Rights as Protectors of the Capacities for Action:

A Political Theory of Rights

by Kevin Jonathan Elliott II Excerpts from a thesis submitted for consideration to receive Departmental Honors in the Political Science Department at the University of California, Los Angeles. Advisor: Professor Andrew Sabl Thesis Program Director: Professor Michael Thies ABSTRACT

Rights as Protectors of the Capacities for Action: A Political Theory of Rights

Rights theory today lacks an adequate theoretical foundation. This thesis suggests a foundation for a political theory of rights based on the unprejudiced promotion of human action. The theory promotes action by protecting the necessary capacities for action with rights. Understanding rights as protectors of capacities ultimately creates at least two broad categories of rights deriving from the two necessary capacities for action. The categories are autonomy rights and welfare rights. The theory also clarifies the controversial rights status of animals and the incapacitated who we see as having rights in proportion to their actual or possible capacities.

Key Words:
Natural rights, welfare rights, autonomy, animal rights, rights of the incapacitated.

Political Theory

Rights as Protectors of the Capacities for Action:

A Political Theory of Rights
ABSTRACT

Rights as Protectors of the Capacities for Action: A Political Theory of Rights

Rights theory today lacks an adequate theoretical foundation. This thesis suggests a foundation for a political theory of rights based on the unprejudiced promotion of human action. The theory promotes action by protecting the necessary capacities for action with rights. Understanding rights as protectors of capacities ultimately creates at least two broad categories of rights deriving from the two necessary capacities for action. The categories are autonomy rights and welfare rights. The theory also clarifies the controversial rights status of animals and the incapacitated who we see as having rights in proportion to their actual or possible capacities.

Key Words:
Natural rights, welfare rights, autonomy, animal rights, rights of the incapacitated.

Political Theory

Introduction
Everyone talks about rights these days, but nobody has a very good idea about where they come from. This is a fairly important question because where rights come from affects what kinds of claims can be called rights and who can be said to possess them. There are two main ideas of where rights come from but they both leave something to be desired. One is far too restrictive of what and who can possess rights and the other is too permissive. The theory of rights developed in this thesis suggests a new way of thinking about the source of rights that combines strengths from both of the dominant understandings. Specifically, it makes sense of the gulf between classical natural rights theory and the developing understanding of what constitutes a right. Classical natural rights theory makes no allowance for rights like those to health care or to the infamous periodic holidays with pay (United Nations, Art. 7(d)). Theorists partial to this view would likely call these topics legitimate issues of public policy but not of individual right. Rights concern things like liberty, property and contracts, they would say. Any attempt to expand rights beyond the realm of personal autonomy is derided as a misuse of the term right. There is immense opposition to this highly restrictive idea of rights. Modern rights manifestoes, most notably the Universal Declaration of Human Rights and the even more inclusive International Bill of Human Rights, expand the concept of rights far beyond the classical understanding. They explicitly assign human beings rights to freedoms and treatment that are absent from the classical theory. Indeed, the International Bill of Rights includes the right to periodic holidays with pay (ibid). This progressive view is far from marginal; many thinkers take these international rights manifestoes as the basis for thinking about rights due to their vast international legitimacy.

Political Theory

The discrepancy between these views stems from their theoretical foundations. The classical natural rights theory is indirectly founded on the choice theory of rights. Choice theory assigns rights to those with the capacity for choice. Only those who can make meaningful choices based on a rational thought process are legitimate holders of rights. In contrast, the modern understanding of rights is by and large based on the interest theory of rights. Interest theory ascribes rights on the existence of certain interests. Since every human being can be said to have a profound interest in good health, for example, the right to health care is a human right. These traditions both have their flaws. Choice theory assigns rights on the basis of choice because it identifies choice with human nature. This constitutes a very narrow idea of human nature and consequently gives rise to a very impoverished theory of rights. Interest theory, on the other hand, may water down the meaning of rights by assigning them too widely. Some even speak of the rights of works of art or of trees. Attempts to exclude such absurdities often result in a theory of rights based on needs which itself fails due to the impossibility of impartially defining a need.i This disagreement can only be resolved at the level of foundations because that is the source of it. The theory of rights developed here reaches beyond classical natural rights theory at the same time that it incorporates natural limitations that the interest theory does not. The theory of rights focuses on the capacities for action in the same way that the choice theory underlying classical natural rights focuses on choice. Choice theory, of course, is concerned exclusively with the capacity for choice. The capacities theory disputes the obsession with choice by shifting the focus to action. Instead of protecting only the capacity for choice, rights are held to protect the essential capacities for action.

Political Theory

Section 1 develops a more inclusive theory of rights which focuses the capacities for action. Section 2 applies this theory to controversial cases to better understand its implications.

1: The Theory of Rights as Protectors of the Capacities for Action

This section articulates a framework for thinking about rights based on the unprejudiced promotion of human action. It seeks to answer the question of what rights are necessary for people to act in pursuit of whatever aims they may have.

1.1: The Theory

The following theory of rights is political. By political, I mean roughly what John Rawls does as relating to the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation (Rawls 1999, 6). This description is meant to distinguish a political theory from general moral conceptions or theories whose dictates are said to hold for all kinds of subjects ranging from the actions of individuals to the law of nations (Rawls 1985, 225). Essentially, political theories should be limited to and exclusively concerned with that to which persons with different ideas of the good can agree. They should not take controversial metaphysical positions and should incorporate any metaphysical positions transparently. A theory that is political in this way is one with relevance in many different sociopolitical contexts. Rights as protectors of capacities uses what Jack Donnelly calls a constructivist approach to limit the role of rights in a wider moral theory.ii This approach clarifies that the capacities theory of rights is not a foundation for a moral theory, but only a rights theory. This clarification avoids the critique of Joseph Raz regarding the failure of rights-based moralities.iii The constructivist idea views rights as an essentially social institution aimed at realizing a moral vision of human nature. Human rights aim to establish and guarantee the conditions necessary

Political Theory

for the development of the human person envisioned in the underlying moral theory of human nature, thereby bringing into being that type of person (Donnelly 1985, 31). Thus rights are assigned according to a particular vision of human nature and seek to maximize the possibility that the vision will come to pass. When societies embrace particular rights theories, they accept the moral vision underlying it as a social goal. The particular rights theory does not determine that vision, nor does it exhaust the ways in which societies seek to realize their moral visions. The contextualized role of rights is simply that they serve to realize a vision of human nature. It is therefore vitally important that any theory of rights provide a defensible substantive theory of human nature if it is to provide a solid systematic foundation. The constructivist approach to rights acknowledges that the human nature that grounds human rights is a moral posit, an essentially moral account of human possibilities (ibid). This aspect of the constructivist approach avoids the danger of running afoul of the is-ought controversy.iv Our discussion explicitly takes place entirely in the moral or ideal realm and does not seek to divine ethical principles from factual circumstances. Rights are constructed in accordance with a substantive theory of human nature that, in the present theory, attempts to be political in a Rawlsian sense. Insofar as the theory of human nature is defensible, the theory of rights derived from it ought to be as well. The substantive theory of human nature that will provide the vision referred to by Donnelly is the minimal one of Alan Gewirth. Gewirths substantive theory of human nature is in fact a theory of human action composed of an analytic portion and a logical proof portion. (The current theory only makes use of the analytic portion, for reasons to be discussed.) Gewirths analysis finds all human action must necessarily involve what he calls voluntariness and purposiveness.

Political Theory

By an actions being voluntary or free I mean that its performance is under the agents control in that he unforcedly chooses to act as he does, knowing the relevant proximate circumstances of his action. By an actions being purposive or intentional I mean that the agent acts for some end or purpose that constitutes his reason for acting; this purpose may consist in the action itself or in something to be achieved by the action (Gewirth 1978, 27).

Together, these characteristics make up the generic features of action which are present in the whole genus of action. No action is possible without both of these elements. It therefore follows logically that the capacities to act purposively and voluntarily are also essential to all human action. This analytic theory of human action is minimal and does not aspire to transcendent truth. The theory is minimal because it does not attempt to capture all aspects of human action, nor all of human nature. It focuses exclusively on the essential characteristics of action. It is also minimal because it does not describe all aspects of action but merely the conceptually necessary parts. Although these characteristics are essential, they describe not transcendent truth but rather logical necessity. Action does logically require both these aspects and their corresponding capacities. This minimalism is in line with the political aims of the capacities theory of rights. This theory rejects the substantive portion of Gewirths theory because it includes a hidden assumption about the value of action. The current theory makes the same assumption explicitly. Gewirths substantive argument is a logical proofv arguing that every action necessarily involves an agent claiming rights to the protection of the capacities for action. Yet the proof is premised upon the assumption that action is an end with real moral worth and ought to be respected. The capacities theory makes this assumption explicitly, yet not without defense. It may not be particularly controversial to claim that human action should be respected. A world that has human action in it is probably better than one without it. It can be countered that if human life is sufficiently evil and corrupt that a world without it is better. The metaphysical position taken here is that the very possibility of action allows for the eventual

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triumph of good. But there is little in the way of logical proof or solid argumentation that can establish that action is good. It is an essentially metaphysical position.vi If we explicitly assume that action is good and accept Gewirths analysis of the generic features of action, then we come to the conclusion that the capacities to act purposively and voluntarily ought to be protected by rights. In this scheme, the two capacities give rise to two categorically different sets of rights. The capacity allowing for voluntariness is the capacity to choose and gives rise to autonomy rights. To do something voluntarily is to choose to do it. The capacities are the same, but the term choice is less cumbersome. For reasons to be explored below, almost all of the familiar, legally recognized rights are autonomy rights. These include things like the right to free speech, habeas corpus and the right to due process. What all of these rights have in common is that they protect agents autonomy or independence. Autonomy is the central value being promoted by autonomy rights. They allow agents the ability to make free, voluntary choices. In many cases they are essentially negative rights, in that they proscribe certain actions but generally do not empower others. The capacity to act purposively, or the capacity to value ends, gives rise to welfare rights. Again, the capacity is renamed for simplicitys sake. To act purposively is to descry value in some end. Therefore, the capacity to act purposively is the same as the capacity to value ends.vii The specific welfare rights created are generally familiar but somewhat contentious. They include things like the right to health care, the right to education and the right to unemployment insurance. They are rights generally associated with the welfare state, hence their title. The capacity to value also creates a right I would like to call the right of consideration. This is the most fundamental welfare right and guarantees that the impact of particular social

Political Theory

decisions on the welfare of individuals is taken into account in the making of that decision. The right would entail formal consideration of the welfare impact of social decisions, whether they are made by government or private entities. This accounting could be discharged by thorough impact assessments of the likely outcomes of construction, industrial, agricultural, social, medical or any other activity. A decision maker could not simply assert that she had considered the impact of a decision and act as she would like to anyway. The system of consideration would require detailed records of how certain kinds of decisions are made. Review of such records would reveal whether fair consideration took place. The difference between this system and the current one is that gross violations would be not be considered merely offenses worthy of recompense, but also violations of right. Moreover, they would outlaw abuses before a body of law is developed to deal with them, provided that the rights are protected constitutionally. If the facts demonstrate that an entity engaged in any course of action without due consideration of its impacts on individuals welfare, the case could be decided in favor of the hurt party with reference to welfare right rather than a specific law. If individuals could prove that their welfare was not considered or was systematically discounted they would have proved a violation of their right and would be entitled to recompense. This most basic welfare right does not require the provision of any kind of good. Instead it involves simply an entitlement to due consideration. Subsequent rights emerge as a result of duly considering what is necessary for the specific welfare of the human animal. At a minimum, human beings need health care, education and certain kinds of social insurance in order to adequately act in pursuit of their goals. Note also that these rights would require that (rightsprotecting) government see to their provision, not that government provide them. For example, the right to education does not entail a right to a liberal arts education or a technical education or

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even a formal education. The right requires that human beings have the opportunity to receive the education required to be effective actors in the world. If traditional, informal forms of education are sufficient for an individual to reach this potential, they would meet the requirements of the education right. Notice that welfare rights do not guarantee that individuals enjoy high levels of wellbeing or that they use their empowerment to pursue noble ends. Similarly, autonomy rights do not directly create autonomy or force its exercise. It is almost surely impossible to forcibly create these characteristics. Instead, welfare rights specifically seek to secure the basic necessities for the exercise of human action by individuals, so that each individual has the ability to pursue a robust set of ends that extend beyond subsistence. Notice also the different prepositions that the two categories of rights utilize. Autonomy rights are generally rights from particular kinds of treatment; they are largely negative rights. Welfare rights are to consideration at the very least, and to different kinds of social services when they can be supplied; they are by and large positive rights. These categories parallel the two different understandings of liberty detailed by Isaiah Berlin (Berlin 2002, 168-181). While one can rewrite these rights in different ways to obscure or clarify this distinction, it will remain. Autonomy rights are generally about non-interference while welfare rights are generally about minimal empowerment to act. It may be wondered why the promotion of action makes any sense as a goal of a rights theory. After all, rights are traditionally held to be about the regulation of individual liberty. Yet in Gewirths analysis of human action, we found that both of these capacities underlie every action. If a theory of rights focuses on only one set of rights to the exclusion of the other, then it compromises one half of the necessary capacities for action. Such exclusion would

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systematically undercut the ability of individuals to act meaningfully. It is only if both sets of rights are honored in a rights theory that the theory systematically enables human action and is fundamentally complete. Protecting these capacities with the mechanism of rights facilitates any kind of action in which human beings see fit to engage. It actively promotes human action in an unprejudiced way. Rights are not given only to promote political activity or economic activity or religious activity. In this theory, rights promote any type of activity. The unprejudiced promotion of action is the goal of enabling action or activity regardless of its end. The capacities perspective also allows us to realize as wide a set of particular rights regimes as possible under a meaningful general theoretical framework. Donnelly reminds us of the moral function rights can perform in realizing a moral vision of human development. Under this rights framework, there is much room for the tailoring of rights regimes to suit different cultural understandings of ideal human development. So long as the broad strokes hold to the theoretical framework outlined here, the specifics of the rights regimes created are not important. This inclusiveness is in line with the political aims of the theory. To be sure, the claim that capacities ought to be protected by rights is an essentially metaphysical point. In holding with the commitment to transparency above, this fact is freely admitted. We have explored an argument for thinking of rights in this way that centers on the necessary components of action. Yet this unfamiliar view of rights as protectors of capacities fits with existing rights theories better than we might expect from the above description. Thinking of rights explicitly as protectors of capacities in fact follows an implied precedent going back to the foundation of natural rights theory.

1.2: The Tradition of Rights as Protectors of Capacities

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The view that essential capacities ought to be protected by rights is incorporated into the most widely accepted modern conception of human rights. The definitive work of modern rights is the Universal Declaration of Human Rights. The Declaration and the human rights idea have achieved a level of political and legal acceptance that Louis Henkin calls universal (Henkin 1989, 13-15). Henkin also traces the lineage of the international idea to the natural rights theory of John Locke (ibid, 12). It is in this tradition of natural rights that we find the capacities perspective. Natural rights theory hides a capacities perspective. The theory supposes that human beings possess rights simply by dint of their humanity; it claims that it is in the nature of human beings to possess rights, hence, natural rights. Yet if human beings possess rights as a part of their nature, a fair question is: what about human beings makes them worthy of rights? H. L. A. Hart answers that it is the moral capacity of choice. Hart argues that if there exist any moral rights at all, there is at least one natural right in the equal right to freedom. Hart believes in the existence of natural rights and tries to show that their existence is implied by the very notion of moral rights.viii Yet Harts defense shows that natural rights are not in fact natural but instead are based on the conditional possession of a capacity. Hart makes this conditionality explicit where it has before remained obscure.
If there are any moral rights at all, it follows that there is at least one natural right, the equal right of all men to be freeI have two reasons for describing the equal rights of all men to be free as a natural right; both of them were always emphasized by the classical theorists of natural rights. (1) This right is one which all men have if they are capable of choice: they have it qua men and not only if they are members of some society or stand in some special relation to each other. (2) This right is not created or conferred by mens voluntary action (Hart 1984, 77-78, original italics).

Here we see that what Hart describes as a natural right is in fact a conditional one. In claiming it to be natural, he means that men have it qua men, that is, as a member of the human race. Yet this universalistic statement is immediately undermined in the first reason for describing the

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equal right to freedom as a natural one. Hart says there that all men have the natural right if they are capable of choice (my italics). He makes the possession of rights conditional upon having the capacity to choose. He is consistent with this position later when he categorically denies rights to such choice-less creatures as animals and babies (ibid, 82). The only way to reconcile the conditional statement with the universal statement is to assume that Hart identifies membership in the human race with the possession of the capability to choose. Thus natural rights theory as represented by Hart reveals its favored attitude toward this particular moral capacity. The problem with Harts belief is that any number of things can be used as criteria for what identifies one as a human being.ix Martha Nussbaum attempts an exhaustive list of these characteristics.x Cultures around the world identify them differently. Even within the Western tradition, there has long been debate about what separates human beings from the rest of the natural world. Although the capacity to choose has a long history of privileged position in the West, especially in liberal theory, it is not exhaustive of the generic features of action. If Harts theory captures the central tenets of natural rights theory, then natural rights theory is based not on the basic (and vague) fact of being human but rather on the conditional possession of a particular capacity. The latter view is both radical in natural rights theory and unavoidable. It is radical because it strips away the hazy veneer of natural rights and puts a name to what is implied to be human nature. Classical rights theories identify the capacity to choose with human nature and make the promotion of choice capacities their sole goal. A better name might be autonomy-maximizing theories of rights. The capacities perspective is unavoidable in natural rights theory because all rights theories must necessarily include a theory of human nature. Theories of human nature generally

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focus on the essential characteristics of human beings, or on what separates us from other animals. Almost anything that fits these categories is going to be a capacity. Our theory focuses on the capacities allowing for human action.xi We have seen that the theory that undergirds classical natural rights doctrines focuses on the capacity for autonomy. This theory of human nature is the liberal theory of human nature. The liberal theory of human nature focuses on autonomy. John Kekes, a critic of liberalism, argues that the most important strands of liberal theory are defined by the pursuit of autonomy (Kekes 1997, 4). This is because such theories view the capacity for choice to be the definitive characteristic of human beings. It is this disagreement between liberal rights theories and rights as protectors of capacities that explains how two theories that both include a capacities perspective can come to systematically different understandings of what constitutes a complete rights theory. In the view presented here, any theory of rights based, as natural rights theory is, on a non-action focused liberal theory of human nature is a failure. Liberalism disrespects purposiveness and the capacity to value ends. If the goal is the promotion of autonomy for autonomys sake, then there is no problem. Autonomy rights promote autonomy and therefore the theory is complete. But if a goal of the theory is the unprejudiced enabling of human action, as most liberal theorists would likely agree, then focusing on autonomy to the exclusion of value is folly. Unprejudiced promotion of action stands behind the liberal traditions central concerns of pluralism and tolerance. To deny the goal of promoting action, the theory would have to give up its commitments to pluralism and tolerance and enshrine autonomy as the sole goal of the theory. If it did so, it could no longer realistically claim the same basis in a sound theory of human nature that it might have argued for before. Autonomy is not enough even for a minimum

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understanding of human action; minimally, purposiveness must be respected as well. It follows then that rights theories based on a liberal notion of human nature will be fundamentally incomplete.xii

2: Controversial Cases
Thinking of rights as protectors of capacities for action clarifies the rights status of controversial cases. In the following sections I apply the capacities perspective to animal rights, and the rights of the incapacitated. I argue that these groups should be thought of as rights holders in direct proportion to their remaining or existent capacities.

2.1: The Case for Animals as Rights Holders

The capacities theory of rights holds that the possession of rights is conditional upon the possession of particular capacities: those necessary to human action. If we value action normatively, then we must also value the capacities giving rise to it. Any entity possessing these capacities would also possess the rights needed to protect them. The possession of rights can be said to depend entirely on the presence or absence of the capacities for action. On this account, there is no reason to suppose that rights apply only to human beings. The key normative assumption that human action ought to be encouraged does not limit the types of entities that may be said to act in a human way. The adjective human in human action is not meant to be a biological category, but rather a moral one. Gewirths analysis of action does not require that the entity capable of purposive and voluntary acts be biologically human. It merely requires that the entitys actions involve both of these elements. Acting in a human way therefore requires that such action be composed of similar elements as human action, not that they be undertaken by humans. It is true that when we talk about human action we generally

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mean (biological) humans. But such action could just as well be taken by any being with the capacities required. The focus on action takes the spotlight off human beings exclusively. In keeping with the theme of action, it is the complexity of human action that differentiates us from animalsxiii and entitles humans to a greater set of rights. Human action can involve levels of overlapping complexity that animal action cannot. But this difference is one of degree, not of kind. This incrementalist approach differs from that most often taken in philosophical treatments of animals moral status. Descartes is often thought to have set the modern standard for thinking about animal behavior by seeking to create a bright line between humans and nonhuman animals. Properly understood, Descartes thinking about animals was much more cautious than most modern commentators make it seem. He was no brute to the brutes.xiv Rather Descartes himself was cautiously agnostic on the question of animal feeling by not adamantly insist[ing] that animals could not feelbut[showing] that there are no irresistible reasons for asserting that they do (Harrison 1992, 227). This ambivalence fails to create a clear distinction between human and animal.xv As Descartes recognized, the philosophical understanding of animals moral status has definite limits. It is clear that at least some animals have moral status. Not since the 19th century has any serious thinker denied it. Yet the question of whether they actually possess rights is highly contested. H. J. McCloskey seeks to understand why anyone would specifically attribute rights to animals and uncovers an important point by examining the differences among species. He starts at the lowest forms of life, amoebas, sea urchins, and jellyfish. Nobody seriously advocates rights for these types of life, and McCloskey notes that this is because we cannot anthropomorphize them (McCloskey 1975, 411). It is only with creatures at a particularly high

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level of evolutionary complexity and upon which we can truly project human traits such as human consciousness and self-consciousness, self-identity, reflection, feeling, etc. that questions of animal rights are said to apply (ibid). It is with animals such as dolphins, chimpanzees, apes, gorillas in particular, and to a lesser degree, horses, dogs, cats, that this is felt, even though mice, rats, pigs, sheep, cattle show many of the same traits (ibid). The account here focuses on dolphins, chimpanzees and gorillas due to the wealth of empirical evidence that confirms their possession of human-like traits. McCloskeys inquiry illustrates that some humans think of animals as rights holders because they anthropomorphize them. It may very well be that humans do this to make animal behavior intelligible when it is in fact not. However, it may also be the case that we correctly see something familiar in the actions of animals, something human-like. I suggest that the latter is correct and that we recognize in animal action essential elements shared with human action. It is because the actions of advanced animals share these features with human action that we assign them rights. Empirical research suggests that animal capacities differ not so much in kind as in degree from those of humans. Important findings in the field of cognitive ethologyxvi establish that chimpanzees can learn language (see Gardner and Gardner 1969 as well as Laird 1972) and that chimpanzee cognition includes the capability to engage in symbolic thought as well as to perceive the self as an object (Meddin 1979, 99). Similar conclusions have been reached regarding dolphins, whose clicks may have a language-like function (Erber and Simo 2004, 381) and who can conceive of themselves objectively (Reiss and Marino 2001, 5937). Language ability and self-conceptualizing mean that these animals can undertake profoundly complex

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action. Their activities in the world are not the product of simple stimuli response. They are created by complex thought processes that can only be described as human-like. Other findings reinforce this perception. Tool use behavior among chimpanzees and now gorillas implies a high capacity for autonomous action and abstract thought (Goodall 1998, 2184 and The Australian 2005).xvii The formation of alliances within social groups amongst dolphins and advanced primates is a complex social interaction seen elsewhere only in humans (Connor, Smolker and Richards, 1992, 987). Taken together, these complex behaviors speak to advanced capacities for action. The long-time observer of chimpanzee behavior Jane Goodall sums up the findings thusly: A succession of experiments clearly proved that many intellectual abilities that had been thought unique to humans were actually present in nonhumansparticularly in the nonhuman primates and especially in chimpanzeesalthough in a less highly developed form (Goodall 1998, 2184). Thus empirical findings suggest a continuum of advanced capacities from humans to at least some animals. Animal action does not involve the same depth and complexity of purpose or meaning as human action can, but it contains the same necessary elements of purposiveness and voluntariness. That animals have ends is self-evident; whether they aim at food, a sexual mate or social activity of various sorts, animals act with ends in mind.xviii (Some would argue that most human activity involves these same ends.) That animal action is voluntary is a somewhat stronger claim and requires explanation. Humans must be wary of speciesistic ethnocentrism in assessing the voluntariness of animal action. It is self-evident that no one forces an animal in the wild to move its hoof or seek its food. But this fact may not be enough to conclude that the animal acts by its own voluntary will. Here we engage a central problem in cognitive ethology and one identified by Descartes

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that has to do with the inability of animals to adequately express themselves in language. Arthur Margolin suggests that attempts to understand animal cognition through an exclusively linguistic lens might miss meaningful expression that takes place non-linguistically. He charges researchers with a form of, to use Singers term, speciesism whereby the linguistic thinking of Homo sapiens becomes the archetype for all legitimate higher thinking. We doubt the ability of animals that cannot express themselves linguistically to act voluntarily. This doubt may be founded on an unprincipled favoritism towards linguistic thinking. Margolin persuasively argues that language does not even exhaust the meaningful communication between human beings, let alone all of nature. He uses the example of music to illustrate how even human beings can think in non-linguistic ways that are deeply meaningful. A composer, he says, makes music by thinking in it (Margolin 1985, 68, italics added). Asking a composer to explain his music in words may elicit a wide variety of responses, usually adding up to very little, diminishing, often, to nothing at all because it is a different sort of communication (ibid). This example shows that meaningful thought can occur in non-linguistic mediums. Such non-linguistic thought could explain how non-humans manage to act in complex ways while they lack language. Therefore, it may not be that they do not think about their actions, but that they simply do not think about them in words. Nonetheless, we have seen that some animals are capable of language and think in familiar ways. This should be enough to suppose that their action is not fundamentally different from ours. Yet even if this were not the case, we would still have reason to think of them as rights holders in light of Margolins objection because they act in complex ways. Instead of trying to get into animals heads, we could simply scrutinize animal action for indirect signs of meaningful thought. Observations of complex action would suggest complex thinking. The

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more complex the action, the more complex the thinking that leads to it, no matter what form that thinking takes. The empirical research on animal behavior suggests that some animals actions are sufficiently complex that they have similar yet less complex capacities for action. Although we cannot know for sure whether animal action is voluntary in the full sense of the term, we have some reason to think that it is. Similarly for the capacity to value ends. This reason is based on the fact that chimps, dolphins and gorillas can think in abstract and symbolic ways and engage in complex social interactions. Since animals likely have these capacities, they possess rights. Our theory does not allow flexibility here. Rights are wholly dependent upon the existence of the capacities for action. No entity possessed of the capacities for action may be deprived of rights. Rights status is a sufficiently important moral classification that denying rights to those that are entitled to them is unacceptable. If we have some reason to believe that an entity possesses the key capacities, then we cannot deny it rights. Where doubt exists, it is far more acceptable to ascribe rights to a group whose capacities are questionable than it is to inadvertently deprive a deserving group. Consider again McCloskeys insight. The reason we think of only the most advanced animals as rights holders is because their capacities come nearest to those of those of humans. No categorical line can be drawn between man and animal (beyond the biological) because capacities exist on a continuum. Yet this understanding also puts animals and humans on this continuum at different places. Even if animals have rights, no one suggests that they have the right to vote. If we turn to an understanding of rights as protectors of capacities, then there is reason to assign animals a set of rights similar to ours in origin though more limited in content. This limitation might mean

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that animals possess few if any real autonomy rights. Animals welfare rights might similarly be degraded to the degree that their ends-valuing capacity is degraded. A similar yet limited set of rights emerges logically from considering animal rights in terms of consistency.xix If we consider the moral status of animals from the capacities perspective, consistency demands that animals possess rights. This is because consideration reveals that they possess capacities similar to those of human beings, upon which we found our theory of rights. Yet consideration also shows that animal capacities differ markedly from human ones in terms of complexity. This means that the set of rights animals possess should be less complex, that is, contain fewer, rights than those of humans. Their rights should follow from their capacities. Recall for a moment Harts objection to animal rights. He claims that animals cannot have rights because they cannot exercise them in a meaningful way.xx Remember also that the example he used to illustrate this point was the special right of promising (Hart 1984, 82). One can respond that animals do not exercise special rights like Harts example of promising because it is absurd to think that they possess those kinds of rights. That an animal cannot engage in promising or contracting does not entail that it possesses no rights at all. It only means that it does not have those particular kinds of rights. Animals possess the rights that correspond to their capacities. Specifically, they possess rights in accordance with the level of development of their necessary capacities for action. Both capacities are held to exist in animals, but to a lesser degree than in human beings. The rights that would attend the most advanced creatures are roughly going to be the same sorts of rights we accord them now. They certainly have rights to humane treatment. Humane treatment rights include both autonomy and welfare rights. Autonomy rights would include certain minimal

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freedom of movement and self-determination. Welfare rights would require the opportunity to secure sustenance and to have human political and moral decisions take damage done to them into account, even if they live in the wild. One absurdity that is to be avoided in the consideration of animal rights is the idea that human beings need to go out into the wild to secure the rights of animals. That we may have this obligation is based on two misconceptions. The first is the assumption that humanity has a paternal role to play in the natural world. Outside of a religious context,xxi no right empowers us to infringe on the basic right of self-determination among animals by forcing our aid upon them. The second misconception conflates the status of animals in the wild with domesticated animals and animals in captivity. Humans incur special obligations to animals under their exclusive control. Animals in captivity are deprived of access to the natural resources with which they could perpetuate themselves. They are entitled to advanced care precisely because we have undertaken their care and owe them our best efforts. Keep in mind that these requirements apply only to the most advanced animals that we have identified as rights holders. The relationship between humanity and rights-holding animal species created by the capacities perspective is one based on discreteness and respect. We are not the lords of animals, entrusted with their care. We are co-habitators of this planet who exist in a community distinct from theirs. The separateness of our communities precludes activist intervention under normal circumstances. Activist intervention may be justified under certain conditions. If the very existence of the community or species were threatened by some external force excluding man, such as heavy pressure by predators, then action would be justified in saving it. Under normal circumstances, we have no business interfering with such normal occurrences such as predation. They are the

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fixtures of life for these animals.xxii We are obligated to act only if the existence of the community is threatened. Of course, the largest threat to the existence of the advanced rights-holding species today comes not from nature, but from humanity. They are not endangered by too many predators. They are threatened by man and his activities. Deforestation, poaching, pollution of the oceans and climate change all constitute intrusions into and destruction of their habitats. These incursions degrade their ability to make a living from their natural environments. Insofar as we are responsible, we owe them an enormous obligation of protection. The special condition of anthropogenic environmental degradation requires greater attention and protection for the rights-holding species. We discharge this duty by preserving their habitats and fighting poaching as much as we can. Despite this obligation, humans ought not to immediately infringe the self-determinationxxiii of these animals with activist intervention. Only the threat of imminent extinction could justify, say, the mass captivity of the remaining mountain gorillas in the wild. That animals possess rights does not necessitate that all humans become vegetarians overnight. Remember that the groups of animals possessing these advanced rights are limited to chimps, gorillas, dolphins and species closely related to them. The main food-animalscattle, pigs, sheep and chickensare sufficiently less capable of complex action that they do not possess the advanced rights of these other groups. While they surely are entitled to humane treatment, they are not entitled to expansive autonomy rights. Thus factory farming is almost certainly a violation of right, while free-range care and humane, painless slaughter are not. Another important distinction has to do with the fact that cattle, pigs, sheep and chickens are domesticated animals. Humans may treat domesticated animals differently from wild

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animals who are in captivity or not. I mentioned above that humans incur special obligations to animals in captivity and to domesticated animals because we have undertaken their care by depriving them of access to the natural environment from which they could make their living. This deprivation is purely a function of physical captivity for wild animals, but for domesticated animals it is a matter of deep conditioning. Domesticated animals are particularly dependent upon us because generally they cannot make their way in the wild. Since the capacity for autonomous living is highly diminished in these creatures, they have a correspondingly diminished set of autonomy rights. We need not respect the self-determination of dogs, cats and cattle the same way that we respect that of (wild) chimps, gorillas and dolphins. Again, these diminished animals surely deserve humane treatment, but their dependence requires an adjustment to their rights status.xxiv Much more could be said regarding the specific rights animals possess, but it is not the purpose of this discussion to complete such an analysis. The purpose here was simply to elucidate the reasoning behind why animal rights follow from the capacities perspective.

2.2: The Case for the Incapacitated as Rights Holders

Following the broad outlines of the previous discussion, we move on to the issue of the rights of the incapacitated. The incapacitated form a large and varied group. Any discussion using this imprecise term requires careful clarification. First of all, incapacitation here is discussed in terms of mental capacities only, because the capacities to choose and value ends are themselves mental capacities. Those confined to wheelchairs, ventilators or hospital beds who yet retain command of their faculties are not of our concern here. We include only those who have suffered or were born with ostensible brain injury, the developmentally handicapped and people in persistent

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vegetative states or deep comas. We also include the elderly whose capacities have diminished due to age or disease such as Alzheimers. Robert E. Goodin and Diane Gibson argue that the two broadest theories of rights do not adequately describe the moral situation of children and the incapacitated (Goodin and Gibson 1997). The two theories they examine are the choice theory and the interest theory. Each theory is named for the basis upon which it ascribes rights. Choice theory assigns rights based on an individuals possession of the capacity for choice. Interest theory assigns them on the basis of the possession of certain interests. In the first section, we identified choice theories with H. L. A. Hart and roundly rejected them for their insufficient support of human action. Goodin and Gibson similarly conclude that the choice theory is very poorly situated to offer any coherent picture of the rights of children or the incapacitatedas indeed, Hart himself reminds us.xxv Interest theory is perhaps more promising. Interest theories are those primarily concerned with the protection of interests through rights. On this account, it does not matter that right-holders are not in a position to assert rights or, indeed, even to conceptualize them as rights capable of being exercised. All that matters is that right-holders have interests to be protected by such rights (ibid, 188). This theory allows for those who cannot press for their own rights or claim them in a meaningful way to possess them nonetheless. All that matters is the existence of interests that are recognisable [sic] by others who are duly empoweredto press those claims on ones behalf (ibid). This is clearly a more fertile approach for the rights of children and the incapacitated since neither of these groups could push for their own rights yet both might have interests. The current theory incorporates the more inclusive understanding of rights from interest theory with an important element from choice theory, forming a hybrid of the two. In rights as

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protectors of capacities, it is not interests but capacities that make us worthy of rights. This focus on capacities is a value shared with the choice theory. The difference between ours and choice theory is about which capacities are the basis of rights. Choice theory takes too limited a view to account for the basic promotion of human action by assigning all value to the capacity to choose. By expanding the purview of the minimally necessary protected capacities, our theory provides a more inclusive understanding of rights. This inclusiveness parallels the flexibility granted by basing rights on interests. Interest theory seems to do a pretty good job explaining why we can speak of children as rights holders. Although young children do not truly have will, desire, preferences or plans of their own, they can still be thought of as possessing an interest in enjoying an open future (ibid, 192). This interest creates a right to things that might help that future, such as education or medical care. The clear premise of this argument is that a childs interest in being educated stems from her having a future of her own to forge. Her rights largely exist to see a potentiality for action through to fruition. This promise for the future does not exist in the incapacitated. Barring a change in their abilities,xxvi the groups that we have included in this category do not have the same idea of an open future ahead of them.xxvii Therefore they do not have the interests in future functionality that most children do. What interests are there to be protected if a person has no future as a meaningful being? Goodin and Gibson claim that there are none and that this simple fact means that the interest theory of rights fails in the case of the incapacitated. Since this failure occurs along the same line of reasoning that led to the conclusion that children have rights, Goodin and Gibson declare the reasoning faulty and that therefore no theory of rights can give an adequate

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account for the rights of these groups. If it fails for the incapacitated, they argue, it must fail for both. The authors go too far here for two reasons. First of all, diminished capacities does not mean no capacities and a limited future does not mean that one has no interests. Someone who has suffered profound brain damage may seem a lost or broken person, but he or she could also simply have a less complex set of ends and a correspondingly less complex set of autonomous choices that he or she may be able to make to attain them. This scaling down of abilities does not change the fact that a being possesses them. It likely even makes the use of their abilities less difficult to foster. Agnieszka Jaworska argues that seriously impaired Alzheimers patients can still engage in meaningful action. Her discussion attacks Ronald Dworkins argument that one must be able to connect his or her actions to a meaningful life narrative in order to be, in our terms, a capable actor. Jaworska rejects this claim, using numerous examples to illustrate how incapacitated people still retain semblances of capability. One of her examples is the case of Mrs. Rogoff, an elderly woman whose independence had been destroyed by the onset of dementia. Her incapacitation required her family to hire a nurse, Fran, who takes care of Mrs. Rogoff the way one would take care of a child (Jaworska 1999, 106). Before her incapacitation, Rogoff took special pride in her culinary abilities and in her diminished state would become agitated and upset when Fran usurp[s] the mastery of the kitchen (ibid, 119). Instead of fighting Rogoffs agitation, Fran arranges small make-work kitchen tasks to mitigate it (ibid, 120). These tasks validate Rogoffs role as a capable actor, albeit one whose action has very real limitations. Jaworskas example illustrates how an incapacitated person may maintain a less complex set of ends achievable by a correspondingly less complex set of actions. She may not be able to plan and set new life goals or even maintain continuity with her old ones, but she still has some

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less complex ends. Her ability to value these ends must be respected and aided via rights, per our framework. Frans creation of simple tasks for Rogoff fosters her limited abilities with very little effort. Limited capacity for action is not no capacity for action. Nor is it reason to suppose that people so afflicted do not have rights. It simply means their set of rights is diminished in tandem with their capacities. Second, and perhaps more importantly, the status of being incapacitated tells us nothing about a persons true capacities. If rights are given solely on the basis of the existence of the mental capacities for action, then the rights status of the incapacitated seems to hang on one question: is he or she in there, behind the vegetative or uncommunicative mask? This question parallels the discussion of animal thought above. In that case, we concluded that complex action speaks to complex thought. If we witness complex action, we infer complex thought and the necessary capacities for action. Yet with the extremely incapacitated, we have little or no complex action to witness. Nonetheless, this does not mean that there are no capacities to be protected. Consider the case of Dr. Mark Ragucci. Ragucci suffered a massive double-hemisphere stroke and went into a deep coma. The most optimistic estimate was that he might be able to follow simple commands after a year of intensive therapy. It was assumed that the stroke caused so much damage that he would be permanently incapacitated.xxviii Yet during his coma, he later reported, he was somewhat conscious even when his doctors perceived no brain activity (Burton 2005). Ragucci also remembers being bothered by hearing nurses and doctors speak of him in the past tense and assert that he was in a persistent vegetative state. Inwardly, he was aware, even if outwardly he was a statue. Thanks in part to new methods of neurointensive care

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and a tough therapy regimen, Ragucci made a complete recovery. He has since resumed practicing medicine. What Raguccis case tells us is that we cannot know the answer to the question of capacity for sure, just as we could not about animals. Raguccis case functions much like the empirical research of animals did in our earlier discussion. Empirical research suggested that animals actions showed signs of high complexity. Raguccis case shows that the capacities for action can exist in the absence of any sign to the affirmative. After seeing the fully recovered doctor, Raguccis former doctor proclaimed that we know nothing of the brains ability to recover; medical studies concur that more could be done to meaningfully save the lives of stroke victims (ibid, Teasell et al. 2003). Although stroke victims are but a subset of the incapacitated, the lesson to be drawn from this discussion is that we cannot know for certain the actual status of the person inside an incapacitated body. We had every reason to think that Ragucci had ceased to exist as a person capable of action, yet he returned to tell us that even in his vegetative state, he was aware. This awareness makes him capable of action in the strict sense of the term, and therefore a holder of rights. The possibility of recovery is not necessary for a person to retain his or her rights status. Part of what makes depriving Ragucci of his rights seem morally odious is that he recovered to full use of his capacities to tell us that if he could have communicated, he would have been able to use his capacities. What kept Ragucci from using his moral capacities was a physical incapacitation. So far as is practicable, any moral theory must try to limit the role of non-moral influences like physical disability on its conclusions. Ragucci existed as capable actor in a state of physical disability. Based on our normative valuation of the capacities for action and the ultimate inability to know for sure whether a capable actor, strictly defined as one possessed of

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choice and valued ends, exists, we must conclude that the incapacitated should be thought of as holders of rights. A similar occurrence described by neurologist Oliver Sacks in his book Awakenings further illustrates why cases like Raguccis suggest we ought to think of the incapacitated as rights holders. The story relates how a group of individuals who suffered from a form of postencephalitic Parkinsons disease were temporarily cured of their immobilized and unresponsive state by the use of an experimental drug. These patients were considered hopeless before the intervention of the inquisitive Sacks; they were totally forgotten in their motionless and speechless state (ibid, 23, 14). They neither conveyed nor felt the feeling of life; they were as insubstantial as ghosts, and as passive as zombies (ibid). The experimental Parkinsons drug L-Dopa changed this desolate existence, at least for a while. The drug restored all of their capacities for action in dramatic fashion (ibid, 235). Like Ragucci, they came back from a state of total incapacitation to full functioning, as if waking from an extended slumber. Leaving aside that this respite was temporary, giving them that drug is not simply a matter of duty on our part; it is also due to them as a matter of right. Consider the situation if we did not think of it in terms of rights. There would exist a group of physically disabled people whose disability obscures their mental capacities. We undoubtedly still have moral duties to these people yet we withhold the category of rights from them. Among the duties we have to them is to grant them aid that would restore their capacities. We think of that aid exclusively as our duty rather than as their right. This fine distinction is important for whether they receive that aid or not. For if that aid is a duty of ours, it must be balanced among all of our other duties. However if it is their right, it achieves a somewhat more pressing place in our moral reckoning. Either way, the situation is a kind of catch-22 for the

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person trapped by physical disability. All he or she has to do to claim their right is to signal, yet to be able to signal would obviate the need to claim their right. Being aware of this, we can spare them this conundrum by assigning them rights. Rights are possessed as a function a persons capacities. In the case of the incapacitated, it is a function of how sure we are that capacities exist or not. If the capacities for action do not exist, then neither do rights. Yet we must be sure that a persons capacities for action are not present to deprive them of rights. As I said above, rights status is a sufficiently important moral classification that denying rights to those that are entitled to them is unacceptable. If we have good reason to believe that an entity possesses the key capacities, then we cannot deny it rights. The point of Ragucci, Rogoff and Sacks stories is that even the best medical science cannot eliminate doubt as to when a persons capacities for action exist and when they do not. Because of this uncertainty, we must err on the side of giving truly diminished people rights so as to make sure that we do not accidentally rob a Ragucci of his. The specific rights of incapacitated individuals is not a topic explored here beyond the following limited commentary. Surely the incapacitated have rights to humane treatment as well as to all reasonable attempts to restore or establish functionality. For those born with incapacitation, contract and political rights may be said to never have developed. Trustees may not use these rights on the behalf of their principals because they never existed. For those who have suffered diminishment from a level of full functioning, such rights remain as artifacts of the capacities that existed before. Currently, we entrust these rights to designated trustees or those with the power of attorney per advance instructions. Yet following incapacitation, no new action may be taken using the rights of a disabled person by trustees. If and until new action is

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authorized, only past actions may be concluded within the purview of rights language. Stewards of the persons rights cannot become owners of those rights.

Conclusion
Rights are best thought of as protectors of the essential capacities for action. We explored the meaning of this statement, some of its implications and some arguments against it. Further use remains to be made of this theoretical framework. Its connection with the natural rights tradition makes it potentially useful for making sense of contentious yet widely appealing rights. The rights found in the international covenants on human rights are in many cases untraditional from the view of classical natural rights theory. Our theory connects the classical tradition with the modern progressive formulations. This connection with tradition makes our theory at once more familiar than it might at first seem as well as a good mechanism for making sense of non-traditional rights. This thesis only sketches the full implications of the capacities perspective. While clarifying where rights come from, it does not exhaust the possibilities for thinking of rights as protectors of the necessary capacities for action.

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Bekoff, Marc and Colin Allen. Cognitive Ethology: Slayers, Skeptics, and Proponents. In Anthropomorphism, Anecdotes, and Animals: The Emperors New Clothes? Eds. Robert W. Mitchell, Nicholas S. Thompson and H. Lyn Miles. Albany: State University of New York Press, 1997, 313-334. Berlin, Isaiah. Two Concepts of Liberty. Rpt. in Liberty: Incorporating Four Essays on Liberty. Ed. Henry Hardy. Oxford: Oxford University Press, 2002, 166-217. Connor, Richard C., Rachel A. Smolker and Andrew F. Richards. Two Levels of Alliance Formation Among Male Bottlenose Dolphins (Tursiops sp.) Proceedings of the National Academy of Sciences of the United States of America, vol. 89, no. 3 (Feb. 1, 1992), 987-990. Donnelly, Jack. The Concept of Human Rights. London: Croom Helm, 1985. Erber, Claudia and Sheila M. Simo. Analysis of whistles produced by the Tucuxi Dolphin Sotalia fluviatilis from Sepetiba Bay, Brazil. Anais da Academia Brasileira de Cincias, vol. 76, no. 2 (2004), 381-385. Gardner, R. Allen and Beatrice T. Gardner. Teaching Sign Language to a Chimpanzee. Science, New Series, vol. 165, no. 3894 (Aug. 15, 1969), 664-672. Gewirth, Alan. Reason and Morality. Chicago: University of Chicago Press, 1978. Gewirth, Alan. Why Agents Must Claim Rights: A Reply. The Journal of Philosophy, vol. 79, no. 7 (Jul., 1982), 403-410. Goodall, Jane. Learning from the Chimpanzees: A Message Humans Can Understand. Science, New Series, vol. 282, no. 5397 (Dec. 18, 1998), 2184-2185. Goodin, Robert E. and Diane Gibson. Rights, Young and Old. Oxford Journal of Legal Studies, vol. 17, no. 2 (Summer, 1997), 185-203. Gorillas tool up for behavioural advance. The Australian. 1 Oct., 2005, All-round Country Edition. World, pg. 12. Harrison, Peter. Descartes on Animals. The Philosophical Quarterly, vol. 42, no. 167 (Apr., 1992), 219-227. Hart, H. L. A. Are There Any Natural Rights? Philosophical Review, vol. 64 (LXIV), no. 2 (Apr., 1955), 175-91. Rpt. in Theories of Rights. Ed. Jeremy Waldron. Oxford: Oxford University Press, 1984, 77-90.

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Henkin, Louis. The Universality of the Concept of Human Rights. Annals of the American Academy of Political and Social Science, vol. 506, Human Rights around the World (Nov., 1989), 10-16. Humbert, Earl R. The Ought and the Is. Mind, vol. 72, no. 288 (Oct., 1963), se. 2, 581583. Jamieson, Dale and Marc Bekoff. On Aims and Methods of Cognitive Ethology. PSA: Proceedings of the Biennial Meeting of the Philosophy of Science Association, vol. 1992, Volume Two: Symposia and Invited Papers (1992), 110-124. Jaworska, Agnieszka. Respecting the Margins of Agency: Alzheimers Patients and the Capacity to Value. Philosophy and Public Affairs, vol. 28, no. 2 (Apr., 1999), 105-138. Kekes, John. Against Liberalism. Ithaca, NY: Cornell University Press, 1997. Laird, Charlton. A Nonhuman Being Can Learn Language. College Composition and Communication, vol. 23, no. 2 (May, 1972), 142-154. Margolin, Arthur. Language, Thought, and the Talents of Species. Perspectives of New Music, vol. 23, no. 2 (Spring Summer, 1985), 64-70. McCloskey, H. J. The Right to Life. Mind, New Series, vol. 84, no. 335 (Jul., 1975), 403-425. Meddin, Jay. Chimpanzees, Symbols, and the Reflective Self. Social Psychology Quarterly, vol. 42, no. 2 (Jun., 1979), 99-109. National Institutes for Health. U.S. National Library of Medicine. Medline Plus Medical Encyclopedia. Cerebral Hypoxia. http://www.nlm.nih.gov/medlineplus/ency/article/001435.htm Nussbaum, Martha C. Human Functioning and Social Justice: In Defense of Aristotelian Essentialism. Political Theory, vol. 20, no. 2 (May, 1992), 202-246. Nussbaum, Martha C. Women and Human Development: The Capabilities Approach. Cambridge; Cambridge University Press, 2000. Rawls, John. Justice as Fairness: Political not Metaphysical. Philosophy & Public Affairs, vol. 14, no. 3 (Summer, 1985), 223-251. Rawls, John. A Theory of Justice: Revised Edition. Cambridge: Cambridge University Press, 1999. Raz, Joseph. Right-Based Moralities. Rpt. in Theories of Rights. Ed. Jeremy Waldron. Oxford: Oxford University Press, 1984, 182-200.

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Reiss, Diana and Lori Marino. Mirror Self-Recognition in the Bottlenose Dolphin: A Case of Cognitive Convergence. Proceedings of the National Academy of Sciences of the United States of America, vol. 98, no. 10 (May 8, 2001), 5937-5942. Ristau, Carolyn A. Cognitive Ethology: Past, Present and Speculations on the Future. PSA: Proceedings of the Biennial Meeting of the Philosophy of Science Association, vol. 1992, Volume Two: Symposia and Invited Papers (1992), 125-136. Sacks, Oliver W. Awakenings. New York: HarperPerennial, 1990. Singer, Peter. Animal Liberation: A New Ethics for Our Treatment of Animals. New York: New York Review, 1975. Singer, Peter. Animal Liberation: Second Edition. New York: New York Review, 1990. Teasell, Robert W., Jeffrey W. Jutai, Sanjit K. Bhogal and Norine C. Foley. Research gaps in stroke rehabilitation. Topics in Stroke Rehabilitation, vol. 10, no. 1 (Spring 2003), 59-71. United Nations. Office of United Nations High Commissioner for Human Rights. International Covenant on Economic, Social and Cultural Rights. 16 December 1966. http://www.ohchr.org/english/law/cescr.htm

Jack Donnelly argues that to speak of needs beyond food and water is to introduce a moral vision into a rights argument. If the goal is to be as non-moral as possible, this constitutes a major failure. See Donnelly, 27-30. ii The term constructivist must be understood to differ from Rawls use of constructivism. iii Raz carefully argues for a pluralistic understanding of the foundation of morality as opposed to recent moral theories based on rights such as that of Ronald Dworkin (Raz 1982, 182). Razs argument is careful in that it does not preclude the possibility of a rights-based morality but rather attacks a few influential forms of it. iv The involvement of a substantive vision of human nature or ideal human development brings into consideration the isought controversy. The controversy is over the conflation of how things are with how things should be. Post-1936 thinkers...opposed the attempt to merge the normative sciences with the descriptive ones and to derive an ought from an is. They have demonstrated beyond doubt that the language and concept-formation procedures of a discipline such as ethics differ from that of a descriptive science such as physics (Humbert 1963, 581). Thus, there is a fundamental break between factual observation of material reality and judgments about ideal morality. This break must be minded in all political philosophy and rights theories especially. v The first step of his logical proof involves an agent accepting the statement, I must have freedom and well-being, as a result of these things being the generic features of action (Gewirth 1982, 403-404). Freedom and well-being are different names for voluntariness and purposiveness. The rest of the argument shows that if the agent accepts this first premise, he must accept that he has rights to both freedom and well-being, or autonomy and welfare. When the agent accepts in the first step of the argument that he must have freedom and well-being, it is obscured that he must have these in order to act. The practical consideration that an agent must have freedom and well-being to act does not mean that he or she has the right to it. That conclusion is reached by hiding the assumption that action is good. The only way that an agents requirement of freedom and well-being could give rise to rights is if there is a normative statement of the value of action. It is this assumption and statement of value that is missing from Gewirth. All the rest of his logical proof is based upon the assumption that human action is good and should be respected. I make this assumption clear in the text. vi John Kekes argues against this sort of position, saying that action also allows for evil (Kekes 1997, 24). Kekes critiques liberal theories for insufficiently addressing what he calls the prevalence of evil (ibid). He would argue that only good actions are good, and that human action should be respected only if it is good. His critique seems to suggest that a firm stance against evil is the only conscionable choice for an ethical theory, even if it means abandoning liberal theory. But how firm must one stand? An admittedly extreme form of Kekes position is unthinkable if taken to its logical conclusion in the worst possible scenario. In the worst possible situation, evil dominates and virtually every action taken is an evil one. If Kekes truly believes that evil must be fought at any cost, he would have to choose to end the possibility of all human action to remain consistent. Unfortunately, ending the possibility of all human action is a euphemism for advocating the extinction of the human race, should it become sufficiently evil. Any position requiring this action should be rejected. Although this rejection is based on an extreme reading of Kekes, it illustrates a basic failure of denying the goodness of action. I contend that in the worst possible state of events where virtually every action is an evil one, the only way to secure the possibility of good actions is to value action as good. Even if people act evilly, only the possibility of human action allows for that evil to be remedied or for non-evil actions to be taken. vii The capacity to value ends differs somewhat from the capacity to value anything at all in that end-valuing implies the involvement of action whereas the simple act of valuing some experience can be passive. viii The distinction between moral rights and human rights is not particularly salient. For our purposes, the two may be considered interchangeable. For the curious, moral rights have to do with our nature as moral agents and human rights our nature as human beings. We are interested in the fundaments of human action, which involves both. ix A theory denoting what separates a human being from other forms of life is a theory of human nature. Any distinction between these two concepts will be largely meaningless. x For the most recent complete list of the capacities, see Nussbaum 2000, 78-80. xi This theory rejects the capacity theory of Nussbaum because of its unwillingness to restrict itself to ends that might form a political rather than a metaphysical consensus. Nussbaum attempts a more comprehensive capacities theory. xii It is interesting that the International Bill of Human Rights, which includes the Universal Declaration as well as two other documents, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, includes many contentious rights of the periodic holidays with pay sort. These rights are highly contentious because of the insufficiency of liberal-derived rights theories to account for them systematically. These rights might be systematically included in this theory as examples of welfare rights. xiii What is meant by animal here is highly specific. Briefly, it refers to higher animals, specifically dolphins, chimpanzees, apes, gorillas in particular, and to a lesser degree, horses, dogs, catsmice, rats, pigs, sheep [and] cattle (McCloskey 1975, 411). Hereafter, references to animals should be understood to include only these animals, and primarily chimpanzees, apes and dolphins. It is unlikely that spiders or tapeworms have rights. This point will be explored below.

xiv

Descartes ambivalence did not keep his followers from taking extreme positions in regard to animal sensitivity; most modern harangues against Descartes on the topic of animals might be better aimed at Malebranche (Harrison 1992, 219220). xv Perhaps the most telling comment Descartes made on the topic is in a letter to Henry More. Though I regard it as established that we cannot prove there is any thought in animals, I do not think it is thereby proved that there is not, since the human mind does not reach into their hearts (quoted in Harrison 1992, 226). This ambivalent view of animals came only a year before his death, thus likely reflecting his last thought on the matter. xvi Cognitive ethology is the study of the mental life of non-human animals. For general discussions of this field see Ristau 1992 or Jamieson and Bekoff 1992. For a fair-handed analysis of the debate surrounding the field and its ends, see Bekoff and Allen 1997. xvii In October of 2005, mountain gorillas were first observed using tools (The Australian 2005). xviii According to the findings of Meddin, speaking of a chimp as having something on his mind is not in any sense an idle or misuse of the expression. See Meddin 1979. xix Peter Singers discussion of equal consideration inspires this approach of consistency. Specifically: The extension of the basic principle of equality from one group to another does not imply that we must treat both groups in exactly the same way, or grant exactly the same rights to both groups. Whether we should do so will depend on the nature of the members of the two groups. The basic principle of equality does not require equal or identical treatment; it requires equal consideration. Equal consideration for different beings may lead to different treatment and different rights (Singer 1990, 2, original italics). xx Hart believes it to be an idle use of the expression right to ascribe rights to animals and babies because they cannot engage in the sorts of activity that create special rights such as promising (Hart 1984, 82). This objection stems from the centrality of the capacity for choice in the possession of rights in Harts theory. xxi Many influential forms of Christian theology hold that the earth was given to mankind to care for as lord and master. Outside this tradition, there is no reason to suppose that we have a right to this role, although we may incur it as a result of overexploiting the earth. xxii It is an interesting question whether animals would ask us to protect them from predators if they could. One might think such a desire for protection would be self-evident; who would turn down the opportunity to have a life-long fear alleviated? Yet it may also be the case that the fear of predation provides a type of social cohesion for social groups, such that reflection would reveal that their societies are better with it, so long as they are not in danger of being wiped out more or less altogether. xxiii Whatever specific rights animals have, they surely have a rudimentary right to self-determination. Self-determination comes from having a will to (human) action. Acting humanly requires the two necessary capacities for action. If one possesses a will, then one ought to have the rights necessary to determine it meaningfully. We have seen some reasons to think of some animals as possessors of these capacities. Thus, the basic possession of the capacities for action necessitates a similarly basic right to self-determination. xxiv It is an interesting question whether we are to blame for the domestication of animals and whether we have some obligation to try and undo such systematic incapacitation. The specific case of domesticated animals suggests a parallel to chattel slavery in that masters attempted to break the will of slaves in the same way that humans have broken the will of domesticated animals. This parallel might suggest that we ought to try and undo such treatment by re-wildizing our pets. The parallel breaks down, however, if we consider the differences in their capacities. Our pets, though certainly possessing personality, do not have the same capacity for advanced action as other more advanced animals, let alone enslaved humans. xxv See endnote xxi. xxvi People can come back from enormous incapacitation. This notion is explored below with the case of Dr. Mark Ragucci. xxvii This idea surely applies unequally among our group; younger incapacitated people have more years to look forward to in which to improve their capacities, but the severity of the cases we include means that substantial impairment will likely remain. xxviii Brain cells begin to die en masse after about five minutes without oxygen; chances for recovery vary inversely with the amount of time before oxygen flow is returned (National Institutes for Health). During an emergency surgery following the stroke, Raguccis brain was deprived of oxygen for twenty-four minutes. That amount of time is well beyond the time that doctors usually say brain function can survive (Burton 2005).