Rights and Interests



We have now completed our examination of the notion that what is objectionable about abortion and infanticide is that they involve the destruction of items of ‘intrinsic value’. No one who has come this far will take us to be asserting that a foetus or a neonate entirely lacks this value — which might sound like a mere tough-minded pose. If we did not know from Adam what ‘uffish value’ meant, and had to choose on the spot whether to say that babies had it, we would perhaps feel a certain inclination to say yes. We all have this vague thought that babies, like other human individuals, are somehow important. But we have presented reasons to reject as unintelligible this would-be notion of intrinsic value, this notion introduced in order to explain (wholly or in part) why we ought not to destroy embryos, babies, listed buildings, habitats, etc. Since this is our view, we naturally neither assert nor deny that anything has this value.


Conscious State Newborn Baby Human Individual Unborn Child Harm Principle 
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  1. 4.
    Clearly there could be a difference of opinion about the age of onset. This is evidently a deep matter for those of this persuasion. Laurence B. McCullough and Frank A. Chervenak, in their Ethics in Obstetrics and Gynecology, New York: Oxford University Press, 1994, p. 103, talk — mysteriously, but liberatingly — about ‘the second year of life during or near the end of which independent moral status comes into existence, as a function of some intrinsic characteristic of the infant’. (See also note 72, p. 197.)Google Scholar
  2. 8.
    Ronald Dworkin, ‘Reverence for Life, and the Limits of State Power’, Utilitas, 2001, p. 44.Google Scholar
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  4. 17.
    John Harris is perhaps the pioneer here. Back in 1975 he wrote: ‘Many philosophers have for various reasons believed that we must not kill even if by so doing we could save a life’ — but etc. (The Survival Lottery’, Philosophy, 1975, p. 81). This article is frequently cited and reprinted. More recently, Frances Kamm, though rather of the school of Judith Jarvis Thompson when it comes to ‘killing to save’ (e.g., see Abortion and the Value of Life p. 221) allowed herself to assume that no-one was to drive over and kill someone trapped on the road even to get five dying people to hospital. Peter Singer responded: ‘Whatever the law or the “official” morality says, most people would think the driver had done the right thing. Moreover that would be my view as well’ (Dale Jamieson, ed., Singer and his Critics, Oxford: Blackwell, 1999, p. 313).Google Scholar
  5. For a ‘virtue ethics’ contribution to this new sensitivity, see Michael Slote, Morals from Motives, Oxford: Oxford University Press, 2001, 96–8. A virtue ethicist is likely to insist on more than five. Twenty five perhaps?CrossRefGoogle Scholar
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    Philip Kitcher, The Lives to Corne, London: Allen Lane, Penguin Press, 1996, p. 228. At the time Philip Kitcher was Presidential Professor of Philosophy at the University of California, San Diego. He is now at Columbia. The Lives to Come was published with a pat on the back from Stephen Jay Gould: ‘the best possible book on one of the most troubling ethical issues of our times’.Google Scholar
  19. 45.
    Joseph Raz, The Morality of Freedom, Oxford: Clarendon Press, 1986, Chapter 7, ‘The Nature of Rights’, esp. pp. 166, 176–8. The reader might prefer the charming proof offered by Celeste Michelle Condit, that a foetus has no right to life before viability. She makes use of the premises ‘One cannot have a right to life unless one is capable of life’ and ‘The foetus before viability is not individually capable of life’. See Appendix A, ‘A Right to Life?’, in Decoding Abortion Rhetoric, Urbana: University of Illinois Press, 1990, p. 208.Google Scholar
  20. (This appendix may also be found in Lloyd Steffin, ed., Abortion: A Reader, Cleveland, Ohio: Pilgrim Press, 1996.)Google Scholar
  21. 49.
    On ‘the so called conscience clause which allows a doctor to refuse to carry out an abortion if such an action would offend his conscience’, see Professor Kennedy’s Treat Me Right, Oxford: Clarendon Press, 1988, pp. 28–9. On Kennedy’s assumption of the existence of foetal rights, see ‘A Woman and Her Unborn Child: Rights and Responsibilities’, in Peter Byrne, ed., Ethics and Law in Health Care Research, Chichester: Wiley, 1990, p. 173. Incidentally, Professor Kennedy also finds it natural to talk of foetal interests: ‘The mother may insist on a course of action which she realises is against her interests as well as the interests of her foetus but which she feels obliged to follow’ (p. 169).Google Scholar
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    The Convention and the Instrument are both conveniently reprinted in Judith E. Timms, Children’s Representation, London: Sweet and Maxwell, 1995, pp. 61–78.Google Scholar
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    The idea that no argument is necessary here is puzzling when we bear in mind that a well known writer on these topics, who long before the arrival of Life’s Dominion surveyed what philosophers have had to say and who did produce arguments, could write: ‘no valid argument can be given for including or for excluding, for example, children, imbeciles, foetuses, natural objects, unborn generations, as holders of rights on the ground that being capable of having a right ensures or necessitates being capable either of having something in one’s interests or of being interested in something’. Alan White, Rights, Oxford: Clarendon Press, 1984, p. 82. Professor White’s arguments may not all be very strong, but they are very painstakingly laid out. There is at least something to be discussed. 63 He says, furthermore, that he has other objections to this account of rights which he is not presenting in this article (‘Do We Have a Right to Pornography’, in his A Matter of Principle, Cambridge, Mass.: Harvard University Press, 1985, pp. 369–70). The relevant section of the article, adapted by Professor Dworkin, is reprinted as an account of the concept of rights under the title ‘Rights as Trumps’, in J. Waldron, ed., Theories of Rights, Oxford: Oxford University Press, 1984, p. 164.Google Scholar
  29. 65.
    Thomson, ‘Abortion’, p. 4. Professor Thomson gives a two-part account — first of a right to be given something, and second of a right that we refrain from doing something. My shortened quotation simply concentrates of the second part, here particularly relevant. See also the afterword to her collection of articles Rights, Restitution, and Risk, (ed. William Parent, Cambridge, Mass.: Harvard University Press, 1986, p. 253, italics in text): ‘For my own part, it seems to me that to have a right just is its being the case that people may and may not treat you in these or those ways.’ ‘Interests’ might well come into the story, we might suppose, but who can say in advance in what way the concept will put in an appearance? Professor Thomson admits that ‘we do not yet fully understand how the concept “has a right to” itself works’ (p. 260).Google Scholar
  30. 67.
    Frances Kamm, ‘Rights’, The Oxford Handbook of Jurisprudence and Philosophy of Law, Oxford: Oxford University Press, 2002, p. 485.Google Scholar
  31. In the latest twist in this debate, Professor Dworkin, replying to Frances Kamm’s recent remarks in Dworkin and His Critics, ed., J. Burley, Oxford: Blackwell, 2004, p. 372, has now admitted that the rights of one person might be founded upon the interests not of that individual but on those of others. This seriously weakens his case. He says that the rights which those opposed to abortion talk about are not claimed by them to be derivative in this way. I dare say that many of them have never given it a thought. And in any case, might not they be wrong just in this particular, and be able to say, as before, that abortion is murder?Google Scholar
  32. 68.
    In William T. Blackstone, ed., Philosophy and Environmental Crisis, University of Georgia Press, 1974, reprinted in Joel Feinberg’s Rights, Justice and the Bounds of Liberty, Princeton: Princeton University Press, 1980, references to this latter reprint, here p. 167, italics omitted.Google Scholar
  33. This principle would seem to be plausible to many, for it is also quoted by Michael Tooley, Abortion and Infanticide, Oxford: Oxford University Press, 1983, p. 96, and by Mary Anne Warren in her review of this book, said incidentally by Professor Tooley in his reply to be ‘very accurate’ (‘Reconsidering the Ethics of Infanticide’, Philosophical Books, January 1985).Google Scholar
  34. 74.
    Helga Kuhse, ‘Quality of life as a decision-making criterion II’ in Amnon Goldworth et al., eds, Ethics and Perinatology, New York: Oxford University Press, 1995, p. 113. The cautionary phrase ‘strictly speaking’ turns up quite regularly in ethics-related talk — we shall see other examples. A critical mind will naturally want to raise a question. Let us suppose we can say that continued life is in the interests of an infant — at least roughly speaking. Might not that be enough to establish the conclusion that the claim about strict speaking was brought in to avoid?Google Scholar
  35. 75.
    Eric Rakowski, Equal Justice, Oxford: Clarendon Press, 1991, p. 334. Professor Rakowski is able to be so brief about infants and interests since he can refer us to the ‘masterful’ Michael Tooley. We should note in fairness that Professor Rakowski is not as tough-minded as this passage suggests. He does not condone ‘unrestricted’ infanticide, and expresses some worry about our treatment of ‘nonmammalian animals’.Google Scholar
  36. 76.
    Frances Kamm, ‘Embryonic Stem Cell Research: A Moral Defense’, Boston Review, 2002, italics added (quoted from <>, pp. 6, 7). Frances Kamm, rather like Dworkin though with certain differences, still wants to allow that embryos might have something she calls ‘moral importance’. And she too draws an analogy with paintings. This claim is of course hard to judge without an understanding of this concept.Google Scholar
  37. 79.
    Lawrence J. Schneiderman and Nancy S. Jecker, Wrong Medicine, Baltimore: Johns Hopkins University Press, 1995, p. 12. (I have inserted the word ‘medical’ in view of the authors’ remarks on p. 10.) See also Tf a patient lacks the capacity to appreciate the benefit of a treatment … that treatment should be regarded as futile’ (p. 17, italics in text). There are indications in this book that the authors fall in with the idea that a developing baby which is not yet ‘conscious’ has no good of its own, and therefore cannot be benefited by treatment. See p. 121, and the reference to Life’s Dominion as ‘superb’, p. 21.Google Scholar
  38. 82.
    Abortion and Moral Theory, Princeton: Princeton University Press, 1981, p. 227, italics added. In his essay ‘Moderate Views of Abortion’, he writes: ‘A foetus acquries moral standing when it first becomes sentient. Since it has no interest to protect before it reaches that threshold, it cannot be wronged by being killed during that period’ (in Rem. B. Edwards, New Essays on Abortion and Bioethics, Advances in Bioethics, Vol. 2, Greenwich, Conn.: JAI Press, 1997, p. 209, italics added). This suggests that one just has to put up with the facts — ‘Sorry, there just are no interests, so if you care about its welfare you care about something which turns out not to exist.’ But I am inclined to think that Professor Sumner merely stipulates here, all in a good cause, mind you. That there is a measure of stipulation going on is confirmed when we read that ‘the criterion [that is, the ‘sentience’ criterion, understood in Professor Sumner’s way] ‘defines for us what is to count as harm’ (Abortion and Moral Theory, p. 226, italics added). Readers who feel a flush of shame and discomfort when they read Professor Sumner on the ‘enormous loss’ sustained can now find the therapy they need in Jeff McMahan’s The Ethics of Killing. Professor McMahan has worked out that this loss can be quite small, since the life which would have been lived would have been psychologically somewhat disconnected. Nice one, Jeff. (See below, pp. 284–5.)Google Scholar
  39. 84.
    L. W. Sumner, The Moral Foundation of Rights, Oxford University Press, 1987, pp. 206–8. The two questions whether a foetus has a good and whether it has rights are perhaps unfortunately considered together in this discussion. Professor Sumner asks ‘whether the best policy will be to assign foetuses a right to life when and only when they have become sentient’. Well, if ‘assigning’ gets in the way of what we want to do it would be mad to ‘assign’. Be that as it may, we should note, as before, that the very possibility of assigning presupposes that we can make sense of the idea that a being which has not yet been sentient has rights. On this view, such a being will actually have rights once they have been assigned.Google Scholar
  40. 85.
    Peter Singer, for example, thinks that a foetus which is not yet ‘conscious’ cannot be harmed, and tells us something about synaptic connections. Consciousness of a kind perhaps emerges, it is suggested, at around 18 weeks’ gestation (Practical Ethics, 2nd edn, Cambridge: Cambridge University Press, 1993, p. 165). I think that R. M. Hare too belongs in this company, though he is not very explicit on the matter. He says that ‘embryos do not as such have interests’, and that is explicit enough. The context however suggests that the same is true of foetuses and neonates, which he mentions too; that they no more have interests than do gametes. The ‘mere existence’ of them does not mean that they have interests which need to be weighed. There is no suggestion here that it matters whether we are dealing with an embryo or a foetus. Furthermore, although on the whole Professor Hare is against infanticide, his explanation of his attitude is careful not to mention the harm that would be done to the baby by killing it, or its interest in surviving (Essays on Bioethics, Oxford: Clarendon Press, 1993, p. 90). Perhaps infants have some interests, if rather insignificant ones, in Hare’s view, for they can be deprived of simple pleasures. ‘Infants, unlike gametes or even embryos, almost certainly do have some pleasures and desires (for example, in or for their mother’s milk); and infanticide frustrates these’ (p. 90). This frustration has to be taken into account, but to our great joy and good fortune, ‘cannot weigh much’ in practice. Later in Essays on Bioethics, Professor Hare does take into account ‘the harm one does to the foetus’ (p. 191), but this is perhaps just on the assumption that foetuses have ‘conscious feelings’ (‘If anybody thinks that foetuses have conscious feelings …’). On the other hand, Professor Hare is here considering the ‘prospect of a normal and happy life’, a prospect which one can surely have even without ‘conscious feelings’. The thought that abortion does no harm to the foetus can simply be insinuated. Once sensitised to this possibility one frequently finds examples. Writing about the difficulty of enforcing anti-abortion laws Ruth Dixon-Mueller and Paul Dagg say in all innocence: ‘Juries are often sympathetic to the woman’s plight and even to the provider’s if she or he meant well and caused no harm.’ (Abortion and Common Sense, Philadelphia: Xlibris, 2002, p. 138, italics added. What is meant by the clause I have italicised? These authors must surely suppose that hardly any abortion ‘causes harm’. 86 Of course, infants will have put on a fair amount of ‘value’ after nine months. But in regard to the question of interests what do we get? There is a brief reference to unknown trace or shadowy capacities (of the sort which might allow us to say that it is in the child’s trace or shadowy interest to continue to live?), and some hand-waving about cortical maturation and electroencephalography, both on p. 18. And on the somewhat arcane issue whether infants are ‘persons in the philosophical sense’ he simply directs us to Michael Tooley (LD, p. 245, see FL, p. 377), also an authority as we saw for Eric Rakowski. This is a reasonable economy, for anyone who is impressed by Ronald Dworkin’s material on interests would find Michael Tooley’s work quite of a feather. Perhaps this is the place to note how Professor Dworkin’s idea is characterised, or perhaps I should say under-characterised, by Herlinde Pauer-Studer in an interview with him. She says: ‘Your main argument is that in the first trimester of a pregnancy the foetus does not have a right to life’ (Herlinde Pauer-Studer, ed., Constructions of Practical Reason, Stanford, Calif.: Stanford University Press, 2003, p. 145). Why this mention of the first trimester? This partially sanitises Professor Dworkin’s view, as his remark about a ‘more complex set of capacities’ shows only too well. Professor Dworkin in his reply does not put the record straight.Google Scholar
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    Wittgenstein’s question, On Certainty, para. 125, ed. G. E. M. Anscombe and G. H. von Wright, Oxford: Blackwell, 1969.Google Scholar
  42. 90.
    A Morally Deep World, Cambridge: Cambridge University Press, 1991. I here rely on Peter Singer, whose opinion is reproduced on the book’s cover: ‘On the green side of politics and philosophical thought, many want to claim that all living things should be protected from harm, irrespective of their value for human beings. They assert that plants, species, and ecosystems as a whole, have intrinsic moral value. I know of no better attempt to present a rational and argued defense of such a claim than Lawrence Johnson’s A Morally Deep World.’ (See also Peter Singer, Unsanctifying Human Life, Oxford: Blackwell, 2002, p. 320.)Google Scholar
  43. 95.
    Christians and the Environment, London: Board of Social Responsibility, 1991, p. 2, quoted in Robin Attfield, The Ethics of the Global Environment, Edinburgh: Edinburgh University Press, 1999. The nineteenth-century moral philosopher Leonard Nelson, something of a pioneer in this area, was prepared to allow that stones may have interests (A System of Ethics, trans. Norbert Guterman, New Haven: Yale University Press, 1956, p. 140).Google Scholar
  44. I owe this reference to R. G. Frey, Interests and Rights, Oxford: Clarendon Press, 1980, p. 54.Google Scholar
  45. 96.
    H. J. McCloskey, ‘Rights’, Philosophical Quarterly 1965, p. 126;Google Scholar
  46. John Passmore, Man’s Responsibility for Nature, 2nd edn, London: Duckworth, 1980, p. 116;Google Scholar
  47. R. G. Frey, Interests and Rights, Clarendon Press, 1980, p. 2. Much of Professor Frey’s book is taken up with a confident demonstration that animals do not have interests. As for Professor McCloskey’s remark, one would of course want to ask whether our declining to speak of interests while being willing to speak of welfare had any significance, either in general or for our topic. Perhaps we need to ask about the consequences in order to understand the distinction intended. (And we should note that Professor McCloskey later changed his mind, saying: ‘I wish to concede that the concept of interests is a much looser one than I previously suggested’: ‘Moral Rights and Animals’, Inquiry, 1979, p. 36.)Google Scholar
  48. 98.
    We would naturally suppose that an ordinary adult human individual walking down the street would turn out to be a person on any philosopher’s chosen definition. But some philosophers might prefer to say that even this is not true, that (‘strictly speaking’?) the person is, rather, what underlies the individual’s ‘psychological capacities,’ namely his brain. This is an option offered to the reader in the short article ‘Persons’ by Quassim Cassam, in The Oxford Companion to Philosophy, ed. Ted Honderich, Oxford: Oxford University Press, 1995. It would of course follow that one had never seen a person in the street, that one had never talked to a person, that no person is ever more than six inches tall, that no person has a brain (for a brain certainly does not have a brain), and that one’s wife married someone who turns out to have contained a person, and might now be worrying whether she has inadvertently committed bigamy. I do not know of anyone who is firmly of this view. But there is at least one distinguished philosopher who perhaps thinks he is a brain, namely Thomas Nagel.Google Scholar
  49. Professor Nagel’s idea, drawn from a draft manuscript, was taken seriously by Derek Parfit in his Reasons and Persons (Oxford: Clarendon Press, 1984, p. 283, and Appendix D). Derek Parfit concluded by saying that the question is still open (p. 477).Google Scholar
  50. Thomas Nagel, when the book eventually appeared (The View From Nowhere, New York: Oxford University Press, 1986, p. 45), said more circumspectly that ‘it is a possible hypothesis’ that he is his brain. I wonder what his university pays his salary to? Professor Nagel might turn out to be inside his brain. Roderick Chisholm has argued that a person is a tiny physical object, in the brain perhaps (On Metaphysics, Minneapolis: University of Minnesota Press, 1989, pp. 124–7). We could still be said to have brains, of course, but ‘strictly and philosophically’ (p. 127) our brains would not be inside us, as doctors suppose. And each of us (again, s and p) would weigh less than a milligram. Could it be this light-weight external-brained object which truly has a good of its own? Or perhaps we could say that it is a something inside one’s head which has interests, modestly leaving it open what it is. According to Galen Strawson, we encounter as children ‘the experience of the profound sense in which we are alone in our heads’. He adds that, as analytic philosophers, we tend to forget this experience. This is a fact that I can certainly confirm in my own case. (‘The Self, Journal of Consciousness Studies, 1997, <>, p. 3.)Google Scholar
  51. 100.
    F. H. Bradley, Appearance and Reality, 1st edn, London: Swan Sonnenschein, 1893, pp. 76, 78–9, 101, 103. Perhaps our doubts about the self only go to show that we are not geniuses. Otto Weininger wrote: ‘There have been no truly great men who were not persuaded of the existence of the T; a man who denies it cannot be a great man’ (Sex and Character, London: Heinemann, 1911, p. 164). The philosopher Eric T. Olson conspicuously fails the test. ‘People often speak as if there were a serious philosophical problem about selves … I doubt seriously that there is any such problem. Not because the self is unproblematic, or because there are unproblematically no such thing as selves. My trouble is that a problem must be a problem about something … What is a self? For every answer to this question, there is another answer not only incompatible with it, but wholly unrelated. There is virtually no agreement about the characteristic features of selves: depending on whom you believe, selves may be concrete or abstract, material or immaterial, permanent or ephemeral, naturally occurring or human constructions, essentially subjective or publicly observable, the same or not the same as people’ (There is No Problem of the Self, Journal of Consciousness Studies Vol. 5, Nos 5–6 (pp. 645–57), p. 645, italics in text. Anyone about to have their offspring dismembered on the basis of some philosopher’s account of the self should read this article first.Google Scholar
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    Robert Nozick, The Nature of Rationality, Princeton: Princeton University Press, 1993, p. 13.Google Scholar
  53. 102.
    Essays on Bioethics, p. v. See also Professor Hare’s article ‘Rawls’s Theory of Justice,’ in which he complained that Rawls took no account of the interests of merely possible people but confined himself to people ‘who actually do or will exist’ (R. M. Hare, Essays in Ethical Theory, Oxford: Clarendon Press, 1989, p. 164).Google Scholar
  54. 106.
    Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart, London: Athlone, 1970, Ch. 1, Sec. 5. The ‘coming to the same thing’ must be a slip on Bentham’s part. One diminishes the sum total of someone’s pains by polishing him off. There were pains he was going to have but which he won’t have now. But that hardly adds to the sum total of his pleasures.Google Scholar
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  58. 118.
    Mary Ann Glendon, Abortion and Divorce in Western Law, Cambridge, Mass.: Harvard University Press, 1987, first quotation p. 2, second quotation p. 40.Google Scholar
  59. 119.
    Glanville Williams, Textbook of Criminal Law, 2nd edn, London: Stevens, 1983, pp. 297–8. Bourne, incidentally, is the landmark case in English law from 1938. The gynaecologist Aleck Bourne procured an abortion on a 14-year-old girl who had been raped. He then (it is said) invited prosecution. For this he has been considered something of a hero. At the time of the 1967 Abortion Act, however, he would appear to have lapsed, joining the British anti-abortion group, the Society for the Protection of the Unborn Child.Google Scholar
  60. 121.
    Peter Singer and Helga Kuhse, ‘From the Editors’, Bioethics, October 1993, p. vi. As we saw in note 117 above, Peter Singer thinks that an individual’s interests are typically conscious states. This must be one of the exceptions. A foetal interest in being aborted in view of impending unhappiness with its ‘sexual identity’ could hardly be a conscious state.Google Scholar
  61. 122.
    ‘It is time for a new Copernican revolution … For many the ideas will be too shocking to take seriously. Yet eventually …’ (Peter Singer, Rethinking Life and Death, Oxford: Oxford University Press, 1995, p. 189). Abortion acceptance has had a big part to play in this new dawn. ‘In accepting abortion, as so many Western nations have now done, we have already taken a major step away from the traditional principle of the sanctity of human life.’Google Scholar
  62. This is surely a reasonable assessment (Helga Kuhse and Peter Singer, Should the Baby Live?, Oxford: Oxford University Press, 1985, p. 137).Google Scholar
  63. 123.
    Laura Purdy, ‘Are Pregnant Women Foetal Containers?’, in Reproducing Persons: Issues in Feminist Bioethics, Ithaca: Cornell University Press, 1996, p. 90.Google Scholar
  64. Reprinted in Helga Kuhse and Peter Singer, eds, Bioethics: An Anthology, Oxford: Blackwell, 1999, p. 72. I have myself rather gone along with the thought that women’s rights might sometimes trump considerations about foetal welfare — in Chapter 1.3 above. The point is quite evident in regard to the welfare of older children too. Parents have a perfect right in the light of their wishes and convenience knowingly to give their children a standard of care worse than the best they could make it.Google Scholar
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© Christopher Miles Coope 2006

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