Phi 646
In Chapter 8 of The Case for Animal Rights, "The Rights View", Tom Regan offers an elaboration and analysis of the concept of rights (p. 266). Regan begins his discussion by distinguishing moral rights from legal rights (p. 267). To Regan the former kinds of rights are different from the latter kinds of rights because they are universal (p. 267), equal (p. 267), and because they do not arise as a result of creative acts of any one individual or group (p. 268). Moral rights are universal in the sense that "if any individual (A) has such a right, than any other individual like A in the relevant respects also has this right." (p. 267) By contrast, we can deny that individuals possess legal rights "because of, for example, where they live." (p. 267) By characterizing moral rights as equal, Regan means "that if any two individuals have the same moral right...then they have this right equally." (Pp267-8) This characterization contrasts with legal rights which can "come in degrees."(p. 268) Finally, moral rights do not "come to be’ in the way legal rights do." (p. 268) In other words, moral rights are not the result of what some leader or legislative assembly has done so they "do not arise as a result of the creative acts of one individual or any group." (p. 268)
After distinguishing moral rights from legal rights and citing the views of certain philosophers who disparage appeals to rights in moral dialogue, Regan proceeds to offer an understanding of rights as "valid claims that have correlative duties" (p. 266). Citing John Stuart Mill as an ally to the view of rights he puts forth (p.269), Regan asserts "It is quite possible...for someone to have a valid claim to something (and thus a right) and yet for society not to recognize the validity of this claim and thus to fail to protect the individual in his possession of it." (p. 269) In other words, Regan holds that it is possible for one to have a right even if that right is not acknowledged or upheld by the particular society they live in. Rights, ultimately, are not contingent on a society’s understanding, and exist apart from what individuals have realized.
In Regan’s view, rights carry with them correlative duties (p. 270). Regan writes, "If I have a right to liberty...then you and society generally have a duty, in Mill’s words, ‘to protect me in the possession of it.’" (p. 270) We are called upon to provide "assistance and forbearance" when we recognize a given entity’s rights. (p. 270)
Having asserted that rights are valid claims that have correlative duties, the question remains for Regan of what makes a rights claim valid. Merely claiming a right is not enough to establish the right’s validity. "The validity of a right" Regan writes, "must depend on its compliance with moral principles whose validity have been independently established." (p. 270) More specifically, it is the respect principle that Regan elaborates on in Chapter 7 that Regan treats as the validating moral principle. Regan finds guidance from John Stuart Mill in addressing the question of what makes a rights claim valid while parting with Mill on the issue of whether the principle of utility is the validating moral principle (p. 271).
Regan asserts, "To make a claim...involves both claims-to and claims-against. It involves claims-against a given individual, or many individuals, to do or forbear doing what is claimed is due, and it involves a claim-to what one is claiming is owned." (p. 271) Regan sees these dual features to be "crucial to the process of validating a claim that has been made." (p. 272) In other words, a claim cannot be valid if the one making the claim does not have a valid claim against an identifiable someone. Moreover, Regan writes, "I cannot have a valid claim-against someone if that individual does not have a duty to me to do or forbear doing the act I claimed is owed me." (p. 272) This duty can involve performing certain kinds of treatment (i.e. respect, protect, etc.) that a bearer of rights is owed. Regan illustrates these ideas by directing the reader to consider the charitable acts of others (p. 272). According to Regan’s position "no one has a valid claim (i.e. a right) to the charitable acts of others."(p. 272) Regan sees this to follow from his view because "charitable organizations do not have a valid claim against us" (p. 272).
In an attempt to clarify the merits of the analysis of rights in terms of valid claims he puts forth; Regan applies the analysis to acquired and unacquired duties (p. 273). Unacquired duties, "apply to us without regard to our voluntary acts and hold irrespective of institutional arrangements." (p. 273) Acquired duties, on the other hand, "are the reverse: we have them because of our voluntary acts or our place in institutional arrangements." (p. 273) Regan characterizes the duties to keep a promise and to honor a contract as acquired duties, while the duty to treat others justly is an unacquired duty (p. 273) "The analysis of rights in terms of valid claims applies to duties of both kinds." Regan writes (pp. 273-4). However, basic moral rights and duties (such as the right to respectful treatment and the duty not to treat individuals differently in the absence of a relevant dissimilarity) exist without regard to our voluntary acts and irrespective of institutional arrangements and thus are unacquired (pp. 274-ff). This understanding of basic moral rights and duties is of much significance to Regan’s overall conclusions since the understanding yields for Regan the conclusion, "The validity of the claim to respectful treatment, and thus the case for recognition of the right to such treatment, cannot be any stronger or weaker in the case of moral patients than it is in the case of moral agents." (p. 279) Since Regan regards animals to be moral patients, his reasoning here grants animals the right to respectful treatment.
The respect principle offers validation to the "basic prima facie right not to be harmed." (p. 287) Regan allows for the right not to be harmed to be overridden in cases involving self-defense, the punishment of the guilty, innocent shields, and innocent threats (pp. 287-294). Here the mini-ride and worse-off principles become relevant as guidance offering tools when making decisions about overriding rights. Regan maintains the former principle states:
Special considerations aside, when we must choose between overriding the rights of many who are innocent or the rights of few who are innocent, and when each affected individual will be harmed in a prima facie comparable way, then we ought to choose to override the rights of the few in preference to overriding the rights of the many. (p. 305)
To Regan the mini-ride principle is "derivable from the respect principle." (p. 305) Since the respect principle entails the acknowledgement of a moral right that is equal ("no one individual’s right can count for any more than any other’s, when the harm that might befall either is prima facie comparable" p.305) the mini-principle is derivable from the respect principle.
Cases in which harms are not comparable call for the worse-off principle. According to Regan, this principle states:
Special considerations aside, when we must decide to override the rights of the many or the rights of the few who are innocent, and when the harm faced by the few would make them worse-off than any of the many would be if any other option were chosen, then we ought to override the rights of the many."(p. 308)
Like the mini-ride principle, Regan maintains that the worse-off principle is derivable from the respect principle (p. 308). It is consistent with the respect principle to not allow harming a smaller number of people even if it means allowing a greater aggregate harm to larger number of people. Regan writes, "To suppose that the harm done to A can be justified in this way is to treat A as a mere receptacle..." and thus violate A’s right to be treated with respect.
Invoking the mini-ride and worse-off principles, respectively, enables Regan to deal with troublesome scenarios without harboring absurd conclusions or a utilitarian approach. For example, when deciding to allow fifty miners trapped in a shaft to live by allowing one miner to die (when the dilemma is such that either the fifty or the one can be saved but not all fifty one miners), the miniride principle supports allowing the fifty to live. It does so without treating any of the miners as mere receptacles (as utilitarianism would have one do), but by considering the prima facie comparable harm each miner is facing.
The worse-off principal looks appealing when considering troublesome scenarios in which harms that would be inflicted on individuals are not comparable. Regan directs us to consider the prevention case where we are "called upon to choose between harming A quite radically (-125), or harming a thousand individuals modestly (-1 each), or doing nothing." (p. 307) By adhering to the worse-off principal, we would choose to harm the thousand individuals modestly since "the harm A faces greatly exceeds the harm faced by any one of the thousand, and the aggregate of the harm that would befall the thousand harms no one individual and thus cannot be construed as constituting harm that is comparable to (or more than comparable to) the harm that would befall A." (p. 308) Throughout chapter 8, both the mini-harm and the worse-off principals enable Regan to maintain positions of animal rights that he believes are consistent with our considered beliefs.
Comments by John Nolt
Regan's reasoning in this chapter is obscure. In Section 8.4, for example, he seems to argue as follows:
1 Justice [respect??] can intelligibly be claimed as one's
due from moral agents.
2 Both the claim-to and claim-against aspects of the right
to just [respectful??] treatment are valid:
(a) Moral agents generally can act justly
[respectfully??]
(b) The respect principle, which is valid, implies that
those individuals who have inherent value are
owed treatment that respects this inherent value by
all moral agents.
3 All moral agents are have equal intrinsic value.
So 4 All moral agents have an equal right to treatment that
respects their intrinsic value.
Then in Section 8.5 he says, in effect, that the same reasoning applies to moral patients (presumably, we could just add "and patients" to the word "agents" in premise 3 and conclusion 4). But his argument is not strictly valid. It's closer to valid if we substitute "respect" for "justice" as my parenthetical remarks indicate, but (granting the truth of the premises) it is still not clear how Regan gets from equal intrinsic value to equal rights. One simple way to do it would be to assume something like:
The right to respect of one's intrinsic value is proportional
to that value
But this, together with 3, would imply 4 without premises 1 and 2. If this is what Regan was thinking, why did he bother with 1 and 2 at all?
Here's a summary of Regan's argument for the right not to be harmed (287):
Those who have inherent value have a valid claim (basic right)
to respectful treatment.
If they have such a valid claim, there is an unacquired (i.e.,
basic) prima facie duty not to harm them.
Basic rights are validated by appeals to valid moral principles.
The claim made against being harmed is a valid claim-to and
a valid claim-against.
So Those who have inherent value have a basic prima facie right
not to be harmed.
Note that the conclusion follows from the first and second premises alone. The third and fourth are logically irrelevant.
And here is my interpretation of Regan's derivation of the mini-ride principle from the respect principle:
All subjects of a life have an equal prima facie right not to be
harmed. (Harm Principle, derived from Respect
Principle; see sec. 7.9 and my summary in comments on
Chapter 7)
So No one's right not to be harmed can count for more than anyone
else's.
So When the choice is between many who will be harmed or few
who will be comparably harmed, it is better that few
be harmed.
Neither step in this argument is especially clear.
Regan's derivation of the worse-off principle seems to go something like this:
M's right not to be harmed overrides N's if one must be harmed
and the harm would be greater to M than N. (from
respect principle)
Adding numbers makes no difference in such a case; even if
there are 1000 N's we should always prevent the greater
harm to an individual.
So If we must choose between harm to the few and harm to the
many, and the harm to the few would make them worse-
off than any of the many would be if harm to the many
were chosen, we should choose harm to the many.
It's not clear how the first premise follows from the respect principle. Moreover, the second premise is surely controversial.