So what are the ramifications of claiming only persons are members of the intrinsic moral community? First, back to the argument from marginal cases – ‘person’ and ‘biological human’ are not coextensive concepts – so are some humans not intrinsically valuable?
The honest answer is ‘yes’. The concept of a moral person – one due moral consideration, a being capable of morality - is often confused and conflated with genetic humanity, but a moment’s reflection on the status of corpses or possible extraterrestrials (Mr. Spock, say) shows such ‘speciesist’ understandings cannot be correct. To clarify the concept of a moral person, we first need to understand the nature of moral 'rights' - they are entitlements (being entitled to certain considerations and/or freedoms), which in themselves place me under no obligation. Rather, a right grants me a liberty – I may claim it, if I so choose; but I am under no compunction to make the claim - it is up to me. So freedom or liberty is built into the concept of ‘a right’. My right to free speech does not require me to speak – it instead simply means that I may speak, if I so choose – regardless of what others wish. (Of course, that doesn’t mean they have to listen!)
But rights claims I make do logically entail responsibilities – not for me, but for other persons. So, the correlativity thesis: any ascription of rights to oneself involves correlative obligations for other persons. If I am free to speak, then, at a minimum, you have an obligation not to shut me up. My ‘right’ is hence a freedom to avoid being interfered with – it constitutes a restriction on the ability of others to thwart my freedom. Such ‘negative rights’ require merely autonomy for oneself and non-interference by others. Some rights theorists also assert the existence of ‘positive rights’, which impose even stronger obligations upon others – they are required to assist me (if I so choose) in the exercise of my right. (Federal ‘equal time’ laws for campaign advertising are understood as a positive right – they require the assistance of the media to be exercised.) It follows that rights claims logically require autonomy, the ability to be a law unto oneself, which requires the capacity for the rational exercise of free will, or agency; and rights, as seen, also require moral responsibilities, on each other person whenever I claim a right. So without autonomy, one cannot have rights; without rights to be free from some interference in at least some parts of life, autonomy is impossible.
Of course, the correlativity thesis applies to all rights claims - not just my own. So if anyone else has a right, I am under a correlative obligation; the only scenario under which I have rights but no responsibilities is if no one else has rights at all - except me. Likewise, in the absence of culpability - assignations of moral responsibility - claims of rights are a mirage; I have no rights if others do not thereby have obligations to respect those rights.
In slogan form, ‘No rights without responsibilities’ - per the correlativity thesis, universal rights entail universal responsibilities/duties. There is a related slogan form for compensatory justice: ‘No right without a remedy’ - a social right only exists insofar as social means for compensatory justice exist. If my rights can be violated with impunity, they do not really exist. If you can ruthlessly silence me without fear of punishment, the claim that I have a ‘right to free speech’ is a hollow illusion.
With all this in mind, the diagnosis of what ails rights discourse is enabled. In rights theory, moral persons are all and only those capable of moral responsibility. Given the correlativity thesis, there are no rights without responsibilities; that is, every ascription of a right to one involves correlative obligations for all other … persons. Not everything has obligations – lions, giraffes, tables and chairs have no obligations to respect my right to free speech. That’s because they are incapable of it – they cannot be morally responsible, hence are simply not a person. Now, mind you, the converse of the correlativity thesis does not hold – obligations can exist for persons without some person thereby being given a right. You and I arrive simultaneously at a four-way traffic stop, facing head-on; we are both obligated to stop, but neither of us has a ‘right’ to go first. (Someone will go first, of course, but not because they had a right to do so.) Rights entail duties, but not all duties entail rights. And, to address our obligations to non-persons, we persons may well have duties to the environment or babies or future generations, without those things thereby having moral rights.
So the essential problem occurs because those who confuse morality with legalism or due process often also confuse moral consideration with moral rights. The defenders of animal rights, environmental rights, fetal rights, and so forth are trapped in moral discourse that disguises their true concerns and legitimate claims because their theoretical vocabulary embodies a deep incoherence. Simply put, animals, fetuses, and the environment have no rights. They cannot have rights, because they can neither exercise agency, nor undertake obligations - they are not held responsible for what they do. And as seen, rights claims logically require both autonomy (for the bearer of rights) and autonomous responsibility (for all those who recognize a right).
Non-human animals (as far as we know) can neither rationally exercise free will nor bear responsibility for infringing on the rights of others - hence they cannot be bearers of or respecters of rights. Non-human animals can neither make rational claims nor be tried for their failures to respect the claims of others. My cat or dog, whatever their other abilities, do not have the capacity for autonomy or taking responsibility - and hence logically cannot have rights. If animals such as dolphins or bonobos eventually do demonstrate such abilities, then they would be considered rights bearers - and correlatively, citizens of the moral community with obligations to us. In short, they would be persons. I have encountered no convincing evidence of such abilities by them, so henceforth I assume they have no rights. Occasionally legal fictions are created that ascribe rights to things without autonomy - a recent suit was filed on behalf of cetaceans against the US Navy, claiming that whales and dolphins ‘have a right’ not to have noise pollution from submarines endanger their health. But of course, in reality the cetaceans were not making the claim – a human was, in effect, asserting his right to save the whales. (By the way, the case was dismissed.)
Similarly, fetuses - and infants, for that matter – cannot have moral rights. They too can neither exercise agency nor undertake obligations. And likewise for ‘the environment’, or any other mistakenly reified rights holder. But of course, no one likely believes that the fact that infants and pets have no rights means that morally we may do as we like with them. That is, the moral community - the set of things to which moral consideration is due - is certainly larger than the set of rights holders - those who can rationally demand such consideration as a right, and hence as my obligation. And it is the tendency to conflate ‘having a moral right’ with ‘being due moral consideration’ that has poisoned intellectual discourse on these topics and created such ethical confusion. Stem cells, pets, ecosystems, zygotes, fetuses, infants, and research animals all plausibly are due varying degrees of moral consideration - but not because they have any rights.
A Kantian holds that they are due consideration merely instrumentally, because rights holders care about them - as is clear with the treatment of pets versus other animals. Their value, says Kant, is merely instrumental: because some rational agents care about Fluffy, it is wrong to harm Fluffy - but the harm is not directly to Fluffy, but indirectly to the agent, the holder of rights. Kant thought it wrong to torture dogs or cats, not because of the harm to the dog – there is none – but because of the harm to the persons who care about the dog (and the harm to the torturer himself). Some seriously believe that such an analysis can be extended to explain all moral consideration - that is, non-rights holders are due moral consideration only insofar as rights holders care about them – or insofar as they affect the interests of rights holders.
But I think it obvious that such an approach cannot succeed; it requires radical revision and supplementation, as the discussion below will demonstrate. Its remnant plausibility rests on the fundamental confusion about who can and cannot have rights, which both law and Kantian moral theory have continually obfuscated. This is especially clear when discussing ‘potential persons’ – things that are not persons now, but (if all goes well) can become persons at some later time. A fetus is obviously such a potential person, but so are the later generations that sustainability theorists worry about – they do not exist now, but could in the future.
Take Jane Doe, a hypothetical 25 year old, normally functioning citizen of the year 2100. As a merely potential (future) person here in 2007, she has no rights now – how could she? She does not even have the right to exist, we assume; her hypothetical great-grandparents here and now do no wrong in choosing not to have a child, in which case she never will exist. But in the year 2100, as an actual person, she certainly will have rights – so she potentially, but not actually, has rights now. What are my obligations, here in 2007, towards her – and her environment? Do I have a responsibility to avoid global warming or asteroid strikes or nuclear fallout polluting her environment or even making it unliveable? If so, we cannot say it is because she has a right now that specifies my duty. Yet we do believe that causing e.g. massive pollution or crop failure or intense radioactive fallout of future habitations or enormously adversely affecting other aspects of sustainability is deeply wrong. We cannot specify that wrongness in terms of current rights, or even in the interests or cares of current rights holders. A Kantian or rights approach simply will not work, and as seen, a utilitarian approach will not work either. How then do we specify adequate and coherent moral thought about our obligations to non-persons? Stay tuned for the conclusion in Part 4....