"Carl Cohen's ‘kind’arguments FOR animal rights and AGAINST human rights." Journal of applied philosophy 21.1 (2004): 43-59.An updated discussion of similar issues is available here:
"Tom Regan on ‘Kind’ Arguments Against Animal Rights and For Human Rights," in The Moral Rights of Animals, ed. Engel and Comstock (Lexington, 2016).Full paper below:
Tom Regan on
‘Kind’ Arguments
Against Animal
Rights and For Human Rights
Nathan
Nobis
Morehouse
College, Atlanta, GA
1/12/2014 2:10:42 PM; 7500 words
Abstract:
Tom Regan argues that human beings and some non-human
animals have moral rights because they are “subjects of lives,” that is,
roughly, conscious, sentient beings with an experiential welfare. A prominent critic,
Carl Cohen, objects: he argues that only moral agents have rights and so
animals, since they are not moral agents, lack rights. An objection to Cohen’s
argument is that his theory of rights seems to imply that human beings who are
not moral agents have no moral rights, but since these human beings have
rights, his theory of rights is false, and so he fails to show that animals
lack rights. Cohen responds that this objection fails because human beings who
are not moral agents nevertheless are the “kind” of beings who are moral agents
and so have rights, but animals are not that “kind” of being and so lack
rights. Regan argues that Cohen’s “kind” arguments fail: they fail to explain
why human beings who are not moral agents have rights and they fail to show
that animals lack rights. Since Cohen’s “kind” arguments are influential, I
review and critique Regan’s objections. I offer suggestions for stronger
responses to arguments like Cohen’s.
I.
Introduction: “Kind” Arguments
Tom Regan famously argues that some non-human
animals have moral rights that make it prima facie wrong to eat, wear, or experiment
on them or use them for other purposes that seriously harm them. Regan’s moral
hypothesis is that beings who are “subjects of lives,” that is, roughly,
conscious, sentient beings with experiential welfares, have a basic moral right
to respectful treatment which supports, at least, moral rights to life and
bodily integrity.
Regan’s hypothesis
concerning the basis of moral rights is supported, first, by its justifying the
common view that a wide range of human beings have moral rights and, second, by
its plausible explanation why human beings have rights or what makes them have
rights: human beings have rights because
they are conscious, sentient, psychologically unified beings whose lives can go
better and worse for them, from their own point of view. This is true whether
the individual human being is a genius or is mentally challenged, autonomous or
dependent, accomplished or not. For human beings who have psychologies such
that they can be harmed, that is, made worse off from their own point of view,
basic moral rights make inflicting such harms prima facie morally wrong.
Regan’s simple
genius is to observe that many animals also have psychologies that make them
subjects of lives and so the best explanation why human beings have rights
applies to many animals: since human beings have moral rights because they are
subjects of lives, then so do any animals who are subjects of lives. Thus, mammals
and birds, perhaps vertebrates generally (and perhaps some invertebrates, if
science reveals their mindedness) have basic moral rights. That is, unless
there is good reason to believe otherwise. Is there?
One
way to object to Regan’s case for animal rights is to argue that nobody,
including any human beings, has moral rights. This objection is not popular
insofar as most people confidently believe, with good reason, that human beings
have basic moral rights. Another way is to argue that no animals have
psychologies that make them subjects of lives. This strategy, however, goes
against the scientific current that supports belief that many animals have
cognitive, emotional and social lives that are more sophisticated than anyone
expected.
This leaves the
strategy of arguing that Regan’s theory of rights is mistaken. This objection
is not that Regan is mistaken in thinking that human beings have rights, but
that Regan does not correctly identify what it is about human beings that makes them have rights: human beings
have rights but not because they are subjects of lives: human beings have
rights because of some other property or properties they have, which animals do
not have and so, although human beings have rights, animals do not.
Carl Cohen has
repeatedly developed this objection to Regan’s arguments.[1] Cohen appears to accept what might be called a
moral-agency-based theory of rights: human beings have moral rights because they are moral agents, that is,
they are able to think in moral terms, use moral concepts, make moral
evaluations, and choose to act for moral reasons. Moral-agency-based theories of
rights are variants on what might be called rationality-based theories of
rights, since a sophisticated kind of rationality, which animals lack, is
required for moral agency. Cohen argues that animals do not, indeed cannot,
have rights because they are not moral agents. Cohen insists however, that
non-rational human beings – babies, severely mentally and/or emotionally
challenged individuals, the senile, and other non-rational human beings – nevertheless
have moral rights on his theory, despite their lack of moral agency.
In both The Animal
Rights Debate (2001) and Animal Rights, Human Wrongs: An
Introduction to Moral Philosophy (2003), Regan interprets Cohen as offering
this moral premise as a response to the charge that his theory implies that
non-rational, non-moral-agent human beings lack rights:
“Individuals have rights, if and only if, they are the
kind of being whose lives will be, have been or remain essentially moral.”[2]
Call this the “right
kind” premise. Combined with the claim that all human beings and no animals
live lives that are “essentially moral,” we have an argument that we can call
the “kind argument” for the conclusions that all animals lack rights and all
human beings have rights. Since these
claims can be separated, we might see these as two “kind” arguments, one for
human rights and another against animal rights.
Regan argues that these “kind”
arguments fail: they fail to show that animals lack moral rights and they fail
to show why human beings have rights because the “right kind premise,” shared
by both arguments, is faulty. Here I review Regan’s responses to these “kind”
arguments, beginning with simpler objections and later discussing his most philosophically
rich objections. Since these “kind” arguments are influential, it is important
that these arguments be evaluated rigorously. I offer suggestions for where
Regan’s responses can be strengthened.
II.
Interpretation: “Essentially Moral” Lives
Before discussing
Regan’s objections, the “kind” argument must be explained in greater detail.
Recall that the “kind premise,” according to Regan, states that “individuals
have rights, if and only if, they are the kind of being whose lives will be,
have been or remain essentially moral.” Cohen does not explain what he means by
a life being “essentially moral.” Regan charitably offers these observations to
help us understand:
“To exercise our moral capacities – to involve
ourselves in moral deliberation and to take responsibility for our actions, for
example – arguably is necessary if we are to live human lives. . . Moreover, in the case of infants who have
the potential to exercise these capacities, it is undeniably true that, barring
incapacitating injury or premature death, they will use these capacities in the
future. And as for those who, though presently senile or comatose, once lived
their lives as we live ours: they most certainly used these capacities in the
past.”[3]
These observations
help us understand the why we might think that human beings, or their lives,
are “essentially moral”: this is, arguably, a defining capacity for what it is to
be a human being or live a “human life.” This interpretation would support a
common thought that a human baby, and even a seriously mentally disabled baby,
is the kind of being that is an
“essentially moral” being but that a pig is not an “essentially moral” kind of being, and neither is any other
animal. To put it another way, this interpretation of what it is to be an
“essentially moral” being supports thinking that a correct answer to the
question, “What kind of beings live
lives that are essentially moral?” is ‘human beings’ and that an answer
‘chickens,’ or any other animals, would be incorrect.
This
interpretation supports Cohen’s premises that all human beings, even those who are
not moral agents, are this kind of
being and that no animals are, which are essential to his kind arguments about
animal and human rights. While Regan later challenges this way of understanding
Cohen’s claim, arguing that it is false that all human beings are “essentially
moral,” or have essentially moral lives, the first objection I discuss accepts
this as true about human beings.
III.
First Objection: Overlooking a Necessary
Condition
“Even if morality is essential to human but not to
animal life, and even if all humans have rights because of this essential
aspect of our being, it does not follow that only humans have rights.”[5]
Unfortunately,
this objection does not succeed because it does logically follow that only humans have rights from Cohen’s right
kind premise, if only humans have lives that are essentially moral. Regan
appears to have misread the premise, thinking it states only a sufficient
condition for rights, like this:
Individuals have rights if they are the kind of
being whose lives will be, have been or remain essentially moral.
This premise would
leave open the question of whether beings that are not “essentially moral’ beings might have rights. But this isn’t
Cohen’s premise, which offers sufficient and
necessary conditions for having rights. So, Cohen’s conclusion does follow from his premises, logically
(which, of course, does not mean that his argument is sound or any of his
premises or his conclusion true). This objection misfires.
IV.
Second Objection: the Fallacy of Division and
“Kinds”
A second objection
Regan has to Cohen’s “right kind” argument for human rights is directed at
Cohen’s premise that all human beings are the (or a) kind of being whose lives are “essentially moral.” Regan argues
that Cohen fails to show this, and so fails to demonstrate that non-rational,
non-moral-agent human beings have rights.
Regan argues that,
in making the claim that all human beings
are the kind of beings are moral agents, Cohen commits something like the
fallacy of division, which is to falsely attribute properties of groups or
collections to each of the members of those groups: e.g., even though some car
weighs a ton, it does not follow that each part of that car weighs a ton, even
though a sports team can accomplish some task, it doesn’t follow that each
player alone can accomplish that task. Regan argues, analogously, that even if human
beings, as a group or class, are “essentially moral,” it does not follow that
each individual human being is “essentially moral.” He gives the example of
anencephalic infants, babies with a brain stem but no brain, as human beings
that are clearly not essentially moral, since they are unable to be conscious,
given their condition. Regan says that if we consider these human beings
“essentially moral,” we might as well also say that they have “intellectual
curiosity, aesthetic preference and long-term plans about their futures.”[6] Since all these claims would be false, Regan
concludes that it is false that these infants also are essentially moral. Since
Cohen’s defense of the rights of non-rational human beings who are not moral
agents defends on the claim that they are “essentially moral,” Regan argues
that Cohen’s defense fails.
Regan’s objection
is sensible, since Cohen not explain the meanings of his controversial claims
and give any reasons why they should be accepted. That invites
misunderstanding. But I think that Cohen could respond that Regan’s objection
is based on a misunderstanding. Cohen might respond that, of course, he
recognizes the obvious fact that not all human beings are moral agents, grasp
moral concepts, or actually live lives that are “essentially moral.”
Nevertheless, Cohen maintains that all human beings are the “kind” of beings who
have those properties. That claim is similar to how it might make sense, and be
true, that human beings are the “kind” of being who have four limbs and walk
upright, even though, of course, there are individual human beings who are missing
limbs and who can’t walk. Cohen might even take Regan’s observations above,
agree with them and add that all human beings are also the “kind” of beings
that possess intellectual curiosity, aesthetic preference and long-term plans
about their futures, claiming that these are also true about our “kind.”
Thus, this
objection does not seem to refute Cohen’s claims that human beings are a “kind”
of being that is essentially moral and that animals are not that kind of being.
To do this, and to be in a position to potentially refute Cohen’s “right-kind”
premise, we need to look more carefully at the nature of kinds. Regan’s next
objection sets us up to do just that.
V.
Third Objection: False Implications for Rational
Moral Agent Extraterrestrials?
In the essay “Mapping
Human Rights” in Defending Animal Rights,[7] Regan explicitly argues that the “right-kind” premise
is false (pp. 79-80). His argument involves a thought experiment: imagine that
there is a small groups of extraterrestrials (“E.T. and his friends”) who
clearly are rational moral agents. They too have the cognitive and moral
capacities that Cohen claims that human beings have, “essentially.” But, these
extraterrestrials are “genetic aberrations” and so being a rational moral agent
is neither essential nor even typical of their species, their kind, Regan claims.
Using this case, Regan gives this
argument:
1.
If
the “right kind” premise is true and so “individuals have rights, if and only
if, they are the kind of being whose
lives will be, have been or remain essentially moral,” then these
extraterrestrials do not have moral rights.
2.
But
these extraterrestrials do have moral rights.
3.
Therefore,
it is not the case that “individuals have rights, if and only if, they are the kind of being whose lives will be, have
been or remain essentially moral,” and so the “right-kind” premise is false.
Premise 2 seems
true since these extraterrestrials are just like human beings, in their
rational-emotive-moral capacities, except they are not biologically human.
Denying premise 2 would be extreme speciesism. Regan thinks that 1 is true because,
since these extraterrestrials are genetic aberrations, their “kind” is not
essentially moral. Since E.T. and his friends have rights even though they are
not of an essentially moral kind the “right kind” premise is false: the premise
claims that a necessary condition for having rights is being the “right kind,”
but that is not so, as the case shows.
This objection succeeds only if the
right “kind” is determined solely by the
species that the individual is a member of. But why think that? The notion of a
“kind,” intuitively, is flexible enough to allow that E.T. is of a kind of being, or is a kind of being, that is a moral agent,
since he is a moral agent. We might
say that, in terms of his species, he
is not of a “kind” that’s a rational moral agent, since that’s not typical or
normal for his species, but that he is of the “kind” moral agent nevertheless. After all, if we asked which “kind” or
“kinds” of beings are moral agents, E.T. and his friends should be on the list.
Why not? Cohen provides no reason to deny this. If E.T. is of the, or a, “right kind,” however, Regan’s argument does not show that the
right kind premise is false: the case could even be taken as evidence in favor
of the “right kind” premise.
If Cohen’s view is
that the only morally-relevant “kind” is species, he could have much more
clearly stated his view with a premise that we might call a “right-kind-as-set-by-species-premise”:
Individuals have rights, if and only if, they are of a
species whose lives will be, have
been or remain essentially moral.[8]
A premise like
this presumes that general properties can be had by a species: insofar as claims
like “humans are bipedal” and “Homo sapiens
is a bipedal species” make sense, a premise like this is, at least, coherent. But
Regan’s E.T. case seems to shows that this premise is false, insofar as it
claims a necessary condition for rights: E.T. has rights even if he is not of a
species that is “essentially moral.” So,
if this were Cohen’s intended premise, it is false.
This leaves us
with a premise like this:
Individuals have rights if they are of a species
whose lives will be, have been or remain essentially moral.
But this premise,
offering a sufficient condition for rights, leaves open the possibility for
moral rights for beings not of essentially moral species: it doesn’t imply that
animals lack rights. This was explained above, in section III concerning
Regan’s first objection.
To return to Regan’s argument above,
it is sound only if E.T. is not of the “right kind,” and the right kind is set
by species. Regan seems to assume that, at least for purposes of interpreting
Cohen, the right kind is species, but there is no reason to assume this, and
there are reasons to deny this, insofar as rational human beings and E.T. are
of a same kind, such as “moral agent.”[9] The E.T. case shows that the “right-kind-as-set-by-species-premise”
is false, but perhaps Cohen would agree with that, since E.T. is a rational
moral agent. To try to show that the “right kind” premise is false, and/or
argue that it is false that all human beings are of the “right kind” and not
animals are of the “right kind,” we must think more even more deeply about
kinds and what reasons might be given in favor of the “right kind” premise and
the premises that humans are, and animals are not, the right kind.
VI.
Fourth Objection: “Right Kind” Premises and Bioethics
beyond Animals
The final relevant
discussion from Regan, at least that I could find, is from his 1999 “Putting
People in Their Place,” in his Defending
Animal Rights. Although he does not directly address “kind” arguments, he
discusses a view that “persons,” i.e., rational and autonomous beings, have
rights because they are rational and
autonomous, and only persons have rights. This view, of course, has dim moral implications
for animals as well as human beings who are not persons according to this
definition, e.g., babies and severely mentally challenged individuals.
Advocates of this
view sometimes respond by claiming that these human beings have rights because
of their potential to be rational and
autonomous, or because (concerning many babies) they will become rational and autonomous. This is very close to saying
that they are of the “right kind,” since, as we saw above in Regan’s
interpretation of Cohen, Regan explains how non-rational human beings might be said
to be of the kind “moral agent” by referencing their potential for agency and,
in many cases, their future agency.
Regan has two
responses to the view that human non-persons have rights in virtue of their
potential or their actual future rationality. His second response (which does
not address “kind”-related claims) is to observe that some severely disabled human beings will not become rational, autonomous moral agents and even lack the
potential to do so[10]: a doctor might truthfully say of a severely disabled
baby that he or she will never become rational, lacks the potential for
rationality, cannot become rational, that rationality is not a possibility and
so on.[11] If actual, potential or future rationality is needed
for rights, then these human beings lack rights. Regan responds, however, that
children like these, insofar as they can be the “subject of a life that fares
well or ill for them,” have basic moral rights. He concludes that potential or
future rationality is not logically necessary for having rights.
Regan’s initial objection
to the view that potential or future rationality is sufficient for rights,
however, is more interesting. He observes that this premise, as well as a
broader “kind” premise that might encompass human beings who are subjects of
lives but lack the potential for moral agency (the subject of Regan’s previous
objection), seems to imply that human embryos and fetuses have moral rights. As
biologically human organisms or beings, they have the potential to be moral agents, many of them will become moral agents, and it seems to make sense to say that
they are the “kind” of being that is a moral agent: we might say a human embryo
is that “kind” of being, but a squirrel embryo is not.[12] If having this potential, or being of this “kind,” is
sufficient for having moral rights, then embryos and fetuses would seem to have
rights, and embryo research and abortion would seem to be prima facie wrong. Although
there are complicating factors, the same could perhaps be argued about human
euthanasia or physician assisted suicide, even if voluntary or non-voluntary
(i.e., not involuntary), since the dying person is the “kind” of being who is a
moral agent and so has rights.[13]
Regan’s response here is to observe
that many, perhaps most, people who try to grant non-rational human beings
rights by appealing to their potential and/or “kind” “characteristically wish
to disassociate themselves from the view that routinely permitting elective
abortion is wrong.”[14] So, Regan observes an inconsistency: people who argue
that individual beings who are the “kind”
of beings who are moral agents have moral rights often don’t realize that
fetuses are this “kind” of being also, and these people often believe that
fetuses do not have rights. “Kind” arguments are often developed in the
contexts of trying to evade the pro-animal implications of a moral hypothesis
like Regan’s “subject of a life” theory of rights. But the “kind” premise, often
developed to avoid the conclusion that animals have rights, seems to have the
implication that abortion is wrong, which many advocates of the “kind” premise
don’t believe.
While this potential inconsistency
(I say “potential” since, as Judith Thompson made clear, even if fetuses are
persons with the right to life, it does not immediately follow that abortion is
wrong[15]) may convince those who believe that abortion is not
wrong or that fetuses don’t have rights to rethink their view on whether all
human beings who are the “kind” of beings that have rights, it need not: they
might just revise their view on abortion and fetal rights. More importantly,
however, Regan’s response does not address anyone who believes that fetuses
have rights and abortion is wrong, and animals lack rights, especially if they
believe this because of a “kind”-like arguments: “Yes, fetuses have rights
because of what ‘kind’ of being they are – moral agents – and animals don’t
have rights because they are not that ‘kind’ of being.”
Regan does not reveal his views on fetal
rights and the morality of abortion: he only observes that the “kind” premise
seems to have implications for abortion that many of its advocates don’t
accept. It is understandable that Regan
would want to avoid making any claims about the morality of abortion: it’s a
distraction from the animal issues and his views on abortion, whatever they may
be, could be taken (rightfully or wrongfully) as evidence against his arguments
about animals.
But to successfully
argue that the “kind premise” is false, not merely inconsistent (or at least in
possible tension) with many people’s views about abortion, Regan may have to
evaluate “kind” premises in terms of their implications for other moral issues.[16] This may require addressing abortion and some other
controversial moral issues, beyond animal rights. This can be done in more and
less controversial ways, however.
The more
controversial way would be to argue that embryos and early fetuses, as well as near-
certainly permanently comatose (or similar) individuals, lack rights. Regan
could argue that the latter lack conscious experience and any realistic
potential for its return, and so cannot be harmed by death, and so they lack
the right to life (since the right to life is to protect against the harm of
death); and embryos and fetuses have not had conscious experience yet, and so
cannot be made worse off, and thus have no need for rights to protect them from
death, which would not (yet) harm them. Since the “kind premise” falsely
implies that these human beings, i.e., biologically human organisms, have
rights, but they don’t, the premise is false.[17] This strategy would require that Regan close the
question of whether being a subject of a life (or at least conscious and
sentient) is not just sufficient, but also necessary, for having rights. This
strategy, of course, does require stating a conclusion on these other moral
issues. For those who accept these “liberal” conclusions on these issues,
however, their understanding this objection to the “kind” argument may give
them reason to be more receptive to arguments for animal rights.
A less
controversial strategy would be to argue either
that there is no good reason to believe that the “kind premise” is true or, perhaps, to argue that it is false.
This can be done, fortunately, without taking a position on the morality of
abortion or euthanasia. This would be to argue that, e.g., even if abortion is
wrong, the “kind” premise supplies a poor reason to believe that: it is a
premise of a bad argument for the conclusion that abortion is wrong. Showing
that the “kind” premise fails concerning other bioethical issues can be
important to showing how it fails for moral arguments about animals.
Recall the
premise:
“Individuals have rights, if and only if, they are the
kind of being whose lives will be, have been or remain essentially moral.”[18]
Combined with the
premises that embryos, fetuses and
permanently comatose individuals are the “kind” of beings whose lives will be,
have been or remain essentially moral or have the potential for that, we
have an argument for the conclusion that these human beings have rights. For
our present purposes we are only interested in the conjunct that applies to
non-moral-agent human beings. We can augment it with “potential” also, since
Regan added that to the discussion:
Individuals have rights if they are the kind of
being whose lives will be, have been or remain essentially moral or have the
potential for that.[19]
As far as I know,
Regan nowhere asks for positive reasons to believe any “kind” premise that
assert that rights depend on being of the “right kind,” and Cohen doesn’t offer
them. We must try to think through the premise to try to understand what it
says and why we might accept it:
(1)
The
premise asserts that ultimately, rights depend on or result from moral agency. (While
this might grant rights to moral agents for the wrong reasons, it at least gets
the right results for moral agents: they have rights.)
(2)
Human
non-moral agents are the same “kind” of being as human moral agents.
(3)
Human
non-moral agents have rights because
of what “kind” they are, the same “kind” of being that the moral agents are.
Thus:
(4)
For
every Non rational human, if N is the same “kind” of being as Moral
agents, and M has the property of Agency, and property A
result in Rights, then each N has R.
The question is
why someone should accept (4), which is a formalized statement of (3). Let’s state
(4) in a more general way:
(5)
For
every Non rational human, if N is the same “kind” of being as M,
and M has the property of A, and property A result in R,
then each N has R.
I have accepted,
at least for the sake of argument, that non-rational human beings are the same “kind” of beings as moral
agents: (2) is true. But we can describe them as many other kinds of being
also. What other kinds of beings are they? What other “kinds” could we state as
an M in (5)? It seems like non-rational human beings are also the “kind”
of beings that are:
four-limbed, bipedal, able to see, able to walk, able
to tell jokes, able to do basic math, able to be responsible, able to be
autonomous, (recalling Regan’s observations) have “intellectual curiosity,
aesthetic preference and long-term plans about their futures,”[20] and much else that is true of their – i.e., our – kind, including capacities for
evil and criminal wrongdoing.
Many of these other truths about our kind M,
however, imply other properties A and R, but non-rational human beings clearly
lack A or R. For examples, even though non-rational human beings
are the “kind” of being that is autonomous and self-directing, it would be
wrong to let non-rational human beings make all the decisions about their own
lives that we allow adults to make: they lack those rights. And although
non-rational human beings are the “kind” of beings that can walk and see, and
being able to walk and see results in other abilities (and some rights too),
non-rational human beings who cannot walk or see lack those other abilities and
rights.
In these cases, and many more, we
either deem irrelevant these human beings being the same “kind” as moral
agents, since it would be deeply wrong to treat them as moral agents are
treated. What’s relevant to how they are treated is that they are as
individuals or that they are also of another
“kind,” namely something like Regan’s “subjects of lives” (we can either say
that they are of the kind “subjects
of lives,” or simply that they are subjects of lives: the former addition of
“kind” seems to ad nothing to the explanation). If it is said that these human
beings deserve respect because they are subjects of lives and they are the kind
“moral agent,” it is unclear what this latter condition adds.[21]
These examples
show that, in general, being of an M kind does not always result in any
related A or R properties: (5), as a generalization, then, is
false. Other examples could surely be developed to confirm that being of a
particular “kind” does not, in general, result in having more particular
properties or capacities or even rights that result from being of that kind.
This supports thinking that, at least, there is no good reason to believe (4).
Accepting (4) is analogous to believing that potential persons have the rights
of actual persons (because they are
potential persons), even though potential doctors, judges, presidents, parents,
spouses and on and on lack the rights of actual doctors, presidents, and so on.
Since potential never results in rights in any other cases, there is no reason
to believe it does in the case of personhood.
Since, as a matter
of bold conjecture, (5) is false with any other M, A and R
kinds and properties, there is no good reason believe that (4), as a more
particular version of the premise, is true. It could be true, just as it could be true that potential personhood
results in the rights of actual persons, but unless and until any good reasons
are given to believe this (and none have been given), premises like this should
not be believed: perhaps they should be even judged as false. Someone might
just insist that (4) is true, but
unless he or she has any good reasons to offer in support of this insistence,
we shouldn’t agree.[22]
What this all
shows is that “kind arguments” for the rights of non-moral agents human beings fail
at their major premise: even though all human beings, or human organisms, can
be described as the “kind” of beings who or that are moral agents, there is no
good reason to believe that each individual human being has the moral
properties, such as moral rights, that result from being that “kind.” These
arguments fail whether these biologically human beings or organisms are born or
unborn, with genuine potential for moral agency or not (due to damage or an
impending death). People who believe that abortion and/or euthanasia are wrong
can accept this: Regan need not challenge these conclusions. However, to rationally retain these conclusions, they
would need to be held on the basis of reasons other than a “kind” argument.
Their seeing that “kind arguments” provide an inadequate defense for rights for
vulnerable, non-moral-agent human beings can help them see that “kind
arguments” provide no good reason to believe that animals lack rights.
VII.
Conclusion
Cohen’s “kind
arguments” are influential insofar as they are version of what is often called
“The Argument from Marginal Cases,” that is, most simply, the claim that since
human beings with mental and emotional
lives similar to many animals’ mental and emotional lives have moral
rights, so do many animals.[23]
This argument is
powerful, and Cohen’s response is one of the influential attempts to refute the
argument. Here I have reviewed and critiqued Regan’s responses to Cohen.
Generally, I have found Regan’s responses to not be the strongest responses
available. However, strong responses are necessary, for intellectual and moral
integrity, and moral progress concerning all moral issues where “kind”
arguments are offered. I propose, then, that these questions must be asked of
any advocate of any version of a “kind” argument given against animal rights:
·
What
“kind” of beings are human beings who are rational moral agents?
·
What
“kind” of beings are human beings who are not rational or moral agents?
·
What
“kind” of beings are non-human animals?
·
What
exactly is a “kind”?
·
How
many “kinds” are each individuals?
·
Are
humans and animals of different “kinds”?
·
Are
rational humans and non-rational humans of some different “kinds”?
·
Are
different animals of some of the same, and some different, “kinds”?
·
Are
humans and animals some of the same
“kinds”?
·
What
kinds are morally relevant, or most morally relevant?
·
When,
how, and why exactly, do individuals of one kind gain properties of other
individuals who are of the same kind, yet are very different?
Finally, although
this paper has been critical of “kind” arguments, I will conclude with some
“kind” reasoning that perhaps Regan, or other philosophical animal advocates,
could offer to advocates of Cohen’s “kind’ argument:
“You say that humans who are moral agents and humans
who are not moral agents are the same “kind” of being, namely “moral agents.” Some humans are moral agents and have
rights because they are moral agents.
Since human beings who are not moral agents are of the same “kind,” that is, since
they are of the same “kind” species,
these non-moral-agent human beings have rights. Correct?
Well, if that
reasoning makes sense, then this
reasoning make sense also, and we don’t even need to challenge the assumption
that rights result from moral agency:
Humans and animals are the same “kind” of being,
namely “subjects of lives,” conscious feeling beings whose lives can go better
or worse, from their own points of view. Some
subjects of lives, some human beings,
are moral agents and have rights because
they are moral agents. Since animals who are not moral agents are of the same
“kind,” since they are of the same kind
“subjects of lives,” these animals have rights. Correct?”
Identifying what,
if anything, has gone wrong with this “kind argument” for animal rights requires careful and well-reasoned answers to the
bulleted questions above. Rigorously pursuing
these questions, standing on Tom Regan’s “philosophical shoulders,” so to
speak, is what must be done if we are to either
confirm Regan’s theory that our being “subjects of lives” is what’s most
relevant to our moral kind, or to
rationally refute his view, with intellectual and moral integrity. Only time
will tell, but I hope, and I believe with good reason, that this paper will
contribute to the former end, surely a kinder
conclusion, for humans and, especially, for animals.[24]
[1] See,
among other writings, Carl Cohen’s contribution to his and Regan’s The Animal Rights Debate (Rowman and
Littlefield, 2001 and his “The Case for the Use of Animals in Biomedical
Research,” New England Journal of
Medicine 315: 865-870, October 2, 1986. Scott Wilson mentions Cohen in his
“The Species-Norm Account of Moral Status,” Between
the Species: An Electronic Journal for the Study of Philosophy and Animals,
5 (2005) but does not discuss Cohen’s arguments because, according to Wilson,
Cohen “does not offer any argument for the claim that the moral status of a
being depends on what is normal for her species [Wilson’s interpretation of
Cohen’s relevant “kind”]; rather, he merely asserts that this is so” (p. 29,
note 11).
[2] The Animal Rights Debate, p. 277; Animal Rights, Human Wrongs, p.111.
[3] Animal Rights, Human Wrongs, p. 110.
[4] This is
the only objection to the “kind” argument in Animal Rights, Human Wrongs. It is also found in The Animal Rights Debate.
[5] Animal Rights, Human Wrongs, p. 111,
emphasis mine; The Animal Rights Debate,
pp. 277-278.
[6] The Animal Rights Debate, pp. 278-279.
[7] Regan’s
paper was presented in 1997. This example is similar to Jeff McMahan’s
“superchimp” example, developed in his much discussed 1996 article “Cognitive
Disability, Misfortune and Justice,” Philosophy
and Public Affairs, Vol. 25, No, 1, 3-35.
[8] Neil
Levy offers a premise like this in his “Cohen
and Kinds: a Response to Nathan Nobis,” Journal
of Applied Philosophy 21.2
(2004): 213-217. He suggests that species membership is the only morally
relevant “kind” for rights, that is, that an individual has rights if, and only
if, that individual is of the species that has, e.g., moral agency as a
defining capacity. Below I argue that such a principle is false, if embryos and early, pre-conscious
fetuses lack rights and some biologically alive, but non-conscious, individuals
in end of life cases lack rights such as a right to life: basically, not all
properties had by humans from being of a “kind” of being are had by all individual
human beings.
[9] If we,
human beings, and E.T. here can be considered the same “kind,” then it seems
that we, human beings, and many animals (or all animals) can be considered the
same “kind” also: e.g., the kinds “subjects of lives,” or “conscious, sentient
beings,” “living beings,” “things found on Earth,” “existing things,” and on
and an, all of which are “natural kinds,” as opposed to arbitrary, “unnatural”
groupings: e.g., things that fit in a breadbox or are light blue. I discuss the
relevance of this below.
[10]
“Putting People in Their Place,” in Defending
Animal Rights, p. 98.
[11] Peter Markie claims that the relevant “potential” for
these non-rational humans (who lack the medical potential to become rational
moral agents) is defined by the “defining characteristics of [a species’] fully
developed members” (p. 41): so, in response to the physician who truthfully
claims a disabled infant has no potential for rationality, Markie apparently
might think that this fact is less relevant to what should be done here than
facts about what normal, developed members of the species are like. Mackie
claims that these human being’s “potential” ought to be respected and so
treated as if they have rights (but animals, since they lack this potential,
need not be treated as if they have rights). Concerning fetuses, he denies the
relevance of their potential by claiming, without argument, that only
“subjects” (i.e., conscious beings) have rights (p. 45). It is highly unclear,
at least to me, what reasons, if any, Markie gives for any of his views here,
however: he seems to repeatedly insist that non-rational humans ought to be
treated as if they had rights, but his support of this claim is not clear. See his “Respect for people and animals.” The
Journal of Value Inquiry 38.1 (2004): 33-47.
[12] Francis
Beckwith develops an argument against abortion appealing to a premise like this
in his Defending Life: A Moral and Legal Case Against Abortion Choice. Cambridge: Cambridge University Press, 2007. I
respond in my “Abortion, Metaphysics and Morality: A Review of Francis
Beckwith’s Defending Life: A Moral and Legal Case Against Abortion Choice.” Journal
of Medicine and Philosophy 36.3
(2011): 261-273. Robert George and Christopher Tollefsen offer similar
arguments in their Embryo: A Defense of Human Life. Random House
Digital, Inc., 2008. I offer an (unpublished) critical review of that book off
my webpage.
[13] A
complication results from thinking that moral rights are prima facie, or impose
prima facie obligations, and are so overrideable in special cases. One could
thereby maintain that embryos, fetuses and/or the permanently comatose actually
have rights, e.g., the right to life, but that their rights are overridden or
defeated by the circumstances and special features of the case, and so the
prima facie obligation to not harm or kill is no longer in force. Alternatively,
and more plausibly, one could believe that these individuals simply do not have
rights: they have yet to gain the properties that result in their having rights
or they have lost these properties.
In Body and Soul: Human Nature and the Crisis
in Ethics (Intervarsity Press, 2000), J.P. Moreland and Scott Rae develop a
position similar to what was mentioned above, as well as Beckwith’s (and
Cohen’s), and apply it to euthanasia, as well as abortion and number of other
issues. They argue that PVS patients, who are irreversibly unconscious, are persons with all the moral rights of
persons due to their “essential nature” (p. 335). Nevertheless, they claim it
can be permissible to let such persons with rights die when treatment is
futile. However, they reject arguments that it’s permissible to let such patients
die because they are no longer persons and/or have lost the properties that
result in their having moral rights. Whether arguments like Beckwith’s,
Moreland’s and Rae’s could be developed to reinforce arguments like Cohen’s,
and vice versa, is a topic worthy of attention.
[14]
“Putting People in Their Place,” in Defending
Animal Rights, p. 98.
[15] Thomson, Judith Jarvis. “A
Defense of Abortion.” Philosophy
& Public Affairs 1.1
(1971): 47-66.
[16] Another
possible objection, which I develop briefly below, is not that any “kind”
premise is false, but that due to its lack of specificity, or its
indeterminacy, we have no way of telling whether it is true or false, and no
way of knowing what the premise’s implications are for cases, as well as no way
of knowing if a case would support the premise. This lack of specificity or
indeterminacy is a consequence of each individual being a token of many types,
or of many different “kinds.”
[17]
I develop this view in my response to Beckwith, cited above.
[18] The Animal Rights Debate, p. 277; Animal Rights, Human Wrongs, p.111.
[19] For a
similar premise, see an article by Matthew Liao,
originally titled, “Virtually All Human Beings as
Rightholders: The Species-Norm Account,”
published as “The Basis of Human Moral Status,” Journal of Moral Philosophy, Volume 7, Issue 2, pages 159 – 179.
Liao offers a “species-norm” theory of rights, that if something has the genetic or physical basis for moral agency (assuming
there is such a thing or things), then
that something has basic moral rights. Liao’s “aim is
to set out this account clearly rather than to defend it” (abstract), so he
does not really argue in its favor; my reply to this view is that in no other
case does merely having the genetic
or physical basis for doing or being Y does that result in that someone the
rights of someone who really does or has Y, and so Liao’s proposal is ad hoc.
For another reply, see Christopher Grau, “Moral
Status, Speciesism, and Liao's Genetic Account,” Journal of Moral Philosophy 7 (2010): 387-396. For Liao’s response
to Grau, see “The Genetic Account of Moral Status: A Defense,” Journal of Moral Philosophy 9(2) 2012:
265-277.
[20] Regan, The Animal Rights Debate, pp. 278-279.
[21]
I am grateful to Dan Hooley for discussion of these issues.
[22] Someone might insist that having rights is an
“essential property” of our “kind.” In David Boonin’s A Defense of Abortion (Cambridge, 2002) he discusses what he calls
“essential property arguments” in favor of fetal rights (pp. 49-55). He
observes that “there are many rights that we believe we possess at some stages
in our lives and not at others” (p. 55) and so merely being of the same “kind”
is insufficient reason to believe that human beings always have some particular moral properties or they are essential to human organisms.
[23]
Daniel Dombrowski, Babies and Beasts: The
Argument from Marginal Cases (University of Illinois, 1997).
[24] Arguments in this
section are related to earlier arguments I developed in my “Carl Cohen's ‘Kind’
Arguments For Animal Rights and Against Human Rights,” Journal of Applied Philosophy, vol. 21, no. 1, pp. 43-59, 2004.
Further discussion will be found in my “Coulda, Woulda, Shoulda: Modal Moral
Arguments,” with Devon Belcher, in progress.
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