Addressing the Will Theory Challenge to Animal Rights

Abstract

Participants in the long-standing interest/will theory debate, long in disagreement over the function of rights, are united on this point: while the interest theory can accommodate animals, the will theory cannot. Recent scholarship in animal political theory agrees, accounting for animal rights via the interest theory alone. This article offers the first sustained challenge to this position by exploring two interpretations of the will theory. It concludes that only a more moderate interpretation of what it takes to be a competent decision-maker allows us to interpret the will theory in a way that both retains its distinctiveness and conforms to current, mainstream rights discourse. Through a discussion of how we might regard at least certain animals, in certain contexts, as being capable of giving or withholding their consent, the article argues that they should no longer be categorically held as outside the domain of will theory rights-holders.

Introduction

The debate over how to best account for the function of rights – whether they serve primarily as a vehicle for protecting interests or the expression of one’s will – is unlikely to be resolved any time soon. Nevertheless, there is at least one point upon which proponents of the interest and will theories have long been united: while the interest theory can accommodate the rights of nonhuman animals, ¹ the same is not true of the will theory. Indeed, scholars on both sides of the debate have claimed that how animals are accounted for is a ‘substantial merit’ of their own preferred theory and a weakness of the other (e.g. Hart, 1982: 185). ² At the same time, the consensus in the recent literature on animal legal and political theory agrees that animals can – at least potentially, though possibly already in fact – be rights-holders. However, mirroring the accord in the function-of-rights debate, it is held that animals can be rights-holders under the interest theory, but not under the will theory (e.g. Cochrane, 2012; Epstein and Kempers, 2023; Kotzmann, 2023; Stucki, 2020; Sunstein, 2000).

In the literatures mentioned above, the will theory challenge to animal rights has been asserted as more of a truism than a fully justified position. It therefore deserves interrogation, not only because this has not been done before, but because whether or not we conceptualise of animals as rights-holders is deeply, normatively important. Being a rights-holder is a status held by those whom society has agreed are important. To deny that a group of beings has the capacity for holding rights, therefore, is one of the most powerful ways we have of excluding them from the bounds of society’s concern (Naffine, 2009: 11; Nékám, 1938). As such, even where animals might be afforded legal protections, the question of whether we can conceptualise of these protections as rights, and therefore include animals within our rights discourse, is significant.

Why, however, might it be important to show that animals can be regarded as rights-holders under the will theory, when they can straightforwardly be regarded as such under the interest theory? This endeavour is important for two key reasons. First, emerging evidence of animals’ cognitive capacities demands we challenge previous views of animals as reactive, non-autonomous beings, who are ‘“locked into” their ends and desires in a way that most adult humans are not’ (Cochrane, 2009: 673). ³ Second, our moral and legal commitments to impartiality demand we carefully consider those normative concepts, discourses and institutional mechanisms that have served as barriers to politically and legally marginalised groups. To fail to do so would be inconsistent given the kinds of normative commitments we have in relation to other, existing (human) rights-holders whom we certainly do not want to exclude from justice on the basis of their lack of, or atypical forms of, autonomy.

The article does not seek to weigh in on the will theory-interest theory debate per se – it makes no claims about the relative strengths of the two theories. However, the article does suggest that if we want to interpret the will theory most charitably – namely, in a way that does not deny the capacity for rights-holding to many (if not most) members of our communities – then the will theory challenge to animal rights does not succeed. The article instead argues that, rather than continuing to view animals as ‘unempowerable creatures’ (Steiner, 1998: 259), we need to accept that at least some animals are competent to – and in fact might already – hold the legal capacities required of a will theory rights-holder.

The article focuses on the Anglo-American legal tradition, where the legal and cognitive agency of animals has so far been effectively denied. It is important to note, however, that various non-Western and Indigenous knowledge traditions view animals and other nonhuman entities such as rivers as autonomous beings, imbued with personhood and existing with humans in kinship networks (LaDuke, 1999; Robinson, 2022; Winter, 2022), and that these ontologies have recently begun to trickle over into various legal systems around the world. This has resulted in certain animals and environmental entities being recognised as subjects under the law, able to take legal action to enforce their entitlements (see Hsiao, 2012; Kauffman and Martin, 2023s: 4). It seems likely, then, that within these contexts, the will theory could relatively straightforwardly be adopted as a conceptual foundation for animal rights – since animals here seem already to be recognised as the kind of autonomous, agential beings that the will theory takes as its subject. However, given leading will theorists are to be found within the Anglo-American tradition – and given the prevalence with which animal rights scholars in this same tradition have turned to the interest theory, and not the will theory, to lay the foundation for their accounts of animal rights – this article’s primary focus is on the Anglo-American context as a particularly important site of inquiry.

The article proceeds as follows. In the first section, ‘A Conceptual Analysis of Rights’, I outline the will and interest theories with reference to Hohfeld’s scheme of rights-elements. The second section sets out the will theory challenge to animal rights by discussing two key requirements of the will theory rights-holder, both of which are traditionally taken to exclude animals. These are, that the rights-holder must have the authority and the competence to make legal decisions. I then respond to the will theory challenge by explaining how animals can (and in some cases, arguably already do) have legal authority to make decisions in the legal sphere. I then explore two ways we might interpret what it means to be a competent decision-maker under the will theory, drawing on recent debates over whether animals are capable of consent. I hold that only a more moderate interpretation of the will theory allows us to interpret the will theory in a way that both retains what is distinctive about this theory, while also conforming to commonly held intuitions about who the rights-holders in our society are. Resting on this interpretation, I conclude that (at least some) animals can be regarded as competent in expressing their choices in the required way and that, therefore, such animals can be regarded as (potential) rights-holders under the will theory.

A Conceptual Analysis of Rights

The Hohfeldian Rights Schema

In order to understand competing claims about the function of rights, it is helpful to have a conceptual framework that enables us to distinguish between different kinds of rights and their entailments. Legal theorist Wesley Hohfeld asserted that a right, in its strictest sense, is the correlative of a duty (Hohfeld, 1923: 38). So, if musical group The Wiggles has a duty to pay royalties to fellow band, Tame Impala, if the former covers the latter’s song ‘Elephant’, then Tame Impala can be said to have a right to be paid royalties by The Wiggles. Hohfeld suggested that a right in this sense is best labelled as a ‘claim’ (Hohfeld, 1923: 38). Since claims are defined by reference to the duties of others, the claim-holder need have no specific capacities, beyond the ability to be affected in some relevant way by the duty. Aside from claims and duties, Hohfeld outlined three other sets of correlative elements. For the purposes of the following discussion, however, we need only define one further element: the ‘power’. A power is a second-order legal capacity, in that it gives its holder the ability to modify some other Hohfeldian element (Hohfeld, 1923: 50–51). So, Tame Impala can be said to have a power over The Wiggles’ duty to pay song royalties if the former has the ability to legally demand or waive that duty; Tame Impala can, for example, choose to not be paid the royalties that are owed.

The Hohfeldian rights schema may apply to both legal and moral rights, though Hohfeld himself formulated his system in explicit relation to the former (Kramer, 1998: 8). While this article will focus on legal rights, the argument should be read as applicable in the moral case also.

The Interest and Will Theories

The purpose of the interest and will theories of rights is to make claims about the function of rights and, by extension, the kinds of entities that may be regarded as rights-holders. According to the interest (or ‘benefit’) theory, the function of rights is to protect interests. Thus, rights-holders are those who have the capacity for interests, and whose interests are, in fact, protected through legal mechanisms. It is important to note that it is neither necessary nor sufficient that rights-holders are able to enforce or waive the rights that are owed them (Kramer, 1998: 62); the rights may be enforced by a third party on the rights-holder’s behalf. So, since there are third parties that can enforce the legal protections that animals have – protections, such as provisions against cruel and neglectful treatment, that protect animals’ interests – we can straightforwardly recognise these protections as legal rights under the interest theory.

It is the capacity to enforce one’s rights that is the key point of contention between proponents of the interest and will theories. That a legal entitlement protects someone’s interest is not, under the will (or ‘choice’) theory, necessary or sufficient for that entitlement to be understood as a right (Kramer, 1998: 62). Instead, of primary concern for this theory is the will of the rights-holder, and her capacity to enforce her will in the legal sphere – whether or not what she wills would be regarded as being in her interest. ⁴ The theory is ‘centred on the notion of a legally respected individual choice’ (Hart, 1982: 189), such that rights are viewed as ‘spheres of practical choice within which the choices made by designated individuals (and groups) must not be subjected to interference’ (Steiner, 1998: 238), with rights-holders to be regarded as ‘small-scale sovereigns’ (Steiner, 1998: 262). For the will theorist, rights provide ‘a vehicle for some aspect of an individual’s self-determination or initiative’ (Kramer, 1998: 62). Thus, rather than merely protecting an individual’s choices in the sense of their whims, there is the sense that rights protect considered preferences: that set of choices that ultimately contributes to the rights-holder’s identity as an autonomous individual.

In terms of Hohfeldian rights-elements, a right under the will theory necessarily involves the exercise of a power. So, a claim (or other Hohfeldian rights-element) that cannot be modified by a power is no right, and only a claim (or other Hohfeldian rights-element) that can be modified by a power can be considered a right. As Wellman puts it, the very purpose of a right is to ‘to allocate autonomy within some defined sphere to one party vis-à-vis second parties in the event of any conflict of wills or confrontation between these parties’ (Wellman, 1984: 441). We can therefore see a direct link between the holding of a right and the individual’s capacity for self-determination, namely through control over others’ behaviours as they impact on his or her entitlements.

While rights-holders under the interest theory are those entities that have the capacity for interests, the capacities required of the rights-holder under the will theory are less straightforward to determine. Kramer outlines two capacities of the will theory rights-holder: rights-holders under the will theory must be both ‘authorised’ and ‘competent’ to assert their rights (Kramer, 1998: 62–63). Similarly, for Halpin (1996: 140), the power-holder is one who ‘has the capacity or authority to decide an issue where the decision will have legal repercussions upon the position of another’. To be authorised is to be accorded, by the legal system, the power to amend one’s own or others’ rights in some way. To be competent is to have the required cognitive abilities to make choices about one’s situation – to be cognitively capable of exercising a power. As Kramer (1998: 64) explains, mere legal authority is not sufficient for will theory rights-holding:

If X is authorized to select between the options of initiating legal proceedings and abstaining from such proceedings, and if X is nonetheless mentally incapacitated from choosing at all, then he does not hold a genuine Hohfeldian power. And, in such a situation, X certainly does not hold a power which the proponents of the Will Theory would acknowledge as meeting the standards of their doctrine.

The implication is that, lacking the ability to hold a power that would enable them to waive or enforce their other legal entitlements, X falls outside the scope of the will theory. While Kramer himself is not a will theorist, his conceptualisation of the will theory – making clear, as it does, the distinction between legal and cognitive capacities – is particularly useful for the analysis here. In the next section, I outline the will theory challenge to animal rights with reference to each of the requirements specified by Kramer.

The Will Theory Challenge to Animal Rights

As noted previously, the interest theory can straightforwardly provide an account of how we can understand animals’ legal entitlements as legal rights. Scholars also agree that this theory is well-placed to ground the legal rights of children and those with severe mental incapacities or impairments. Such individuals have interests, ⁵ but do not (or so it is often thought) have the capacity to make rational, reflective decisions and to therefore decide whether to demand or waive their legal entitlements. By contrast, the general consensus is that the will theory, with its emphasis on agentic choice and legal authority, cannot ascribe rights to animals (or to children and those with various cognitive incapacities). In what follows, I consider the competence and authority requirements of the will theory separately, and make more explicit the assumptions that underlie many theorists’ beliefs that animals are neither authorised nor competent to exercise legal powers.

The Authority Requirement: Animals Do Not Have Legal Authority

To have legal authority to act within the legal system, one must be recognised by some legal mechanism – a constitution, a statute, case law – as having the potential for legal standing in a particular context: as a plaintiff in a lawsuit, say. Importantly, if one is unable or unwilling to act on one’s own behalf, one is nevertheless recognised as having the legal authority to take part in legal proceedings with the assistance of a legal representative. Such representatives include lawyers, who we may instruct directly to pursue the outcomes we desire, and guardians, who are empowered to speak on behalf of those whose voices are not, or cannot easily, be heard by the legal system. ⁶ So, even if one cannot or chooses not to, personally, make their case in court, this does not preclude them from recognition as a legal subject, with the capacity to take legal action in their own name.

For the most part, this is not the case for animals. Of course, animals cannot be expected to enter into a courtroom and personally plead their case before a judge. ⁷ The prospect of an animal instructing a lawyer about her desires in relation to any legal claims that she might have may seem to be equally improbable. Yet such assumptions about the capacities of animals to have, and be able to express, meaningful desires (assumptions which tend not to take into account how legal institutions can play a role in enabling or disenabling the capacities of its subjects) have contributed to the fact that animals have been almost entirely denied the authority to take legal actions. A notable example of this is a recent case from the US state of Oregon, where an Oregonian resident was subject to criminal neglect and the women in charge of his care were prosecuted and fined. This victim of neglect then brought a civil suit against his former carer, seeking compensation that would go towards the ongoing costs of his medical treatment. Such actions by victims of crime are nothing out of the ordinary, given criminal convictions may punish those responsible for their injury but fail to provide them with (sufficient or any) material restitution. What was out of the ordinary, however, was that the victim of the crime, Justice, was not a human but a horse (see Animal Legal Defense Fund, 2022). As such, the merits of his case were not formally considered by the courts, as Justice was deemed not to have the legal authority to bring the case in the first place. As the initial court decision noted, Justice ‘lacks the legal status or qualifications necessary for the assertion of legal rights and duties in a court of law’. ⁸

This example and several others like it (see Davison-Vecchione and Pambos, 2017; Hakimi, 2017) highlight how the legal system has operated to deny legal authority to animals who seek (with the help of legal representatives) to take legal action. Given the weight of history behind the legal norm of denying animals legal authority, and how animals’ various legally imposed incapacities would seem to be ‘doing important cultural work’ (Naffine, 2009: 131), it is easy to understand why the assumption that animals are inherently incapable of having such authority has been so widespread. Whether animals could be given legal authority in the required way – namely so that they could take legal action in their own names – is a question that will be addressed in the section ‘Responding to the Challenge’. However, for now, let us consider the other requirement of the will theory: competency.

The Competency Requirement: Animals Are Not Competent to Exercise Control Over Others’ Duties

Say, for argument’s sake, that animal welfare statutes were amended to include provisions that allowed the victims of animal cruelty offences the legal authority to bring lawsuits against those who have injured them. While they might now have legal authorisation, could the animals legally empowered in this way be regarded as (cognitively) competent to take the appropriate actions? Would they be capable of making decisions about what they want, on the basis of reasons they have for wanting their lives to go a particular way? If not, then we would have to conclude that animals remain outside the domain of will theory subjects.

The notion that animals could be competent to make decisions about their legal entitlements is one that has been viewed with overwhelming scepticism in the literature. On one hand, the level of competency that is assumed in formulations of the will theory tends to be rather high. As Visa Kurki suggests, the kind of control that is often regarded as necessary for one to be capable of waiving or enforcing one’s legal entitlements ‘is not just any control at all, but the kind of control that can only be exerted by rational beings with mental faculties that correspond to those of adult human beings of sound mind’ (Kurki, 2017: 81). On the other hand, animals’ level of competency is generally assumed to be quite low (at least relative to humans’), to the extent that it is recognised at all. On Kramer’s (2001: 30) account, animals:

are not competent to form or express their wishes with the elementary degree of precision and reliability that would be necessary for the full-fledged exercise of any legal power of enforcement/waiver. They are not able to grasp what is involved in the enforcing or waiving of a duty, and they are likewise unable to communicate any decisions on such a matter in a minimally satisfactory way – even if they could arrive at those decisions adequately.

Claims about animal incompetence, in the context of the interest/will theory debate, mirror long-standing assumptions about the cognitive capacities of animals that are present in the broader Western philosophical canon, where animals have been viewed as non-rational, non-moral, non-self-reflective beings, falling outside scope of the social contract (e.g. Kant, 1997: 212; Rawls, 1999: 448; see also Rowlands, 2012: Ch. 4). While these assumptions about animal autonomy are increasingly coming to be challenged by various ethologists, biologists, cognitive scientists and philosophers, the emerging evidence of animals’ capacities for self-determination has not yet been brought to bear in the interest/will debate. ⁹ I take up this challenge in the next section by responding to the claims that animals are not – and could not be – authorised or competent to make choices in the context of the legal sphere.

Responding to the Challenge

Animals and Legal Authority

As was noted above, animals have generally not been accorded the legal authority that would enable them to take legal actions. However, there is no conceptual reason in the way of them having such authority. To explore this point, we need to establish that it is possible for animals to take legal actions, for if it is not possible, then it is not clear how they could be authorised to do so. First, we should make clear the difference between legal and volitional action. Ross (2013: 702) draws this distinction in his discussion of children’s rights: merely because a child may be ‘volitionally’ incapable of exercising the remedial legal action of initiating a court case, this does not preclude her from being recognised by the legal system as capable of taking action in relation to the underlying substantive right. He argues that:

The relevant action by a representative, taken on behalf of a volitionally incapacitated child, would be deemed in law to be the equivalent of action taken by the child; and such action would include the exercise of substantive rights.

On the basis that, legally, children are recognised as taking action through their representatives, Ross suggests that the will theory should not exclude children from the scope of its rights-holders. Even H.L.A. Hart allows something similar when he suggested that those, like children, who are temporally, volitionally incapacitated and rely on a representative to take legal action on their behalf, can still be regarded as rights-holders under the will theory (Hart, 1982: fn.86). ¹⁰ As such, questions about whether animals are volitionally capable of certain actions aside, this need not preclude them from taking legal action. Thus, questions about their volition need not preclude them from being granted legal authority to take such actions.

Although such cases are rare, there are indeed examples in which animals have been recognised as plaintiffs in legal cases, with the authority to take legal action (via human legal representatives) in their own names. Take a recent case, Community of Hippopotamuses Living in the Magdalena River v. Ministerio de Ambiente y Desarrollo Sostenible et al., which was filed in the US state of Ohio in 2021. The community of hippopotamuses named as sole applicants were from Colombia, where animals are recognised as having the legal capacity to sue. With the Colombian government planning to cull the herd for environmental reasons, American animal rights organization, the Animal Legal Defense Fund, filed an application for discovery for use in foreign proceedings in a court in Ohio. The purpose of the suit was to ensure that the testimonies of two Ohioan wildlife experts could be included in the Colombian case. Under the relevant US statute, ¹¹ courts are compelled to recognise the standing of plaintiffs if they are regarded as legal persons in the original foreign proceedings. As such, the Court in Ohio was bound to recognise the authority of the hippopotamuses to take legal action in this case, because they were recognised as having this legal capacity in Colombia. Importantly, by contrast with a number of previous cases where the standing of animal plaintiffs was denied by the court, ¹² the hippopotamus’ authority to bring the case was accepted without questions of personhood, competency or autonomy arising.

Before we consider the issue of competency in more detail, it is important to recognise how the case of the Colombian hippopotamuses speaks of a broader point about legal authority being a socio-legal construction. That legal authority in the nineteenth century could be newly accorded to ‘an artificial being, invisible, intangible, and existing only in contemplation of law’ which can have its desires communicated through ‘a perpetual succession of individuals [who] are capable of acting for the promotion of the particular object, like one immortal being’ ¹³ (i.e. a corporation) while at the same time being denied to adult women and African Americans, puts this point in further, sharp relief. As will be discussed below, it is possible to recognise the will of animals in the legal context via a wide variety of reforms, just as women, African Americans and corporations – and even, now, certain rivers (Hsiao, 2012) – have been so empowered for a variety of social, legal and economic reasons (Mayer, 1990; Naffine, 2009). Before we get there, however, the question remains as to whether animals – even if they could be regarded as legally authorised – have the requisite autonomy to make decisions about their entitlements. It is therefore to the competency requirement that we now turn.

Animal Competency

Moderate and Demanding Interpretations of Competency

In accounts of the will theory, I suggest that we can distinguish between more and less demanding accounts of competency and, consequently, between more and less demanding accounts of the will theory. Before doing so, however, it is important to note how the distinction I draw here differs from that made by Visa Kurki (2018), between ‘hard’ and ‘soft’ will theories. Recall the positions of those like Ross and Hart, who have claimed that certain volitionally incapacitated individuals can be regarded as will theory rights-holders because they can engage in legal action through a representative. Such positions can be regarded as ‘soft’ will theories, by contrast with ‘hard’ will theories. The latter maintain that whoever is actually engaging in the legal action (such as parents on behalf of their children) are the true rights-holders. The distinction I seek to make, by contrast, is not that of whether an individual is volitionally capable of acting on their own behalf in legal settings. Instead, the distinction I draw is that of whether the putative rights-holder is capable of understanding herself as having legal entitlements, is aware of what legal options are available to her as a result of these entitlements, and is able to choose from among her options accordingly (the demanding interpretation) or whether she is capable of making and expressing choices that contribute to her self-determination in general (the moderate interpretation).

Let us first consider the demanding interpretation in more detail. The demanding interpretation is that one must be able to understand the rights that one has, as rights, and choose whether or not to waive or enforce the legal entitlements that they provide. This appears to be the position of Joseph Raz, who stresses that:

An action is the exercise of a legal power only if one of the law’s reasons for acknowledging that it effects a legal change is that it is of a type such that it is reasonable to expect that actions of that type will, if they are recognized to have certain legal consequences, standardly be performed only if the person concerned wants to secure these legal consequences (MacCormick and Raz, 1972: 81; emphasis added).

In other words, even though individuals may not always exercise their legal powers with the legal consequences of their actions in mind, these actions should be recognised as exercises of legal power since they are generally done with the purpose of changing or maintaining one’s legal state. Some, however, might question why being able to conceptualise of a choice as one with legal implications, per se, should be regarded as a core competency required for holding a right. We may, instead regard one as competent in exercising a Hohfeldian power to the extent that one is volitionally capable of seeking to maintain constancy or affect change in some state of affairs:

X’s having a Hohfeldian legal power with respect to Y and Z means that X can, through volitional conduct, effect a change in a legal relation that currently obtains between Y and Z. X does not actually have to intend to cause the legal change in question as long as X’s volitional conduct causes the change (Kurki, 2017: 31).

A more moderate interpretation of competency, as such, would be that the rights-holder has preferences about how they are treated and is able to clearly express these preferences in an effort to affect a change (or maintain consistency) in their situation – even if they don’t comprehend how these preferences might take shape in the legal sphere.

It is not clear which the ‘correct’ interpretation is; as Dwyer (2020) has pointed out, will theorists have not always been forthcoming in articulating exactly how ‘thick’ or ‘thin’ the concept of the will is, and how demanding the exercise of a power is taken to be. Nevertheless, even if it were the case that most will theorists themselves happened to endorse the demanding interpretation in practice, we should not discount the merits of the moderate interpretation. Not only does it retain the focus on personal choice that distinguishes it from the interest theory, ¹⁴ but it accords with developments in legal theory and practice that seek to recognise forms of autonomy that have traditionally been overlooked or denied, such as that of children.

It is important to note that if we do maintain that the demanding interpretation is the preferable way of understanding the will theory, then it would seem that – as has been held in the literature thus far – animals (along with most children, and a wide range of people with cognitive impairments and neuro-divergencies) cannot be regarded as rights-holders under the will theory. This is a point that interest theorists have raised in the will theory’s disfavour. Yet this criticism arguably does not go far enough. Many adult humans who we might ordinarily regard as competent in other spheres might be excluded too, to the extent that they are unable – even with assistance – to grasp the exact nature of their legal entitlements. As such, if what is at the core of the will theory is a focus on protecting the preferences of individuals, rather than protecting the preferences of individuals with regard to their legal entitlements per se, then it is not clear that the demanding interpretation should be preferred. The moderate interpretation, instead, seems like an attractive way to describe the function of rights in terms of personal autonomy in a way that does not exclude forms of autonomy that have not traditionally been recognised by the Western legal system – to the detriment of a wide range of marginalised groups – and that accords with current, mainstream rights discourse. ¹⁵ If, however, we do accept the moderate interpretation, then it would seem to follow that many (perhaps all) animals should be regarded as competent in this way, as will now be discussed.

Can Animals Consent?

Recall that under a moderate interpretation of the will theory, if an individual who can express a choice in relation to the options open to him (whether or not he understands that this choice is protected under the law, and whether or not he knows how this choice corresponds precisely to the legal options available to him), then, so long as there are legal mechanisms in place that ensure that those choices can be waived or upheld, then he can be said to have a right. It is certainly not clear that animals can understand their options in the context of the legal system so, as suggested above, the demanding interpretation seems to be a dead-end for the notion of animal rights. Yet what of the moderate interpretation? We might argue that, to some degree, all animals can make and express choices of a kind: whether to keep moving or to stay still, for instance. Yet are these the kinds of choices that are of concern to a will theorist, even a moderate one? In other words, are the kinds of choices that animals make ones that we should regard ourselves as morally or legally bound to respect? We will address this question by engaging in the recent literature on animal consent.

Consent may be understood as a ‘normative power’ in that it enables the consenter to transform forbidden (in)actions into permissible ones, and vice versa (Healey and Pepper, 2021: 1231). The concept is particularly salient in politico-legal contexts, where ‘from criminal law to contract law, domestic to international, consent shapes the law and determines its normative foundations’ (Braun, 2021: 1). That a subject has given consent suggests that she is, as far as possible, aware of the range of implications (whether positive or negative) that are attendant on her choice. She is not merely agreeing to something because it seems like an attractive choice in the moment – she is choosing the option that best or sufficiently aligns with other goals she might have, taking the risks involved into account. For Healey and Pepper, however, more is required. On their account of consent, the consenter must ‘know that they have rights, know that they can waive those rights, and intend to give permission to others’ (Healey and Pepper, 2021: 1231, emphasis in original). While agreeing that animals can assent, which on their account does not require ‘the intention of altering the normative relationships that an individual stands in with others’ (Healey and Pepper, 2021: 1234), they conclude that at least most animals, who ‘cannot understand that by performing a certain action they are hereby giving another permission’ (Healey and Pepper, 2021: 1231), are therefore incapable of giving consent.

If understanding concepts such as ‘RIGHT’, ‘CONSENT’ and ‘PERMISSION’ is required in order to consent, as Healey and Pepper suggest (2021: 1231), then this may exclude many, if not all, animals. Yet is this the standard of consent that we should be judging animals by, when it is arguably not ideal in the human context either? Aware that their account might be charged with being overly demanding, Healey and Pepper (2021: 1232) emphasise that:

All that consent requires is that individuals have general knowledge of the normative relations that obtain between themselves and others (e.g. that this car belongs to them, that other people are not ordinarily permitted to touch them), and the fact that they can alter these normative relations by performing actions that, in the context, indicate the granting of permission.

This description of consent, however, does not obviously exclude animals. There is mounting evidence that many animals can and do develop expectations about how they are treated within their communities, and that they can and do respond in ways sensitive to context when these expectations are or are not met (e.g. Bekoff and Pierce, 2009; Brosnan and de Waal, 2003; Wrage et al., 2023). ¹⁶ Perhaps these kinds of relation-based expectations will not be accepted as constitutive of giving and denying consent by those like Healey and Pepper. However, it is not clear that their account provides the more ethical conceptualisation of consent, if it is blind to those who do not sufficiently resemble the neurotypical, adult human who has a second-order awareness of the concepts that they hold – if it is blind to the myriad ways that individuals do, in practice, navigate their relationships.

Given the limitations of cognitively demanding accounts of consent, such as that of Healey and Pepper, and of ‘informed consent’ models more generally, which may rely on unrealistic assumptions about human rationality, and which may lack a focus on care and relationship-building (Greenhough and Roe, 2011), scholars have looked to other viable models of consent. Charlotte Blattner, drawing on the work of Greenhough and Roe (2011), has suggested that we should regard consent as a practice grounded in embodied expressions, including ‘fear, anxiety, confusion, hesitation, [and] mistrust’ (Blattner, 2020: 103). Importantly, for the context of our discussion of the will theory, determining consent within this model requires interpretation of the ‘animals’ subjective will’ – as informed, in a holistic way, through embodied forms of communication – as well as the protection of their interests (Blattner, 2020: 103). As Blattner has also stressed, drawing on Donaldson and Kymlicka’s (2016: 184) work on the political empowerment of domesticated animals, animals should have opportunities to develop their agential capacities over time – just as human children do.

While ensuring that the interests of the rights-holder are protected is not a concern of the will theory, per se, we might also engage with the protection facet of Blattner’s consent model in such a way that addresses a potential concern with the moderate interpretation of the will theory. That is, is it even possible to ‘ask animals what they want’, in contexts such as the factory farm and research laboratories, where ‘our models of motivation set the stage for what it is possible to want and, from what we leave out, what it is impossible to want’ (Franks, 2019: 1)? Feminist scholars have drawn our attention to the ways that certain ‘adaptive preferences’ can harm women and other vulnerable groups – even where these preferences are experienced by their holders as genuine (Stoljar and Mackenzie, 2022). The concern is that these preferences have been shaped against a backdrop of injustice and might not be endorsed under fairer conditions. In taking individuals – and their adaptive preferences – at face value, then, we may fail to recognise and address the systemic injustices that are undermining their self-determination. Adaptive preferences are of particular concern in the context of large-scale animal enterprises, such as the intensive farming and biomedical/cosmetic research industries, which may seek to bolster their ‘social license to operate’ through demonstrating that their animals ‘freely choose’ to participate in their practices. ¹⁷ Consider automatic milking systems (or ‘milking robots’), which enable cows to engage in the milking process ‘according to their own inclination’ (Driessen and Heutinck, 2015: 4). Setting aside the fact that cows tend to be incentivised to use these systems with food rewards (thereby calling into question whether they are, in fact, freely choosing), in providing cows with the apparent ‘choice’ to be milked, this may serve to legitimise the practices of an industry that has been responsible for the widespread exploitation of both humans and nonhuman animals (Deckha, 2020; Wicks, 2018).

In order to ensure that individuals can meaningfully express preferences about how they are treated, then, we need to recognise that individuals, both human and nonhuman, are vulnerable beings. As Blattner (2020: 106) makes clear, we need to put in place ‘appropriate procedural limits (against force, fraud or deceit, duress) and substantive limits (against death and severe violation of one’s mental and bodily integrity)’ that protect the capacity of individuals to make decisions. Accordingly, to be capable of meaningful consent, individuals need to be protected from exploitative environments that severely limit their capacity to develop their own values and goals, as well as their capacity to make choices that reflect those values and goals. This must involve an awareness of the exploitative power structures that shape many human–animal interactions and that might foreclose the possibility of meaningful consent (and other ethical exchanges) within the context of these interactions. It is likely, for example, that animals held in factory farms and invasive biomedical research centres simply cannot consent to their treatment, given their cognitive, emotional and social capacities have been so severely hampered (though this is not to say that their dissent shouldn’t be attended to in these contexts (Fenton, 2019; Johnson, 2023)). Nevertheless, while the challenge posed by adaptive preferences is significant, particularly in the context of how we might design institutional responses to better recognise animal choice, it should not be overstated for the purposes of this article. That is, while adaptive preferences may indeed pose a challenge to how we interpret animals’ desires in relation to their treatment – and therefore how their rights are implemented – this challenge does not negate the possibility of them having rights (namely those that protect their choices) in the first place.

To reiterate, under a moderate interpretation of the will theory, rights function so as to protect the choices of individuals – whether or not these choices are understood by the rights-holder as legal rights, per se, or as occurring in the context of the legal system. On this account of the will theory, of primary concern is that a being (or a representative acting on her behalf) is legally authorised to take legal action and that she is competent to make decisions (where competency emerges through opportunities to develop one’s own values and goals, and is supported by ethical relationships with others). In the final section of the article, I outline how the provisions laid out under existing animal welfare legislation can, under this moderate interpretation of the will theory, be recognised not merely as animal protections, but as animal rights proper.

Animals as Rights-Holders Under the Will Theory

Consider Carmen, a Whippet who was bred to be a show dog and who worked/was used in this industry for several years before being rehomed and given the life of a companion. Carmen was born in the Australian state of South Australia, a state which regards the act of failing to provide a companion animal with ‘appropriate’ and ‘adequate’ exercise as an instance of ‘ill treatment of animals’ under its animal welfare laws. ¹⁸ Such acts are liable to a maximum penalty of $20,000 or 2 years’ imprisonment. ¹⁹ Appropriate and adequate exercise certainly promotes dogs’ interest in good health, and therefore through the lens of the interest theory of rights, we can conceptualise Section 13 of South Australia’s Animal Welfare Act 1985 as providing Carmen with a right to exercise.

Could a will theorist interpret this legal instrument as providing a legal right? Consider the fact that Carmen is a homebody, and rarely shows any desire to go for a walk. In fact, she most frequently demonstrates the opposite desire, darting away at the first sound of her leash being removed from its hook in the laundry. Curling up and making herself as heavy and immovable as possible, it is often the case that no amount of vocal or treat-based cajoling can get her up and out the door. Although she is certainly unaware of the legal entitlement that she has to exercise, Carmen is clearly aware of the opportunity being presented to her. With plenty of experience of being exercised both during her former life as a show dog and in her current life as a companion, Carmen understands what it means for the leash and ‘doggy-bags’ to come out. Not only this, she is an adult and therefore not lacking in the kind of life experience and mental development that often gives us good reason to override the preferences of children (whether human or otherwise). While Carmen might not be competent to make decisions in all situations (a trip to the vet to get necessary vaccinations would surely be a reason to override her desire to not go beyond the front gate, for example), she seems competent to make decisions in relation to going for a walk. When understood as a competent decision-maker in this context then, we can see that Carmen is protected by Section 13 not only in relation to her interest in exercising, but also in relation to her choice over whether or not to exercise. Indeed, absent this legislation, Carmen (with the help of human representatives, of course) would have no legal recourse for challenging her human companions for failing to provide her with walks in the instances when she does desire them – she would have no legally recognised choices available to her.

While the example of Carmen demonstrates how we might, in theory, use the will theory to view existing animal welfare legislation as providing rights, this cannot be the end of the discussion. Recall Kramer’s definition of the will theory, such that the rights-holder must be both competent and authorised. In Carmen’s case, we can recognise her as capable of making decisions about most aspects of her life as, indeed, are most adults of whatever species, given they are raised in suitable environments that support their healthy development. Yet as the legal system currently stands, Carmen is not authorised to enforce or waive the limited legal entitlements (or rights) that she has. Of course, the choice of whether to bring a criminal case to court always ultimately rests with state-appointed prosecutors, so even were Carmen a human, she would not, strictly speaking, have the legal authority to ensure that those who infringe upon the protections she has under animal welfare law are prosecuted. However, human victims of crime often have a range of legal mechanisms available to them to ensure they have a voice in the prosecutions process, such as the right to request restitution and the right to request an appeal. ²⁰ Such mechanisms could be adopted and modified as necessary in the case of animal victims of crime – thereby providing them with legally recognised choices in relation to the protections afforded them under welfare laws. With animal victims of crime thereby able, to some degree, to waive or uphold their legal protections, these protections could therefore be regarded as rights proper under the will theory.

Outside criminal law, other legal avenues for expressing choice can be found within the civil law, where individuals are able to sue parties that have harmed them. Yet, as we saw in the case of Justice the horse, these avenues are more or less unavailable to animals: the common law has not recognised animals as having the standing to sue, and legislation – for the most part – does not lay out provisions enabling animals to do so, either. A notable exception can be found in the United States, where the pet trust laws that exist in most states enable the animal beneficiary of that trust, through the human trustee, to sue to enforce their claims (Bradshaw, 2020: 17). So while Carmen cannot, currently, sue her human companion for any harm caused by failing to provide her with the appropriate kind or amount of exercise, legislative amendments and the development of case law through judicial decisions could give her the legal authority to do so.

Conclusion

Many scholars, legal practitioners and members of the community are coming to recognise animals as actual or potential holders of legal rights (e.g. Epstein and Kempers, 2023; Stucki, 2020; Sunstein, 2000). However, as noted, the rationale for ascribing rights to animals has been that animals’ legal entitlements (as provided in anti-cruelty and welfare legislation), protect their interests. Yet as this article argues, the ascription of rights to animals may also be justified on the basis that animals’ legal protections, while certainly functioning to protect their interests, can also function to protect their capacity to make choices. This article has, as such, made the case that at least one interpretation of the will theory of rights can accommodate animals. Furthermore, the article has sought to demonstrate that certain animals, in certain legal instances, might already be understood as having legal powers that provide them with some scope to enforce or waive their claims – thus rendering them rights-holders under the moderate interpretation of the will theory. This can be seen, for example, in pet trust laws, as well as in the recent court proceedings in Ohio where a community of hippopotamuses living along the Magdalena River in Colombia was recognised as the sole plaintiff in the case.

The article has not sought to take a stand on whether the interest or the will theory is better capable of accounting for rights, much less that the will theory is the best or only way to conceptualise of animal rights. As such, it has not suggested that we should only think about animal rights in terms of the will theory. Rather, my purpose has been to show how we might speak of animals’ legal protections as rights through the lens of the will theory, and not merely the interest theory. With both rights and animal theorists dismissing the will theory as a conceptual foundation for the rights of animals, children and certain other groups who are regarded as being insufficiently competent, my account offers those sympathetic to the moderate interpretations of the will theory outlined here a way to ascribe rights to these often-vulnerable groups.

Although the aim of the article has been to expand the conceptual vocabulary available to us for speaking about animal rights without necessarily taking a stand on how we should speak about animal rights, it is important to touch on the normative reasons we might have for employing the will theory in this context. By allowing us to view the protections that are or that might be afforded animals under the law as rights that protect their will, and not merely their interests, this might contribute to a shift in the way that we view animals themselves: less like infants in need of our guidance, and more like individuals capable of making decisions that we ought to respect. Of course, this comes with the caveat that we need to be extremely careful in how we go about interpreting the choices of animals; we must be alert to the dangers of adaptive preferences and how the power structures that create them can interfere with animals’ capacity to achieve true self-determination. Indeed, there are likely to be contexts in which, as a result of the extreme power imbalances that inhere in the relations between humans and animals, animal consent becomes impossible (biomedical research facilities and intensive animal production facilities come to mind, here). As such, more work needs to be done to determine how, and when, the legal system can be responsive to animal preferences, without merely reinforcing existing structures of human domination over animals. Challenging though this task may be, we need to acknowledge that it is not that animals who are lacking in the capacity for choice – it is that our institutions have so far been structured in a way that is not responsive to their choices. Hillel Steiner was correct when he claimed that animals were ‘unempowerables’ but not, as this article has sought to make clear, for the right reasons. To the extent that animals are unempowered to make decisions about their lives – decisions that are legally recognised and enforced – it is because we, with the force of our institutions behind us, have made them so. Animals have never stopped communicating their interests and their preferences to us – it is time we started to listen.