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."