Monday, May 02, 2016

Sentience and Honorary Membership in the Club of the Morally Entitled

By Sherry F. Colb

Michael and I recently appeared on the Our Hen House podcast to talk about our new book, Beating Hearts: Abortion and Animal Rights. In the course of the interview, Michael mentioned a challenge that we regularly encounter in proposing our claim that sentience alone is a sufficient condition for moral consideration. The challenge is that sentience is not enough, that a being ought to have capacities beyond just sentience before she can make moral demands of moral agents (those capable of understanding and conforming their behavior to such moral demands). This challenge takes different forms, but one way of putting it is to say that if a being is incapable of reasoning and rationality and is herself unable to understand and adhere to moral demands by others, then she is not part of the moral community and cannot make moral demands of others. Because humans are (at least one some accounts) the only ones who possess the relevant moral capacities, it follows that only humans are owed moral consideration.

One response to this challenge is to suggest that the capacity for moral agency truly has nothing to do with whether one is entitled to be free from slaughter, torture, and other harm. As Professor Mylan Engel explained in his presentation at our book celebration at Cornell, what makes it wrong to cause suffering to someone is the fact that the someone is capable of experiencing suffering, not the someone's intelligence, moral agency, or other unrelated capacity. I agree with Mylan's point, and I want to suggest here that most of us--perhaps without fully realizing it--also agree with this point.

To illustrate the general consensus that I believe exists about what entitles a being to be free from violence, I would point to what is sometimes called the argument from marginal cases. Marginal cases refer to the members of the human species who do not possess the abililtes that supposedly distinguish between those who hold moral rights against violence and those who do not.  That is, many human beings, including infants (not to mention sentient fetuses), severely intellectually disabled adults, and elderly sufferers of advanced dementia, lack the capacity for moral agency and are incapable of moral reasoning. (Indeed, many humans are less capable of moral reasoning than members of many of the nonhuman animal species who are relegated to the status of non-holders of rights). Yet few in our current moral discourse would deny that such human beings are fully entitled to be free from violent exploitation, torture, and slaughter. In fact, while we might medically experiment upon rational humans who can give their consent for such experimentation, we would categorically bar medical experimentation on non-rational humans (absent consent on their behalf by a guardian representing the interests of the compromised human).

How, then, to explain why infants and severely intellectually disabled or demented individuals have rights to be free from violence, notwithstanding their lack of moral agency or rationality (or whatever other similar criterion one identifies as an essential prerequisite to the rights that most would deny to nonhuman animals)? For those who truly believe that rationality is a necessary condition for rights, the answer typically goes something like this: the compromised human beings may not themselves possess the attributes that would ordinarily entitle them to moral status, but their membership in the group of humans, a group generally characterized by possession of these important attributes, gives them access to the rights that the more paradigmatic or typical members of the group possess. That is, a newborn infant or an elderly person with advanced dementia would not, on his or her own, be entitled to moral consideration, but in virtue of his or her species membership, we extend moral rights to him or her.

I have a few thoughts in response to this claim. First, it seems to me counterintuitive to suggest that the large number of humans who lack "human rationality" (whether for reasons of youth or illness or disability) are not truly entitled to moral status but simply gain that status derivatively through their membership in the group of entitled human beings. For many people, the very vulnerability and incapacities associated with "marginal" members of the human race give rise to moral entitlements that may indeed be greater than what is owed to "normal" humans. My intuition is that when someone deliberately inflicts pain, torture, or other harm on an infant, the behavior at issue is even worse than what occurs when someone does the same harm to a competent adult (though both are evil). I certainly reject the notion that the baby has no inherent right against being tortured apart from being a member of an intelligent species (and thus an honorary member of a group entitled to moral consideration). My intuition--and I suspect that of many people considering the question--is that we owe direct moral duties to all sentient humans not to inflict torture or slaughter on them and that our debt is no greater in the case of a rational potential victim than it would be in the case of an infant or other "marginal" human being. It is, as Mylan argued, the capacity of a victim to suffer harm at the hands of a torturer or slaughterer--and not any other intelligence-linked capacity--that makes it wrong to inflict torture and slaughter on a victim. It is, in other words, a being's sentience that triggers our moral obligations toward that being.

In addition to consulting our intuitions about the morality of harming infants and other beings lacking in rationality, I would observe that when we deal with our fellow humans, we do not see fit to treat one individual in a particular way simply because other individuals of the same species have some specified set of traits, when the individual in question lacks those traits.

Consider our death penalty jurisprudence. In Atkins v. Virginia, the Supreme Court held that executing an intellectually disabled person violates the Eighth Amendment prohibition against cruel and unusual punishments. The reason is that an intellectually disabled person is incapable of the level of culpability that gives rise to eligibility for the death penalty. In virtue of his intellectual disability, then, a person who kills another person is insufficiently "evil" to merit the ultimate punishment.

What does Atkins tell us about membership in a group of beings who have a given set of capacities? It tells us that such membership is not enough to justify punishing a member with the most severe punishment that our law allows. Even though many humans have a level of moral agency that would render them capable of the sort of culpability that would justify their execution, were they to commit an aggravated murder, that fact is not enough to justify executing a particular murderer who happens to lack the capacity for such culpability.

In deciding moral entitlements, then, we look not only to the behavior but also to the rational capacities of the person whose eligibility for execution is at issue. If one truly believed that what matters is what humans generally are capable of doing, then one could say "let's execute this person, because he committed a terrible murder, and people who commit terrible murders are generally full moral agents with the capacity for culpability that corresponds to eligibility for the death penalty." Yet that is not what our law does. Our law looks at the individual and says, in the case of the intellectually disabled and in the case of the juvenile offender, that such individuals, despite their membership in the human species, do not have what it takes to be deserving of the death penalty.

And we accordingly spare them, because we are keenly aware of the moral relevance of the ways in which they differ from the "normal human" in terms of their capacities.  In the context of humans, then, making life and death decisions about what a being deserves involves examining the capacities of the individual human rather than simply placing him under the umbrella of "homo sapiens" and acting accordingly.

This brings us back to the underlying charge of "speciesism" that posits that when we inflict torture and slaughter on animals for reasons of pleasure and convenience (choice of food, clothing, etc.), in ways that everyone would rightly regard as an atrocity if committed against humans, we "justify" the difference in treatment simply by saying "we are humans and they are not." It is not because we are rational, since many of us are not--and those who are not are rightfully understood to enjoy the same rights against torture and slaughter as those who are, and their enjoyment of those rights does not arise from "honorary" membership in a club to which they lack a direct entitlement. We can learn, from examining how we believe we ought to treat humans of all different kinds, that the governing principle for moral entitlements is in fact sentience, nothing more than that.

If it is wrong to inflict torture on an irrational human infant, and it certainly is wrong, then it is also wrong--and for the very same reason--to inflict torture on a cow, a chicken, a fish, or a pig. As Jeremy Bentham said, "the question is not, Can they reason? nor, Can they talk? but, Can they suffer? Why should the law refuse its protection to any sensitive being?... The time will come when humanity will extend its mantle over everything which breathes."


Joe said...

I agree that sentience is a major line here but if we are going in part by "intuition" and such (e.g., court opinions expressing the status of the law, noting that the one cited was by a divided court in rejection of local laws), it is not the only one. There is some feeling that membership of the human family is special here. This suggests why even the dead is treated better when humans are involved and we don't experiment on those in a PVS, putting aside concerns of error.

Also, though in theory not sure why not, we don't experiment on embryos. Lacking sentience, it would seem we should be able to breed embryos and experiment on them (visions of the medical thriller author Robin Cook here) before reaching sentience. But, merely using fetal tissues of those already aborted upsets many people. Others find that mistaken, but many of them still don't think we have the moral right to experiment on live embryos. Sentience very well might come as late as 26 weeks going by recent research. So, there is a large pool available.

To me, the best thing to point to is how we care about "non-food" animals (I remain a bit take aback that the book has a single reference to non-vertebrae leading one to think without more the vegan can eat lobsters, shrimp, mussels, etc. except to the degree they are extra careful or might have environmental concerns ... Prof. Colb's book had a few pages on honey) such as dogs, horses and the like. It's fairly easy for me to understand how an equal level of care would lead to our diet to be a problem. A few hard cases (e.g., certain medical research cases; perhaps, things like what is involved in training seeing eye dogs or the like) will come up, but my intuition led me to find the double standard there just too hard to take.

Michael C. Dorf said...


Concern for non-sentient humans can rest on a variety of underlying issues. For example, with respect to the interests of the dead, it is easy to see how respectful treatment of the now-dead provides peace of mind to the currently living. Likewise, treating embyros etc with dignity can be justified on psychological grounds: people who treat embryos or human remains as mere things may be more likely to treat living humans that way. Etc.

To be clear, we don't eat invertebrates or promote their consumption. Lobsters and shrimp are quite likely sentient. Bivalves are a harder case. Although we don't eat them, there is a decent argument to be made that they are not sentient and that, if cultivated for food, they will clean ecosystems. See Others disagree:
In writing a book that aims to compare abortion and animal issues, we chose to focus on the clearest examples.

Patrick S. O'Donnell said...

While I think I agree with everything in the original post, I suspect one reason some of these disagreements arise is that individuals are looking for plausible criteria, or have an intuition or cling to a belief that such criteria exist, that help one distinguish human from non-human animals, an important distinction often found in the "major" world religions. The belief on several sides seems to persist that the search or desire for these criteria necessarily leads to (or somehow directly or indirectly implies) maltreatment or an instrumental approach to the latter class of sentient beings. We appear to have a very difficult time keeping in mind the possibility that Bentham's view (enthusiastically appropriated by Peter Singer) as stated by Sherry is perfectly compatible with having some necessary if not sufficient criteria whereby we distinguish human from nonhuman animals. Such criteria are especially important when it comes to appreciating what distinguishes human beings from robots, AI, and computer programs: important because we increasingly hear extravagant claims (that were once the province of science fiction but are found now among philosophers, cognitive scientists and neuroscientists, etc.) along the lines that one day machines will be virtually if not actually indistinguishable from human persons (hence, they'll have consciousness, 'experience emotions,' etc.). Incidentally (or not), the Buddhist worldview evidences ample concern for the suffering of _all_ sentient beings, while at the same time does not unnecessarily elide or efface distinctions between human beings and these other sentient creatures. Thus, for example, only human beings are capable of "nibbana" or emancipation from suffering and the attainment of wisdom. Of course one need not be a Buddhist, or even "religious" to come up with the relevant distinctions, as works by the physician and philosopher Grant Gillett and the philosopher P.M.S. Hacker attest.

Joe said...
This comment has been removed by the author.
Joe said...

"Concern for non-sentient humans can rest on a variety of underlying issues."

A concern for me is that sentience is being focused on a bit too much in part since especially if we rely on "intuition" or common sense etc., other things are important in drawing lines here.

At any rate, if "psychological" grounds is a concern, why stop at human embryos? Ditto "peace of mind" concerns. HUMAN embryos, HUMAN dead are more of a concern here for the general person. And, surely, the vegan would want a dog to be treated with respect here too etc.

"To be clear, we don't eat invertebrates or promote their consumption."

I recall you discussing (for various reasons) your opinion and looking at old posts recently Prof. Colb too if in somewhat less clear terms noted concerns vegans had on such issues. I understand space concerns, but various things were discussed, including in extensive endnotes. So, I remain a bit concerned, especially since the book in large part rested on a specific line drawing principle that very well might lead a reader to think "huh, this would mean certain animals are not covered."

Plus, in a book on questions people might ask, questions about a range of animals are among them. I'm at times focused on minor matters myself, so realize the "can only address so much concern, but respectfully think this is a bit different.

Asher Steinberg said...

"treating embyros etc with dignity can be justified on psychological grounds: people who treat embryos or human remains as mere things may be more likely to treat living humans that way."

I don't see this; if sentience is so important, people who treat non-sentient human remains as mere things ought to see living humans as a very different case. If it's likely that disrespect for human remains will extend to living humans, that suggests that the reasons people actually have for treating living humans with respect don't have much to do with sentience, but rather with some respect for the species in general that people who disrespect human remains and embryos lack. And depending on how much you value moral intuitions, I think that may be important.

Along somewhat similar lines, how do you two explain the universal intuition that it is wrong (not just for consequentialist psychological reasons) to kill someone in a coma who we know will come out of that coma in nine months? If the answer has something to do with the personhood he attained pre-coma and that he'll reacquire post-coma, assume that when he comes out of the coma, he regains sentience but doesn't remember anything about who he is, or was.

Sherry F. Colb said...

Interesting question. We have a discussion of this very issue in the book, in the "Death Versus Suffering" chapter (chapter 4).

Kilo said...

"We can learn, from examining how we believe we ought to treat humans of all different kinds, that the governing principle for moral entitlements is in fact sentience, nothing more than that."

It seems to me that this conclusion rests on having eliminated all alternatives from contention. That's never a comfortable position for an argument, because alternatives can always be generated which avoid however many refutations you've produced so far. For example, you've ruled out the possibility that we make decisions for all humans based on their humanity alone, thus allowing those without rationality moral protections. It's certainly true that we don't make such decisions as though all humans are morally identical, but it requires very little tweaking to avoid this concern (indeed, it seems a little implausible to me that most of those who suggest such "honorary membership" meant to suggest that we must treat all humans as morally identical in the first place). One could simply say that such honors are bestowed generously, rather than equitably.

It is my own view that calculating moral consequences is overwhelming, and thus that a consequentialist is forced to rely on heuristics which recruit their moral reactions. Therefore, it behooves us to adopt moral rules which will help us cultivate reactions appropriate to serving the good. If I thought rationality were the consequence worth optimizing (which isn't so different from my actual view), that would suggest that I should cultivate positive reactions to things which promote rationality or resemble them, and negative ones to reductions in rationality, or things which resemble them. A callous reaction to suffering would tend to cause me to give too little weight to the sorts of trauma or consistent punishment which tend to warp minds, leaving them less than fully able to deal rationally with certain circumstances. So it's bad for me to torture a cow, precisely because it doesn't have bad consequences--I'm training myself that torture isn't bad, that the reactions animals have to torture are no sign of evil. There is always a danger that I'll apply those lessons to rational beings.

I think a similar argument can be used to capture all of our moral intuitions. Even if that's right, though, I would be very hesitant to suggest to anyone that they ought to adopt my moral values, because merely capturing our intuitions isn't enough to demonstrate that this view is true, only that it's plausible. There might well be lots of plausible theories. Others might have different intuitions than I have, or might be willing to reject some of their intuitions to preserve a theory which helps solve other philosophical problems. It seems to me that the argument form you're using is very vulnerable to the multiplicity of moral views, but perhaps this is addressed in the book.

Steve Davis said...

This is an interesting and thought-provoking article, although I don't understand what it means for a non-human animal, by virtue of its being sentient, to be "entitled" to be free from torture, suffering, and harm. An antelope is not entitled to be free from being killed by a lion. A human being, for that matter, is not entitled not to be eaten by a shark (or vice versa, in my view). In fact, it's a good thing that lions kill antelopes. It's necessary for the survival of species and the planet's ecosystems, generally, that the world be filled with the killing of sentient beings. So why use the word "entitled" in this context? Why see it as a matter of entitlement? As a general biological principle, nothing is entitled to anything. The concept of entitlement is a human invention, and it's an exception to the general principle that living things kill other living things to survive.

In a few places your article focuses less on the entitlement of the victim than on the morality of the action by the human. For example, this sentence: "what makes it wrong to cause suffering to someone is the fact that the someone is capable of experiencing suffering, not the someone's intelligence, moral agency, or other unrelated capacity." Although I disagree with the focus on suffering, I agree with the focus on the human actor, and that it doesn't concern the entitlement of the victim, but on the morality of the actor who knows he or she is causing suffering. It focuses on the rightness or wrongness of the human's action irrespective of the entitlement of the victim. This seems like the right approach to me. One could take the position that animals have no rights, but that we should, nonetheless, have laws against people killing or hurting animals, at least in certain circumstances, because allowing people to kill or hurt animals is bad for the human community in one way or another. To me, this is a more plausible ground for arguing that people should not inflict unnecessary suffering on animals than the notion that all sentient things are entitled not be harmed or to suffer.

Another way of asking this is, if lions can kill antelopes, then why can't we? I don't see how the antelope's "entitlement" resolves this question, because it has no entitlement against the lion. It's not clear to me why an antelope should be entitled to be free from suffering at the hands of humans, but not at the claws of lions. It makes no difference to the antelope.

An easier way to resolve the various hypotheticals raised in the article is to say that morality encompasses humans, period, and that it's limited to humans. We don't kill babies or people in comas because they are human. We don't have to raise issues of sentience. We can have a bright line rule, the advantage of which is that it's simple and that it avoids the making of tough calls that may cause unjust results. This approach does not exclude the possibility of laws that protect animals in one way or another. Although in this view we may not believe, generally speaking, that animals are part of our moral community, we may have some rules and laws against unnecessary harm to animals because we believe that permitting the infliction of harm against animals is damaging to our human community in some way, perhaps by promoting violence or inuring us to suffering and torture. This seems like a more accurate description of the basis for the current status of our laws and mores that animals should not be subject to unnecessary harm, and it seems like a more normatively useful approach as well, because it avoids the questions your article raises about how we treat humans. The question, then, is why we should give up this approach for an approach that focuses on what non-humans are entitled to, when the concept of entitlement applied to animals is so problematic.

I look forward to reading the book.

Paul Scott said...

"people who treat embryos or human remains as mere things may be more likely to treat living humans that way."

I am on board with disagreement on this point - at least with regard to human remains. Embryos are different in that there is a range of development that is called an embryo and they are, in all instances in which they are not merely remains - alive.

Treating human remains as anything other than a "mere thing" can only be reasonably connected with magic (e.g. religion). I do not are at all what happens to my body when I am dead. I have specifically donated usable parts to medicine and hope my wife donates the rest to science and does not spend any resources doing anything with it.

Of course, with regard to the recently deceased and the living that cared about the recently deceased there is, for a short time, a "non-thing" value placed on the carcass, but that is merely the carcass acting as a short term reminder of the formerly living while dealing with the immediate grief and the factual (and then psychological) failure (and then refusal) to recognize the death. What I mean here is best explained by example. My cat Blizzard died a few years ago. When he died, I was holding and petting him. I continued to pet him for a while simply not knowing he was dead and then for a few moments more while my mind was processing that I had been told he was now dead. once I dealt with those aspects, I gave him to the vet to donate to a vet school (as with human remains - I find it ridiculous and offensive that refusing to do this is even an option).

Apart from the above, any treatment of a human carcass as somehow deserving special respect different from non-human material of similar composition is religious and not found in reason. To me, both veganism and respect for human life is far more likely coming from a place of reason than a place of magic. People whose respect from human life comes from magic can lose that respect when the magic changes.

Michael C. Dorf said...

In response to Steve: In the book and in general, Sherry and I treat sentient animals who lack the capacity to understand and/or conform their conduct to moral norms as moral patients. Most competent humans are moral agents--i.e., they have moral obligations. If lions had the right capacities, they would have moral obligations to antelopes, although they would also have a necessity defense because lions, unlike humans, are obligate carnivores. I don't think it's at all incoherent to see entitlements as reciprocal to some obligations but not to all obligations or to all beings. Thus, I am entitled not to be murdered by a person, but not entitled not to be killed by a bear. Sherry's core point is that obligations can be owed TO moral patients, even without those moral patients in turn owing obligations (because they lack the capacity to have such obligations). I would add the corollary that one can be entitled to certain treatment by moral agents but not by inanimate forces and other moral patients.

Paul: I accept that the view of human remains is sentimental, but that was only one example. Some obligations to the dead -- such as carrying out the bequest of a will -- are not simply sentimental. I.e., people have reasons for caring about the fate of their loved ones or the causes they support that can, I think, persist after their death.

Paul Scott said...

Bequest of a will is an interesting one. I think one purely of public policy, however. I don't think the dead person actually has any rights at all - including the right to have a requests for post death actions adhered to even when those requests were made while living. I don't think carrying out a bequest in a will is indicative of respect for human (or non-human) life.

There are certainly a set of good default rules to deal with the distribution of property after a person's death, but I actually see no good reason why the now dead person should have say in the matter. IMO, the only reason to allow the now dead person to have a say is to avoid waste. For example if there was no will right and the State turned over everything I owned upon death to a church, I would probably do everything I could to ensure everything I owned was destroyed before I died.

But the idea that I have a right to have my post death wishes for my property honored is very odd to me.

Paul Scott said...

Also, with regard to wills - I largely view them as yet another massive benefit to the rich. Almost certainly our society's most regress form of wealth redistribution. If I was building a society from the ground up, my default rule would be that upon death 100% of all assets owned by the recently deceased would go to the state. I would then work backward from there to ensure my final set of laws on post death wealth redistribution allowed maximum capture of that wealth by the state after minimizing any socially harmful effects from that base.

Greg said...

I think the "lions have a necessity defense" point is interesting and non-trivial. If we envision lions as moral agents, what would their obligations be? Would they be morally obligated to sustain themselves on a diet that keeps them barely above starvation?

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Steve Davis said...

I'm curious if it would make a difference to you if science determined that invertebrates were not, in fact, sentient -- that they felt no pain or suffering as we know it. Or what if some particular form of invertebrate were discovered to be immune to pain or suffering? Would it be OK to eat that invertebrate? My intuitive response, assuming I accept the general principle of not eating sentient things, is no, that I would be uneasy about making an exception to the rule against eating animals for one species just because that one species didn't experience suffering, and I think that would be true even if I were quite certain, based on science, that it didn't experience suffering, or even that it was not sentient in any meaningful sense. My own intuitive response indicates to me that something other than sentience is a factor in determining whether to eat something or not.

To play this out further, what if science determined that the "sentience" of certain invertebrates was no different in kind from the sentience of plants, or of certain plants? Obviously, we have to eat something. Would that make a difference?

Michael C. Dorf said...

Steve: I can't speak for all vegans, but I have no objections to eating non-sentient animals. I don't eat bivalves because the evidence is unclear and because of the problem of bi-catch, but as I noted in response to an earlier comment, I think a reasonable case can be made for eating them where the enviro benefits are clear, and assuming the non-sentience is also clear. To me, the line really is sentience. Conversely, if there were some sentient plants, I wouldn't eat them. (There are claims for plant sentience but to my mind they're not very persuasive.) If everything were sentient, well then, I'd be in the position of a lion, and I'd just try to do my best.

Patrick S. O'Donnell said...

Incidentally, I think it's more concise (elegant?), and by way of avoiding redundancy, to simply write: "If it is wrong to [ ] torture [ ] an irrational human infant, and it certainly is wrong, then it is also wrong--and for the very same reason--to [ ] torture [ ] a cow...," using torture as a verb (part of the meaning of which is 'to inflict...').