In chapter seven of Animal Rights Regan lays out his principles of justice and equality. He holds that these principles are not well accounted for – if at all – by non-rights based theories. I shall first expound Regan’s own account of the above principles and then examine his objections to three other theories: (1) perfectionism, (2) act utilitarianism, and (3) rule utilitarianism. At bottom he claims that (1) enjoins unfair and discriminatory treatment of those with fewer natural abilities, and that both (2) and (3) go awry of justice and equality insofar as they require us to treat moral patients as means to an end (i.e. as "receptacles"). His objections to theories (1), (2), and (3) will be made explicit after an examination of his own view.

Justice as a Formal Principle

Justice involves treating similar cases (situations, persons, etc.) similarly or, as Regan writes, "giving everyone his due" (p.232). Of course, determining which of the shared characteristics are to count as relevant is another matter. A decent theory of justice must give an account of which criteria are relevant in determining equal (or unequal) treatment. Equally, trying to determine "what’s due" to agents is the heart and soul of any theory of justice. Regan thinks of such principles as strictly "formal" in that which shared characteristics are to count as relevant or what is to count as someone’s due are both just placeholders for substantive answers. Regan attempts to fill in the placeholder with his notion of "inherent value".

Substantive Justice

All of Regan’s other principles are dependent on his theory of justice. What determines equal treatment of individuals is the "inherent value" (p.233) they share, where "inherent value" is the value of a life (with some qualifications which I will get to) independent and regardless of both the interests of others and the amount of pain/pleasure in the life of the individual. Any and every individual who has inherent value has it equally; no individual can have more or less inherent value that any other individual who has inherent value in the same way that anyone who is pregnant is not more or less pregnant than any other pregnant person. Regan distinguishes "inherent value" from the utilitarian notion of, what he calls, "intrinsic value" (p.235), where "intrinsic value" is the amount of pain over pleasure in the life of some individual. Intrinsic value is variable, and it comes in degrees. My life can have more or less intrinsic value at one time than at another and your life might have more intrinsic value than mine. Intrinsic value is not like an on/off switch. An important consequence of this distinction for Regan is that inherent value is not "reducible to" nor is it "commensurate" with intrinsic value (p.236). As he makes plain: "A criminal is no less inherently valuable than a saint, if both are moral agents and if moral agents have inherent value" (p.237).

Subject of a Life

Not every living thing has inherent value, according to Regan. He criticizes Schweitzer (p.242) for suggesting that simply being alive is enough to bestow inherent value on something. If simply "being alive" is a sufficient condition for a thing to have inherent value then it would follow that "individual blades of grass, potatoes, or cancer cells" would all have inherent value (p.242). The suggestion is that it would be rather silly to go this far. Regan argues that a sufficient condition for inherent value is whether the individual is the "subject of a life" (p.243) The "subject of a life" criterion is much narrower (perhaps too narrow) than the criterion of simply being alive. The criterion:

"Individuals are the subjects-of-a-life if they have beliefs and desires; perception, memory, and a sense of the future, including their own future; an emotional life together with feelings of pleasure and pain; preference and welfare interests; the ability to initiate action in pursuit of their desires and goals; a psychophysical identity over time; and an individual welfare in the sense that their experiential life fairs well or ill for them, logically independently of their utility for others and logically independently of their being the object of anyone else’s interests" (p.243).

This criterion is really a cluster of conditions that bestows inherent value on an individual. Most likely Regan thinks that if a goodly amount of these conditions are met the individual in question is the subject of a life, and thus has inherent value.

Moral Agents & Patients

It is clear that moral agents (i.e. agents capable or reflection and reason) are subjects of a life. Such agents are not – because of their inherent value – to be used a means to an end. It is equally clear that moral patients (i.e. agents incapable of reasoning and/or incapable of looking after their own interests: the mentally ill, imbeciles, perhaps those persons with severe handicaps, and animals) are relevantly similar to moral agents. It is fairly obvious that mammals such as dogs, cats, pigs, cows, etc. are relevantly similar to moral agents; the former are subject’s of a life and hence do have inherent value. (My dog does enumerative induction rather well—that’s at least grounds for thinking that she has a decent memory and some beliefs).

The Respect Principle & The Harm Principle

Since moral patients do have inherent value it follows that we are obligated to treat them with the same respect with which we treat moral agents; the former deserve equal treatment. At the very least we treat moral patients equally by respecting their right not to be unnecessarily harmed. We recognize a prohibition against harming moral agents because they have inherent value. If we are to be consistent, then we must recognize that we are obligated not to cause harm to moral patients as well. Justice demands that all agents who are subjects of a life (and thus have inherent value) demand equal respect. We give such respect by recognizing that such agents should not be harmed.

Regan’s Objections to Perfectionism, Act Utilitarianism, & Rule Utilitariansim

Regan dispatches perfectionism swiftly—and quite rightly! This theory of ‘justice’ has it that those agents who greater natural abilities than others deserve more; they are owed more. Regan focuses on Aristotle’s "virtue ethics" as an example of perfectionism. Those who are more virtuous – who are more intelligent, artistic or skillful – than others are permitted, nay required, to enlist the less virtuous as their flunky’s. Such a view of justice turns justice on its head; justice should protect those with less natural ability from being used and exploited by those with grater natural ability. Such a view permits and requires the exploitation of certain moral agents; those to whom nature has been less kind. Thus, a proponent of perfectionism is not even remotely concerned with the welfare of moral patients (save for practicing the virtue of sympathy or kindness). This theory condones treating both agents and patients as means to an end; and, for this reason, is rejected by Regan.

Act utilitarianism gets chucked out as a theory of justice because it measures the value of a life solely in terms of utility. By not being able to use the inherent value of life as a reason not to use someone as a means to an end, the utilitarian cannot block certain evil looking counterexamples. For example, the secret killing of a person in order to bring about a net value of more pleasure/happiness over pain/unhappiness. The death of the innocent will not cause pain to others because they do not know about it. Still, we think that such an act is wrong; it is unjust. Singer’s brand of preference/interest utilitarianism is open to similar charge. Although the clandestine killing is certainly against the interests/preference of the agent his interests and preferences might well be overridden by the interests and preferences of the people who are carrying it out. The same can be said of the pig or the cow in the feedlot. The interests of the consumer might well outweigh the interests of the animal. The main problem with act utilitarianism is that it treats the agent or patient as a "receptacle", into which both painful and pleasurable experiences are poured. The "cup" (the agent itself) has no value in itself. The only value that exists is the contents of this or that cup. Hence, in order to determine how a particular agent is to be treated we check the contents of the cup. Of course, we also determine if we can, how the treatment of one individual will effect other individuals. So we must not overlook the contents of other "cups". At the end of the day, act utilitarianism allows and sometimes requires us to act in such a way that we treat agents as means to an end. It has this consequence because it looks at individuals as receptacles.

Regan does not give the more usual arguments against rule utilitarianism. Instead he sets up a dilemma. First, the rule utilitarian can claim that although there may be contexts where harming moral patients is to our benefit, overall, as a general rule, acting so causes more harm than good. Here the rule utilitarian is attempting to block the objection that moral patients can be used as a means to an end. Nolt’s version of the argument is as follows:

1. It is a rule that (1) we have a direct duty not to harm moral patients or (2) any rule not to harm moral patients is an indirect duty (where the latter duty is justified in terms of the disagreeable mental states and the emotional turmoil that harming moral patients causes in others).
2. In chapter six it was established that the duties we have toward moral patients are direct, not indirect.
3. The arguments put forward by rule utilitarians against harming animals all involve indirect duties e.g., the "argument from envy" or "diminishing marginal return" (p.252-53).
4. Indirect duties are not direct duties.
5. Thus, rule utilitarianism cannot ground or justify direct duties not to harm moral patients.

Like act utilitarianism, the chief problem with rule utilitarianism is simply that the only way it can justify the harm principle is by treating moral patients as means to an end. If harming moral patients causes pain in others (i.e. moral agents) then we have reason not to harm them. But if we think that the harm principle has force simply because it is wrong to harm moral patients, quite independently of the effect this ill treatment has on others, then the rule utilitarian, like the act utilitarian, hasn’t a leg to stand on.

Objections to Regan’s Position

I agree with the spirit of Regan’s work, but I find his "subject-of-a-life" criterion idiosyncratic. My main criticism is that his "subject-of-a-life" criterion is too narrow. As a sufficient condition it seems to rule out many animals that have "interests" in Singer’s sense. Chickens, game fish, and turkeys, for example, are all capable of suffering. Why shouldn’t there be a voice for them? It almost seems arbitrary to claim that an individual must meet most of Regan’s conditions in order to have inherent value. Of course, he can weasel his way out of this objection by claiming that he has left it an open question whether his subject of a life criterion is a necessary condition for an individual to have inherent value. He allows that perhaps something could have inherent value and not be the subject of a life at all. But if such a condition is not required for an individual to have inherent value, then why not lower the standards for other animals? On Singer’s view an individual has interests iff it is capable of feeling pleasure/ happiness or feeling pain/suffering. This criterion seems more reasonable since it allows a great many more animals to be protected against harm. Also, Singer’s position is theoretically tighter because his condition (suffering) is both necessary and sufficient.

My second objection has to do with Regan’s own criticisms of rule utilitarianism. He briefly mentions that one of the standard objections against rule utilitarianism is that it seems to collapse into act utilitarianism. Since the impetus for utilitarianism is bringing about more pleasure/happiness/preference satisfaction than pain/unhappiness/preference frustration it has seemed to many that setting up a rule to follow even in cases where adhering to it would not bring about more pleasure than pain is groundless. This is a good objection. It seems to make unnecessary Regan’s own contrived and somewhat misdirected objections to rule utilitarianism. I say misdirected because it seems painfully obvious that the less well off pigs will not "envy" other pigs that received more slop in their trough. Does this argument from envy even need mentioning? The argument against decreasing "marginal utility" is not much better. Regan makes the obvious point that to claim that taking money from those who are well off and distributing it to moral agents for the purpose of aiding the interests of farm animals might not increase overall utility. Indeed, as he says, such a view (i.e., that such redistribution would increase overall utility) "begs all the important…questions" (p.253). That there are a lot more Americans whose preferences are satisfied by eating bacon demonstrates that it is "question begging" to suppose that overall utility will be higher if we look after the animals interests instead. The interests of meat eaters most likely outweighs the interests of those who find eating meat morally repugnant. What is more, both views are indirect duty views and so cannot even count the pain and suffering that the animals go through, independently of how that suffering effects moral agents. Regan has really just set up strawmen. He gives an all out assault on arguments that are easily knocked down. His time would have been better spent showing that what works against act utilitarianism also works against rule utilitarianism.

 

Comments by John Nolt

Sam defines intrinsic value as "the amount of pain over pleasure in the life of some individual." But this is a definition of utility (a sum of intrinsic values of experiences), rather than intrinsic value itself. (see pp. 235-6) Intrinsic value is generally regarded by utilitarians as a property of individual experiences.

Of the subject-of-a-life criterion Sam writes, "This criterion is really a cluster of conditions that bestows inherent value on an individual. Most likely Regan thinks that if a goodly amount of these conditions are met the individual in question is the subject of a life, and thus has inherent value." It's hard to interpret Regan here. Sam's is one possible interpretation, but it doesn't fit well with Regan's insistence that being a subject-of-a-life is an all-or-nothing property and that all those who have it have it equally. But no interpretation that I can think of works very well.

It would have been useful to summarize Regan's argument in Section 7.2 that all moral agents have equal inherent value. Here's a stab at it:

If some moral agents have more inherent value than others, then

this must be due to their possession to a greater degree of

some characteristic(s) X.

If some moral agents have greater inherent value than others

because of their possession of X, then they have greater

value because of their moral superiority, which implies a

perfectionist theory of justice.

Perfectionist theories of justice are wrong.

So If moral agents have inherent value, all moral agents are equal

in inherent value.

Sam writes, "Since moral patients do have inherent value it follows that we are obligated to treat them with the same respect with which we treat moral agents; the former deserve equal treatment." But equal respect doesn't imply equal treatment, as both Regan and Singer are careful to point out. We shouldn't treat children like adults, criminals like the innocent, or hippopotami like humans.

Sam expresses the first premise of my interpretation of Regan's argument against rule utilitarianism as follows:

6. It is a rule that (1) we have a direct duty not to harm moral patients or (2) any rule not to harm moral patients is an indirect duty (where the latter duty is justified in terms of the disagreeable mental states and the emotional turmoil that harming moral patients causes in others).

There is a scope problem here as between the disjunction and the operator "it is a rule that" that makes this a meta-rule (a rule about rules). That was neither Regan's intent nor mine. A more accurate version is:

7. Either (1) it is a rule that we have a direct duty not to harm moral patients or (2) any rule not to harm moral patients is an indirect duty (where the latter duty is justified in terms of the disagreeable mental states and the emotional turmoil that harming moral patients causes in others).

We have a direct prima facie duty to treat those who have

inherent value in ways that respect their inherent

value. (Respect Principle)

Subjects of a life have inherent value. (262)

To harm a thing that has inherent value is to fail to respect its

inherent value. (262)

So We have a direct prima facie duty not to harm

subjects-of-a-life. (Harm Principle)

I'm not sure I follow Sam's critique of Regan's arguments against rule utilitarianism. (I am referring especially the to the envy argument and the marginal utility argument.) The point of these arguments, as I understood it, was that neither appeal to envy not appeal to diminishing marginal utility can justify a fair distribution of goods to animals on either act or rule utilitarianism. Hence the only way to justify fair distribution (which Regan wants to do) is to abandon utilitarianism entirely. In this sense he does show (Sam's critique notwithstanding) that "what works against act utilitarianism also works against rule utilitarianism."