This article is the second part of my reply to Matías Margallo, in defense of a social order without animal rights. In the first part, I responded to the criticisms directed at Rothbard and explained why, from a liberal perspective, animals cannot be considered holders of negative rights in the strict legal sense. Now it is time to turn to the second part of the debate: my own thesis on the relationship between property, markets, and the protection of animals.
Animal protection derived from positive human norms
One criticism of the thesis that the market is useful for animal protection is that only productive animals would end up protected. Yet animals that generate direct economic benefits are not the only ones that receive good treatment. Domestic animals are a clear example of the opposite. No one is obliged to keep a dog, and keeping one usually involves costs, time, responsibility, and inconvenience far exceeding any material benefit. Precisely for that reason, when someone does keep one, there is normally a relationship that is positive for both parties: the human gains company and affection; the animal receives food, shelter, protection, and care it would hardly obtain in the wild.
Of course, there are owners who mistreat animals. But that does not prove that animals have rights; it proves that certain human behaviours can be morally objectionable or socially sanctionable. A community can call out, boycott, or exclude whoever mistreats animals, and it can even establish positive norms prohibiting particular conduct if its members commit to them. In that case, however, the prohibition does not arise from a natural right of the animal, but from a limitation that humans impose on themselves. In the same way that a forest has no rights and yet we can prohibit dumping trash in it, or that an amusement park has no rights and yet walking onto the tracks of a ride can be prohibited. A breeder or a dog shelter can establish a set of obligations by contract with the person who buys or adopts its animals, restricting violent conduct. This would achieve the same protective result — or even a greater one — as granting them rights, but without violating any fundamental element of law, as would occur if animals were given the status of legal subjects, even partially.
Nor have I deliberately left out the cases of intensive agriculture and livestock farming. Very harsh practices toward animals plainly have existed and still exist. The question is why they occur and how they are corrected. The worst livestock practices normally occur in poor countries, because when a society can barely guarantee the life, safety, or food supply of its own members, it will hardly place animal welfare among its priorities. Systematic concern for animals appears, in large measure, once a community has already resolved its most urgent human problems and has enough wealth, stability, and moral sensibility to worry about additional questions.
That is why, paradoxically, improving the treatment of animals does not require denying property over them, but raising the moral and economic level of society. As people’s wealth, security, and sensibility toward these questions increase, they demand better conditions, reject certain practices, pay for certifications, apply reputational pressure to companies, and create more demanding private or community norms. All of that is compatible with protecting animals without turning them into subjects of rights. The difference is fundamental: we can limit our own conduct toward animals without asserting that they hold negative rights in the legal sense.
Market failures in animal protection
A first objection holds that private property does not by itself guarantee animal welfare, since an owner may seek to maximise profits and cut costs at the expense of the animal’s living conditions. But this argument bears a dangerous resemblance to the standard justification of any public service or coercive positive right: since the market does not guarantee that everyone receives excellent education, excellent healthcare, or excellent housing, it should therefore be replaced by political planning. The problem is that no institutional system guarantees perfect outcomes. The relevant question is not whether property eliminates every abuse, but which system generates better incentives to discover errors, correct them, and adapt production to people’s actual valuations.
If a society does not care about animal welfare, no written norm will protect it effectively. There will be non-compliance, sham compliance, corruption, captured inspections, and indifferent consumers. Just as banning littering in the countryside accomplishes little if no one values a clean countryside, banning certain livestock practices accomplishes little if producers, consumers, and inspectors are indifferent. When animal welfare begins to matter subjectively to people, by contrast, they will create market mechanisms to demonstrate it: labels, audits, certifications, boycotts, specialised brands, reputational pressure, and a willingness to pay for better conditions.
It is also claimed that surveys on animal welfare are irrelevant because people say one thing and then buy another. But that thesis rests on no empirical foundation beyond the intuition of its critics. A person has no incentive to lie in an anonymous survey.
Consumers are indeed price-sensitive, but we also rank our preferences: animal welfare, price, taste, availability, trust in the brand, household income, and many other factors. Precisely for that reason, the market is superior to uniform imposition: it allows different degrees of demandingness for different consumers. Some will buy organic or certified products; others will choose cheaper options; others will pressure supermarkets and brands. The result is not perfect, but it is evolutionary. In Spain, a significant transition is already visible in the case of eggs, with movement toward cage-free systems and corporate commitments in that direction, though with varying degrees of compliance.
Moreover, when a case of animal abuse comes to light, the reputational reaction can be very intense. The case of El Pozo — a major Spanish meat producer — after the broadcast by the investigative program Salvados is illustrative: following the allegations, two Belgian supermarket chains pulled the company’s products. This does not mean that all consumers always act consistently, or that all companies are virtuous, but it does show that property, brand, and reputation make certain abuses economically costly.
The objection about trafficking in exotic animals likewise fails to prove that animals have rights. It proves, rather, that human demand is capable of generating clandestine markets when capture, transport, or sale are prohibited or restricted. And as with other black markets, clandestinity tends to worsen traceability, accountability, and conditions of treatment. If the animal belongs to someone or lives on a private reserve, capturing it is a trespass or a theft; if it lives in a space with no clear owner, the classic problem of overexploiting unowned resources appears. The institutional solution is not to declare that the animal has rights, but to define property, liability, custody, and conservation more precisely.
Something similar applies to zoos. Captivity can certainly create problems, especially for migratory species, cetaceans, or primates. But those problems are probably smaller than the problems intrinsic to nature itself: habitat loss, hunting, disease, early death, or extinction. Ex situ conservation — outside the natural habitat — is recognised by conservation organisations as a possible tool within broader conservation strategies, provided it is applied with appropriate criteria.
The morally ideal course would be to ask the animal what it prefers, but that is impossible. That very impossibility shows once again that we are not dealing with a subject of rights capable of claiming, consenting, or contracting. Faced with that limitation, humans must choose among imperfect alternatives: letting a species disappear, keeping individuals in captivity at certain costs, funding reserves, breeding in captivity, or attempting reintroductions. That decision may be morally difficult, but it does not turn the animal into a legal subject. It only shows that humans can impose duties of protection on ourselves with respect to beings we value, without pretending that those beings participate in law as holders of negative rights.
Even in a setting of full liberty, however, much of nature would end up under some form of identifiable property, custody, or management, and that could make it safer for many animals. A private reserve, for instance, could cover thousands of hectares where certain species lived in semi-freedom, with enough space to develop their natural behaviour, yet protected from poachers, habitat destruction, uncontrolled disease, or extreme scarcity of food and water. It would not be absolute freedom in the romantic sense, but it might well be a better situation than the “freedom” of a hostile nature in which many animals die of hunger, injury, parasites, predation, or territorial competition. Just as a domestic dog does not live like a wild wolf but normally lives more safely and is better fed and cared for, many species could live in restricted yet enormous spaces managed by owners, foundations, communities, or companies with incentives to conserve them. The legal principle would remain the same: not that those animals have negative rights, but that there are humans who value them and who bind themselves — through property, contract, or community norm — to protect them.
Animals in the wild
The problem with recognising negative rights for animals becomes even clearer when we stop looking at the domestic dog or the farm animal and consider nature as a whole. If animals had a negative right to life or to physical integrity, we would immediately have to ask what happens to the animals that violate those rights constantly. Does the lion violate the gazelle’s rights? Must the wolf answer for killing the deer? Should someone intervene to stop some animals from harming others? Do all dogs have rights, or only domestic ones? If the answer is no, then we are not talking about real rights, but about a selective human preference: we protect certain animals against certain human acts, and not because any universal legal system exists among animals.
Negative rights make sense only when they can be applied symmetrically among subjects capable of being bound by the same rule. If I cannot kill, steal, or assault, neither can the other party do so to me. But that reciprocity disappears entirely in nature. An animal does not recognise my right to life, my property, my liberty, or my physical integrity. If it attacks me, it has not committed a crime; it has simply acted as an animal. That is why it makes no sense to say that it holds negative rights against me in the same legal sense in which another person would.
The animalist alternative usually ends in an untenable asymmetry: humans would have legal duties toward animals, but animals would have no legal duties toward us or toward other animals. That is not a system of negative rights, but a unilateral burden imposed on human beings. It can be defended as a moral norm, a cultural preference, or a piece of positive regulation, but not as reciprocal natural law.
Carrying that logic to its conclusion would also require constant intervention in nature to prevent suffering. If animal suffering generates enforceable rights, prohibiting certain human practices would not be enough: we would have to protect prey from their predators, cure sick wild animals, feed those starving to death, separate violent species, and reorganise entire ecosystems. But that would not be respecting nature; it would be replacing it with a permanent human administration of animal life.
None of this means that humans should be indifferent to animal suffering. We can create reserves, sanctuaries, hunting rules, conservation contracts, private foundations, certifications, community agreements, or habitat protection rules. But all of those solutions remain human institutions, created by humans, enforceable among humans, and applicable to those who can in fact be held legally accountable. If someone invades a private reserve and kills animals, the legal problem is not that the animal has appeared as a subject of rights, but that property, contract, or the community norm established by people has been violated.
Animal rights are contrary to human nature
It is incoherent to argue that animals have a natural right to life while we continue to organise much of human nutrition around animal products. Are we going to recognise their right not to be killed while we go on eating them? Would we have to transform the main source of energy and protein completely for millions of people? Must human beings renounce their omnivorous nature while every other carnivorous animal goes on hunting without acknowledging any correlative duty? If the wolf is not going to respect our rights, nor those of the sheep, nor those of the deer, it hardly seems reasonable to build a legal system in which only the human being is unilaterally bound toward every other living creature.
Animals are not legal subjects, essentially because that would mean making them participants in a system of norms they do not understand. Yet the fact that they are not subjects of rights does not imply contempt for them. On the contrary: precisely because we value them, we can protect them through norms, contracts, property, certifications, reserves, social sanction, private associations, or community rules. We can decide not to mistreat them, to improve their conditions, to limit certain practices, or to socially exclude anyone who acts with cruelty. But all of that consists of duties we humans impose on ourselves, not natural rights of animals in the Rothbardian sense.
