Membership in a Moral Community is Not Necessary for the Possession of Rights

In an article entitled “The Case for the Use of Animals in Biomedical Research,” University of Michigan law professor Carl Cohen asserts that the practice of performing scientific experiments involving animals should not be condemned or considered immoral. Cohen acknowledges that many who find animal experimentation immoral do so because of a belief that the practice violates an animal’s rights or exhibits a disregard for the suffering of a sentient creature, but he suggests that both sets of reasoning are incorrect. Cohen argues that the argument concerning the violation of an animal’s rights is unsound due to a “mistaken understanding of rights (865).”

A variety of objections can be raised which demonstrate that Cohen’s argument is itself unsound. One such objection questions Cohen’s logic by suggesting that his definition of the moral community excludes infants, young children, and many members of the mentally handicapped community, therefore implying these individuals do not have rights. Once this objection is accounted for, a deeper objection can be made against Cohen’s fundamental proposition that rights are exclusively available to individuals that possess a certain group of faculties. It can be argued that rights are merely the invention of a moral or legal community, and nothing about their nature requires them to be reciprocal. Ultimately, Cohen’s assertion that animals cannot have rights because they are not members of a moral community is incorrect due to the presence of flaws in his rebuttal of a major counterargument and a general misunderstanding of the nature of rights.

Cohen defines a right as a “claim, or potential claim, that one party may exercise against another (865).” He asserts that either a single individual or a group can exercise a right, and that rights are given their authority from a variety of sources, such as a legal system, a system of morality, or both laws and morality (865). This understanding of rights leads Cohen to the idea that in all situations, rights can only exist within “a community of moral agents,” and Cohen ultimately suggests that this idea constitutes the rational grounds by which animals lack rights:

Rights arise, and can be intelligibly defended, only among beings who actually do, or can, make moral claims against one another. Whatever else rights may be, therefore, they are necessarily human; their possessors are persons, human beings (865).

Cohen continues to develop his argument by listing the attributes which he assumes are important and necessary for membership in a moral community. Among these, he includes the consciousness of free will, the reasoned understanding of moral law, the ability to participate in an objective ethical system, and the cognition of the rightness of an action (865-866). Cohen also asserts that rights-holders must be able to understand moral duties to the extent that they can “recognize possible conflicts between what is in their own interest and what is just (866).” His final distinction explains that all moral acts have “an internal as well as an external dimension,” which he cites as the rational basis for the common legal understanding that an illegal action can only be considered criminal if it was performed by an individual who possessed previous intuition of the wrongness of the particular action:

Thus, in law, an act can be criminal only when the guilty deed, the actus reus, is done with a guilty mind, mens rea (867).

Because a lion cannot possess the intuition that killing a zebra (or human, for that matter) is wrong, and by the same principle would never be considered a criminal after performing such an action, Cohen’s argument suggests the lion’s disconnection from the internal dimension (the guilty mind) of a moral act disqualifies him from membership in a moral community, which Cohen appears to understand as the only possible foundation for the lion’s rights.

The first objection to Cohen’s assertion that only members of a moral community can possess rights can be made by a demonstrating that his understanding of the attributes which are required for membership within a moral community excludes a significant portion of the human community to which rights are still granted and upheld in both a legal and moral context. Certain items on Cohen’s list of moral human faculties and his concept of the internal and external dimension of a genuinely moral action are not relevant to infants, young children and the mentally handicapped, a group commonly referred to in this discussion as “marginal humans.” Infants and young children are certainly unconscious of their own free will, have no concept of an objective moral system, and most importantly have no intuitive cognition of the rightness of their actions – they lack the internal dimension of a genuinely moral act. Suppose, however, they are granted membership in the moral community anyway on the grounds that they are not yet fully developed and there is little doubt that they will one day possess these capacities: an exception still remains. Members of the more severely mentally handicapped community represent human beings who lack moral capacities into adulthood and are unexpected to exhibit these capacities in the future. Clearly their handicap does not waive the moral and legal rights which are granted to them: it is still wrong and illegal to murder mentally handicapped individuals, and to many, such an action would demonstrate an especially reprehensible character because of their overwhelming innocence.

A relevant illustration can be taken from the 1996 film Sling Blade [1], whose protagonist is a mentally handicapped man named Karl who is institutionalized in a psychiatric hospital at the age of twelve in response to the murder of his mother and another man who she is having an affair with. Karl first murders the man because he assumes he is raping his mother, and later murders his mother after he realizes her actions were consensual. Because of both Karl’s handicap and his immaturity, these brutal murders are not recognized as cold-blooded crimes because of Karl’s disconnection with Cohen’s idea of the internal dimension of their morality. Karl has no conception of the criminal nature of his actions, and is charged and later released back into society based on an understanding of this disposition. The remainder of the film traces a friendship between Karl and a young boy whose mother is in an abusive relationship, and ends as Karl returns to the psychiatric hospital after he murders the abusive boyfriend because he fears for the safety of the boy and his mother. This story is unique because it demonstrates the legal recognition of the innocence of a mentally handicapped person while simultaneously portraying the same character as an acutely moral individual. Karl’s friendship with the young boy, his concern for the boy’s mother, and his disgust with the abusive boyfriend all demonstrate what could be considered, while certainly a bit flawed, a highly developed moral consciousness.

Swing Blade is an excellent example of the ambiguity of the idea of the moral community, but this is more significant later in this discussion. For the sake of the current argument, assume Karl is a more like an average mentally handicapped individual. He still lacks the internal dimension of morality, has little conception of free will or the rightness of his actions, but even though he has committed crimes, he still is still granted the right to life, the right to a fair trial, or the right not to be tortured or experimented on. In this situation, rights are granted to an individual that clearly does not qualify for membership in Cohen’s moral community. In his article, however, Cohen provides a rebuttal to this objection:

The capacity for moral judgement that distinguishes humans from animals is not a test to be administered to human beings one by one. Persons who are unable, because of some disability, to perform the full moral functions natural to human beings are certainly not for that reason ejected from the moral community. The issue is one of kind. Humans are of such a kind that they may be the subject of experiments only with their voluntary consent … [while] animals are of such a kind that it is impossible from them, in principle … to make a moral choice. What humans retain when disabled, animals have never had (866).

Cohen’s assertion suggests that because the average human possesses the faculties and attributes necessary for membership in the moral community and the average animal does not, such distinctions, and not a case by case understanding, should determine the principle by which rights are exclusively granted to human beings.

While Cohen’s rebuttal may seem convincing, Nathan Nobis uncovers and explains a variety of different inconsistencies present in Cohen’s argument in a paper entitled “Carl Cohen’s ‘Kind’ Arguments For Animals Rights and Against Human Rights.” Nobis asserts that Cohen’s member-of-a-kind principle necessarily suggests that “if something potentially could have property P, then it has property P now (49).” This principle could then be used to argue that since any human could potentially become a mass murderer, all humans should be considered mass-murderers, which obviously represents flawed reasoning. Another fallacy can be recognized in Cohen’s limited application of the member-of-a-kind concept. It can be suggested, based on Cohen’s principle, that humans, animals, and rocks are members of a “thing on earth” kind, and since the average thing on earth does not have a capacity for moral judgement, neither do humans (51). Nobis summarizes this objection:

Making the issue ‘one of kind’ is highly problematic since humans and animals are all members of infinitely many kinds or classes: we are all ‘tokens’ of many ‘types.’ It is very difficult (if not impossible) to identify what kind one is in a non-arbitrary manner since no one group or kind can reasonably be said to be the ‘the’ group or kind that someone is a member of (51).

Another observation can be made about an assumed universal human fulfillment of certain criteria which Cohen assigns to members of the moral community. Returning to Cohen’s emphasis on “reasoned understanding of the moral law” and the internal dimension of a “genuinely moral act,” it should be noted that not all members-of-the-kind “human” exhibit these faculties whenever they perform an action which many would consider explicitly moral (866). Individuals will often make a split-second decision to do a heroic act of kindness, and when interviewed later will report not quite having a reason for making the decision. In a similar way, Karl from Sling Blade is not quite a full member of the moral community (this is argued in greater detail later) but still performs actions which many would consider intuitively moral. Karl is of the “kind” mentally-handicapped-patient-without-full-criminal-culpability, but in some regards is much more aware of a moral standard than the abusive boyfriend in the story. What becomes apparent is that the moral community is more ambiguous than Cohen understands it to be, and Cohen’s assertion that all entities who exhibit biologically human characteristics automatically receive full membership in the moral community appear illogical.

While the argument for membership of a kind initially appears to uncover a way around the marginal human objection, further reflection reveals that this rebuttal is not based in reason but rather motivated by the unconsciously accepted, culturally reinforced understanding that any biologically human entity is more deserving of consideration than other sentient forms of life, even if the rational basis for any relevant distinction is not apparent. This represents the exact attitude which Peter Singer establishes during his argument for speciesism [2]. Cohen’s “members-of-a-kind” argument is merely an exasperated reiteration of the plea “but he’s human.”

The fallacies which can be found in both Cohen’s original argument and his rebuttal demonstrate that the principles he uses to suggest that rights are exclusively held by the moral community are incompatible with the generally accepted understanding of rights, at least in the legal sense. Marginal humans do not fulfill Cohen’s requirements for the moral community, but it is still considered illegal to kill, torture, or experiment on an infant or a mentally handicapped person on the basis of that individual’s rights.

An understanding has now been established that an entity’s ability to understand an objective moral system or the rightness of an action cannot determine that entity’s eligibility to possess rights. While an understanding of the internal aspect of a moral action may still be essential to membership in a moral community, it cannot be demonstrated that membership in the moral community is required of a rights-holder. What must now be defined is a correct understanding of the nature of rights and what is actually required of a rights-holder. This endeavor should begin with an analysis of the attributes which all rights have in common.

A right can still be defined by Cohen’s original definition, “a claim which one party can exercise against another,” but since the marginal human cannot always literally express such a claim, the idea that the responsibility for meeting certain “rights” criteria lies with the rights-holder cannot be maintained (865). Instead, it should be noted that in every instance in which a right is exercised, the more relevant party is the party against whom the right is held. For example, rights are primarily discussed in a judicial environment when an individual claims his rights have been violated, but this claim is always aimed against a member of the moral community. Cohen himself acknowledges that this is essential, that in order “to comprehend a right fully we must know … against whom it is held (865).” When this is understood, it becomes apparent that all rights are merely representations of obligations that are held by members of a moral community.

A moral right is an expression of an obligation which a moral community decides is significant enough to grant to all entities whose interests depend on the fulfillment of this obligation, and legal rights are simply constitutionalized versions of certain moral rights which a government decides must be upheld. The right to vote represents a government’s obligation to grant its citizens a say in the laws which govern them. The right to life represents a moral community’s obligation to not take the life of entities to whom this right has been granted. It is important to recognize, however, that these obligations can only be held by members of the moral community. An animal would never be charged with violating a human’s right to life, which is appropriate considering animals have no moral obligations – they are not members of the moral community. Returning to the Sling Blade example, Karl is sentenced to a psychiatric hospital (rather than a prison or to death row) with an understanding that he is in some sense unaware of his obligation to uphold a certain individual’s right to life. However, if, for example, the abusive boyfriend in the story were to murder Karl, he would be sentenced with many years in prison or even capital punishment for violating Karl’s right to life. A discrepancy is certainly present, but it is not as if the abusive boyfriend does not have a right to life, but rather that Karl is not quite a full member of the moral community against whom all rights are exclusively held.

Cohen’s criteria for the moral community are still essential to the concept of rights. They can be used in order to determine who can be responsible for upholding an entity’s rights, but there is nothing that suggests that a rights-holder must exhibit these criteria in order to be granted rights. Cohen himself acknowledges that “rights and obligations are not reciprocals of one another, and it is a serious mistake to suppose that they are (866).”

Cohen’s last relevant distinction concerns his understanding of obligations with respect rights. He asserts that when dealing with animals, humans have certain obligations and are not “morally free to do anything [they] please,” but distinguishes that members of the moral community have certain obligations, to humans or animals, that “do not arise from claims against us based on rights (866).” If some obligations do arise from rights, however, some principle must be used to decide which obligations are restructured as rights and which are left as mere obligations. Cohen does not provide this principle, but rather includes a list in its place:

Obligations may arise from internal commitments made: physicians have obligations to their patients not grounded merely in their patient’s rights. Teachers have such obligations to their students. … Obligations may arise from differences of status: adults owe special care with playing with young children … Obligations may arise from special relationships: my dog has no right to daily exercise and veterinary care, but I do have the obligation to provide these things for her. Obligations may arise from particular acts or circumstances: one may be obliged to another for a special kindness done, or obliged to put an animal out of its misery in view of its condition – although neither the human benefactor nor the dying animal may have had a claim of right (866).

An analysis of this list suggests that to Cohen, an obligation not grounded in a right is less imperative than one that, if neglected, would indeed violate an acknowledged right. However, nothing about Cohen’s distinction suggests that all obligations to animals cannot be founded in rights as they may be understood in light of the assertions made earlier. Cohen’s implicit suggestion that the interests of animals are simply less important than those of the human moral community is yet another demonstration of the irrational, discriminatory tendency of speciesism described by Singer.

It has been established that rights are an invention of the moral community and represent a mere conceptual restructuring of the obligations which morally conscious individuals have to any being with its own interests. Because animals are sentient beings with their own interests, the moral community is fully capable of granting animals their own rights. What exactly these rights should entail can most likely be discerned by isolating the principle by which human interests are protected by moral and legal rights. Whenever humans and animals exhibit a similar interest, there is no logical reason why, by this isolated principle, a similar right should not be extended.

[1] Sling Blade. Dir. Billy Bob Thornton. Perf. Billy Bob Thornton, Dwight Yoakam, T.J. Walsh. Miramax, 1996. Film.

[2] Singer, Peter. “Animal Liberation: All Animals Are Equal.” Philosophical Exchange. 1.5 (1976). Print.

Works Cited

Cohen, Carl. “The Case for Use of Animals in Biomedical Research.” The New England Journal of Medicine. 315 (1986): 865-870. Web.

Nobis, Nathan. “Carl Cohen’s ‘Kind’ Arguments For Animal Rights and Against Human Rights.” Journal of Applied Philosophy. 21 (2004): 43-59. Web.