1. For an attempt to describe the different ethical components that constitute ethical “push” and “pull” respectively, see Nozick, Robert, Philosophical Explanations 399–534 (Harv U Press, 1981)Google Scholar.

2. By “human rights concept” I mean the idea that human beings have moral entitlements, regardless of whether they are recognized by international law. Human rights in this sense comprise a minimal subset of rights which some have called inalienable, or part of natural law, or rationally required as part of the social contract. Other rights may derive from particular and contingent political needs—for example, as ways for a polity to bind itself for the future, or bracket disagreement, or add weight to particular social policies, or create public goods (such as a democratic, non—discriminatory jury pool)—without deriving in any way from the moral status of the rights-holders.

3. Blumenson, Eric, Rights and Religion, 31 Conn L Rev 711(1999)Google Scholar. See also Blumenson, Eric, Mapping the Limits of Skepticism in Law and Morals, 74 Tex L Rev 523 (1996)Google Scholar (arguing that neo-pragmatists who deny objectivity in morals forsake the central insights of pragmatism).

4. Perry, Michael, The Idea of Human Rights: Four Inquiries 13 (Oxford U Press, 1998)Google Scholar. I note that Perry's discussion is for the most part framed around a different, more ambiguous and wide-ranging question, “Why should I be moral?” I make no attempt to explicitly answer that question here, but rather focus on what I take to be Perry's primary concern in asking it—a concern with vindicating the universality of moral status against what Perry calls “us-ism?” I think the “why be moral" question is ambiguous and unhelpful because it points in four different directions. First, the question may be asking why I should give any weight to others' interests at all in my practical decisions: Why do others deserve consideration? Secondy an extension of the first, the question may be asking why I should attend to the interests of all others rather than favor my family's, community's or nation's interests. Here the question is really about the scope of morality: it asks, Who has ethical standing? Third, the question may be seeking a reason why the impartial viewpoint—“the moral point of view”—takes priority over an egoistic or self-interested viewpoint: Why are moral reasons binding? And fourth, the question may be seeking not a justificatory reason for adopting the moral viewpoint, but a motivating reason, as in “I know I ought to live a moral life, but what's in it for me?”

5. According to Perry, when asked why we should care about the outsider, the stranger, or the alien, we can only answer that she “no less than oneself and the members of one's family or of one's tribe or nation or race or religion, is a child of God… [T]he other is, finally, one's own sister/brother—and should receive, therefore, the gift of one's loving concern.” Id at 17 and 21.

6. There is of course the possibility that the human rights idea might be fully legitimate without any intellectually articulable foundation at all—for example, that it might be a kind of direct or intuitive knowledge that does not require an intellectual or reasoned defense to be worthy of belief. Perry seems to exclude this possibility, holding that the human rights concept is unintelligible unless we can satisfactorily articulate such an explanation. But why should we believe this? To grant intuitions some worth, one need not adopt a dubious mystical theory positing qualities we can directly perceive through a moral sense. One need only believe it possible that not all moral knowledge necessarily rests on articulable grounds. Clearly this is true of some other kinds of knowledge?—the kind of intuitive knowledge we draw on when we recognize a family resemblance, anticipate a musical progression, or speak grammatically without knowing the rules. Some moral knowledge could be like this: recognizable but inarticulable because it is more felt than thought; or because it is so complex, contextual, or thick with disjunctive factors that it cannot be effectively reduced to general principles; or because it is so nominalistic or basic that it can only be seen, not explained in other terms. Given these possibilities, if one has a moral intuition that resists reasoned analysis, it is surely more rational to be guided by it than to presume it false. I know that the innocent have a moral right not be punished even if I cannot say much more than that.

Some conceptions of moral knowledge as at least partly intuitive, nonrational or perceptual are developed in McDowell, John, Virtue and Reason, 62 Monist 331–50 (1979)CrossRefGoogle Scholar; Nagel, Thomas, The View from Nowhere 139–52 (Oxford U Press, 1986)Google Scholar; Schlag, Pierre, The Enchantment of Reason (Duke U Press, 1998)CrossRefGoogle Scholar; and Wittgenstein, Ludwig, Tractatus Logico-Philosophicus 6.522 (The ethical and religious “cannot be put into words. They make themselves manifest.”)Google Scholar. On the particular issue before us—who counts as a moral subject—see Rorty, Richard, Afterword, in Symposium On The Renaissance of Pragmatism in American Legal Thought, 63 S Cal L Rev 1911, 1917 (1990)Google Scholar (arguing that such questions as “who gets to be considered” … “will not be facilitated by increasing the sharpness of our philosophical instruments”); Kheel, Marti, The Liberation of Nature: A Circular Affair, 7 Environ Ethics, 135, 143 (1985)CrossRefGoogle Scholar. “The limitations of rational argument may, in fact, make it impossible to prove rationally why anyone or anything should have rights. Again, we fall back on the need to recognize and affirm the significance of feeling in our moral choices.” Id.

7. These two conclusions are reflected in Perry's particular definition of the human rights idea, as holding that “because every human being is sacred … certain things ought not to be done to any human being and certain other things ought to be done for every human beingo” Perry, , The Idea of Human Rights at 5 (cited in note 4)Google Scholar, Of course, the human rights claim, pared down to its essentials and stripped of reasons, is simply the second phrase—that certain things ought or ought not be done to every human being. But on Perry's view the claim necessarily entails more: The first phrase is an “essential, even foundational constituent of the idea.” Id at 29.

8. Id at 35-36.

9. Id (emphasis added).

10. Id at 31, quoting Taylor, Charles, Sources of the Self 87 (Harv U Press, 1989)Google Scholar. Perry is ambiguous as to what kind of support is necessary to make the human rights idea “intelligible,” and in fact seems to impose a higher standard on secular theories than on his religious one. The latter passes muster because it can provide, as he says, not proof that we should afford every human being moral concern, but an account that helps explain the point of doing so. But, as the quotations at notes 8 and 9 show, he takes secular theories to task because they cannot demonstrate the validity of the human rights claim. See also Perry, , The Idea of Human Rights at 129–30 n 143 (cited in note 4)Google Scholar (claiming that the secular assertion that “the poor should be provided surplus goods to keep from perishing” needs an argument to support it, while the religious assertion that “God created the world for the sustenance of all men” does not, apparently because to Perry it is the argument). What is missing from Perry's argument is an answer to either of the following fundamental questions:(1) Why should one believe that a soul exists in all and only human beings, and that only the ensouled deserve moral respect? And (2) Do these claims need to be justified, and if not, why not?

11. If a human life is intrinsically valuable, this in itself does not establish a duty due to the person, which many see as essential to the idea of a moral right. But the right kind of intrinsic value theory would be able to do so, as I discuss later in this section.

It is unlikely that the converse is true—that a convincing theory of duties morally owed to an individual can do without the premise that the individual is intrinsically valuable, and instead rely on deontological duties or consequentialist calculations that themselves do not piggyback on the intrinsic value of alife and/or its mental states or qualities. For example, even theories that condemn unethical actions as a betrayal of what it means to be “fully human” still need to distinguish between the treatment of a person and a rock, based on ethically significant qualities present or absent in the entity.

12. Dworkin, Ronald, Life's Dominion: An Argument about Abortion, Euthanasia, and individual Freedom 71–73 (Vintage Books, 1994)Google Scholar.

13. The term “personal value” is ambiguous, and should be fiirther refined. Is a gun personally valuable to a suicidal person? Something may be “good for someone” either objectively (if it serves his objective interests, whatever his beliefs-that is, is valuable to him) or subjectively (if it serves his purposes or desires—that is, is valued by him). I shall be using the objective definition when I refer to “personal value” in this essay.

Although “personal value” is Dworkin's term, the distinction between its objective and subjective meanings is elided throughout Life's Dominion, and it has caused a good deal of confusion among Dworkin's critics as to what he is trying to say. See, for example, id at 72-73 (stating that we measure the subjective personal value of alife “in terms 01 how much he wants to be alive or how much being alive is good for him.”) He does the same in discussing intrinsic value, leading Perry to rightly accuse Dworkin of perpetrating a kind of “bait and switch” by explaining “the sacredness of someone or something in terms of, or by reference to, ‘the value we attach’ to that someone or something” but then using the idea of the sacred to connote an objective, mind-independent concept. Perry, , The Idea of Human Rights at 28–29 (cited in note 4)Google Scholar.

14. For example, the Christian “man-as-image-of-god” cosmology. It is only through this cosmology that C. Everett Koop and Francis Schaeffer can assert that all human beings, and only human beings, become moral persons from the moment of conception; it is at that point, they say, that a being is created in the image of God. Schaeffer, Francis & Koop, C. Everett, Whatever Happened to the Human Race? 5 (Fleming H. Revell Co, 1979)Google Scholar. This is, of course, a particular, highly contested application of a doctrine whose Judeo-Christian roots are established in the Old Testament's description of man as made in God's image, and given “dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth.” Gen 1:26.

15. As Peter Singer notes, in order to base moral status on any actual human characteristics, “these characteristics must be some lowest common denominator, pitched so low that no human lacks them—but… any such set of characteristics which covers all humans will not be possessed only by humans.” Singer, Peter, All Animals are Equalt in Singer, Peter, ed, Applied Ethics 215, 226 (Oxford U Press, 1986)Google Scholar. One alternative would be to recognize degrees of personhood, a solution which is both morally repugnant and legally impractical. See Hoffman, Daniel N., Our Elusive Constitution 165 (State U NY Press, 1997)Google Scholar.

16. Richard Rorty shares Perry's conviction that such attributes cannot substitute for a religious conception of human value, but unlike Perry he rejects both. See Rorty, Richard, Objectivity, Relativism and Truth 31 (Cambridge U Press, 1991)Google Scholar (rejecting the “metaphysical comfort” of thinking that “membership in our biological species carries with it certain ‘rights’, a notion which does not seem to make sense unless the biological similarities entail the possession of something nonbiological, something which links our species to a nonhuman reality and thus gives the species moral dignity.”)

17. When the Supreme Court faced the question in Roe v Wade, it found the state's assertion of fetal personhood impossible to discuss: “When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.” Roe v Wade, 410 US 113, 159 (1973). In this and other cases it often seems we have to rely on our intuitions, with nothing to say to those who feel differently.

See also Vatican Congregation on the Faith, Declaration on Procured Abortion (1974)Google Scholar, quoted in Hodges, Fredrica, The Assault on Choice in Doerr, E. & Prescott, J., eds, Abortion Rights and Fetal “Personhood” 1, 2 (Centerline Press, 1990)Google Scholar in which the Roman Catholic Church admits that there is no consensus on “the moment when the soul is infused.” For some other attempts to address this question of the moral status of both fetuses and infants, see Tooley, Michael, Abortion and Infanticide, in Singer, Applied Ethics at 70–74 (cited in note 15)Google Scholar; Purdy, Laura M., Reproducing Persons: Issues in Feminist Bioethics Part II, 107–61 (Cornell U Press, 1996)Google Scholar; Doerr & Prescott, Abortion Rights and Fetal “Personhood” (cited in note 17).

18. Dworkin, Life's Dominion (cited in note 12).

19. Dworkin can, however, be criticized for punting the question of how human rights can be understood without reference to the intrinsic value of a human being. Dworkin asserts that people have a right to life simply because they have interest in continuing to live, but does not explain why such personal interests give rise to rights others should respect. Id at 73. See also id at 11-12, 98.

20. Id at 78.

21. Id at 81.

22. Id at 74, 76.

23. Id at 81.

24. However, Dworkin says that personal value does afford people rights, without saying why this should be in the absence of some kind of impersonal value individuals have, and also without explaining why such rights would not constitute a kind of inviolability. Id at 73-76.

25. Id at 83: “The idea that each individual human life is inviolable is therefore rooted, like our concern for the survival or our species as a whole, in two combined and intersecting bases of the sacred: natural and human creation.”

26. Moore, G.E., Principia Ethica 85 (Cambridge U Press)Google Scholar. See id at 83-85 and 187 (“In order to [discern which things have intrinsic value], it is necessary to consider what things are such that, if they existed by themselves, in absolute isolation, we should yet judge their existence to be good.…”). Moore proposed that people acquire knowledge of value through a faculty that can directly perceive “non-natural qualities,” such as the value of friendship or the depravity of slavery. On this account, a person has a reason to act based on her intuitive response to normative data, just as one has “reason to believe” that sugar is sweet based on observations of factual data.

27. Dworkin, , Life's Dominion at 71–72 (cited in note 19)Google Scholar. Dworkin raises but does not answer the question of whether art would have value if no one could ever see it, id at 248 n.1, but the above quotation certainly entails the conclusion that it would. If a Monet on Mars did not have value in alifeless universe, we would have to conclude that its value was not intrinsic but extrinsic, because its value would derive from its relationship with something else.

28. There probably is no way actually to execute the isolation test, even as a thought experiment. My very act of attempting to imagine a Monet in alifeless universe would import a thinker (me) perceiving or assessing its value. But the whole endeavor depends on being able to picture a universe that has no viewpoints.

29. Dworkin seems to think that his isolation criterion is necessary to underwrite the objectivity of value, to say that a painting for example has a kind of value (among others) that is not dependent on what any individual happens to value. But a painting can also have objective value by virtue of its relation to human beings, if it answers to human interests. Such value is objective because its value is constant regardless of how people in fact value it. This conception of relational value has been convincingly argued by Christine Korsgaard. See Korsgaard, Christine, Two Distinctions in Goodness 92 Philosophical Rev 169–95 (04 1983)CrossRefGoogle Scholar.

30. Perry also strongly challenges Dworkin to explain why the fact that a creative masterpiece is awe-inspiring makes it inviolable, and criticizes him for shuttling between objective and subjective conceptions of value as it serves his argument. Perry, , The Idea of Human Rights at 27–29 (cited in note 4)Google Scholar.

To Perry's criticisms and mine above, we might add these additional problems Dworkin fails to confront. First, Dworkin says that “the nerve of the sacred lies in the value we attach to a process or enterprise or project rather than to its results considered independently from how they were produced.” Dworkin, , Life's Dominion at 78 (cited in note 18)Google Scholar. But the theory breaks down when, as he must, Dworkin attempts to distinguish the value of products despite the similarity of the processes that produced them.

Id at 80. Offering no reasons for this difference, he effectively recants his own criterion of intrinsic value. Second, we must wonder what value Dworkin would attach to human beings who are less than masterpieces, such as severely brain damaged individuals who will never be the paradigm of either natural or human creation that Dworkin has in mind. Under his criterion, such people are not only less valuable than other humans, but perhaps some animals as well.

31. Perry, , The Idea of Human Rights at 26 (cited in note 4)Google Scholar.

32. In the end, some may find they have to accept this kind of religious mysticism, rather than sacrifice strongly held moral intuitions that can only be understood on a religious basis. In particular, environmentalists who feel unshakable ethical obligations to nature for its own sake rather than ours—obligations not to destroy a species or a mountain range, for example—might be unable to accommodate these convictions in any but a religious or Dworkinian theory. For these people, such bedrock intuitions might survive the process Rawls calls reflective equilibrium, and even generate a kind of moral proof of God.

33. For example, some utilitarians accept a plurality of experiences other than pleasure as ends. Other utilitarians locate all intrinsic value not in experience at all but in the satisfaction of one's preferences, even after death.

34. Jeremy Bentham pressed the point most famously when he said,

Bentham, Jeremy, The Principles of Morals and Legislation 310–11, n 1 (Hafner Pub, 1948)Google Scholar.

35. To facilitate such a theory, Tom Regan distinguishes between the “intrinsic value” of experiences and the “inherent value” of the being who has them. ”[W]e cannot determine the inherent value of individual moral agents by totaling the intrinsic values of their experiences. Those who have a more pleasant or happier life do not therefore have greater inherent value.…” Regan, Tom, The Case for Animal Rights 235 (U Cal Press, 1983)Google Scholar.

36. Rachels, James, Created from Animals: the Moral Implications of Darwinism 199 (Oxford U Press, 1990)Google Scholar.

37. Put in terms of reasons, the question as some philosophers pose it is whether my life and its experiences and activities (1) provide reasons for action at all, as opposed to merely generating desires, impulses, etc; and if so, (2) whether they provide only agent-relative reasons (reasons that have force only for the agent whose life it is) or whether some of them provide agent-neutral reasons that have force for all agents. See, for example, Parfit, Derek, Reasons and Persons 142–43 (Clarendon Press, 1984)Google Scholar.

38. Williams, Bernard, Ethics and the Limits of Philosophy 68–69 (Harv U Press, 1985)Google Scholar.

39. This is obviously not to say that every project or goal of an individual has impersonal value, such that all have a reason to promote it. The particular ambitions of an individual, let alone a master thief, do not have that kind of impersonal value, but the freedom and conditions that foster the formulation and pursuit of goals may. Nagel argues that the desires of an individual that must be respected by others

Nagel, Thomas, The View from Nowhere 171–72 (Oxford U Press, 1986)Google Scholar.

40. See Nagel, Thomas, The Last Word 121–22 (Oxford U Press, 1997)Google Scholar. We may never arrive at a convincing “proof of the priority of the moral point of view, nor be able to argue someone into morality. But what is often overlooked is the more modest and sensible claim that in conjunction, our reason, perception and experience point towards a way of life that includes mutual understanding and regard; and that however we analyze it philosophically, few people can entirely discount the truth and force of this awareness. I argue this point more extensively in Blumenson, , Mapping the Limits of Skepticism in Law and Morals at 566–74 (cited in note 3)Google Scholar.

41. In this way, rational judgment and impartial justice are cousins, both products of one's capacity to transcend bias and act on reasons that are untarnished by arbitrary distinctions. (Of course, to rational egoists, this criterion merely begs the central question, transmuting it into another: whether the fact that the interest is mine is a salient or arbitrary distinction. (See discussion on this point in note 47.)) Nagel has helpfully distinguished this type of moral realism—the knowledge that emerges from an impartial stance, which he calls the “aim to reorder our motives in a direction that will make them more acceptable from an external standpoint”— from the version we associate with the Platonic forms, a version that mandates that we “bring our thoughts into accord with an external reality.” Nagel, , The View from Nowhere at 139 (cited in note 39)Google Scholar.

42. Kant's claim that only human beings are self-conscious is increasingly controversial. One animal rights theorist who differs argues that apes, whales, dolphins and possibly many other animals are self-conscious. See Singer, Peter, Practical Ethics 94–105 (Cambridge U Press, 1979)Google Scholar. Recent reports on cultural differences in chimpanzees' grooming behavior may lend some support to this claim. See Angier, Natalie, Chimpanzees Doin' What Comes Culturally (NY Times A1, 06 17, 1999)Google Scholar.

43. Although one could theoretically conclude that what is in one's interests is to avoid reflection and always act on impulse. This is a version of what Derek Parfit describes as the “present aim” theory of what we have reason to do. See Parfit, , Reasons and Persons at 143 (cited in note 37)Google Scholar.

44. Korsgaard, Christine, The Sources of Normativity 104 (Cambridge U Press, 1996)CrossRefGoogle Scholar. See also Gewirth, Alan, The Community of Rights 66 (U Chi Press, 1996)Google Scholar:

45. Reason produces “a will which is good, not as a means to some further end, but in itself. Kant, Immanuel, Groundwork of the Metaphysic of Morals 64 (Harper & Row, Paton, H.J., trans, 1964)Google Scholar. But the goodness of other things is contingent and extrinsic; it exists only by virtue of its relation to the good will. In Kant's words,

Id at 62. In contrast, happiness (the utilitarian candidate) has no value when achieved unjustly; the good will constitutes “the indispensible condition of our very worthiness to be happy.” Id at 61.

46. One currently popular criticism of the Kantian approach holds that it builds on an unacceptably thin account of the “autonomous self,” when the self can only exist embedded in circumstances and cultural preferences that are not of its own choosing. See, for example, Sandel, Michael, Liberalism and its Critics 5–6 (NYU Press, 1984)Google Scholar. But as an explanation of some of the deep roots of normativity, and of the moral intuitions and feelings we have as actors, it seems on the mark in many ways. When we consider whether praise, or blame, is due someone, we do try to discount the contributions of chance and circumstance, and see into the character of the person's will. We may be most conscious of these assessments as feelings of guilt, pride, resentment, etc. towards ourselves or others, but whether these feelings are appropriate—whether there is a basis in reason for them—can be tested by means of disinterested reflection afterwards. While recent work in cognitive science has questioned the truth of a self-understanding that divides the inner life between an essential subject and its contingent circumstances, it has also confirmed that it is universal and unavoidable. See Lakoff, George & Johnson, Mark, Philosophy in the Flesh 268 (Basic Books, 1999)Google Scholar.

47. This sketchy argument must be elaborated and extended if it is to provide a full response to those who adhere to a “rational egoist” theory of what one has reason to do—that is, that rationality only supports self-interested action. One modern neo-Kantian attempt to show that a rational agent cannot consistently hold an exclusively self-interested position is spelled out in Gewirth, , The Community of Rights at 17–27 (cited in note 44)Google Scholar. The key step is to get from the agent's recognition that “I must have freedom" to the normative position that “I have a right to freedom,” which clears to way to the conclusion that others have the same right. One way to do this is through the agent's necessary presupposition of her own value as argued above. Gewirth's variation argues that I cannot reject my own right to freedom because doing so would entail that others may deny me freedom, which contradicts the first claim that I as an agent “must have freedom.” For Gewirth's four-part argument purporting to show this, see id at 16-17. See also Gewirth, Alan, Reason and Morality 16–17 (U Chi Press, 1978)Google Scholar; and Gewirth, Alan, Human Rights: Essays on Justification and Applications (U Chi Press, 1982)Google Scholar.

In light of my characterization of the Kantian approach as secular, I must note that there is an element in Kant's argument that is religious. According to Kant, but few modern day Kantians, the ideal of a highest good, including the reconciliation of happiness and moral duty, is also a presupposition of practical reasoning that in turn requires the positing of a god. See Kant, Immanuel, Critique of Practical Reason 114-15, 140–45 (Liberal Arts Press, Beck, Lewis White, trans, 1956)Google Scholar; Korsgaard, Christine, Creating the Kingdom of Ends 27–30 (Cambridge U Press, 1996)CrossRefGoogle Scholar.

48. Gewirth, , The Community of Rights at 14–15 (cited in note 44)Google Scholar. For Gewirth, “rights to well-being” are justified only as necessary goods for realizing one's autonomy. Gewirth divides these rights into three kinds or levels:(1)basic well-being, which includes the essential preconditions of action, such as life and physical integrity; (2) nonsubtractive well being, which includes all general abilities and conditions for maintaining ones level of purpose-fulfillment, such as not being lied to; and (3) additive well being, consisting of the abilities and conditions needed for increasing one's level of purpose-ftilfillment and capabilities for particular actions, such as education and self esteem. Id at 12.

49. Rawls, John, A Theory of Justice (Harv U Press, 1971)Google Scholar. Rawls has called his theory an example of “Kantian constructivism,” and I think it is best read as an attempt to derive distributive rights from the autonomous agent? s viewpoint. See Rawls, John, Kantian Constructivism in Moral Theory in Freeman, Samuel, ed, Collected Papers (Harv U Press, 1999)Google Scholar. But Rawls himself has said that he does not now claim that his contractual theory can be justified transculturally, as a universal model of justice. See, for example, Rawls, John, Justice as Fairness: Political not Metaphysical 14 Philosophy and Public Affairs 223, 225 (1985)Google Scholar.

50. Rawls, , A Theory of Justice at 12 (cited in note 49)Google Scholar. This constraint, and the further stipulation that the parties are motivated to agree to fair organizing principles of their society, remove Rawls' model entirely from the Hobbesian social contract tradition. Hobbesian contractors care only about themselves, their security, and maximizing their advantage. Theorists in that tradition are more concerned with motivation—supplied by self interest—than with morality. For Rawls the opposite is true. His hypothetical procedure utilizes yet transcends the parties' self interested motives because, while they are negotiating for themselves, they must identify with all of humanity. Rawls creates the project Kant described in The Moral Law: “We shall be able—if we abstract from the personal difference between rational beings, and also from all the content of their private ends-to conceive a whole of all ends in systematic conjunction.” Kant, Immanuel, The Moral Law 74 (Hutchinson & Co, Paton, H.J., trans, 1948)Google Scholar.

51. By adopting the contracting agent's viewpoint, and affording her a veto, Rawls' social contract theory exemplifies not only the Kantian view of who counts morally, but also Kant's view of how to count them: as separate and inviolable individuals, not fungible parts of the human race as a whole. Kant argued that a rational agent could never consent to being used purely as a means-and thus in the Kingdom of Ends, enslavement could never be justified by the greater collective welfare it might afford to others. In Rawls' original position, this view prevails because each contractor can veto agreement, but they represent only themselves; there is no contractor representing a combination of individuals, or the collective welfare, so the numbers can't count. By contrast, utilitarianism avoids this agent-centered view and instead adopts the viewpoint of a benevolent and impartial Ideal Observer looking from on high; and as Rawls points out, this leads utilitarians to aggregate and to disregard the separateness of persons.

52. Kant, Immanuel, Duties to Animals and Spirits, in Nelson, Benjamin, ed, Lectures on Ethics 239, (Harper & Row, Infield, L., trans, 1963)Google Scholar. See also Scruton, Roger, Modern Philosophy 232–33 (Penguin Press, 1994)Google Scholar (“Animals have neither duties nor rights, and it is not merely sentimental, but absurd, to treat them as though such moral ideas applied to them.”) Strict Kantians can accept that certain treatment harms animals, but not that it violates them, because lacking rationality they have no worth to be respected.

53. Kant, , Duties to Animals and Spirits at 239–40 (cited in note 52)Google Scholar. Kant's statement draws a distinction between “direct” and “indirect” duties. One owes a direct duty to moral subjects. We have such a direct duty when (1)what we do affects the subject and (2) that is the ground on which we are obligated to treat the subject a certain way. In the case of indirect duties, at least the second does not apply; for example, for Kant, and others our duties to an animal are not owed directly to the animal, nor derived from the animal's intrinsic moral significance. Rather, what duties we have to animals might be based on protective statutes, or agreements between human beings, or because of respect for animal lovers, or because, as Kant thought, human well-being is enhanced if people treat animals humanely.

In the case of non-rational human beings, there are also “slippery slope” arguments that create a different kind of indirect duty to afford moral treatment: it may be deemed conducive to a more peaceful and secure society to treat all human beings as if they possessed normal physical and intellectual capabilities, rather than continuously revisit the question of which human beings qualify as moral subjects.

54. The gap between these two questions has constituted one standard objection to grounding morality in Hobbesian contractarian theories, but oddly has rarely been raised against Rawls' theory. In the former, contracts are formed among those who pose a threat to each other or can otherwise afford each other some mutual advantage by coming to terms, and this would seem to exclude the weak from moral consideration. But it is an equally serious problem for Kantian contractarians, who generally either exclude the irrational or cannot easily explain why they have not. For a discussion of Rawls' difficulties in this respect, see Hoffman, Our Elusive Constitution at 164-67 (cited in note 15).

55. The negotiators could include trustees representing the interests of any nonverbal or non-rational beings that should be included. The trustee would advocate what the animal or other beneficiary would want were it rational. (Rawls partly adopts this method by having contractors negotiate for themselves and their family lines. This provides both incompetent human beings and generations unborn—but not animals—with a surrogate voice in the deliberations. Rawls, , A Theory of Justice at § 22 (cited in note 49))Google Scholar. Alternatively, the veil of ignorance could be expanded so that the contractors did not know whether they would emerge as animal or human being, a sort of updated version of the Karma doctrine.

56. A number of modern-day theorists share Kant's view that because animals cannot share in our understanding of rights and duties, they have none of either. See, for example, Gewirth, AlanThe Community of Rights at 8 (U Chi Press, 1996)Google Scholar (“The concept of human rights thus entails a mutualist and egalitarian universality: each human must respect the rights of all the others while having his rights respected by all the others, so that there must be a mutual sharing of the benefits of rights and the burdens of duties.”). Cohen, Carl, The Case Against Animal Rights in Kohr, Janelle, ed, Animal Rights: Opposing Viewpoints 23, 27–28 (Greenhaven, 1989)Google Scholar (“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.”); Fox, Michael, The Case for Animal Experimentation at 88 (U Cal Press, 1986)Google Scholar (“full members of the moral community may use less valuable species … as means to their ends, for the simple reason that they have no obligation not to do so”—a view Fox later renounced).

Whether Rawls shares this view is unclear because he offers ambiguous and inconsistent comments throughout A Theory of Justice. Rawls, Compare, A Theory of Justice at 505 (cited in note 49)Google Scholar (“it is precisely the moral persons who are entitled to equal justice”); id at 506 (whether moral agency is “a necessary condition [for an entitlement to equal justice] I shall leave aside”); id at 510 (“Those who can give justice are owed justice”); id at 512 (“while I have not maintained that the capacity for a sense of justice is necessary in order to be owed the duties of justice, it does seem that we are not required to give strict justice anyway to creatures lacking this capacity”). Moreover, Rawls does not purport to be offering an account of the whole of morality, and offers the view that “it is wrong to be cruel to animals” according to this other, unexplored moral dimension. Id.

For the contrary view that a being's moral status does not depend on its moral agency, see Singer, Practical Ethics at 18-19 (cited in note 42); and Regan, , The Case for Animal Rights at 239–40 (cited in note 35)Google Scholar.

57. It makes no sense to limit the scope of morality to those who now exist as sentient beings. Someone who will have such an existence in the future has welfare interests as well, and if we do something today that will destroy her welfare a generation from now, her life will be no less hellish because it unfolds in the future. There is no good argument showing that a being?s future interests are so different from present welfare interests as to be disposable. The longevity of radioactive waste bins poses a moral issue, just as the treatment of a hospital patient now rendered temporarily insensate by a general anesthetic does.

This reasoning applies only to those who will have an actual existence in the future, not those who could exist. The distinction can be illustrated by comparing the abortion and the abuse of a one-month-old fetus. Suppose a pregnant woman intends to carry the fetus to tenti, but nevertheless ingests a constant diet of alcohol and drugs which (we shall assume) is now painless to the fetus but will eventually result in brain damage. Is there not a moral obligation to the fetus to attempt to refrain from inflicting such future harm? (How the law should respond is a very different question.) In the case of abortion, however, the fetus will never develop; it has a possible existence but will not have an actual one. In this case there is no future welfare interest at stake. Some may say we still have a moral duty to the fetus to protect a putative right to realize its potential future existence, but this requires an argument of an entirely different sort. One might go further and argue that birth control programs-as well as numerous other social or economic policies-will reduce the number of people who might otherwise be born, and that we owe all such possible people a right to (a future) life. At some point regard for all possible future lives becomes senseless even for the most ambitious metaphysician.

Can the same distinction be made in the case of born and currently living beings, so that their welfare interests demand consideration of their future circumstances but pose no objection to immediate and painless execution? This seems to be the view many have towards animals. As noted above, the right to a future existence may be more convincingly grounded in something other than respect for a being's welfare interests, such as autonomy.

58. Whether a particular animal is sentient resists direct proof, of course, because we can't have access to an animar s first person experience. The awareness and experience of a dog or an ape can only be inferred from its behavior and its neural circuitry. But there are more and less plausible accounts. Is it reasonable to believe, against all circumstantial evidence, that all mammals and birds are automata, mere machines that have no cognition or emotions and feel no pain? That their movements manifest nothing more than complex tropisms? Anyone who keeps a dog would deny that their lives are devoid of emotion, and some of the crudest treatments—taming a camel by constant beatings, for example—work only because, we assume, of the suffering it inflicts. The Cartesian view that animals are automata is rarely heard today, but philosophical parsing still leads to some surprising conclusions. See, for example, Frey, R.G., Interests and Rights: The Case Against Animals 79–92 (Clarendon Press, 1980)Google Scholar (arguing that although they may be sentient, non-self-conscious animals can only have needs, not conscious wants, and thus fall into the same category as a car, which needs but does not desire oil).

59. Korsgaard has tried to broaden the Kantian subject in a somewhat different way by distinguishing between the categorical imperative and the moral law, which Kant had thought to be one and the same. She argues that the latter must be based on constraints beyond the logical ones imposed by the categorical imperative; she thinks this further constraint is the rational necessity that the agent formulate and defend his practical identity. Korsgaard, , The Sources of Normativity at 100–25 (cited in note 44)Google Scholar. The difficulty is that without limits on the choice of one's identity, this constraint seems to be arbitrary, a matter of luck rather than the rational choice that Kant saw as lending normativity to our actions. Instead of a categorical moral truth, this implies many truths, each relative to a non-normative framework?—in other words, relativism.

60. For example, we frequently assess another's wants as against his interests (parental guidance would make no sense otherwise), and these thoughts about others become part of my knowledge about what I should do: because the concept of “interests” is abstracted from a person's existing contingent ends, it entails that people in like situations share certain interests. But this does not imply that there is a single best way to live one's life. Rather, human interests are necessarily pluralistic, both because one's interests cannot all be satisfied, and because there are so many alternative ways to lead decent and fulfilling lives. We can have a robust pluralistic and multicultural account of goods for human beings, while recognizing that certain options are destructive of all human beings, such as torture, isolation, starvation, or subjugation.

61. Thomas Nagel, who straddles both the Kantian and intuitionist traditions, frames this point as one of credibility, not consistency. Speaking of pain, he says,

Nagel, , The View from Nowhere at 154–55 (cited in note 39)Google Scholar. See also Feinberg, Joel, Human Duties and Animal Rights in Morris, Richard Knowles & Fox, Michael, eds, On the Fifth Day: Animal Rights and Human Duties 45, 58 (Acropolis Books, 1978)Google Scholar, arguing that the proposition that pain is evil in itself is plausibly a self-evident one because no one can sincerely bring himself to doubt it in his own case.

62. See the Kantian argument for the impartial standpoint, cited at text accompanying notes 40 and 41.

63. Charles Taylor gives the example of gruesome and painful punishments, which were justified as necessary to repair the cosmic order. When this cosmology was set aside it became “rational to want above all to reduce suffering.” Taylor, Charles, Explanation and Practical Reason 49–50 (Harv U Press, 1995)Google Scholar. (“[T]he decline of the older notion of cosmic-social order [is] one consideration which lends a rational grounding to modern humanitarianism.”). Of course, it is also true that in our contemporary world of ethnic cleansing and other crimes against humanity, religious beliefs such as Perry's can sometimes be an ennobling and powerful influence, serving as a beacon towards moral practices we have yet to realize. This is only to say that both the content and practical effects of a religious cosmology may themselves be evaluated according to a moral standards; we can't take our own religious cosmology as the ultimate moral standard itself, beyond judgment. For the seminal account of this issue, see Plato, The Euthyphro (noting the argument that if the good were not independent of God but were whatever God does, creates or commands, then the statement “God is good” would be a banal tautology).

64. Of course, this is not to say that a friend, a stranger, and a chicken are entitled to the same rights, or to identical treatment. They aren't, but not because they lack “standing.” The correct question, which the word “standing” obscures, concerns how moral consideration justly applies to differently situated beings.

65. Sprigge, T.L.S., The Animal Welfare Movement and the Foundations of Ethics, in Patterson, David & Ryder, Richard, eds, Animals' Rights—A Symposium 86, 93–94, (Centaur Press, 1979)Google Scholar.

66. Individual inviolability, in Kant's argument, emerges from the requirements of rational autonomy: a rational agent can never consent to being used as a means only – and this rules out such institutions as slavery, however much collective benefit it might afford to others. In the case of non-human animals, however, the morally significant attribute is not their rational will but their welfare interests, so this argument against welfare maximization does not apply. Whether there is another basis for regarding sentient animals as inviolable, or whether they deserve consideration only according to a utilitarian calculus (so that, for example, unproductive animals might be humanely killed and replaced), is alargely undeveloped issue even in the animal rights literature.

67. Frey, R.G. makes the latter claim in Moral Standing, The Value of Lives, and Speciesism, in Between the Species 191 (1988)Google Scholar (copy on file with the author). He defends the “unequal value thesis”—that human life is much more valuable than animal life, primarily because

Id at 192, 194.

68. Most moral philosophers have given these questions only cursory attention. Rawls, for example, notes that questions concerning our treatment of animals “are certainly of the first importance,” but because contractualism cannot address them “I shall have to put them aside.” “How far justice as fairness will have to be revised to fit into this larger theory it is impossible to say.” Rawls, , A Theory of Justice at 17, 512 (cited in note 49)Google Scholar. However, there are several modern philosophers who have produced valuable works (on all sides of the animals issue) that have yet to spark a sustained dialogue with most other moral theorists. See Singer, Peter, Animal Liberation (Random House, 1990)Google Scholar; Regan, The Case for Animal Rights (cited in note 56); Feinberg, , Human Duties and Animal Rights at 45–69 (cited in note 61)Google Scholar; and Curruthers, Peter, The Animals Issue: Moral Theory in Practice (Cambridge U Press, 1992)CrossRefGoogle Scholar.

69. Linzey, Andrew, Christianity Supports Animal Rights, in Rohr, Janelle, ed, Animal Rights: Opposing Viewpoints 29, 33 (Greenhaven, 1989)Google Scholar.

70. Humane Farming Association, Modern Farming is Inhumaney in Rohr, Janelle, ed, Animal Rights: Opposing Viewpoints 113, 118 (Greenhaven, 1989)Google Scholar. Anyone who looks into the animal experimentation industries will discover legions of similarly devastated animals, often victims of operations that serve entirely trivial, albeit lucrative, purposes. See Is Animal Experimentation Justified? in Rohr, Janelle, ed, Animal Rights: Opposing Viewpoints 49–100 (Greenhaven, 1989)Google Scholar.

71. The Humane Society of the United States, Fur Trapping is Not Justified in Rohr, Janelle, ed, Animal Rights: Opposing Viewpoints 177, 180–81 (Greenhaven, 1989)Google Scholar.

72. Sprigge, , The Animal Welfare Movement and the Foundations of Ethics, at 94 (cited at note 65)Google Scholar. Rejecting the segregation of reason and emotion, Sprigge adds that the animal advocate is “only working on people's emotions in the sense that he is making them aware of facts about the feelings of animals which cannot really be grasped without a subsequent wish to rectify the situation.”

73. Of course, the truth of this statement depends in part on what one means by a “religious cosmology.” Perry might argue that all of the theories described above are religious, because at times he seems to define as religious any view that our particular acts have moral meaning. When he says that the human rights claim is religious because it cannot be embedded in a cosmology “according to which the world is … not meaningful but meaningless,” Perry, , The Idea of Human Rights at 16 (cited in note 4)Google Scholar, he is right by his own extremely inclusive definition: to believe in human rights is necessarily to attach some meaning to the torture of a human being. But this, of course, is simply to define morality as religion—a move that makes Perry's a much weaker claim than it first appears, and one that veers wildly from what we generally understand to be religious. I would say instead that there is a border between the moral and the religious, and that we cross it when we cease talking about meanings that emerge from our relationships with others, and begin talking of a realm beyond with purposes of its own. Thus the golden rule is a moral idea, not a religious one. I discuss this in more detail in Blumenson, , Rights and Religion at 722–24 (cited in note 3)Google Scholar. Compare Dewey, John, A Common Faith (Oxford U Press, 1934)Google Scholar (arguing that we should forsake both supernaturalism and materialism while retaining the “religious impulse” to realize the ideal possibilities in ourselves and society).

74. The clear implication of Perry's thesis, applied to abortion, is this: If the only basis for believing that every human being is entitled to certain moral rights is a religious cosmology, then the only way to decide whether a fetus is similarly entitled is to seek religious guidance—to ask whether a fetus, also, is a “child of God,” in Perry's terms. This would not in itself resolve the abortion issue, because rights are not necessarily absolute: even the right to life does not trump considerations of self-defense, national defense, or, according to some governments, deterrence of crimes. But it would rule out all secular arguments regarding the moral status of a fetus. So Perry's view implies not merely an expanded role for religious argument in the public square. It implies that both courts and legislators have no honest alternative but to decide and justify this threshold question on religious grounds.