herself acknowledges that her list of capabilities can be amended. In this sense, what she states is that the ideal of regulation is those policies that promote the flourishing of animals. She acknowledges that we live in interspecies communities and that we can affect the flourishing of other beings since we control the earth, the seas, and the skies, and she now talks about ‘symbiotic capabilities’.^[148] Thus, what that flourishing is, is still open for discussion and can of course consider the capabilities that promote our wellbeing within our interspecies communities.

But in my view, the greater challenge when applying the capabilities approach to a non-human theory of rights is that her theory of justice can only apply to sentient animals, but not to nature. In her most recent book on the rights of animals, she contends that ‘a necessary and sufficient condition for being a subject of a theory of justice is what she calls ‘the standard animal package’: sentience, emotion, cognitive awareness of objects, movement toward the good and away from the bad’.^[149] Further, in her view, although the natural environment has ethical importance, both instrumental because it supports the capabilities of sentient creatures, and intrinsic as well, and we have ethical duties to protect it, it is not the same kind of duties as with creatures or individuals.^[150]

The goal of her theory of justice is to protect individuals, and it is a version of justice that tends towards atomism and individualism. However, if we combine her idea of basic capabilities, with other traditions of rights that not only protect the individual, but also communities and the planet, we can arrive at a sustainability approach to rights capable of responding to global challenges. To do this, next I explore Latin American efforts to promote ideas of biocentric rights, which protect the human, the animal, and the world of nature.

Although I am aware that there are important developments in other regions regarding the rights of animals^[151] and nature^[152] , the examples of Latin America are more telling, because not only are they seeking to promote changes in the anthropocentric world culture of human rights, but they do so from a decolonial perspective that denounces the oppressions to which they have been subjected, and the failure of liberalism to protect the planet. Faced with this, the worldviews of indigenous peoples present another vision of the cosmos, an organic totality in which the center is not the ego of human beings but the harmony between everything living.^[153]

3.2 Earth Constitutions and Jurisprudence in Latin America

The capabilities approach took us from rationality-autonomy-freedom, towards capabilities-autonomy-freedom, which I argued is still not enough for a theory of non-human rights. However, Earth Constitutions and jurisprudence in Latin America present an alternative to rethink the foundations of rights. Based on or highly influenced by indigenous philosophies, they promote substantive moral goals that emphasize the rights of nature and the concept of harmony between species in the world. Although autonomy and liberty are still important, sustainability also is. Thus, the individual is still important but is, to a degree, decentered from the legal systems.

Next, I will discuss the Constitutions of Ecuador and Bolivia, as well as decisions by tribunals in Ecuador, Argentina and Colombia that shows ways to protect non-human rights, including animals and nature.