Home / A. Sentience and moral status / Part DIR
"Rights are a human invention, only for humans."
that rights are a human creation says nothing about whom they should protect. On the contrary: if we create them, extending them is our choice, and that choice needs a justification. The argument also ignores that the law already protects animals, from Article 13 of the EU Treaty to the German and Brazilian constitutions.
Short answer
Saying something was invented by us doesn't say whom it applies to. Mathematics was also created by humans, and numbers don't hold only among mathematicians. Besides, the argument turns against whoever uses it: if we decide whom rights apply to, then excluding animals is a choice, and choices need a justification. And real law already includes them: the EU Treaty recognizes animals as sentient beings, and several constitutions, including Germany's and Brazil's, protect them from cruelty.
For children
It's true that we invented the rules. But think of it this way: the rules of football were invented too, and they don't apply only to the people who invented them. If the rules are ours, we can decide whom they protect. And then the right question becomes: who can get hurt by what we do? The answer includes animals.
"If a country abolished by law the rights of a group of people, would that make it right to treat them as things?"
Como pode aparecer
"Human rights are for humans; it's in the name."
"Animals don't have a social security number."
"That's talk from people who humanize animals."
"Rights are our thing; nature doesn't know about rights."
"Who's going to represent the chicken in court?"
"Natural rights don't exist; it's all convention."
"Each society defines its own rights, and ours defined them this way."
"It's not a moral question, it's a legal one." (which is D7)
The strongest version
"Rights were invented by us, for us. Animals don't come into it."
Strongest version (steelman):
- P1Rights don't exist in nature: they're conventions created by human communities.
- P2A convention holds only among the members of the community that created it.
- P3Animals aren't part of that community and took no part in creating it.
- CSo rights don't apply to animals.
The argument has two variants. The skeptical one denies the existence of natural rights, in the line of Jeremy Bentham, who called natural rights "nonsense upon stilts". The relativist one says each society invents its own, and ours chose these.
It's close to A7, but not the same. A7 demands reciprocity; A9 appeals to origin: rights would be ours because we made them.
The argument is valid. Its soundness fails at P2, which is false as a description of how law works, and in the general leap: a norm's origin doesn't determine its scope.
Full answer
- a
Reconstruction and diagnosis
The argument commits the genetic fallacy: it judges a norm's scope by its origin. Origin and scope are independent questions, as trivial cases show.
Human creation Whom it applies to Mathematics The whole universe, not just mathematicians Veterinary medicine Animals, though created by humans Traffic rules Tourists who never voted for them Children's rights Those who took part in no deliberation Protection of future generations Those who don't even exist yet There's also a problem of self-defeat. If rights are our invention, so is their scope. The argument then says: "we decided they don't apply to animals". That isn't a reason; it's a description of the decision under discussion.
- b
Where the argument breaks
1. P2 is false.
Legal conventions constantly protect those who took no part in creating them: babies, people in a coma, foreigners, future generations, historical heritage. Participation has never been a condition of protection.
2. The history of law is a history of extension.
The abolition of slavery, women's suffrage, the Convention on the Rights of the Child (1989) and the Convention on the Rights of Persons with Disabilities (2006) were each, in their time, called excessive. In all of them, the answer "it's always been this way" lost.
3. Current law already protects animals.
Article 13 of the Treaty on the Functioning of the European Union requires member states to pay full regard to the welfare of animals "since animals are sentient beings". Germany added animals to its Basic Law in 2002. Brazil's Constitution, in Article 225, prohibits practices that "subject animals to cruelty". If rights applied only to humans, these norms would be unintelligible.
4. Skepticism about rights doesn't imply indifference to suffering.
The man who coined "nonsense upon stilts" against natural rights was Bentham, the same author of "The question is not, Can they reason? nor, Can they talk? but, Can they suffer?" One can doubt natural rights and still recognize duties.
5. Ethics doesn't depend on the word "right".
A consequentialist ethics does without the language of rights: if there's avoidable suffering, there's a moral reason against causing it. Dismissing rights as fiction doesn't eliminate that reason.
6. The argument proves too much.
If validity comes only from local convention, then where the law allowed slavery there was nothing wrong, and abolition was not a moral correction, just a change of taste. Practically no one accepts that consequence.
7. Being invented doesn't make ethics arbitrary.
Mathematics and medicine were also created by humans, and in them there are better and worse answers. In ethics, there are positions that weigh the harms and benefits of those affected in a biased way and others that don't. From the fact that rights are a human creation it doesn't follow that we may do as we please with those who took no part in creating them. See Questão de Ética, vol. I, ch. 11.
- c
Data and sources
Norm or source What it establishes Note Treaty on the Functioning of the European Union, Art. 13 Member states must pay full regard to the welfare of animals, "since animals are sentient beings" In force since the Lisbon Treaty (2009) German Basic Law, Art. 20a (2002 amendment) Added the words "and the animals" to the state's duty to protect the natural foundations of life Germany was the first EU country to give animals constitutional protection Brazilian Constitution, Art. 225, § 1, VII (in Portuguese) The state must protect fauna and flora, prohibiting practices that subject animals to cruelty A constitutional norm, not merely a statute Animal Welfare (Sentience) Act, United Kingdom, 2022 Recognizes the sentience of vertebrates, cephalopods and decapods Dealt with in A5 and A6 Constitutional Court of Ecuador, Estrellita case, 2022 Individual animals as subjects of rights Dealt with in A7 Bentham, *Anarchical Fallacies* (c. 1795) Natural rights as "nonsense upon stilts" The same author who made sentience the moral criterion Convention on the Rights of the Child (1989) and Convention on the Rights of Persons with Disabilities (2006) Recent extensions of rights to those who took no part in the deliberation Checked: UN, 1989 and 2006 - d
The strongest counter-reply: rights as an institution, not a label
The sophisticated version doesn't say animal suffering doesn't matter. It says "right" is a complex institution, presupposing title, exercise, representation and practical reciprocity. Extending that institution to beings who can't exercise it would create conceptual confusion and enormous practical problems, and it would be better to protect animals through human duties and welfare standards.
- e
Why the counter-reply doesn't reach the conclusion
It's a thesis about the tool, not about value.
Even if "right" isn't the ideal instrument, the question remains of what we owe animals.
The problem of exercise is already solved in law.
Guardianship and legal representation exist precisely for holders who can't act for themselves.
The alternative route already exists and is violated.
If protection is to come through welfare duties, industrial livestock farming breaches them at scale, as the family B chapters show.
In practice, the reply is usually used to change nothing.
Those who defend it rarely propose the alternative model of protection it promises.
Convention is changeable by definition.
Recognizing that rights are a human creation is admitting that we can and should discuss whom they apply to. That's exactly what this book does.
Reasoning errors
Logical
Is the form valid?
Genetic fallacy
Self-defeat
Non sequitur
Proving too much
Epistemological
Does the evidence support it?
Misdescribing law
Not knowing current norms
Moral
Is the criterion coherent?
Legalistic fallacy
Convention as justification
Biases
Status quo bias
The current legal arrangement seems the only one possible
Literature on preference for the current state
System justification
Leads people to treat current institutions as just because they're current
Correlated with speciesism (Caviola et al., 2019)
Presentism
Makes the present seem the end point of moral history, when every earlier extension seemed absurd before it happened
A historical pattern documented in each extension of rights
In-group bias
Defines the community of rights by one's own group
A common basis of speciesism and prejudice among humans
Legalistic bias
Confuses "isn't recognized" with "shouldn't be"
A pattern in debates about extending rights
Extrapolations
The principle being tested is: "rights hold only for those who invented them or those local convention recognizes".
If it applied to…Enslaved people in the pastTap to see
Slavery wouldn't have been unjust while it was legal. If validity comes from the convention in force, those excluded simply had no rights, and abolition was a change of taste, not a correction
Practically no one accepts this reading of history
If it applied to…Regimes that violate rights todayTap to see
There'd be nothing to criticize. Where the law authorizes torture or persecution, local convention would be the final word
Whoever condemns these regimes already uses a criterion above convention
If it applied to…Foreigners and stateless peopleTap to see
They could be treated however we liked. They took no part in creating our norms and, in the case of stateless people, no community recognizes them
The idea of universal human rights was built against exactly this
If it applied to…Future generationsTap to see
We'd have no duties to them. They invented nothing, take no part and can't demand anything
All long-term environmental policy presupposes the opposite
If it applied to…The same animal in two countriesTap to see
An octopus would have moral value in the UK and none once it crossed the border. Its capacity to suffer wouldn't change; only the convention would
Shows that convention records recognition; it doesn't create the moral fact
Contradictions
Whoever thinks torture wrong when practiced by a state that authorizes it is already admitting a moral criterion above local convention.
The same person usually thinks it right to punish someone who beats a dog, which only makes sense if protecting animals is legitimate.
No one suffering an injustice says "but after all, rights are just a convention".
Children, foreigners and future generations are protected without having invented anything.
Almost everyone considers abolition and women's suffrage moral progress, not mere changes of convention.
What the argument gets right
What is true
Rights really are social constructions. They aren't written in nature, they depend on institutions to exist in practice and they need careful design: who represents the holder, which specific rights make sense, how to resolve conflicts. Those who treat rights as obvious natural facts oversimplify, and Bentham's skepticism has merit on this point.
But
But recognizing that we build these norms increases responsibility rather than diluting it. If the boundary was drawn by us, it can't be invoked as if it were a natural limit. It's exactly what's under discussion.
Connections
Usually comes before
Usually comes after
Go deeper in Questão de Ética
Chapters from the open-access collection A Journey Through Animal Ethics that discuss this argument in more detail:
- If Ethics Is a Human Activity, Is It Just to Disregard… Vol. I, ch. 10
- If Ethics Is an Invention, Is It Just to Disadvantage… Vol. I, ch. 11
References
Provisional author-date format. The links indicate the sources checked in writing this chapter.
Norms
- European Union. Treaty on the Functioning of the European Union, Art. 13.
- Germany. Basic Law, Art. 20a, 2002 amendment.
- Brazil. Federal Constitution of 1988, Art. 225, § 1, VII (in Portuguese).
- UN. Convention on the Rights of the Child (1989);
Philosophy
- *Anarchical Fallacies*.
- An Introduction to the Principles of Morals and Legislation, ch. XVII.
- The Expanding Circle.
- The Case for Animal Rights.