The classical [natural law] doctrine is that each thing is excellent in the degree to which it can do the things for which its species is naturally equipped.1
Classical natural law philosophers are also confused about what makes something bad. For example, they think that a plant whose leaves are withered is a bad plant, because it does not measure up to the model of its type, and a bird that has a broken wing is a bad bird, because it cannot fly like a bird should. Some modern philosophers are continuing this tradition. Henry Veatch, a follower of Aristotle, has written
A plant, for example, may be seen to be underdeveloped or stunted in its growth. A bird with an injured wing is quite obviously not able to fly as well as others of the same species. ... And so it is that a thing's nature may be thought of as being not merely that in virtue of which the thing acts or behaves in the way it does, but also as a sort of standard in terms of which we judge whether the thing's action or behavior is all that it might have been or could have been.2Why should a creature be judged by its conformity to its biological species? Why is species conformity good rather than bad? Why shouldn't we judge creatures by their genus rather than their species? Is the species archetype better because it is more specific? If so, then why not judge creatures by their race, which is even more specific? (As a matter of fact, Plato did judge people by their race and he did advocate race discrimination, and Aristotle held women to a lower standard than men because he believed it is not in a woman's nature to become fully rational.)
Morality involves using the right means to achieve the right ends, and since living things seem to have purposes (such as to live and to reproduce), whereas inanimate things do not, the natural law philosophers in the Aristotelian tradition are more interested in biological than chemical or geological archetypes. Aside from this, the archetypes that they use in their evaluations have no obvious relationship to ethics.
For reasons that escape me, the Aristotelian approach appeals to libertarians such as Ayn Rand and my own favorite thinker, Murray Rothbard. I have read most of Rand's and Rothbard's works as well as Aristotle's Nicomachean Ethics, and modern works on Aristotelian natural law by A. P. d'Entrèves, Leo Strauss, Henry Veatch, and others, and I have found nothing in these books that persuades me that the Aristotelian approach is correct. On the contrary, I think it rests natural law on a shaky foundation and leads to futile disputes over the "essential" nature of man.3
In the Aristotelian scheme, the ideal man is the man who lives a life based on reason. According to Roderick Long who is an scholar of Aristotle, "For the Aristotelian natural-law tradition, it is the ability to employ abstract concepts, to grasp the relations among them, and to communicate this understanding to others, that is the essence of reason.”4 This is a better definition of philosophizing than of reason.
It is not surprising to me that a philosopher would define reason in this way and then claim that it is the essence of man and the highest moral good. But while it is understandable that philosophers would define philosophizing to be the most virtuous, worthy, and admirable of actions, it is also understandable that people in other professions have different definitions of virtue.
Instead of defining the archetypal man as a rational being, the natural law philosophers could, with as much plausibility, define man as a religious being. No other creatures that we know about practice religions at all, but many creatures appear to act rationally. So man might be better distinguished from other animals by his religious or spiritual nature.
If we adopt a religious definition of "manness" and if we deliberately confuse moral goodness with conformity to archetypes, we could conclude that mysticism and blind faith in the gods are the highest virtues for man. Indeed, this point of view has many devout followers. St. Augustine for example, a Christian bishop, held that faith rather than reason was the only legitimate tool for investigating man's nature and man's proper ends.
Murray Rothbard, not surprisingly for a professor of economics, defined man as a creature who can only live and prosper by his own production and by exchange with other producers.5 This definition leads directly to the libertarian conclusion that parasitic socialism is against human nature and natural law.
It is apparent to me that Aristotelian natural law theorists choose the "essential" characteristic of man according to their own biases and fields of specialization. They make the mistake of attributing their own special interests to man per se.
Instead of making generalizations about mankind such as "The essential nature of man is reason (or faith or production and exchange)," we would be closer to the truth if we said, "Aristotle was interested in philosophical issues, St. Augustine was a man of faith, and Murray Rothbard was interested in understanding how the free market works." Then we could say that the natural good for these men would be to pursue philosophy, religion, and economics respectively. This would reduce natural law to one of those pop-psychology theories of self-fulfillment that keep making appearances in the best-seller lists. It is not a serious or scientific approach to a philosophy of justice. Justice needs to be more objective. We need to discover rights that apply generally.
Why do so many moral philosophers regard rationality as essential to "manness"? Many species of animals act rationally. Most of them act more rationally than man, or at least they don't act irrationally as often as man does. Very few species of animals have opposable thumbs. So why isn't it better to define "manness" in terms of thumbs than in terms of man's dubious rationality?6
The answer is that rationality (as the ability to grasp abstract concepts and to communicate them) explains more about a philosopher's life than his thumbs do. So rationality appeals to philosophers from Aristotle to Ayn Rand as the best candidate for the essence of "manness." Philosophers flatter themselves by claiming that the rationality of a philosopher is man's essence and the measure of his virtue.
Bernard Gert is an exception. He is a philosopher who takes an objective view:
One must be careful in doing philosophy not to mistake agreement among philosophers for agreement among all rational men. That the life of the mind has been considered by philosophers as the best life shows only that philosophers prefer the life of the mind. This is not surprising; one would not expect them to be philosophers if they did not. Men who do not prefer the life of the mind seldom write books extoling their way of life as the best. Reason does not require emphasizing any one of the goods over the others, but allows each man to make his own choice.7I question the assumption that the way to make a moral evaluation of an individual is to measure him against the archetype of his species. It is not self-evident, and I have seen no persuasive arguments in favor of it. So, even if we accept reason as the essential quality that defines man, it does not follow that aspiring to this archetype by living a life of reason (whatever that might be) is the highest goal for man.
Rationality is no more virtuous than having thumbs. Reason is not a virtue. It is not an end or an object of action. It is a tool like thumbs. A criminal can be very rational, but that doesn't make him a better (more moral) man, it makes him a better (more successful) criminal.
Neither rationality nor thumbs can completely define man. But, unlike thumbs, rationality is one of the essential characteristics of a moral agent. Reason is not itself a virtue, but it is a prerequisite for virtue. Accidental, purposeless, or instinctive behavior has no moral qualities. Only purposeful actions can be honorable or shameful, because we can take moral principles into account only when we act deliberately.
We often judge things with respect to our personal goals. The perfect tree for lumber may be far from perfect for providing shade, or maple syrup, or apples. Whether a tree is good or bad depends on the purpose we have in mind when we judge it. In any case, the judgment that a tree is good or bad is not usually meant as a moral judgment. Only philosophers and primitive animists are silly enough to confuse these things. Civilized people do not chastise a tree for being useless or praise it for being useful, because they do not believe trees can respond to verbal criticism.
Animals can be trained to be useful to us, and it makes sense to reward or punish them, because doing so can cause them to modify their behavior. However, man differs from other animals that we know about in that he can be motivated by abstract principles in addition to rewards and punishments. Among the abstract principles that can motivate a man are the moral principles.
It is a characteristic of moral principles that they can only be appreciated by moral agents. It would be ridiculous to speak of an honest tree or a righteous horse, because trees and horses are not moral agents. We need to understand why we regard men, angels, and gods, but not trees, horses, and rocks as moral agents. The place to begin looking for moral responsibility is not with a definition of "manness," but with a definition of a moral agent.
Not all men are morally responsible. Insane, senile, and severely retarded people do not have enough reasoning ability to be moral agents. They are not capable of understanding moral principles, and they cannot be influenced by moral arguments. They are men, but they are not moral agents. This is why it is not the essential nature of man that has to be defined at the outset, but that part of his nature that makes him a moral agent, responsible and accountable for his actions.
I propose an approach that treats morality itself rather than self-fulfillment as the goal. Instead of trying to define "manness" and from that deducing what is right and what is wrong for man, I discard the archetype approach to moral philosophy and start over by analyzing the nature of moral agents and morality itself.
Also, for a decision maker to be morally responsible for his actions, his actions must not be based on irrational or crazy beliefs such as that men are made of glass and can be easily shattered or the beliefs of a philosophical skeptic such as that we can never know if there are other people in the world or if there is such a world or whether actions have consequences or whether actions are real. Such skeptical beliefs are not plausible as genuine beliefs of a moral agent who makes moral judgments and acts in the real world.8
Imagine a creature who has a rational mind, memories of his experiences and past thoughts, consciousness of his present existence, and general knowledge of the real world, but no instincts, drives, innate values, or natural desires. Such a creature could understand abstract principles and could figure out how to apply them in particular situations, but he would have no reason to do so. A creature with a rational mind, but without instincts, innate values, or natural desires would never do anything. He would have no reason to use his mind. There would be nothing to motivate him. Because conscious, rational action, whether good or bad, must be directed toward some end, a rational creature with no innate values would never act. He wouldn't even think unless he had an innate urge to do so.9
I can imagine someone born with no instincts, but I cannot imagine why he would do anything or live very long. Such a creature could not be a moral agent, because he could not act.10
Reason is a tool for achieving innate values. It is not the source of values. Reason can tell a moral agent whether a particular act conforms to his values, but it is his innate values that guide his reason, not the other way around.
Reasoning can lead us to want something that is a means to an end that we already desire, "But as to the ultimate Ends, to suppose exciting Reasons for them, would infer, that there is no ultimate End, but that we desire one thing for another in an infinite Series."11
A moral agent must be able to act purposefully, so he must have ultimate ends. He must have innate values as well as reasoning ability.
A rational agent must have some ultimate values before he can take any rational action. Similarly, a moral agent must have some moral values before he can make any moral choices.12
However, if morality were the only thing he valued, a decision maker could never choose between right and wrong—so he couldn't be a moral agent. Moral behavior must be chosen: "... it is by definition impossible that a free moral agent be created perfect; perfection in this context demands a voluntary effort of the will."13
A moral agent can choose between right and wrong only if he has non-moral values that sometimes can most efficiently be obtained immorally. He must want justice (either as an end in itself or as a means to some other end), and he must have other ends that sometimes tempt him toward injustice.
A moral agent's priorities determine his will, his will governs his actions, and his actions reveal his character to the rest of us. The good moral agent resists the temptations and does the right thing. This demonstrates that he values justice more than other things. In other words, it demonstrates that he has good character. A less virtuous moral agent sometimes gives in to temptations and does the wrong thing. He thereby demonstrates what he values more than justice, and we can judge his character accordingly.
For a moral agent to test the strength of his appreciation of justice, he must have something to gain from crime—he must live in a world of scarcity, where effort is required to obtain things he wants and where he has to compete with rights-holders. If there were no scarcity at all, a moral agent would not have to settle for less than he wants of one desirable thing, such as leisure, in order to have more of another desirable thing, such as consumer goods. He would not covet what anyone else has, because he could get as many of the same thing as he wants without effort. No conflict would ever arise between respecting the rights of others and getting things he wants. He would never have to choose between justice and crime. There would be nothing to gain by violating anyone's rights, so nobody would bother. Moral agents could not experience remorse or shame for violating someone's rights, nor could they experience the satisfaction and self-esteem that comes from acting justly.
On the other hand, if some of the things moral agents want are in short supply, and they have to compete with rights-holders for them, moral agents have reason to compete unjustly. The more scarcity there is, the more temptation there is to be unjust. During hard times, moral agents need strong moral character to keep them from violating rights.
We cannot blame someone for his failure to act when he is physically restrained against his will, but it is fundamentally wrong for a moral agent to voluntarily give up his autonomy and agree to be governed by others. Such an agreement is an abdication of responsibility. What Albert Einstein said about soldiers on the march applies to all those who refuse to think and act for themselves:
The man who enjoys marching in line and file to the strains of music falls beneath my contempt; he received his great brain by mistake—the spinal cord would have been amply sufficient.
As individuals, we know directly that we are rational and have memories and have general knowledge and have moral values and other values. But we cannot know directly that other people do.15
We know other people by their external behavior rather than directly, and we assume that other people are like ourselves, because we are members of the same species and share a common human nature. We assume that normal adult human beings are capable of rational thinking, especially since we learned so much about how to think from the adults who raised us. Most arguments to the contrary are self-refuting. If a man argues that "man" is not capable of rational thought, we need not take his argument seriously.
Reasoning is part of human nature. Imagine trying to think of how to think. No baby could do it. It is the kind of thing only a philosopher would think of thinking. If we were not born with minds already structured to learn how to think rationally, we could never become rational agents. The notion that our brains are unstructured when we are born is untenable. If we were born with no structure to our minds and no common categories of thought, we would never be able learn how to reason with each other.16
Humans, in general, have enough reasoning ability to be moral agents, but there are some exceptions. Here are some of the exceptions described in psychology-talk:
Defects in practical rationality occur, for example, in young children who cannot act now on the basis of future probable desires (conserving water for later thirst); or in a psychosis like kleptomania, in which a present compulsion (to steal) cannot be resisted though it conflicts with other desires of the agent, both now and in the future, which the agent deems more important. Paranoid fantasy exemplifies defects in epistemic rationality: the person's beliefs are systematically immune to argument or evidence, so that the person's experience is one of devouring fantasy with no external check of reality. Forms of schizophrenic disassociation evince defects of psychic continuity: the person is a kind of passive observer of the body which may not be regarded as hers or his, or the person cannot identify the self as the same person over time. 17In addition to having the ability to think rationally, it is also obvious that normal people act purposefully. In discussions of ethics or economics, when we speak of human action, we mean conscious, purposeful behavior as opposed to unconscious responses or accidental behavior. Human action implies values and plans for achieving them. It also implies that the individual thinks action is necessary to achieve his goals, which further implies that he lives in a world where goods are scarce and have costs as opposed to being free.
Goods that exist in abundance require virtually no action to acquire and use. Air to breath, sunshine, standing room, and so forth are important for human life but are usually not objects of action, causes of social conflict, or sources of moral dilemmas. It is the scarce things, such as food, housing, and companionship, that are the goals of human action. This is the nature of our world (not the result of a communist or capitalist conspiracy), and it is futile to complain about it. We must accept the fact that most of us will have to work for a living, even in the best possible society. Our ability to take purposeful action is the reason why we can adapt to different climates and thrive all around the world. It is also ennobling, because it enables us to be moral agents.
For a man to be morally responsible, he must know some very general facts such as that men are mortal, they can be killed by other men, they do not normally want to be killed, they can suffer pain and be disabled at the hands of other men, they do not normally want to suffer pain or be disabled, they can be deprived of freedom, opportunity, and pleasure by other men, and they do not normally want to be deprived of these things. He must also know the immediate and near-term effects that his actions are likely to have on others.18
Because moral agents must interact with rights-holders if they are ever going to exercise their moral faculties with respect to the rights of others, society is a prerequisite for justice. Fortunately, we are a social species. We are born with social tendencies that are nurtured by our parents or guardians, upon whom we are dependent during the early, formative years of our lives. We rely on the social instincts of our parents or guardians for a longer time than any other species.
Man is by nature a social being. He is so constructed that he cannot live, or live well, except by living with others. Since it is reason or speech that distinguishes him from other animals, and speech is communication, man is social in a more radical sense than any other social animal: humanity itself is sociality.19
It may be going too far to equate humanity and sociality. All that we need to establish for the present purpose is that it is natural for us to live in a society with rights-holders. We are born helpless, and we require assistance from others for several years simply to survive. After a person has matured to the point that he can support himself, he can choose to live alone, but very few of us do. Almost everyone recognizes and seeks the benefits of society.
To be aware of moral principles, a moral agent must either be naturally endowed with such awareness, or he must acquire such principles through education of some sort. If human beings are moral agents, we must be of the kind that becomes aware of moral principles through education, because we are not born knowing right from wrong. We are born with minds constructed for rational thinking, but we have so little innate knowledge that it takes us years to mature to the "age of reason." All human societies throughout history in all parts of the world have developed moral principles and taught them to their children.
The slow maturation of children under the care and protection of their parents and other adults may be related to the complexity of the human brain and to the superior reasoning ability of our species. This superior reasoning ability allows us to consciously formulate principles of action to a greater extent than other social animals. It sets human beings apart as the social species whose actions are more often consciously motivated than the actions of any other known species.
Our bodily functions and many of our movements, like those of other animals, are controlled by reflexes, but we have repertoires of deliberate actions that are much greater than those of any other creatures we know about. Instincts underlie many actions, but it is morally significant that interactions between adult human beings are often consciously chosen. This means that these actions can be influenced by moral arguments.
So far we have established that man can be rational, that man acts (which implies he has values and he believes he lives in a world of scarcity), and that he generally lives in society with other people and learns about moral rules. Also, as I pointed out earlier, we believe in right and wrong and have consciences and emotions that are related to our moral evaluations. We naturally approve what we think is morally right and we disapprove what we think is wrong.
The faculty that makes a man care about morality and reminds him of its authority is his conscience or moral sense. It affects a person's state of mind in accordance with how well his acts comport with his moral principles. 20
Guilt feelings are strong and persistent, which gives guilt the power to change our behavior:
Feeling guilty is the beginning. Feeling guilty is the source of powerful behaviors and of the deepest levels motivating change. A guilty conscience is both the outward manifestation of feelings and the arbiter that involves the mind in controlling the emotions, and is therefore the central locus for moral activity in human life.The normal adult, when he is free to act rather than enchained, meets all the criteria for being a moral agent: he has the rational faculty, self-awareness, general knowledge, and memory; he is neither insane nor a philosophical skeptic; he is aware of moral principles; he has moral values; he has other innate and acquired values; he lives in a world of scarcity; and he lives with others of his kind. In short, he is able to choose between right and wrong and he is morally responsible for his deeds.
Guilt that is emotional and intellectual is therefore a desirable necessity of human existence, abandoned only at the peril of abandoning everything that is worthwhile in our lives.21
We don't know whether angels exist, but we do know about animals. If Darwin's theory of evolution is correct, we should be able to find traces of human qualities in animals, especially in those species that are closest to us in evolutionary history. Maybe some of the "higher" species of animals are moral agents.
Those who believe that only humans are moral agents claim that humans possess significant qualities that all other animals lack such as:
It is not true however, that animals do not have interests (in the relevant sense) of their own. However the concept of an interest is ultimately analyzed, the materials out of which interests are compounded must surely be wants and aims. These in turn presuppose at least certain rudimentary cognitive equipment—the ability to recognize and distinguish, to expect and believe, and to adopt means to ends. The higher animals, at least, do seem to have cognitive lives of their own. Most of us (whatever our philosophical disagreements) agree in recognizing the behavioral manifestations of their wants and the objectives of their pursuits. The trustee for funds set aside for the care of animals can easily know what it is to act in the interests of the animals he cares for, and if he should abscond with the funds, another party can speak up indignantly in the mute animal's behalf, demanding for it its due. Unlike mere artifacts and plants, moreover, animals can experience suffering and frustration, states that are surely not in their interests. Compared to those of human beings, animals' interests are few and simple, but such as they are, they are sufficient to make talk of their rights coherent and meaningful.22So we cannot rule out the possibility that some animals are moral agents on the grounds that they have no goals or interests.
To the turkey hen, the characteristic cheeping of turkey chicks is the key stimulus which arouses brood-tending behavior. Conceal a loudspeaker which emits this cheeping sound inside a stuffed polecat—one of the turkey's natural foes—and the turkey hen will take it protectively under her wing. Deprive the turkey hen of her hearing, on the other hand, and she will kill her own young because the appropriate key stimulus fails to reach her IRM.23Such automatic, machine-like behavior does not qualify as altruistic. But when we look at the behavior of species that are closer to us we see examples of more purposeful behavior in the interests of others. As Darwin's theory predicts, we find the most human-like sympathy in our closest relatives:
Sympathy, as Romanes observed, is "more strongly marked in monkeys than in any other animal, not even excepting the dog." A sick monkey is waited upon with great anxiety and tenderness by its friends, who will even sacrifice their favorite dainties in order to offer them to their sick comrade.24
It is significant that all the most impressive examples of non-kin altruism are from the so-called 'higher' animals—humans, monkeys, baboons, and so on—animals in which the power of reasoning is well developed. In the 'lower' animals we find only kin altruism. This seems to confirm Darwin's speculation that the development of general altruism might go hand-in-hand with the development of intelligence.25The ability to foster the interests of others is enhanced in animals that have the ability to see things from someone else's point of view. In other words, altruism is enhanced by intelligence. This gives us a clue as to which species of animals are most likely to have enough intelligence to be moral agents. The most likely candidates are the social species who care for and train their young.
... birds ... would build a perfect nest even though the bird and its ancestors had been reared in isolation from nesting materials. There, we had instinct at work. With the chimps nest-building has to be learned by each individual chimp from its elders. The more an animal has to learn in fending for itself, the more likely it is the animal will possess a high order of intelligence. Man, for example, has to learn practically everything he does. Newborn babies are helpless.27Animal species have varying degrees of intelligence. It is clear that most species do not have enough intelligence to be moral agents. But it is possible that chimps and some other primates have as much brain power as human children.
So far I have been arguing that human qualities are not unprecedented and that we only differ from other animals in the degree to which we possess these qualities. A case could be made that other animals have languages and can vocalize some concepts and are, therefore, like us. But human languages are so much more abstract and symbolic than animal languages that human languages belong in a separate category.
Only man draws representative pictures, maps, and diagrams, uses musical and mathematical notations, points or draws an arrow to show direction, uses a color for an understood meaning as in traffic lights, and so on. Symbolic capacity is our human advantage and superiority. Is it a difference in kind from other animals or only one in degree? I answer: it is a difference in degree so vast that for many purposes one can safely forget that it is one of degree.28Our unique capacity for thinking and communicating at an abstract level is relevant to our being moral agents, because to be a moral agent one must have a capacity for second-order attitudes—attitudes that have one's other attitudes as their objects.29
Darwin's account goes something like this: suppose a man does something, out of fear or hunger, that violates his moral principles. Then he reflects on what he has done. The social instincts are permanent and persistent; but particular desires come and go. Therefore, when he reflects on his past conduct, his social instincts are still with him, but the particular desire that, at the time of action, overwhelmed the social instincts, is fading away. Thus he regrets what he did. This after-the-fact reflection is what we call conscience and the fact that the social instincts are stronger at the time of reflection, even if they were not stronger at the time of the event, explains why such reflection results in their endorsement.30
To have a conscience and to be a moral agent you have to have the capacity for reflexive thinking. Darwin said: "Any animal whatever, endowed with well-marked social instincts, would inevitably acquire a moral sense or conscience, as soon as its intellectual powers had become as well developed, or nearly as well developed, as in man."31 As far as we know, no other animal has the intellect for this. James Rachels makes this point using dogs as an example:
... the dog cannot desire to have a certain attitude, and he cannot regret that he has certain attitudes. A man, on the other hand, can want something (I want to hurt the person who hurt me) and at the same time can regret that he wants it (I disapprove of myself for wanting revenge, and wish that I had a more generous temperament). It is this capacity for approving or disapproving of one's own attitudes that constitutes one's conscience.32Charles Hartshorne makes the point for non-human animals in general:
A clue to the nature of our symbolic power is in its reflexiveness. If other animals can talk, it is about things other than talk. But we can talk about talk, we have the word word, also language, foreign language, symbol, analogy, metaphor, and innumerable others. Until nonhuman animals exhibit something comparable, we need not concern ourselves with the hypothetical possibility that they might attain our level of consciousness, participate with us in conscious ethical and political discussion, and the like.33Not only do animals seem to lack the ability to reflect on their past behavior and past motives, they also lack the ability to understand abstract moral principles. Dogs, for example:
... haven't the slightest inkling of the reasons for the norm. They don't understand why departures from the norm are wrong, or why their masters become angry or disappointed. ... For dogs, the only basis of their master's "right" to be obeyed is his de facto power over them. ... to suffer a guilty conscience is to be more than merely unhappy or anxious; it is to be in such a state because one has violated an "internalized standard" a principle of one's own, the rationale of which one can fully appreciate and the correctness of which one can, but in fact does not, doubt.34The inability to develop a conscience could be related to the limited language and communication capacity of animals:
No animal could understand a moral judgment made about him in any language, natural or contrived. No animal could appreciate the morally blameworthy quality of his deviant act any more than it could appreciate the rational grounding of the violated rule. And no animal could be reasoned with by an appeal to commonly held ideals and convictions.35Even some humans who have intelligence and the ability to speak in abstract terms cannot understand moral principles. For example, people who say that to be moral it is necessary to believe in a god who enforces his commandments by administering punishments in Hell and rewards in Heaven have the moral psychology of dogs rather than of autonomous moral agents. They do not understand the moral basis for the rules that they follow. They rely on external threats and bribes from their gods to provide them with motives for good behavior. They have not internalized their moral principles. So, like dumb animals, they cannot suffer from guilty consciences.
As far as we know, only humans (and not even all humans) are moral agents.
As far as we have been able to establish by experiments, man is the only animal capable of combining memories and experiences to whatever extent he desires. He can, mentally, bring any specific thing in the world into conjunction with any other. He can, so to speak, dream while he is awake and steer his dreams in any desired direction. He can devise courses of action for himself—lay plans—and check his memory to determine if they are practicable on the basis of past experience. He can combine experience or logic with his imagination and test the resultant thoughts within his mind for practicality. Man's brain provides him with a sort of screen upon which he can project and construct his ideas. There, future can be blended with past, components removed and replaced with others, the flow of ideas accelerated, slowed, or repeated at will. ... In short, we can perform, achieve, discover, and deduce a thousand (if not a million) times as much as the life-span accorded us would otherwise enable us to do.36
So far as we know, no animals other than man have the intellectual equipment necessary for the reliable performance of duty and the discharge of responsibility. They cannot make promises or enter into contractual agreements. Nor can they even grasp the concept of a duty or a commitment. These failures of intellect and volition, I think, disqualify animals as genuine moral agents eligible for our trust and answerable for their failures.37Some animals are so unconscious they can't act deliberately at all. Some can act deliberately in their self-interest. Some can also act altruistically to feed their young or to defend their tribe. Humans can do both, but what really distinguishes us from all other animals is that we can act on principle.
Humans are the only creatures that we know of who can be moral agents. So, for most practical purposes, we can substitute man or human for moral agent. But moral agent is still a useful term, because (1) some humans are not moral agents and (2) it is still theoretically possible that there are non-human moral agents somewhere.
Some philosophers and economists have tried to approach moral philosophy as if they were purely rational agents who lack a moral sense. They deliberately pretend that they have no moral emotions, because they think this pretence makes their writings more rational or scientific. As a result, they usually end up advocating a moral philosophy that is unemotional and uninspiring and that does not connect with normal people. Their moral philosophies have to be consequentialist, which makes them seem shallow and calculating rather than moral, because they have to base their moral philosophies on non-moral values. Furthermore, the consequentialist calculations that their moral philosophies require are often very complicated. Some of them devise moral systems that are so difficult that they are beyond the capabilities of most people.
Another problem with consequentialist systems of ethics is that each of them is designed to achieve a particular goal, which means that to accept one of them you must first agree that its goal overrides all other possible goals. If you think the goal is not a good one, or if you think it is good but not the most important goal in all circumstances, then you can reject the whole system, even if it is otherwise logical and consistent.
For example, in The Structure of Liberty, Randy Barnett makes a case for rights that need to be respected if we want people to be able to "pursue happiness, peace, and prosperity while acting in close proximity to others."38
Barnett's objective is to devise a strategy for handling the problems of knowledge, interest, and power in such a way as to produce rules for a society that will be as peaceful, cooperative, and prosperous as possible. The background rights that he comes up with are part of this strategy. He finds the appeal that these rights have lies in our interest in solving these problems rather than in our conscience. His attitude is that of a problem-solving engineer who is commissioned to design a society rather than the attitude of a human moral agent who is interested in doing right for its own sake. His approach has no emotional content, no sense of justice, righteousness, guilt, shame, or approbation. He aims his argument at rational agents, not human beings.
He imagines that the basis for our objection to theft is that we appreciate the first-order problem of knowledge:
Permitting forcible transfers disrupts the complex, but vital, mechanism of information dispersal that only consensual transfers make possible. In this regard, the prohibition on the use of force reflects an effort to handle the first-order problem of knowledge, which consists of permitting persons and associations to act on the basis of their diverse local and personal knowledge while taking into account the knowledge of others about which they are pervasively ignorant.39This is a far-fetched explanation for our natural reaction to theft. People have been against theft much longer than they have known about the first-order problem of knowledge. In fact, few people have ever heard of this problem or have an appreciation of its significance. It was never seriously analyzed until the 20th century by F. A. Hayek and a few other scholars. This is not what we have in mind when we yell "Stop thief!"
Guess why you should be allowed to defend your house against intruders. If you say it is because it is your house, you are wrong! According to Barnett, the answer is that a regime in which this right is allowed is the best way to solve the problems on knowledge and interest in normal cases!40
Barnett's system of justice appeals only to our interest in rational, social engineering. It does not appeal to our moral sense. That is why it is uninspiring and inhuman. It treats an emotional subject as though emotion is irrelevant. Instead of yelling "Stop thief!" Barnett would explain, "You are compromising the ability to solve the first-order problem of knowledge and the problems of partiality and incentive."
Almost everyone would accept Barnett's goal as a desirable one. It appeals to our altruistic concern for the well being of others, and it appeals to our selfish interest in our own well being. But a purely self-centered person, call him Joe Ego, could reject this system on the grounds that it does not maximize his personal well being, which is his highest goal. Joe would have a hard time persuading everyone else to prefer an ethical system whose goal is to maximize the well being of only Joe. Each egoist would prefer Barnett's system to Joe's, but each egoist would prefer their own ethical system to Barnett's. Barnett argues that his system is almost everybody's second best choice and it should be adopted, because everybody's first choice doesn't stand a chance of being adopted.
Given the risks that, in a conflict among competing moralities, we will be subjected to someone else's morality, the liberal conception of justice becomes nearly everyone's second-best outcome.41I think Barnett's system would be more popular than Joe Ego's system, but I am afraid that history shows there are other systems that are more popular than Barnett's. Today in America the two most popular ethical philosophies are those of the social democrats and the social conservatives, not the libertarians like Barnett.
Social democrats reject Barnett's set of rights and advocate a different set to achieve different goals, which they regard are more important than Barnett's goals. Social democrats believe Barnett's goals, while important, are not as important as ensuring that goods and services and opportunities are distributed equitably so that everyone can be guaranteed at least some minimum level of well being and opportunity and so that minorities are protected from discrimination. Social democratic ethical systems are preferred by hundreds of millions of people, whereas Barnett's libertarian system is preferred by a much smaller portion of the population.
Social democrats can make allowances for the problems of knowledge, interest, and power that Ludwig von Mises, F. A. Hayek, and Randy Barnett have shown cannot be solved in a centrally planned economy. Social democrats can allow the market to operate freely in many areas while still advocating enough government interference in the market to ensure that the least advantaged people are taken care of and protected. Social democrats can even admit that this is a trade-off. The total economic pie will be smaller and there will be less to divide up to the extent that the state interferes with the market. But social democrats can argue that the government will be careful not to shrink the pie too much and it will make sure that everyone gets enough of the pie to live decently. They can point to the United States as an example of their success. The USA has moved a long way from the kind of free market that Barnett advocates and is now much closer to the ideal social-democratic society, yet the citizens of the United States still enjoy the most productive economy of any country in the world.
The other major challenge to Barnett's libertarian system comes from the social conservatives, who have a different agenda than both Barnett and the social democrats. Social conservatives believe the most important ethical goal is to live right. Living right means living by traditional, middle-class standards: working to support yourself and your family, saving money for your children's education and your own old age, respecting the institution of marriage between one man and one woman, defending your country and its flag, revering God and praying for His blessings, and avoiding sins such as drunkenness, drug abuse, fornication, sodomy, bestiality, and gambling.
The social conservatives believe the state should promote virtue and punish vice. Consequently, they are opposed to the laws enacted by the social democrats that discourage responsibility, hard work, and thrift, and they are opposed to the systems proposed by Barnett and other libertarians that permit gambling, fornication, drug and alcohol abuse, homosexuality, bestiality, blasphemy, and desecration of the flag.
The social conservative agenda, like the social-democrat agenda, is much more popular than Barnett's libertarian agenda.
If your ultimate goal is for everyone to be able to pursue happiness as they see it, then a system of rights like Barnett's might be your cup of tea.
If your highest moral goal is to make sure that everyone gets at least an acceptable minimum of goods, services, and opportunities and that minorities are not discriminated against, then a social democratic system like the one John Rawls presented in A Theory of Justice might work best for you.
If your most important moral goal is to promote right living and to discourage sin, then the policies promoted by the social conservatives will seem better to you than the policies of the libertarians or the social democrats.
Is there a way to choose objectively between these different goals? Can we prove that any one of these goals should trump the others when they lead to conflicting policies?
The libertarian principles that Barnett advocates, which make human society thrive, are principles that even moral skeptics could wish to see accepted. If you think a thriving society is desirable, but you think morality is nonsense, you could still wish that other people accepted the moral rules that make a thriving human society possible. Fortunately, it is not necessary for skeptics to delude people into believing in moral principles. Nature has built this "delusional" proclivity into the human constitution. The difference between skeptics and normal people is that skeptics try to suppress their moral sense and its emotions because these are not based on reason, whereas most people either internalize moral principles uncritically or, like the consequentialists, search in vain for a single over-riding reason for morality.
I propose to take advantage of the fact that human beings can do right without needing to accept any particular reason for morality. I propose to develop a non-consequentialist system of rights that holds justice per se as the highest moral value. By calling justice the highest moral value, I mean that it trumps all other values when they conflict with it. This sounds like a value judgment, but it is actually a matter of drawing inferences from definitions. When we say that one value trumps another we mean that it takes precedence over the other. The ultimate method of trumping is to impose one value over another by force or the threat of force. Justice, by definition, is the branch of ethics that determines when it is legitimate to use force. So justice, by definition, trumps other values when they conflict.
I contend that it is not necessary to invent a purpose for justice and it is not necessary to try to convince you that any particular purpose is the true one and all other possible purposes are wrong. Instead, I will address you as a fellow moral agent who already believes in doing right. This reduces my task to simply developing principles of justice that, if we lived in a society governed by these principles, would allow morality to be possible and to have meaning.
It is important for moral agents to know who has rights, because moral agents have an obligation to not violate rights. Moral agents have this duty by definition, and they are the only ones who have this duty, also by definition. Only moral agents can understand, appreciate, and consciously act on moral principles. This ability is what defines a moral agent. If a being doesn't have this ability, it cannot have a duty to not violate rights.
Because moral agents have an obligation to not violate rights, they must have the right to perform this duty. So moral agents must have rights.
Does it follow from this that only moral agents have rights? No. It only follows if all rights are also duties. But there could be rights that are not duties. For example, suppose I have a right to scratch my head, but I do not have an obligation to do so. If I have this right, then all other moral agents have a duty to refrain from preventing me from scratching my head.
There is a correspondence between rights and duties, even when an individual's right is not his duty. For some rights, the holder of the right has a moral obligation to exercise it. These rights are duties. For other rights, such as my right to scratch my head, the owner of the right has no duty to exercise it, but all other moral agents have a duty to not violate it. These rights entail no duty for the right-holder, but they entail duties for all other moral agents. If beings that are not moral agents have any rights, those rights must be of this type.
Possession of interests by no means automatically confers any particular right or even any right at all upon a being. What it does is show that the being in question is the kind of being to whom moral or legal rights can be ascribed without conceptual absurdity. To have a right, after all, is to have a claim, and to have a claim is to be in a legitimate position to make certain demands against others. A mute creature can make claims only by means of a vicarious representative speaking for it, but if it has no interests of its own, it cannot be represented in this way, having no "behalf" in which another can speak. Moreover, if a creature has no interests of its own, it has no good or welfare of its own and cannot be helped or hindered, benefited or aided, in which case it has no "sake" for which one could act. In that event there could be no coherent reason for regarding any conduct of others as its due, and thus the concept of a right would simply not apply to it.42Suppose living things that are not moral agents have rights. Then we need to know which living things have rights and what those rights are. One right they must have, if any, is the right to live—or, at least, the right to not be deliberately killed for no reason. If they don't have this right, they can hardly have any other rights.
If all living beings have rights, these rights impose duties on an empty set of moral agents, and they have no meaning. Human beings could not be moral agents, because we can only sustain our lives at the expense of other life. We could have no more opportunity to be moral than vampires do.
For justice to have any relevance for human beings, we must assume that not all living things have rights. If we are wrong in this assumption, we cannot be moral agents, and if we cannot be moral agents, we do not have any duties, so we don't have an obligation to not violate the rights of all living things.
Life exists at the expense of life. It isn't fair, but that's the way it is, and we can't change it. So, let's assume we have the right to eat enough food to maintain our health. Then, some poor plants or animals have no right to live.
Did plants have rights before humans arrived? Did they lose their rights when we came along? What about plants that are inedible, do they have rights? What about surplus edible plants that we don't need for food, do they have rights? Do we have a right to get fat by killing and eating plants, or do we only have the right to eat enough to be healthy? Do we have an obligation not to produce any more plant-eating children than is necessary for the perpetuation of our species? Do we have a right to grow fruits and vegetables so that ultimately we can devour them? Do wild fruits and vegetables have more rights than cultivated ones? Are there other purposes for which we have the right to kill plants? Do we have a right to burn wood to warm us or to cook our food? Do we have a right to kill trees for lumber?
The answers to these questions play a role in determining whether we can thrive and still be moral.
The argument for animal rights is strengthened by the theory of biological evolution, which posits a continuity among all forms of life on earth. All forms of life exhibit a will to live and can be said to have an interest in and, possibly, a right to their own lives. Why shouldn't moral agents recognize and not violate the will to live exhibited by all life forms? What is wrong with the following argument?
We admit humans, but not non-humans, to universities; and this is perfectly all right because the non-humans cannot read, write, or do mathematics. Here humans and animals are in different positions. But suppose we ask, not about admission to universities, but about torture: why is wrong to cause an animal needless pain? The animal's inability to read, write, or do mathematics is irrelevant; what is relevant is its capacity for suffering. Here humans and non-humans are in the same boat. Both feel pain, and we have the same reason for objecting to torturing one as to torturing the other.43Living things have interests, even if they are not moral agents. Because they have interests, it is not unintelligible to assert that they have rights. The fact that they are not moral agents means that they have no duties, but it does not automatically follow from this that they have no rights. Nor does it follow that because they cannot know they have rights or because they cannot claim to have rights therefore they do not have rights.
Animals may have claims against us, but they cannot know that they do, nor can they even grasp the concept of a right or another's duty to them. Hence, they cannot make claim, on their own, to something as their due or initiate legal proceedings, on their own, for their own protection. ... The immediate reply to this argument, of course, is that one need not know that one has a right in order to have it, and that animals no less than infants and insane persons can make claims in law courts through proxies speaking in their behalf.44If we say that the interests of animals cannot be defended in court by proxies, because animals cannot communicate their wishes or instruct their proxies, animal-rights advocates can respond by pointing out that people in similar circumstances are represented in courts by proxies.
Sometimes, for example, John Doe hires an expert to solve his problems and grants him discretion within wide limits to exercise his own professional judgment. A buyer, trustee, guardian, or lawyer is often a representative in this sense—he is not a mere instrument of his client's will, simply registering decisions made independently by the client, but he is a representative of his client's interests. A creature need have no will or choice of his own, nor even any clear awareness of his predicament, to be represented in this second way. Mere possession of interests is quite sufficient.45With animals, it is not clear that they do not assert claims to themselves and to other property. In fact, many animals exhibit behavior very much like people asserting rights. They defend their lives, their homes, their offspring, their food, and their territory. Does such behavior entitle them to property rights?
We cannot make moral judgments about the carnivorous habits of sharks if they are not moral agents. Why can't we, however, suppose that all animals have rights, and then condemn those moral agents (people but not sharks) who violate the rights of animals? Moral judgments only apply to moral agents, but it does not follow that only moral agents have rights.
Joel Feinberg explained the moral dilemma of research scientists who perform experiments on animals in order to draw inferences about humans:
The researchers are caught in a logical trap: in order to defend the usefulness of the research, they have to emphasize the similarities between the animals and the humans; but in order to defend it ethically, they must emphasize the differences. The problem is that one cannot have it both ways.46Suppose all living animals have rights, but plants do not. Then moral agents could eat vegetables. They could also legitimately eat animals that died of natural causes, including other people. (The main thing wrong with cannibalism is the murdering, not the cooking and eating.)
Human beings have immune systems that automatically fight and destroy viruses, bacteria, and parasites. We cannot be held morally responsible for this. Nor does it seem reasonable to blame us when we deliberately kill viruses and bacteria that threaten our health. The use of antibiotic drugs and disinfectants that kill harmful microorganisms seems a legitimate act of self-defense. We cannot reasonably hold a trial in a court of law to prove that each individual microorganism is guilty of threatening us before we take action against it. We have no way to get the microorganism's side of the story, even if we had time to hear it. If all microorganisms have rights, then we cannot be moral agents, so we don't have a duty to avoid violating their rights.
If all animals except microorganisms have rights, we have the right to flee from predators, as long as we do not trample any innocent insects, earthworms, and other animals along the way. A small percentage of the human population might be able to survive and respect the rights of all animals, but they would have to change their life-styles in many ways. They could have no livestock, no domesticated animals, no pets, very little leather, wool, honey, or silk, no medical or scientific research with animals, and so forth.
We tend to justify our right to kill plants and animals on the grounds that it is necessary for our survival and health. But if we look at things objectively, rather than from a pro-human point of view, we need to ask why human survival outweighs the survival of millions of viruses, bacteria, and plants. What could the answer be except that we are moral agents with rights and they are not?
Does the fact that someone is a rational autonomous agent make a difference in how he should be treated? Certainly it may. For such a being, the self-direction of his own life is a great good, valued not only for its instrumental worth but for its own sake. Thus paternalistic interference may be seen as an evil. ... The fact that a child is not (yet, anyway) a fully rational agent justifies us in treating him differently from how we would treat someone who is a fully rational agent.47Here is another attempt to place human rights above animal rights:
Human pain seems self-evidently an evil to those who have known it quite simply because it is pain—because it hurts, and to be hurt is to suffer something evil in itself. Human life, however, seems a supreme good to those who treasure it, not because it is life, but because it is human.... Life, then, is a trivially obvious but necessary condition for the existence of any uniquely human properties that may have an intrinsic value. Abstracted from those properties, however, it is far from "self-evident" that life has any value in its own right at all, much less an invariant supreme value "wherever and whenever it occurs." I conclude therefore that it is possible to hold without inconsistency that an individual human life as such is a thing of far greater value than an individual animal life as such.48This approach bases rights on subjective values, which should be left to individual discretion. Justice needs to be more certain than this. I conclude that the question of animal rights is still open and that, until it is settled, animal-rights issues must fall in the realm of virtue ethics and outside the realm of justice.49
Within the realm of virtue ethics as distinguished from justice, I agree with James Rachels that:
... killing an animal that has a rich biographical life might be more objectionable than killing one that has a simpler life. This corresponds fairly well to our pre-reflective intuitions. We think that killing a human is worse than killing a monkey, but we also think that killing a monkey is a more morally serious matter than squashing a bug.50I also agree with the following sentiment:
Because a chimp is a curious, intelligent creature, it can easily suffer from boredom, and so some observers have criticized zoos for confining chimps in sterile unstimulating environments. A chimp, they say, should not be placed in a bare cage with nothing to do but stare at the walls. Shrimp, however, are not curious and intelligent in the same way. Therefore a similar complaint could not be lodged about how they are treated. Because there is a relevant difference between them, it seems permissible to treat shrimp in ways that are objectionable where chimps are concerned.51While I agree that we should not be cruel to animals and that it is more objectionable to harm animals that have richer lives than animals that are relatively unconscious, these issues cannot be settled with the certainty required for justice, so they must be left to each person to figure out for himself without interference.
Another question raised by Robert Nozick is whether organisms are arranged on an ascending scale such that any organism may be sacrificed to achieve a greater total benefit for other organisms higher on the scale. Related to this is the more specific question,
Could beings from another galaxy stand to us as it is usually thought we do to animals, and if so, would they be justified in treating us as a means a la utilitarianism?53Either you have moral responsibility or you don't. In so far as intelligence is one of the prerequisites for moral responsibility, it serves as one of the keys needed to open the door to moral responsibility. If you don't have enough intelligence to open the door, you cannot enter the moral-agent club. If you have enough intelligence and moral sense to open the door, you can enter and become a full member of the club, with the same rights and responsibilities as those who have twice as much intelligence.
The relevant possibilities are (1) an organism is not a moral agent and never will be (a virus, a tree, a spider, a worm), or (2) an organism is a moral agent (a man, a woman, an astronaut from Mars), or (3) an organism is developing into a moral agent (an immature offspring of (2)).
An organism has basic rights if it is a moral agent—regardless of its species. But a genius does not have more rights than an ordinary man, a moral agent from a more intelligent race or species does not have more or different basic rights than a moral agent from a less intelligent race or species, and women have the same basic rights as men.
A member of any species who is not a moral agent has no rights at all that we know of. Moral agency is not on a sliding scale where the most intelligent agents have the most authority and the less intelligent agents have proportionately fewer moral rights and responsibilities. The nearest thing we have to an intermediate stage between having all the basic rights and having no rights is the status of children.
We regard our children as rights-holders, even when they are too young to be independent moral agents, because we know they will grow up to be moral agents. An adult who is asleep cannot act as a moral agent, but we still recognize him as a rights-holder, because he will be a moral agent when he wakes up. The case with children is similar. It just takes them longer to wake up.
What about fetuses, people in comas, severely retarded people, and dead people—do they have rights? The ones that have the potential to become moral agents have rights. Fetuses have nearly the same potential to be moral agents as infants do. Dead people have no potential to be moral agents in the world we know. Some people in comas can recover and become moral agents. Some severely retarded people have no chance of ever becoming moral agents. So, human fetuses, infants, children, some people in comas, and some retarded people have rights, and some hopeless people in comas and some severely retarded people and all dead people have no rights.
Because rights and their corresponding duties are criteria for judging the justice of actions, they apply to moral agents. I see no way to prove that anything other than a moral agent has rights. If any other entities have rights, those rights must be compatible with the rights that moral agents possess.
Individual rights is a redundant term made necessary by the myth that society has rights. All rights are individual rights, even though, for convenience, we sometimes speak of rights in collectivistic terms.
Only individuals can act. An animal, an insect, or even a plant is closer to being a rights-holder than are the U.S. Senate, the British Parliament, or even the Congress of Cardinals. Animals live, feel, think, have individual personalities, emotions, values, interests, and wills. Human societies do not.54
It may be reasonable to say that moral responsibility and rights pertain to all normal people, but it is not reasonable to extend rights to all life or even all animals, because not all animals are capable of making moral choices. As far as we know, membership in the society of rights-holders is limited to moral agents.
Go to Chapter 4. What are the basic rights?
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