Towards Legal Protection of Animal Interests: Nature-Based or Sentience-Based Approach to Animal Rights

Abstract

Keywords

Animal rights, moral relevance, animal interests, legal protection, sentience-based approach, rights of nature

Suggested Citation Style:

Todorović, Zorana S. (2026). Towards Legal Protection of Animal Interests: Nature-Based or Sentience-Based Approach to Animal Rights. Journal of Animal Law, Ethics and One Health (LEOH), Special Issue on Rethinking Ecosphere and Biojustice: Legal Personality and Legal Rights Beyond the Human, 23–33. DOI: 10.58590/leoh.2026.006

* Research Associate, University of Belgrade (Serbia).

Content

• I. Introduction
• II. Philosophical Foundations of Animal Rights
• III. Animals as Potential Right-holders: Legal Status of Animals
• IV. Nature-Based Approach: Rights of Nature
• V. Sentience-Based Approach: Interest-Rights
• VI. Conclusion

I. Introduction

The idea of animal rights has been gaining traction in the last couple of decades and has been termed ‘the nonhuman rights revolution’. In the narrower sense of the term, animal rights refer to the idea that animals^[1] possess inviolable moral rights, which prohibits the infliction of harm on them.^[2] Animal rights scholars often argue that nonhuman animals ought to have fundamental rights that would be legally recognised.^[3]

In discussion of animal rights, the distinction is typically drawn between moral and legal rights, with legal rights commonly, though not necessarily, justified by reference to moral rights. This paper examines the potential for extending legal rights to animals as a means of recognising and protecting their basic interests. The central argument is that animal rights are grounded in their interests which are based on their sentience. The main claim defended in the paper is that sentient animals have their own morally relevant interests that ought to be recognised and protected by legal rights. The paper argues for a sentience-based or interest-based approach to recognising legal animal rights, rather than a nature-based approach.

The paper begins by analysing the philosophical foundations of animal rights, addressing the question whether animals have morally relevant interests that deserve legal protection. In Section 3, the legal status of animals and whether animals can be holders of legal rights is examined. Section 4 discusses the nature-based approach to granting animals legal rights, identifying several objections to this approach. Section 5 contributes further arguments in support of the sentience-based or interest-based approach to animal rights, arguing that animal rights ought to be grounded in animal interests which are rooted in their sentience. It is concluded that the objective of extending legal rights to sentient animals is to take into account and legally protect their basic interests.

II. Philosophical Foundations of Animal Rights

One of the first defenders of animal rights was Jeremy Bentham who argued that animals should be protected by law because of their capacity for suffering. Bentham points out that sentient animals have morally important interests and that we have direct moral duties to them, above all not to cause their unnecessary suffering.^[4] Although Bentham did not contend that animals should be granted rights, his claim that the capacity to experience suffering is the relevant moral criterion can be regarded as a precursor to contemporary animal rights theory.

The most prominent contemporary advocate of animal rights and the pioneer of animal rights movement Tom Regan argues that we need to recognise animals’ moral right to be treated with respect because they have inherent value and moral relevance as ‘subjects-of-a-life’.^[5] Animals that satisfy the ‘subject-of-a-life’ criterion not only have conscious experiences, they are ‘the experiencing center of their lives, individuals who have lives that fare experientially better or worse for themselves, logically independently of whether they are valued by others’.^[6] Subjects-of-a-life have an experiential welfare that is important to them in the sense that it matters to them whether their lives go well or ill for them, and things that contribute to their experiential welfare are in their interests. Regan asserts that many non-human animals, at least mammals and birds, are subjects-of-a-life who have a rich mental life and an experiential welfare, and consequently interests in their experiential welfare.

According to Regan, all subjects-of-a-life in the above sense, which includes many animals, have equal inherent value and are owed respectful treatment. The respect principle entails that all individuals who have inherent value, whether they are moral agents or moral patients,^[7] must be treated in ways that respect their inherent value. Respect for their inherent value grounds our direct duties to them, which means that animals who are subjects-of-a-life are directly owed the duty not to be harmed, and have a moral right against being harmed. Regan criticises the view that people have no duties directly to animals, not even the duty not to cause them suffering or pain, but only duties regarding animals that are really indirect duties towards people who care about them.^[8] He argues that animals have certain basic moral rights, which includes the fundamental right to be treated with respect, and concludes that it is morally wrong to treat inherently valuable animals as if they were things, reducible to instrumental value. In his view, a plausible moral theory must recognise that anyone with an experiential welfare, whatever species they belong to, is a subject-of-a-life who matters morally.^[9]

Similarly, DeGrazia maintains that all sentient beings have an experiential welfare and interests in their experiential welfare (welfare-interests). Sentient animals can fare experientially better or worse for themselves and their lives matter to them and have value, depending on the subjective quality of the life as it is experienced.^[10] DeGrazia argues that sentient animals’ interests matter in their own right, and that moral agents have direct duties to them which are grounded in their interests, at least not to harm them or kill them unnecessarily.^[11]

In short, sentient animals that are capable of experiencing at least pain and/or pleasure possess interests in their experiential well-being which can be derived from their sentience. The important question here is whether these interests are morally relevant and whether they should be protected by recognition of their rights. Some of the most basic interests of sentient animals are the interest in not suffering and the interest in faring well, and these interests are shared with us. We consider these interests to be morally relevant, and they are so important to us that we protect them by means of rights.^[12]

According to the Principle of equal consideration of interests, we ought to give equal consideration to the like or similar interests of different sentient beings or grant equal moral weight to their comparable interests.^[13] Singer builds on Bentham’s work in arguing that the capacity for suffering and/or enjoyment or happiness is what gives a being the right to equal consideration, since the capacity for suffering or enjoyment is a prerequisite for having interests.^[14] This principle requires that similar or comparable interests of sentient animals, such as the interest in not suffering and the interest in faring well, ought to count equally and be given equal moral weight, regardless of the species to which an individual belongs. If this principle is applied consistently, all other relevantly similar animals, ie whose morally relevant interests are similar, ought to have equal (moral) rights. However, Regan goes a step further, criticising the Principle of equal consideration of interests on the ground that it fails to respect the equal inherent value of individual subjects-of-a-life, and contends instead that animals already possess moral rights which ought to be recognised and respected.^[15]

Rights can be defined as ‘morally valid claims that are important enough to deserve legal protection’.^[16] Given that moral rights do not adequately protect animals or their basic interests against human interests, they need to be reinforced by law and transformed into legal rights, which can be regarded as ‘institutionalised moral animal rights’.^[17] The discussion that follows will focus on the legal rights of animals that are justified by referring to their morally relevant interests.

III. Animals as Potential Right-Holders: Legal Status of Animals

The current legal status of animals is in a ‘grey zone’ – in most legal systems they are still classified as ‘things’ or ‘property’, with no intrinsic value or their own interests to be taken into account alongside human interests. There are notable exceptions that recognise animals as sentient beings, such as TFEU^[18] and European animal welfare laws, but these are primarily declaratory in nature. Despite marked progress in the last few decades, when the civil codes of several countries in Europe and beyond recognised that animals are not things,^[19] and some that they are sentient beings,^[20] the legal situation of animals in these countries has not really changed.^[21] In reality, animals are still treated as if they were things or legal objects, subject to laws and legal provisions that apply to things. It can be said that animals are stuck between the two categories, belonging to neither of them and having the status of a ‘non-thing thing’.^[22]

Many legal theorists and activists argue for abolishing the legal status of animals as things and for recognising them as legal persons that can bear rights.^[23] Wise maintains that only legal persons can hold rights and that ‘legal personhood is the capacity to possess at least one legal right; accordingly, one who possesses at least one legal right is a legal person’,^[24] although a legal person may have an unlimited number of rights. The Nonhuman Rights Project (NhRP) founded by Wise advocates changing the legal status of some animals, such as great apes and other cognitively complex mammals, to recognise that they are nonhuman legal persons with fundamental rights to bodily integrity and bodily liberty.

Since 2013, the NhRP has filed several habeas corpus petitions on behalf of chimpanzees and elephants, demanding their release and arguing that they are legal persons entitled to the fundamental right to bodily liberty. Moreover, recent examples from South America are considered a breakthrough in recognising animals as legal persons who are subjects of rights. In Argentina, a writ of habeas corpus was filed by AFADA^[25] in 2014 on behalf of Sandra the orangutan, and the Buenos Aires Court recognised her as a ‘non-human person’ who deserves basic rights such as the right to liberty. In 2016, a similar petition was filed for Cecilia the chimpanzee and the court ruled that she was a ‘non-human person’ and subject of rights.^[26] In Ecuador, the Constitutional Court established in the Estrellita judgment from 2022 that animals are subjects of rights under the rights of nature framework, which will be further elaborated below.

The strategy of arguing that (at least) some animals qualify as ‘persons’ in order to secure recognition of their rights is based on the view that only persons can be rights-holders. However, a number of legal scholars contend that legal personhood is not a prerequisite for holding rights and that even non-persons can hold rights. Some scholars suggest that, instead of focusing on the legal status of animals and advocating the recognition of their legal personhood, we should better focus on recognising their legal rights and thus avoid property/personhood arguments.^[27] Kurki criticises what he calls the orthodox view of legal personhood according to which only legal persons can hold rights, arguing that the legal status of animals as ‘things’ or ‘property’ does not preclude them from holding certain basic rights.^[28]

The interest-based (Razian) conception of rights maintains that legal rights are in fact legally protected interests, which means that sentient animals as interest-holders are potential right-holders. Feinberg contends that having interests is a necessary and sufficient condition for having rights: ‘(…) the sorts of beings who can have rights are precisely those who have (or can have) interests’.^[29] It is argued here that even though animals are not legal persons, they can nevertheless possess rights that are legally protected.

IV. Nature-Based Approach: Rights of Nature

Efforts to acknowledge animal rights within an environmental or ecological framework are relatively recent, although Stone suggested as early as 1972 that ‘natural objects’ and the natural environment as a whole should be granted legal rights.^[30] Since then, it has become increasingly recognised that the health and well-being of humans, animals and nature are connected and interdependent, and should be approached holistically, which is in line with the concept of One Health.^[31] Moreover, given that environmental and animal law are intertwined, it might make sense to integrate nature’s rights and animal rights. Proponents of the nature-based approach to animal rights argue that the rights of nature could be extended to animals as part of nature. As Stilt succinctly puts it ‘(…) if nature has rights, and if nature includes animals, then rights-based claims could be made on behalf of animals using existing rights of nature doctrine and strategy’.^[32]

Rights of nature scholars point out that the nature-based approach to animal rights is an integrated framework that connects animal rights and environmental protection, thus protecting both the environment and animals that are part of it.^[33] However, although the above may appear like a sound argument for conceptualising animal rights within the rights of nature framework, there are some serious objections to this approach which need to be addressed. First and foremost, the nature-based or environmental framework as a holistic approach is meant to protect nature as a whole and animal species, especially endangered ones, rather than individual animals. Protecting animals as part of nature does not protect them for their own sake, as beings with intrinsic value, but as part of the environment which is the primary object of protection.^[34] There have been laws for quite some time that protect animals in this way, which has proven to be ineffective when it comes to animals that are not members of an endangered species.^[35]

The recent case of the monkey Estrellita from 2022^[36] is thought to be ground-breaking and a paradigm-shift in recognising the rights of animals within the rights of nature framework. In this case, the rights of animals are viewed as a specific dimension of the rights of nature.^[37] As stated by the Constitutional Court of Ecuador, animals as elements of nature have intrinsic value and they should be protected not only as part of the ecosystem, but ‘from a perspective that focuses on their individuality and intrinsic value’.^[38] Thus, according to the formulation in the Estrellita judgment, the rights of nature are meant to protect not only animal species, but also individual animals that constitute the species.^[39]

The Constitutional Court of Ecuador established that animals are subjects of rights and recognised the following legal rights for wild animals: the right to life, the right to physical integrity, the right to exist, the right to not be hunted, fished, captured or trafficked, the right to the free development of their animal behaviour which includes the guarantee not to be domesticated, the right to freedom and good living, the right to health and habitat, among others.^[40]

Nevertheless, despite what is being promised in the Estrellita judgment, animals are still essentially protected as part of their species, to prevent it from being endangered. Protecting (or not protecting) individual animals is relevant for the species they constitute and has an impact on the entire species.^[41] However, the rights of nature framework is fundamentally ecocentric or biocentric and individual animals are deeply subordinate to nature. Biological interactions take precedence over the rights of animals, and if the rights of animals contradict the rights of nature, then animal rights are overridden.^[42] This framework is ultimately instrumentalist, as animals are objectified and their inherent worth and interests can be disregarded.^[43]

Moreover, these rights can be restricted by the human right to feed on them as part of biological interactions,^[44] which is considered a legitimate legal restriction on animal rights.^[45] In other words, the human right to food is conceived as a right to eat animals, which is thought to justifiably override animal rights to life and physical integrity. This implies that animal rights within the rights of nature framework do not robustly protect animals as right-holders or their fundamental interests against competing human interests, given that animals’ fundamental interest in staying alive is easily overridden by comparatively trivial human interests, such as the interest in consuming a meat-based diet.

While this judgement recognised that animals are subjects of rights, only wild animals are protected by these rights of nature and they are prioritised over domesticated animals.^[46] Domesticated animals that are not part of wild nature, such as farmed animals, companion animals, research animals, animals in zoos and entertainment industry, are not included in this framework. Nevertheless, this case could open the possibility of extending similar legal rights to other groups of animals in future, including domesticated animals.

Most importantly, in the Estrellita case, the Court points out that the protection of animals and their rights relate to the characteristics, processes, functions, etc of a particular animal species.^[47] Nevertheless, the rights of animals within this framework are not grounded in the characteristics of animals as individual beings with specific capacities and needs. This implies that animals’ capacities such as sentience, consciousness, and emotions are not considered to be relevant, and neither are their interests derived from these capacities. In fact, individual animals do not appear to be relevant at all but only nature as a whole and animal species as a part of it.

Within this framework, animals are still primarily viewed as resources to be used by humans that have no intrinsic value as it is proclaimed, but only an instrumental one. This indicates that the rights of nature framework is ultimately instrumentalist, as animals are objectified and their inherent worth and interests can be disregarded. It can also be argued that this approach is essentially welfarist,^[48] in that it is focused merely on improving lives of animals and our treatment of them, but still justifying and prolonging the exploitation of animals and their use for human purposes. Moreover, if these rights of nature are to protect all animals, plants, and all of nature, the protection is bound to be weak. Attempting to grant legal rights to all natural entities, both living and non-living, would lead to ineffective protection of individual animals.^[49]

However, the strongest objection to this approach is that it does not discriminate between animals that are morally considerable and those that are not, or between animals that have (morally relevant) interests which could give rise to rights, and animals that do not have any interests at all, so it would not make sense to protect them by rights. Nevertheless, animals, and not only wild ones, have interests that can best be protected by means of rights. Accordingly, animal rights ought to apply not only to wild animals, but to all sentient animals that are part of our society and not part of wild nature anymore, such as domesticated animals.

V. Sentience-Based Approach: Interest-Rights

This paper argues that the nature-based approach to animal rights is not meant to protect animals as individual beings with intrinsic value and their own interests, but it is rather centred on something extrinsic – their being part of nature or the environment. An alternative view is that animals ought to be granted rights based on their intrinsic value and their specific capacities or properties.^[50] Given that sentience is generally considered to be a morally relevant property and a prerequisite for having interests whatsoever,^[51] this approach to animal rights can be regarded as sentience-based. The sentience-based approach is individualistic since animals are granted rights for their own sake, and these rights are grounded in their interests per se, which are rooted in their capacities such as sentience. With this in mind, it is argued here that this approach to animal rights can be regarded both as sentience-based and interest-based, since animal interests arise from their sentience.

Sentience can be defined as the capacity to have feelings which include physical sensations and emotions that are typically pleasant or unpleasant.^[52] Many scholars contend that the capacity to experience at least pain and suffering is sufficient for being sentient.^[53] Sentient animals have an experiential well-being or welfare, and they have interests in their experiential welfare, which are components of their well-being.^[54] Only sentient animals have interests because they can feel and they can fare better or worse, while the level of their complexity and their capacities determine which specific interests they can have.^[55] The most basic interests of all sentient animals are the interest in avoiding pain and suffering, and the interest in faring well. As noted in Section 2, these interests are shared with us, and we protect them by means of legal rights.

It may be asked whether these animal interests, which are comparable to the most basic human interests, ought to be protected through similar rights. Cavalieri argues that we ought to extend basic human rights to nonhuman animals and take ‘the human out of human rights’.^[56] Similarly, Cochrane proposes that human rights are reconceptualised as rights of all sentient beings and termed ‘sentient rights’,^[57] while Fasel calls them ‘sentientist rights’.^[58]

Pietrzykowski holds that we can distinguish between two kinds of rights – interest-rights that are meant to protect legally relevant interests of a right-holder, and choice-rights which are the right-holder’s powers to control their own legal situation composed of the duties imposed on others.^[59] In his view, the first kind of rights – interest-rights – may be plausibly conferred on holders who can have their own subjective interests, so sentient animals as interest-holders can be legitimate holders of basic, interest-rights. However, several scholars, even within the animal rights movement, consider the idea that animals might have inviolable rights like humans to be strategically ineffective and utopian for the time being, as well as philosophically unfounded.^[60]

Thus, the question arises as to whether the discourse of rights is in fact necessary or whether it is redundant. One may ask whether animal rights would meaningfully enhance the protection of animal welfare and interests, since humans already have duties to protect animals that are dependent on them and these duties can be imposed. The argument from redundancy, also called the redundancy argument, is usually invoked here. The main line of the argument is that granting legal rights to animals is not necessary and would be redundant because animals are already protected by existing animal welfare laws.^[61] The redundancy argument has been effectively criticised by many legal scholars who emphasise that welfare protections and rights are fundamentally different; while animal welfare laws subordinate animal interests to human interests, animal rights would provide inviolable protection of basic animal interests.^[62] 

Moreover, as argued by Pietrzykowski, the point of granting certain basic rights to animals is that it would imply recognising that animals and their interests are morally and legally relevant, and thus need to be taken into account by law.

• (…) the idea of granting rights to animals (…) aims rather at recognising animals as creatures whose own interests are so significant morally that there are compelling ethical reasons to turn them into legally protected rights held by each individual animal.^[63]

Pietrzykowski suggests that sentient animals are granted just one right – the right to be taken into account. This entails that the legal system would have to take into account the interests of animals in all relevant situations and legal decisions that affect or may affect their well-being. Existing animal protection laws are centred on human interests as the primary consideration, while animal interests are not recognised as morally or legally relevant and are easily overridden by (even trivial) human interests. Unlike the current animal protection framework, the interest-based rights approach maintains that sentient animals have morally relevant interests which ground their rights that are meant to protect animals’ basic interests against human interests. In order to truly include and protect animals in the legal system, their interests ought to be balanced against competing human interests to evaluate their relative strength in all relevant matters.

Balancing of interests under the interest-based rights approach differs fundamentally from welfare balancing in that it implies comparing on equal terms the human and animal interests at stake.^[64] According to the Principle of equal consideration of interests, we ought to give equal consideration to the like or comparable interests of all sentient beings affected by a situation.^[65] If we weigh these comparable interests against one another in terms of their strength, we would be able to determine which interests are stronger. One of the common and comparable interests of all sentient beings is the interest in not suffering, based on the capacity to suffer. Accordingly, we should weigh animal interests in not suffering or avoiding suffering against human interests in not suffering as regards (not) using animals. If the animal interest in not suffering is stronger and outweighs the human suffering in not using the animal, then it is not justifiable to use the animal. Francione contends that we should not inflict suffering on animals if it is not necessary, ie if there are no justifiable human interests at stake.^[66] In essence, this approach allows for the possibility that animal interests can outweigh competing human interests if the human interests are not sufficiently weighty or compelling.

It has been argued here that animals’ basic interests ought to be legally protected, arguably through rights. Extending legal rights to animals as sentient beings aims to recognise that their most basic interests – such as the interest in not suffering and the interest in faring well – are morally and legally relevant. These rights could be based on legal protections from the existing animal welfare laws and the Five Freedoms of animal welfare reconceptualised as legal rights,^[67] which could lead to legal protection of the most basic interests of sentient animals.^[68]

VI. Conclusion

This article advances the claim that we ought to extend legal rights to animals based on their sentience rather than on their being part of nature or the environment. It is argued that animal rights ought to be similar to human rights rather than the rights of nature in that they aim to protect animals for their own sake, as individual beings with intrinsic value and their own morally and legally relevant interests.

Although the paper proposes a sentience-based approach to recognition of animal rights, this does not preclude using other complementary strategies and actions for securing legal rights for animals and improving their legal situation. These strategies include, for example, changing the legal status of animals in civil codes to recognise them as sentient beings,^[69] and granting animals with complex cognitive and emotional capacities the status of passive legal persons with fundamental rights to bodily liberty and bodily integrity.^[70] Even though legal personhood is not necessary for holding rights, as discussed above, examples of recognition that an animal has the status of a legal person who deserves basic rights could potentially lead to extending similar rights to other animals, with the ultimate goal of granting these rights to all sentient animals. Moreover, recognising animals as subjects of rights within the rights of nature framework would no doubt strengthen ‘the case for animal rights’.^[71]

Copyright (c) 2026 Zorana S. Todorović

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