EVELYN PLUHAR Permsylvania State University

PHILOSOPHY -

BEI'WEEN THE SPECIES 32

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at each follows. Editors' Note: The following pa.perpaper waswas (1) Agents need not be noral agents. presented at the Pacific Division meetingmeeting Ckle may act purposefully without being capa­capa.­ of the Society for the Study of EthicsEthics ble of comprehending noral principles. Be­ and Animals in san Francisco, March,March, sides "agents," beings in this category can 1987.1987. sides "agents," beings in this category can be called (like noralrroral agents) "persons" in Joel Feinberg's sense and "subjects-of-lives" in Tam Regan's sense. According to Feinberg, "In the commonsense way of thinking, persons You and I are IlPralnoral agents. We are are those beings who, arrong other things, are capable of understanding and acting upon conscious, have a concept and awareness of IlPralnoral principles. [1] Provided that we do not themselves, are capable of experiencing erro­emo­ act under duress, we are responsible for what tions, can plan ahead, can act on their we do. As IlPralnoral agents, we alone have IlPralnoral plans, and can feel pleasure and pain."[3] obligations and can be held accountable for "Person" is a notoriously slippery term. flouting those obligations. All IlPralnoral codes Same use it interchangeably with "human" or are addressed to us. So are the following mean by it no more than "norally"rrorally considera­

questions: ,Are we, as IlPralnoral agents, all ble." Same would restrict it to noral ~;ra.lly~;rally considerable; i.e., are others (also agents. By contrast, I find Feinberg's fonn­ IlPralnoral agents) directly obligated to take our ulation admirable, and whenever persons are interests into account when their actions referred to in the remainder of this pa.per,paper, would affect us? Are we all equally IlPrallynorally it will be in this sense only. However, the significant, entitled to be treated not.not, mere­ ambiguities and distracting errotiveemotive content

ly as means to further others' purposes? one often finds in discussions of persons may Can an<~"a\1..~·' beings who are not IlPralnora! agents be well have led Regan to re-name the category: IlPrallynorally considerable; i.e., are there any "individuals are subjects-of-a-life if they IlPralnoral pa.tients?[2]patients?[2] If there are IlPralnoral pa­ have beliefs and desires; perceptions, merro­meroo­ tients, are they as norally significaat as we ry, and a sense of the future, including are? Are some IlPralnoral pa.tientspatients more nora11y their own future; an errotionalemotional life together significant than others? These are all fun­ with feelings of pleasure and pa.in;pain; prefe­ damental, extraordinarily important ques­ rence- and welfare-interests; the ability to tions. They are also extraordinarily diffi­ initiate action in pursuit of their desires cult to answer. and goals; a psychophysical identity over time; and an individual welfare in the sense Somesalle Candidates for Moral Patiency that their experiential lives fare well or ill for them, logically independently of Let us begin by considering some candi­ their utility for others and logically inde­ dates for noral pa.tiency.patiency. Those nost under pendently of their being the object of anyone discussion have been (I)(1) agents who are not else's interests. [4] If there are rroralnoral noral agents, (2) self-conscious beings, (3) patients, these beings appear to be strong conscious beings, (4 ) living beings, or (in­ candidates for that position. creasingly under discussion (5) natural ob­ jects or systems. Philosophers have argued,argued. (2) otherOther beings have lesser abilities. that norally relevant similaritiess:imilarities between Can a self-conscious being fail to be an beings in a given category and IlPralnoral agents agent, person, or subject-of-a-life? Yes, if (who nost assume are IlPrallynorally considerable) that being's ability to act to fulfill goals justify the ascription of rights or rroral is severely diminished or non-existent. The standing to thOSE; beings. SpaceSpa.ce limitationsl:imitations being may be physically or mentally incapable prevent me frOOI considering the last two of agency but, have some awareness (perhaps mentioned categories (living beings and na­ rudimentary at best) of self. Possibly, such tural objects or systems) here. This limita­l:imita­ beings are noralrroral pa.tients.patients. Many would deny tion is in no way meant to suggest that such this. beings could not be rrorallynorally considerable. We will have quite enough complications if we (3) Beings who can be aware, in sane confine our attention to the first three sense, of their surroundings but not of them­ candidates for noral pa.tiency.patiency. A brief look selves are often called "merely""rroerely" conscious.

33 BEI'WEEN THE SPECIES They too might be moral patients. The legi­ mentality to hillllaIl beings, would have us timacy of this moral patiency candidate is accept the following rather dubious contrast: far more hotly disputed than the two others a screaming, struggling child being dragged mentioned above. The further we depart from to the doctor for her second shot has beliefs the qualities which characterize moral agen­ about what is in store for her and desires to cy, the more contestable our candidates for stay home instead, but a yelling, thrashing moral patiency becx:me. (Of course, one must cat on the way to the vet for his second not allow the relative p:Jpularity or unp:JpU­ visit is just exercising his limbs and vocal larity of our candidates to· decide the issue. cords! It may not be coincidental that we see our­ selves as the paradigms of moral considera­ In addition to double-standard thinking, bility. One's decisions about who or what one also finds the fallacy of false dilermna "measures up" morally may be far from objec­ cormnitted by some critics of nonhillllaIl agency. tive. ) For example, Michael A. Fox has said that animals cannot -----lead lives or be autonomous '!he categories above plainly cut across because autonomy requires that one can "gene­"gene- species lines. No one denies that there are rate a life plan" to guide one's life as a hillllaIls who are "merely" conscious, but it is whole. (8] But surely this is to conflate also true that some agents are not hillllaIl. "highly autonomous" with "autonomous." No Agency as such requires self-consciousness, distinction is made between the purposeful desires, and some degree of reasoning abili­ agent who acts with a life plan in view and ty; it does not require heights of intellec­ the purposeful agent who has shorter-range tual sophistication in the way moral agency plans. As Regan has argued, many nonhuman does. For example, we do not require agents animals may lack the high level of autonomy to be skilled in deductive reasoning (let required for moral agency, but they do exhi­ alone predicate logic), but we do require bit "preference autonomy."(9] '!his descrip­ some inductive abilities. Again, one can tion fits many young and "defective" humans plan for the next five minutes, for the next as well. All are agents. hour, for the next week, or for years in advance and be an agent. You don't have to Sad!y, there are other hillllaIls who do not plan for the next fifty years in order to be even have preference autonomy. Conscious an agent. Some understanding is surely re­ hillllaIls exist who cannot act to satisfy very quired for agency; the ability to read The fundamental needs. Although at one p:Jint New York Times is not. There is no reason to Regan claims that such hillllaIls are "subjects­ think that the skills required for purposeful of-lives,"(lO] they are not, since they rail action are restricted to members of the human to satisfy (at the very least) his action species, and ample reason to think they are requirement. not. Recent ethological studies sUpp:Jrt this conclusion. (5] It is imp:Jrtant to remember these reali­ ties about humans and nonhillllaIls as we consi­ Nevertheless, some humans continue to der abstract arguments about moral patiency. express considerable skepticism about the But how do we even begin to determine whether p:Jssibility of nonhillllaIl agency. For example, there are moral patients (i.e., beings who the Cartesian view that thought requires are morally considerable without being moral linguistic ability has been revived in a agents)? What characteristics must a being highly sophisticated form by R. G. Frey. (6] p:Jssess to be morally considerable? How can He denies that nonhillllaIl animals can have we defend the claim that, e.g., "mere" agency desires (and thus that they can act purpose­ is sufficient for moral considerability but fully) on the grounds that beliefs are re­ that "mere" consciousness is not? Or that quired for desires and linguistic ability is only moral agency suffices for moral consi­ required for beliefs (an ability he assumes derability? And how can we argue about de­ nonhuman animals lack). This view has been grees, if any, of moral significance? What skillfully refuted by others on a number of would even count as a resolution of these grounds, (7] so I will not pursue it further problems? here, except to make one observation. Those who, like Descartes (but unlike Frey), refuse to extend their skepticism about nonhuman

BE'I'WEEN THE SPECIES 34

4 U u"~ 1 a Btu.1it J moral considerability andand. sufficient for Rights Views, Perfectionism, restricted rights. E.g., one could claim and utilitarianism that moral agents are due the full range of rights but that being a "mere" agent is suf­ We IlIUstmust first identify the structural ficient for moral considerability andand. only features of different types of views on moral some rights. Concerning moral significance, considerability and significance. I will be partial views fall into three sub-categories: distinguishing rights views from perfection­ istic and utilitarian views. a. The Equality View: All those who are morally considerable are equally morally Rights views all propose characteristics significant. E.g., moral agents, "mere" which are claimed to be sufficient (and(and. pos­ significant. E.g., moral agents, "mere" agents, and. the "merely" self-conscious could sibly also necessary)for moral considerabili­ agents, and the "merely" self-conscious could ends ty andand. maximum moral significance. [11] be claimed to all be ends in themselves, "Rights" are spoken of here in Feinberg's although all would not have the same rights (such as the right to liberty). sense of "valid claims." [12] It is basic (such as the right to liberty). moral rights which are relevant here, the b. The Additive View: Being t or u or v rights to life, liberty, andand. well-being. On b. The Additive View: Being t or u or v any of these views, morally considerable or ••• is sufficient for moral considerabili­ beings are due treatment which is cormnensur­ ty. However, the more such characteristics one has, the more morally significant one ate with their moral significance. Maximally one has, the more morally significant one becanes. Those who are maximally morally morally significant beings are to be treated becomes. Those who are maximally morally significant have all the relevant character­ as ends in themselves rather than mere means. significant have all the relevant character­ istics; i.e., they are X. E.g., the "merely" Less significant morally considerable beings, istics; i.e., they are X. E.g., the "merely" self-conscious may be claimed to be less if any, may have their rights overridden in self-conscious may be claimed to be less morally significant than "mere" agents, who favor of those who are more morally signifi­ morally significant than "mere" agents, who cant. It is important to bear in mind that are in turn less morally significant than whatever characteristic (X) a given rights moral agents. view proposes as sufficient, moral considera­ bility is really a cluster of characteristics c. --The Combination --View: A sub-cluster

(t, u. v, ••• ). For example, if moral agency of the characteristics constitutive of being is the proposed characteristic, being a ~per­ X are sufficient for moral considerability son (which is itself a cluster of character­ and equal moral significance with respect to istics) who is capable of understanding and X's.XiS. Possessing only some of the charac.:ter­charac.1;er­ acting in accordance with moral principles istics of the sub-cluster is sufficient for would be the relevant constitutive features. moral considerability but results in a lesser Brief characterizations of the different degree of moral significance. E.G., one types of rights views, along with convenient could claim that being a moral agent (X in names for them, appear below. this case) makes one maximally morally signi­ ficant and that being a subject-of-a-life who 1. The Total View: Being an X is suffi­ is 'not a moral agent is also sufficient for cient and necessary for moral considerabili­ maximum moral significance, but that being a self-conscious nonagent or being "merely" ty. All X'sXiS are equally morally significant self-conscious nonagent or being "merely" andand. possess the full range of rights. Ac­ conscious results in a lesser degree of moral cording to this view, being merely t or u or significance. v or ••• , cannot be sufficient for moral

considerability. E.g., one might claim that Now,No'N, I IlIUstmust introduce a further canpli- being ~ moral agent is necessary and suffi­ cient for moral considerability. Being a person or agent who is not a moral agent would not qualify one for moral considerabil­ ity (although moral agents might still have indirect duties to one).

2. The Partial View: Being an X is

sufficient for moral considerability and Caro::' Belolln.er G,atton.G,atton, Old-Faahlonl!d JIt.:l.lm/llJIt.:llm/ll ~. I'ev !o.rk:' Oo"e.l:, 1987 necessary for the whole range of rights. I'ev. !o.rk:'.. Oo"e.l:, 1987 Being t or u or v or ••• is sufficient for

35 BEIWEEN THE SPECIES cation in my characterization of types of Regan's Defense of Moral Patiency rights views. The total and partial views can each be IlDdified to allow potential X' s These alternatives are radically differ­ or those who are potentially t or u, etc., to ent. Just how difficult it is to defem be roorally considerable. Potential roorally one's choice among them is well illustrated counts just as much as actuality on what by the work of Tom Regan, one of the roost Feinberg calls "The strict Potentiality Cri­ skillful proponents of noral patiency. The terion. " According to "The Gradualist Poten­ Case for Animal Rights is a magnificent tiality Criterion," the closer one comes to achievement~owever, Regan's attack on being the specified sort of being (i.e., the certai.n views of rooral considerability and roore one's potential is actualized), the roore significance leaves some key objections un­ roorally significant one becomes. [13] The forestalled. After raising these objections, different rights views could be IlDdified in I will offer a possible solution which has either way, [14] although the gradualist ap­ been inspired by the work of Alan Gewirth. proach is roore plausible. Whatever is deci­ ded, we must be careful to distinguish being Regan defends a rights view. He agrees a potential X (or t or u, etc.) fran being a that rooral agency is sufficient for noral near X (or t or u, etc.) who can never become considerability and basic rooral rights but X{or t or u, etc). On the IlDdified total denies that it is necessary. Those humans view, potential XiS are roorally considerable, and nonhurnans who, like moral agents, are but near X' s who are not potential X's are subjects-of-lives but are not rooral agents, not, even if they have the same actual char­ are moral patients. They are roorally consi­ acteristics. On the IlDdified partial view, derable and just as roorally significant as being t or u, etc., but falling short of rooral agents. He does not insist that being being X, is sufficient for rooral considera­ a subject-of-a-life is necessary for rooral bility whether or not one is a potential X. considerability, although he suspects that it may be. He seriously doubts that any who are These rights views, IlDdified or unroodi­ not subjects-of-lives could be as roorally fied, are to be distinguished sharply fran significant as those who are. [16] Thus, perfectionism. According to this view, pos­ Regan proposes a canbination rights view: sessing a given characteristic (e.g., intel­ being X,· where X refers to being a moral ligence) is sufficient for some degree of agent, is sufficient for rooral considerabili­ rooral significance but not for maximum rooral ty and maximum moral significance, but a sub­ significance. One's rooral significance is cluster of the characteristics which consti­ claimed to increase as the degree to which tute rooral agency, viz., being the subject­ one possesses the favored characteristic of-a-life, is also sufficient for rooral con­ increases. Nietzsche is the roost famous siderability and maximum rooral significance. advocate of this view. Those who don't have all the characteristics in the sub-cluster (e.g., the "merely" con­ Perfectionism and the rights views must scious) may be roorally considerable but not also be distinguished fran utilitarianism as roorally significant. Regan's strategy is (nothing hinges here on the distinction be­ to reject alternative views, to postulate the tween rule- and act-utilitarianism). Unlike equal inherent value of rooral agents and the rights views, utilitarianism is opposed certain others, and to propose "being the to rights (although some utilitarians toler­ subject-of-a-life" as the relevant moral ate a watered-down notion of rights); unlike similarity between rooral agents and these perfectionism, it awards no increasing rooral others. They are due equal respect, he says. significance to higher degrees of intelli­

gence or other favored characteristics. In How does one test alternative views on an important respect, utilitarianism can be rooral considerability and significance? Re­ construed as denying that one has direct gan argues that we require such a view to duties to any individual. One's duty on display adequacy of scope, precision, and classical utilitarianism is to prcm:>te happi­ conf;rmity with our reflective intuitions. ness as such; insofar as it is individuals The last test is the critical one. It re­ who are the receptacles of happiness, one has quires that we judge the view coolly, ration­ indirect duties to them. Nonhedonistic ver­ ally, clearly, with ·as much infonnaqon as we sions have the same implication. [15] can gather, and that we take an impartial

BE'IWEEN THE SPECIES 36

M : as: SA S;. iSt $.''M$. I'M iT -iIIiIlII ..".., - "1iI1I .*.. WJ:i!£1 attitude. Regan refers to impartiality in ther, and to what degree, one is intelligent, this context as "the fonnal principle of skillful, etc., depends on "the natural lot­ justice." It enjoins us to treat similar tery. " Those who come up short don't deserve cases similarly and dissimilar cases dissimi­ to have lesser moral significance any more larly.larly.[l7] [17] Regan opposes views which deny than those at the other end of the ability moral considerability to those who are not scale deserve more. [20] Such treatment is moral agents or which assign them lesser radically unfair. moral significance. According to him, how do these views fail to be adequate? This objection won't do, however. First, if Regan is arguing that moral consi­ Here is one important argument: "Nor derability and significance must not be based can we avoid recognizing that moral patients on characteristics over which one has no fall within the [respect] principle's scope control, his ownCMIl view is in trouble. We do on the grounds that they have no inherent not choose to be subjects-of-lives any more value or less inherent value than moral than an anoeba chooses not to be one.one. I agents; this will not do because attempts to don't think Regan would want to say that disenfranchise moral patients in this way there is no moral distinction between the will lay the groundwork for a perfectionist two. Second,second, while I agree with Regan that theory of justice, a theory that will either perfectionism is unjust, ~at this point how is sanction unjust treatment of some moral one to argue for this without begging the agents or avoid this--but only at the price question? Perfectionists would claim that of arbitrariness. [18] Regan is saying that their view passes Regan's tests, including those who favor moral agents, exclusively or the test of impartial reflection. They cer­ to a greater degree, are either consistent or tainly do treat similar cases similarly and inconsistent perfectionists. Inconsistent dissimilar cases dissimilarly, given their perfectionists refuse to discriminate against criteria of moral significance. How can they moral agents who are less intelligent, re­ be answered? flective, hapPy, etc., than oth¥ moral agents, but those who fall short of being Moreover, what about rights views op­ moral agents are morally penalized for their posed to Regan's ownCMIl which are not reducible lesser abilities. [19] Consistent perfection­ to perfectionism? The total version of the ists, on the other hand, will have to assign primacyprirracy of moral agency view holds that being lesser and greater moral significance to a moral agent is necessary and sufficient for moral agents too, depending on their abili­ moral considerability. Those "disenfran­ ties. Such a view fails to provide an ade­ chised" fran the moral ccmnunitycanmunity are excluded quate interpretation of justice, Regan says. because they are not moral agents, not be­ causeCause they are "lesser" moral agents. Simi­ Regan is right in holding that perfec­ larly, the additive version of the primacy of tionism would serve veryvery·-ill as a basis for moral agency view holds that the different a view which postulates the moral primacy of characteristics which make one a moral agent moral agents. Obviously, the inconsistent are each morally significant and that the version fails the test of rationality. But more of these characteristics one possesses

two majorrrajor problems remain. First, the con­ the more morally significant one is. One's

sistent version needs to be shownshCMIl to be in­ status has nothing to ·00-do with the ~ to adequate.adequat~. Second, Regan's criticisms do not which one possesses a given morally relevant touch the nonperfectionistic alternatives, characteristic. Is there a way to show these most importantly the total view and the addi­ views wrong? tive view. Regan does indeed offer arguments which Concerning the first problem, Regan does would apply to these views. He does an ex­ offer an argument against the consistent cellent job arguing against particular moral version of perfectionism, certainly an impor­ agency views such as those held by and tant canpetitor of his rights view. He ar­ Rawls. [21] The trouble is that these views gues that this view must be rejected as un­ could be amended in the light of several of

just because it bases moral significance on his criticisms; he needs objections so funda­ the presence or absence of abilities over mental that ~ primacy of moral agency view whose aa;ruisiaa:.IUisition one has no control. Whe-Whe­ would be subject to them. He presses just

37 BmWEENBEl'WEEN THE SPOCIFSSPOCIES such an objection against Kant (who holds a does in Chapter 7, that the subject-of-a-life total vielY'). Those who deny that nonrational view passes the tests just isn't enough. It beings are norally considerable fail to pass seems we have reached a relativistic im­ the test of impartiality, he urges. Let's passe. [2S] grant that it would be wrong to torture a noral agent for fun. Now, imagine torturing A Possible Solution someone who isn't a noral agent, like a human child (to avoid the potentiality canplica­ At this point, I would like to suggest a tion, let's stipulate that the child is se­ possible way out. I am going to use a line verely retarded). FeIY' would deny that the of reasoning developed by ethical theorist child suffers just as a noral agent would. Alan Gewirth to sketch a defense of a cc:xnbi­ But this, and this alone, Regan says, is the nation vielY' very like Regan's. If this line norally relevant similarity between the two of reasoning is correct, it will illuminate in this hypothetical case: "The issue con­ what is wrong with the alternative vielY'S. cerns their shared capacity for suffering, Gewirth himself believes his vielY' to have not their differing abilities, otherwise we very different implications, but I will argue flaunt the requirement of fOl:mal justice: we that this is not the case. allow dissimilar treatment of relevantly· similar cases.II [22] The same kind of criti­ All noral codes are action guides ad­ cism would apply to the additive view, ac­ dressed to those of us capable of understand­ cording to which the child's suffering would ing and acting on them. In his important not count ~ RUlch ~ the suffering of a nora! book, Reason and Morality, [26] Gewirth argues agent. Regan claims that all such vielY's are that those of us trying to determine which arbitrary: the kind of hann inflicted is the noral code, if any, to follow RUlst begin by same, regardless of whether one is a noral asking what is required for action itself. agent. Doing so will provide us with reasons to becane active noral agents and will in addi­ This is similar to Regan's criticism of tion allow us to reject a number of ethical perfectionism, and, unfortunately, it too vielY's. fails to forestall a very difficult reply. The total and additive vielY' advocates would cnly agents are capable of action. A­ emIiIatically deny that their vielY'S fail to be gents are able to control their own behavior, impartial. The cases of the noral agent and have knowledge of the relevant proximate the retarded child are relevantly dissimilar, circumstances of their actions, and have they would say: to claim that suffering is goals or purposes they wish to fulfill. [27] the sole issue is to beg the question against As reflective agents (the only agents who these views. could ever be IOOral agents), we are able to identify the necessary preconditions of our The trouble is that impartiality is a agency. We require (l) the ability to have formal requirement which all but the non­ purposes and (2) the freedan which would universal ethical egoist (whose vielY' has allow us to pursue those purposes. The abil­ plenty of other problems) would embrace. ity to have purposes itself has precondi­ This principle cannot decide the issue. Re­ tions: life and minimal mental and physical gan is aware of this, he point out that a capabilities. Beyond these basic conditions, nonnative interpretation of justice is re­ a certain quality of life is required for quired to spell out what counts as a norally purposiveness: one RUlSt not have to fear relevant similarity or dissimilarity. [23] constantly losing what has already been at­at- But how are we to decide which interpretation . tained, and one RUlSt have the opportunity to of justice to adopt? By applying the same increase one's gains. The life and quality tests of scope, precision, and conformity to of life conditions are canbined by Gewirth our reflective intuitions, which must be under the heading of "well-being." This tenn cool, clear, rational, infonned, and ~ designates the abilities and condilions ne­ tial, in the formal sense. The total and cessary for agents to maintain and obtain additive vielY' advocates, as well as the per­ what they desire in general. [28] Freedan and fectionist and the utilitarian[24] would all well-being are, then, necessary for agents to say that their views do pass these tests. How achieve their goals. is one to reply to them? To show, as Regan

BE'IWEEN THE SPECIES 38

L ia it 2.1 The next step in Gewirth's transcenden­ rational, reflective agents who wish both to be consistent and to achieve our purposes tal arguIlEI1targuII¥3I1t is to say that all reflective be consistent and to achieve our purposes when he leads us to reject these views. agents at least implicitly claim freedom and when he leads us to reject these views. well-being as rights. These claims are pre­ Next, Gewirth's line of reasoning leads scriptions which mean at the mininn.nn that Next, Gewirth's line of reasoning leads us to reject the view that m:>ral agency is others should not interfere with one's free­ us to reject the view that IOOral agency is necessary for IOOralm:>ral considerability and maxi­ dom and well-being. [29] Any reflective 1I1I.IlIImum IOOralm:>ral significance. The PGC applies to agents who do not make such claims at least all who have purposes they want to fulfill, implicitly could not desire to fulfill their for they require freedomfreedcm and well-being just purposes-which would mean that they are not as we do. They do not have to claim freedcm agents at all. [31] All reflective agents as we do. They do not have to claim freedom and well-being as rights in order to be m:>r­ llUlSt,IlU.1St, on pain of contradiction, make these and well-being as rights in order to be IOOr­ claims. [ 31] ally considerable. Not all agents have the ability to conceptualize the PGC. They are

At this point, reflective agents are not still, ~ agents, due IOOralm:>ral rights. [34] (Of yet active IOOralm:>ral agents because they are course, their right to freedcmfreedom may have to be abridged when they threaten the freedcm or considering only their ownCMIl interests. The abridged when they threaten the freedom or extension to others (and thus the transforma­ well-being of others. That holds for IOOralm:>ral tion to IOOralm:>ral agency in the active sense) agents too.) According to this line of rea­ occurs when those agents realize that what soning, those with "preference autonomy" are justifies their rights claims is the fact fully included in the IOOralm:>ral canmunity:ccmmunity: as

than that they ~ agents. The fact that one~ is IOOralm:>ral patients rather than as IOOralm:>ral agents.

Arabella WOpenschm:i.dt,wopenschmidt, white American };hysi­physi­ cist, is irrelevant to one's claims. Agents What about those who are not ~ who claim freedom and well-being, claims that agents? Do they lack IOOralm:>ral considerability? are justified by their purposive natures, who Or are they of lesser IOOralm:>ral significance? deny the freedom and well-being of other Gewirth's short answer is that as. long as agents contradict themselves. This is the they have purposes or desires, they are IOOr­m:>r­ heart of Gewirth' s argument for what he calls ally considerable. Having purposes one wants "the supreme principle of IOOrality:m:>rality: Act in to fulfill or have fulfilled is the basis for accord with the generic rights of your reci­ the claim to the right of well-being. Having the right to freedcm is based on another pients as well as yourself" (the principle of the right to freedom is based on another aspect of agency, the ability to fulfill generic consistency [PGC]). [32] Further re­ purposes. Those who lack that ability will flection on our part indicates that some have no right to unrestricted freedcmfreedom but recipients of our action are due IOOrem:>re than will retain the right to well-being. More­ our noninterference. We have positive obli­ over, Gewirth holds that potential agents are gations too: to help them avoid hann when due "preparatory" rights to aid them in doing so causes us no canparable losses and achieving agency. [35] He believes (rightly, to aid those who, through no fault of their I think) that potential agency is m:>rallyrrorally own,CMIl, cannot achieve well-being. [33] relevant, but he also holds that those who are only potentially purposive are less IOOr­m:>r­ Following this line of reasoning, it is ally significant than those who already have clear that a perfectionistic view is unjusti­ even rudimentary desires. Thus, he believes fied. Agents with IOOrem:>re abilities are not to that infants, who have rudimentary desires, be favored. Arabella wopenschmidtwopenschm:i.dt may be a are due a full right to well-being, whereas IOOrem:>re intelligent, thoughtful agent than Hulk fetuses (who can have no desires, according Hogan, but that gives her no IOOralm:>ral premium. to his possibly mistaken view) are not due What counts--and what is sufficient for the the same full protection (i.e., in a conflict full range of basic IOOralm:>ral rights, other between their lives and the life or well­ things being equal--ise:rual--is that both are purpose­ being of a purposive being, they should be ful beings. Utilitarianism is also undercut sacrificed if there is no other way to re­ by this reasoning: we owe agents respect for solve the conflict).[36] their rights as agents. The PGC enjoins us to respect other purposive beings as we do Those beings with desires or purposes ourselves;ourselves1 it does not impose on us the over­ who are not yet able to carry out their ownCMIl riding duty to maximize happiness or other purposes do not have the full range of rights noIlIlDral goods. Gewirth appeals to us as due an agent, but they are IOOStm:>st emphaticallyemJ;hatically

39 BEIWEENBElWEEN THE SPECIESSPOCIES equally I1Drally considerable on Gewirth's On the face of it, this Gewirthian can­ view. We I1Dral agents have I1Dre ];Ositive bination view goes further than Regan's obligations to them than we do to other I1Dral rights view. Regan argues for the equal agents: we should act to further their well­ inherent worth of all subjects-of-lives, being whenever we reasonably can. Thus, which as he has defined it means "all "deficient" humans are on equal I1Dral footing agents." Beings with desires who are unable with nonnal humans, so long as they have even by their very nature to carry out those de­ primitive desires. [37] We see that Gewirth sires would appear to be excluded. Yet, rejects what I have called the additive view; Regan notes that severely deficient humans, fewer rights don"t translate into decreased who cannot satisfy even "basic needs and I1Dral significance. correlative desires," are subjects-of­ lives. [43] This puzzle is resolved when one I disagree with Gewirth about sane of realizes that Regan has given us another, the implications he believes his view to less restrictive definition of his key rroral have. For example, he does not believe that notion: "A sufficient condition of being nonhuman animals can occupy the same I1Dral arred such duties [of justice] is that one ];Osition as nonnal and deficient humans. His have a welfare--that one be the experiencing belief is in part based on false empirical subject of a life that fares well or ill for assumptions and in part based on a perva&;i.ve one as an individual--independently of whe­ haoocentric bias evident in his work. On the ther one has a conception of what this empirical side, he doubts that animals can be is." [44] Deficient humans are included under agents; he even assumes that severely defi­ this definition, and rightly so. According cient humans are far closer to agency than to this "welfare criterion," one need not be nonhuman animals. [38] The truth is the oppo­ an agent to be fully I1Drally significant. site. Animals in the wild, apart fran the extremely young, far eclipse sane humans in their mental developnent and their capslcity

to achieve their goals. Gewirth I S hanocen­ trism is evident too: he takes himself to be defending the view that basic rights are human, [39] that "all humans are actual, pros­ pective, or ];Otential agents"[40] (contrary to what he later admits about defective hu­ mans), that having rights is necessarily con­ nected to being human, [41] and that "for human rights to be had one IlRlst only be human."[42]

When his views are separated fran mista­ ken assumptions and the inconsistencies of haoocentrism, we see that what remains is that (1) all I1Dral agents are I1Drally consi­ derable and maxi.ma.lly I1Drally significant, (2) all agents, human and nonhuman, are like­ wise maxi.ma.lly significant, (3) pw:posive beings, human and nonhuman, with a restricted or nonexistent ability to carry out their pw:poses are equally I1Drally significant, although they cannot be said to have the right to freedcm, (4) ];Otential agents who are not yet pw:posive are m:>rally considera­ ble but not as m:>rally significant as the others above. This view is an example of what I have called the canbination view. If But what status, on such a view, does the reasoning here is correct, the alterna­ the so-called "merely" conscious being have? tive rights and nonrights views are unaccep­ D:> we have direct duties to such a being, or table to the rational agent. is it merely "a sacred symbol of the real

BE'IWEEN THE SPECIES 40

. t iZtL £. IS. IX .L ~,;t ..mrs .--n tt' III III t t ··-11 ~WM br .,....,."....."". t7mJei!it2tls;j;ji'ti1!!!imt@'W'_t!tjtttgffi

tldng,"tiling," as Feinberg would say, [45] to be pro­ should flip a coin to determine who dies. tected on utilitarian grounds alone? Regan Suppose that a "merely" conscious being and a suggests this may be so when he speculates reflexively self-conscious being must have that such a being may be a mere receptacle our assistance in orderoroer to live, but we only for intrinsic value rather than being valua­valua- have the resources to save one. Now suppose that either being would be harmed by death,

ble in its own right. [46] (It is fascinating a·~.a·~_ least in the sense that any further that he and Singer, who differ on so IlUJch experiences would be precluded for that else, reach the same conclusion here:here; both being. Regan has argued that if we IlUJst treat the self-conscious as irreplaceable and choose between hanningharming one IIDrallyxoorally considera­ the ''merely'' conscious as replaceable recep­ ble being rather than another in such a situ­ tacles of value.) ation and if one of the beings would be banned less by our actions than the other, we I can only speculate here about this ought to bann that being rather than the very troubling issue. Is self-consciousness other. Such a decision would in no way imply ( a prerequisite for having preferences, de­ a lack of equal respect for the two beings. sires, or purposes (i.e., is it a precondi­ He goes on to suggest that loss of life may tion for having a welfare)? If it is, then I be a IlUJch greater bann to one being than to have serious doubts about whether anything another. [49] Perhaps--we IlUJst be very cau­ living is merely conscious. The newborn has tious here-a reflexively self-conscious preferences, although it is not self-con­ being would be noreroore harmedbanned by death than one scious in the fully reflexive sense of the who is not. If this can be made out, and if tenn.term. Might it not be self-conscious in it would be wrong to cause one being IIDrexoore another sense, having something akin to what bann than another when that can be avoided, Sartre calls a "horizon" surrounding its and if both would otherwiseotheIWise die,die,·- then the consciousness[47]--being thus very simply "merely" conscious being should die instead self-aware? If this is denied-if fully of the reflexively self-conscious being. reflexive self-consciousness is declared to Note, however, that this line of reasoning be the only kind--then it seems that one does would not justify experimenting on the fonner not have to be self-conscious to have prefe­ being in orderoroer to save the life of the lat­ rences. Having preferences enables one to ter. We would not be shcMing equal respect have a welfare, and this-following the rea­ for the two if we did this, since we would be soning sketched above--is sufficient for treating the fonner as a mere means.weans. noralrooral considerability. [47] The only con­ scious being I can conceive of who would not If what has been said in the last sec­ be norallyroorally considerable would be one who tion of this paper is correct, there are a could not care about what states it under­ great many moralrooral patients we IIDralxooral agents are goes, who could not have preferences, even obligated to consider. Determining the ex­ potentially. Perhaps a highly soI;histicated tent to which we should not interfere with robot could fit this description, but the those beings and the extent to which we humans and nonhumans we have contact within should assist them is no easy matter. One this world do not. hopes that one day we will canecxxoe IlUJch closer to giving other IIDrallyxoorally considerable beings If conscious beings who are not, and the respect which is due them, whatever our never will be, reflexively self-conscious are specific obligations may be. OUr recordrecoro so norallyroorally considerable, can they be said to be far has been nothing short of dismal. as norallyroorally significant as other noralrooral pa­ tients and agents? Or do they just have the Notes right not to be tortured wantonly? I want to ,suggest that they are owed the same respect­ 1. Some I;hilosophers would dispute this ful treatment due other noralrooral patients and way of characterizing IIDralxooral agency. Lawrence agents. Since they care about what happens Johnson, for example, has argued that one to them (without knowing that they do), it need not understand ethical principles, or would be wrong to treat them as mere means.weans. indeed possess IIDralxooral concepts at all, in

However, this does not necessarily mean that, order to be a IIDralxooral agent (see his "can in a case of unavoidable conflict between Animals Be Moral Agents?," Ethics ~& Animals their lives and the lives of noralrooral agents or 4/2 (1983):(1983) ; 50-61)50-61 )• However, if we~ were to reflexively self-conscious noralrooral patients, we broaden the category of noralrooral agent in this

41 BE'IWEENBETWEEN THE SPECIES way, many who now believe it is prima facie welfare: their lives "fare well or ill for Wrong to harm noral agents \I1Ould simply re­ them logically independently" of their value tract and refonnulate this view. I prefer to for others. That does not make them "sub­ follOW' Steve F. sapontzis here. He argues jects-of-lives" as he has defined the notion, that animals are not "noral beings" (noral however. I will argue later that Regan real­ agents in the reflective sense) but can in­ ly offers two criteria for noral considera­ deed be'virtuous (see his "Are Animals Moral bility, both of which he calls "being the Beings?," American Philosophical Quarterly subject-of-a-life." 17/1 (1980): 45-52). 11. In this context, "necessary" means 2. It is convenient for the prrposes of "required for one to be justified in attri­ this paper to define ''noral agent" and "nora! buting noral considerability" and "suffi­ patient" in IlD..ltual1y exclusive tenns. Tan cient" means "justifying ground for the at­ Regan does this too (The Case for Animal tribution of noral considerability." What Rights (Berkeley: University of California sort of justification one can get depends on Press, 1983): 151-6). However, I depart from which metaethical theory is correct. All the his sense of ''noral patient" in t\l1O respects. major theories except one, enotivism, imply Regan' s "noral patient" applies to a very that some sort of justification is possible, specific group, viz., subjects-of-lives. I and enotivism is rightly not much defended prefer not to restrict the tenn this way. these days. (For a nore detailed discussion Moreover, in his sense, being a noral patient of ethical justification, see my "The Justi­ carries no implication that anyone has noral fication of an Envirorunental Ethic," Environ­ obligations to one. It seems nore natural to mental Ethics 5/1 (1983): 56-60.) me to build in this implication. 12. Joel Feinberg, "The Nature and Value 3. Joel Feinberg, "Abortion," In Tan of Rights," The Journal of Value Inquiry 4 Regan (ed.), Matters of Life and Death, se­ (1970). This is the sense Regan adopts tOOl cond Edition (New York: Random House, 1986), see Chapter 8 of ~ Case for Animal Rights. pp. 261-2. 13. Feinberg, "Abortion," 266-7. 4. Regan, £12. cit., 243. 14. Feinberg and others have argued that 5. see Donald Griffin, The QIestion of potentiality views oommit a fatal logical Animal Awareness (New York: Rockefeller error. The strict view is said to confuse University Press, 1981) and his Animal Think­ being potentially qualified for rights with ~ (cambridge: Harvard University Press, having rights. The gradualist view is said 1984). Also, see Stephen Walker, Animal to confuse being alnost qualified for rights Thought (London: Routledge and Kegan Paul, with being partially qualified for rights or 1983) and Stephen Clark, The Nature of the being qualified for weak rights (Feinberg, Beast (Oxford: Oxford University Press, ibid., 267, 269.). The criticism of gradual­ 1982). ism would also apply to the additive view.

6. Interests and Rights (Oxford: The I believe this criticism misconstrues Clarendon Press, 1980). potentiality views. The strict view claims that being an actual or potential X is suffi­ 7. For excellent critiques, see Regan, cient for noral rights, not that being a .912. cit., 38-49, and S. F. sapontzis, "Inte­ potential rights-bearer is equivalent to rests and Animals, Needs and Language, " being a rights-bearer. Nor does the gradual­ ~ ~ Animals 4/2 (1983): 38-49. ist view claim that being alnost qualified for rights is equivalent to being qualified 8. Michael A. Fox, The ~ for Animal for partial rightsl it takes rights claims to Experimentation (Berkeley: University of be ordered on a continuum, increasing in California Press, 1986): 28-9. strength as one's potential is actualized. (this view is particularly plausible given 9. Regan,.912. cit., 84-6. Feinberg's analysis of rights as valid claims. ) The critics interpret potentiality 10. Ibid., 244. But they do have a views as presupposing their very denials1

BETWEEN THE SPEX:;IES 42

La A , t, g itJJ _ ------_.__ .. _._ .

this is unwarranted. Case for AnllnalAnlinal Experimentation, 61. I have criticized Wreen's article in Ethics & Ani­ ----res~es-- 15. An interesting apparent exception to mals 5/4 (1984). For further responses and this is Peter Singer's version of preference replies between us, see the 1986 issues of utilitarianism (see his "Killing Humans and Between the Species.) Killing Animals," Inquiry 22/1-2 (1979): 145­ 56). He holds that the basic moral principle 23. Regan,.9I2.Regan, £E. cit., 232. is to maximize preference satisfaction. He argues that reflexively self-conscious indi­ 24. utilitarians are apt to dismiss viduals are not "mere receptacles of value" appeals to intuitions, but they have no quar­ as the "merely" conscious are said to be; rel against rationality, coolness, conceptual they are said to be prima facie irreplacea­ clarity, being informed, and being impartial. ble, unlike the ,latter, because of their preference to live. This argument fails for 25. One might think that a Rawls-type a variety of reasons. Most important, self­ approach to justice would help here, but it conscious beings turn out to be just as re­ would not. Rawls' view, purgedplrged of its arbi­ placeable on this form of utilitarianism as trariness (Regan rightly points out that

on any other. I discuss this argument in my those behind the veil of ignorance should not "On Replaceability," Ethics ~ AnllnalsAnlinals 3/4 be allowed to knCM that they will be human, (1982): 96-105. See Tom Regan's excellent moral agents in the society whose rules they dissection of Singer's view in The Case for are deciding (9.E.(£E. cit., 170-3», would seem Animal Rights, 206-11. to ensure an egalitarian outcome for moral agents and patients, but it does not. Apart 16. Regan, ibid, 246. fram the dubious assumptionassmnption that self-inte­ rest lies at the basis of ethics, this 17. Ibid, Chapter 4. (otherwise nonarbitrary) Rawlsian view cannotcaIUlOt exclude the dedicated perfectionists, Kan­ 18. Ibid., 260-1. tians, and others we have been discussing. These people would interpret justice in the 19. Ibid., 240. ways their theories prescribe, regardless of the consequences they might suffer when in­ 20. Ibid., 234. carnated in their chosen society.

21. Ibid., Chapter 5, especially sec­ 26. Alan Gewirth, Reason and Morality tions 5.4 and 5.5. (Chicago: University of Chicago Press,

1978) •A• A much briefer description of his 22. Ibid., 183. Another argument theory appears in Part 1 of his ~ Rights: against the total view which Regan could have Essays on Justification and Applications pressed (but wisely did not) is that moral (Chicago: University of Chicago Press, agents would not deny basic moral rights to 1982). those less fortunate than themselves (i.e., '. those who caIUlOtcannot be moral agents). The argu­ 27. Reason and Morality, 27. ment is that denial of rights in these cases is unjust, that such beings, who had no 28. Ibid., 64. choice about their condition, do not deserve such treatment. The problem is that this 29. Ibid., 78. argument presupposes that those who are not moral agents are morally considerable. The 30. Gewirth argues that those agents who principle of justice, of treatment according deliberately act to limit their own freedom

to desert, does not apply to those without or well-being are still, as they act (i.e., moral considerability. Thus, this argument ~ agents), claiming the right to noninter­ simply begs the question against the total ference. (He further notes that mental, view. (This very same argument is at' the physical, or economic constraints are gener­ heart of some recent defenses of speciesism. ally the reasons for such behavior) (ibid.,

Seesee Michael Wreen, "In Defense of Speciesism, 264-7). Ethics ~ AnllnalsAnlinals 5/3 (1984): 47-60. Michael A. Fox also employed this argument in The 31. Gewirth cautions us that he is not

43 BElWEEN THE SPECIES r-'~" .

claiming that "X needs freedan and well-being preconditions for action. All beings like in order to act" logically necessitates "X the agent in the respect that they too need has the right to freedan and well-being." freedan and well-being in order to fulfill The necessity arises within the agent's view­ their purposes are then accorded the same point: fran "X regards freedan and well­ rights by that agent. Plainly, it is not being as necessary goods" it does follow that necessary that these others also be capable "X. rationally claims the rights to freedan of conceptualizing the PGC. Second, as we and well-being" (ibid., 160-1). The distinc­ shall see, Gewirth holds that some beings who tion is crucial; this is Gewirth's way of not are not even preferentially autonomous (i.e., being trapped by the "is/ought" problem. who are not even agents in the rn:i..nimal sense) are due the right to well-being. These 32. Ibid., 112. For Gewirth's extended beings (e.g., children and the mentally de­ statement and defense of the PGC, see Reason fective) need have no concept of the right to and Morality, Chapter 3. A briefer accOlIDt well-being (let alone be able to claim it as is given in "The Basis and Content of Human a right) in order to have that right. This Rights," Essay 1 in his ~ Rights. is an extremely important part of Gewirth's overall view. If he wants to retain it, he 33. Reason and Morality, 312-7. must drop his repeated insistence that only intellectually sophisticated moral agents can 34. Gewirth is inconsistent on this very have rights. inp:>rtant point. His definition of "agent" at the outset of his argument ("a being with 35. ReasOn and Morality, 142. purposes he or she wants to fulfill, who has control over his or her actions, and who 36. Ibid., 142-3 knCMS the relevant proximate circumstances of those actions") includes no reference to the 37. Ibid., 141-2. ability to reflect on the abstract precondi­ tions of actions. He also makes a point of 38. see his description of their respec­ arguing that agents with very low-level abil­ tive abilities on pages 141-2, 144. ities are nevertheless agents with full moral rights (ibid., 140) • He repeats this in his 39. Ibid., 317. He does, however, argue later book ~ Rights, arguing that "mini­ that nonhuman animals have the right not to mal rationality" in the sense spelled out have pain wantonly inflicted on them (p. above is all that is required for agency and 144). the rights to freedan and well-being (p. 8) • Beings who are only preferentially autoncm:>us 40. Ibid, 64. fit this description. But in other passages in which agency is characterized, he interpo­ 41. Ibid., 103. lates the requirement that one be capable of reflecting on the preconditions of action and 42. Ibid., 317. As the title of his of claiming these as rights (pp., 120, 138). more recent book, Human Rights, tells us, he See Human Rights, 11: "For a person to have has not retreated fran a hcm:>centric posi­ human rights, then, is for him to be in a tion. position to make morally justified stringent, effective demands on other persons that they 43. Regan,~. cit., 244. not interfere with his having the necessary goods of action and that they also help him 44. Ibid., 171. to attain these goods when he cannot do so by his own efforts." In ~ and Morality, 45. Feinberg, "Abortion," 273. this interpolation is not found; see pages 124, 133, and 180. 46. Regan, op. cit., 246.

The interpolation should never have been 47. Jean-Paul sartre, The Transcendence made. First, the reasoning which leads to of the .!E (New York: Noonday Press, 1971): the PGC hinges on the reflective agent's 75. recognizing that he or she has the rights to freedan and well-being because these are the 48. One philosopher who seems to think

.BEIWEEN THE SPECIES 44

aiijjLiT-~CJ. J2M @Q -----­------thatthat only thethe re£lexivelyreflexively self-conscious can have aa genuine welfare isis thethe Michael A. Fox of The casecase for Animal Experimentation. He NUMBER 87 therethere claims thatthat it .:is.:is "completely spurious" toto speak of thethe liveslives of thosethose who are not re£lexivelyreflexively self-conscious as "more or less 'full,''full,' 'satisfying,''satisfying,' and so forth," since these beings cannot "re£lectively"reflectively evaluate Might have been a rabbit, the quality of their lives and find them a or maybe a white rat. cause of satisfaction or regret" (pp. 28-9). Just another specimen, Because of their lack of reflection, Fox says that theirtheir "pleasurable experiences are not but I recall it'sit's number was "S7.""87." valuable to them" (27), and in general "their I think we poured something intointo itsits eyes, lives also cannot have intrinsic value or or tried to give itit cancer. value to themselves" (48). Fox's view im­ plies that, in a crucial sense, such beings Funding isis getting tighter, cannot fare well or ill because they are a back-up disease is good business. unable to care about what hapPenShappens to them. People believe we cure them (Fox does continue to use the word "welfare" on occasion when referring to those he be­ by what goes on here. lieves are not re£lexivelyreflexively self-conscious. I guess we il..m.s.m akin to gods. He also grants that "it would be meaningfulmeanin

able person would deny" that the deathde{ith of a no:cnalnormal human is a gr~ter hann to that human than the death of a dog is toto the dog. He suggests that we ought to throw the dog out of the proverbial lifeboat if there isn't sufficient roan on board for all the htnnanshumans and the dog. This seems to be a totally uncharacteristic touch of human chauvinism on Regan's part. For a thoughtful discussion of

this problem, see Henry Cohen's review of The

case ~ ~ Rights in Ethics ~ Animals 5/1 (1984):(1984): 11-4.

45 BEIWEEN THE SPEX::IE'SSPECIES