In the field of animal rights, the 'Is and Ought' divide is related to what is possible in the real-world, against the idealistic aspects of animal rights protection. This divide is between what philosophy tells us from one side (the idealistic aspect, or Ought), and what is the normative and practice-dependent reality on the other (the Is aspect). Is it possible to bridge this divide and transition from one side to the other?
PRAVNI ZAPISI: The animal rights discourse is frequently influenced by the background of the authors of the specific ideas – practice or academia, and whether they are pursuing immediate goals or are interested in wider aspects connected to animal law. Scholars cross-sectionally, including from the fields of sociology, law and politics, and the animal welfare communities and politically influential institutions, domestically and globally, agree on some important points.
First, there is almost consensual agreement that the issue of animal well-being is a global concern, which necessitates normative and conceptual responses. Secondly, reliable evidence is available regarding the awareness of the civil society at large about the issue of the need to protect animals. It appears in the rhetorical perception that animals are a distinct group deserving protection. Yet such recognition is where the common path stops. Some who are more pragmatic and concerned with the immediate task of improving the situation of animals – at least the way how we understand this – proceed to use the existing legal and administrative framework. Others, who reflect on amore general level, get carried into discussions of vulnerability and capabilities, which at first sight remains distant from the immediacy of easing animal suffering, but may yield such results if structural changes in laws become reality. Then there is the judiciary, whose task is to implement current legislation and which may at least raise the issue of possible gaps in normative regulation.
At a superficial glance, one could argue that the academic side presents more enduring questions and the activist side – more short-term goals related to living and death conditions. But at a closer look, the matter whether animals are or should be covered by fundamental rights protection emerges in both academic and practical discourses and actions. Rejection or acceptance of the proposition that animals are subjects of fundamental rights is, somewhat surprisingly, related to whether core philosophical values apply to animals or not, regardless of the format that the action or discussion takes. Both versions are possible in theoretical debates, activism, and judicial proceedings, i.e., discussions about animal well-being are perfectly meaningful without resorting to the matter of values, since adding a moral dimension has the effect of diverting attention from immediacy.
If the discussion or activity stays narrowly normative or practical, and philosophical categories are not applied, then animals a reviewed from a more utilitarian perspective of creating good conditions for their breeding, and here the fundamental rights expansion proposition remains marginal or does not emerge at all. On the other hand, if these core values emerge in discourse and are analyzed regarding animals, such as equality and freedom, then the conclusion that fundamental rights are applicable to animals seems to prevail as inevitable. It may even be regarded as a condition sine qua non. This assumption appears as time- and place-independent, so it should be repeated: the one who uses philosophical categories and fundamental values to analyze the status of animals in the world, will sooner or later face the inevitability of extending the fundamental rights cover to animals. This is only so, if the person believes in the universality of basic values, such as equality and freedom.
It also appears that resorting to fundamental questions of law cannot be avoided when addressing animal rights, otherwise the analysis of any regulatory matters related to animals would stop without reaching the core questions. This article will test the necessity of adding moral and fundamental values aspect to the animal rights discourse, in two aspects: theoretical and normative-sociological. The first will be concerned with the concept of vulnerability, and the second will draw conclusions from the social and normative recognition of animals’ capability to suffer.
In both of these aspects, as a starting point, the divide between Is and Ought will be explored. In the field of animal rights, this Is and Ought divide is related to what is possible in the real-world, against the idealistic aspects of animal rights protection. The aim is to explore more precisely the depth of the divide between what philosophy tells us from one side(the idealistic aspect, or Ought), and what is the normative and practice-dependent reality (the Is aspect). It is possible that the field of animal rights law can give some ground to reflect upon the Is and Ought issue in more general terms, especially in connection with the transition from one to the other.
Two possibilities have been proposed to characterize the mutual dependency between the idealistic and the practical dimensions of law. The first claims that once certain elements are met, the Is can transfer to Ought, meaning that legal standards will reinforce certain behavior and values, which gain normative weight through repetition. Yet some argue that such transfer is not possible, represented by Ken Witkowski, who points to the different functions of these two spheres. The second possibility makes the opposite claim: standards can be transferred into behavior, meaning that Ought is transferred to Is.4 Despite Alan Gewirth labelling the Is–Ought problem as one of the most fundamental ones in moral philosophy, a glance at animal law theory and practice leads to the conclusion that extension of fundamental rights toward new and vulnerable groups can only be one-directional: from Ought to Is.
An opposite view, namely that Is can be transferred to Ought, would never yield fundamental rights recognition in animals, as long as such transfer is understood narrowly as reinforcement of socially widespread and desired behavior. This is because the majority of population, although now keen to preserve the environment and the habitat, would perhaps be willing to accept the idea of animals as fundamental rights holders, but remain unsure how they can turn this standard into practical behavior. Yet the transfer from Is to Ought can also have a different ramification, where socially condemnable behavior is expelled through the standards of Ought.
This article will argue, from an interdisciplinary point of view, that the Ought, as a non-legal concept, originates not from discussions between lawyers and politicians, but is rather rooted in social perception. One arrives at this position after rejecting the idea that the Ought in the field of animal law can be the result of transfer from Is. It is a matter of how people contemplate and understand certain fundamental issues, which then get translated into the Ought, and only thereafter can find a way to the Is.Yet, another sociological phenomenon also requires attention. It is related to the process and turning of the Ought into the Is – what are the driving social factors for narrowing the gap between the ideal and practical dimensions of law. For animal rights law, these two aspects can be formulated as follows.
Firstly, the question how the Ought is formulated: the recognition of animals as sentient beings protected by fundamental rights is related to core values and is based on the moral perception held by society, which finds its formulation in the constitutional level normative instruments. And secondly, the question how the Ought it transferred into Is: the adoption of ordinary animal rights protection legislation based on the understanding of their fundamental rights is dominantly subject to social pressure. It would then appear – if both of these statements can be verified – that the element of social pressure plays a crucial role in both the conceptual and normative development of animals’ fundamental rights. SOURCE…
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