Raffael Fasel

This article responds to challenges raised by John Olusegun Adenitire, Alasdair Cochrane, and Maneesha Deckha in this special issue on my book More Equal Than Others: Humans and the Rights of Other Animals, specifically targeting my theory of the Species Membership Approach (SMA). According to the SMA, legal rights and other legal entitlements should be granted to non-human animals on the basis of their species membership, not their individual capacities. The article first takes on a principal competitor to the SMA: Adenitire's and Cochrane’s sentience-based theories. I argue that these theories are unlikely to satisfy many human rights proponents because: they exclude some human beings from rights protection, they do not do enough to show that sentience is a binary capacity that can provide a solid foundation for basic equality, and they justify rights by, and proportion them to, the properties of individual beings. As a result, they are unlikely to satisfy many human rights proponents. Second, I address Deckha’s challenge that the SMA manifests a problematic human-first mindset which reinforces existing species privileges. I respond by demonstrating that the SMA does not, in fact, adopt a human-first mindset, and that even my book’s more specific discussion of how human rights could be temporarily prioritised does not make my theory problematically anthropocentric.

Theorists interested in the question of how to do jurisprudence often have the aspiration of developing a method that is the correct one. The article challenges this aspiration. Focusing on Julie Dickson’s claim that Indirectly Evaluative Legal Theory is the correct method, I show that any method claiming to be the correct one runs into the problem that law is not the kind of thing that a legal theorist could capture independently of her underlying conception of law, and without potentially influencing what law is through her own theory. However, this does not spell the end of jurisprudential methodology. The article proposes that methodologists should shift their focus away from the pursuit of single correct methods and toward studying and weeding out incorrect methods. I outline some of the principles that theorists can use for this purpose and point to promising avenues of research that this shift opens up.

In October 2022, the UK Supreme Court unanimously held that the Scottish Parliament lacks the power to legislate for a second referendum on Scottish independence (Indyref 2) absent an enabling Order by the UK government under section 30 of the Scotland Act 1998. With no such Order forthcoming, alternative pathways to Indyref 2 are being investigated. In this article, we examine two such potential pathways—a plebiscitary election and an unauthorised referendum—through the lens of constituent power. We argue that both pathways are theoretically available if one accepts (as we argue) that the Scottish people is the bearer of constituent power. However, we conclude that there are significant obstacles dotting both potential pathways, and as such the only feasible route to internationally recognised statehood for Scotland is via political negotiation.

Developments in fields as diverse as biotechnology, animal cognition, and computer science have cast serious doubt on the common belief that human beings are unique and that only they should have dignity and basic rights. A movement referred to as ‘new dignitarianism’ has recently reclaimed human dignity to fend off the threats to human uniqueness that it perceives to arise from these developments. This ‘new’ dignitarianism, however, is not new at all. Drawing on a debate between two Enlightenment philosophers, this article shows that dignitarianism has already surfaced in the eighteenth century as the negative image of another movement: naturalism. Building on this historical account, I propose to understand dignitarianism and naturalism as opposing ideal-types on a normative spectrum. Doing so allows us to see a thus-far neglected problem, which I call the Zero-Sum Problem: any gains a concrete theory makes by approximating one ideal-type, it loses by moving away from the other. I end by showing how accepting this fact is a first step to more practically viable theories that attempt to find a middle ground between the two ideal-types.

ABSTRACTIt has become a commonplace that human beings possess human rights ‘simply in virtue of being human’. Exactly what this formula entails and whether it is cogent remains largely obscure, however. To remedy this situation, the article distinguishes between an interpretation of the formula according to which ‘being human’ is a practical condition for holding human rights and a reading which takes ‘being human’ to be a moral reason for holding human rights. It argues that only under the second reading is there a limited sense in which it is correct that human beings possess human rights ‘simply in virtue of being human’. The article also considers if the concept of human dignity can provide a more convincing approach to the formula, and argues that it cannot.