Worth and Welfare: The Wrong Compromise

Worth and Welfare in the Controversy over Abortion

Christopher Miles Coope

Worth and Welfare in the Controversy over Abortion

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Worth and Welfare in the Controversy over Abortion Christopher Miles Coope

© Christopher Miles Coope 2006 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2006 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN-13: 978-0-333-76018-5 hardback ISBN-10: 0-333-76018-2 hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Coope, Christopher. Worth and welfare in the controversy over abortion / Christopher Miles Coope. p. cm. Includes bibliographical references and index. ISBN 0-333-76018-2 (cloth) 1. Abortion – Moral and ethical aspects. I. Title. HQ767.15.C68 2005 179.7′6 – dc22 10 9 8 7 6 5 4 3 2 1 15 14 13 12 11 10 09 08 07 06 Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham and Eastbourne

2005047531

In memory of Nicholas Coope (1980–1998)

Love alters not with his brief hours and weeks

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Contents Preface

viii

Part 1: Introductory

1

Part 2: Worth

51

Part 3: Rights and Interests

163

Part 4: Arguing about Interests

231

Part 5: The Idea of a Right to Life

302

Index

335

vii

Preface Many books, I suppose, come about by accident. This is certainly one of them. I had simply set out to write some notes for our students here at The University of Leeds. One day a week, these students take a break from their work in the community and follow our course of Health Care Ethics. Year on year, they have impressed me with their enthusiasm, their friendliness and their willingness to walk in the strange ways of our subject. It has always been a privilege to write for them, and I think about them affectionately now, as once again I set about it. Abortion tends to take over the lives of those who write about it. Yet this is no bad thing, for without a certain amount of ‘taking over’ one would not succeed. Abortion is an important public issue, so our attention is not misplaced. It also raises theoretical difficulties in philosophy, many of which are not in ethics at all – as this book will show. Even those interested neither in the issue nor in the philosophical difficulties could still become fascinated by abortion as a controversy simply because of the extraordinary curiosities of the public debate. But being ‘taken over’ has its dangers. We who write about abortion and who think that there is a public issue of great moment should not lose sight of the fact that there are so many equally important problems faced by the world. Some of these naturally have to do with children. I have a good friend, a paediatrician, who in her professional life has been able to do far more to ensure a respect for young human individuals than a philosopher writing about abortion could hope to do. My views about this subject have changed greatly over the years. I cannot pretend that they have changed as a result of anything very sophisticated by way of argument – at least in regard to argument closely related to the topic. In fact my current thoughts about abortion are somewhat naive. I do not think of this as a defect. I am inclined to follow Berkeley in this matter: thinking that so often in philosophy we first raise a dust and then complain we cannot see. A simple argument justifying the exposure of infants on the grounds that ‘The Tok went in for it and they were not such a bad lot’, is – however unsatisfactory it may be – more to be trusted than a justification of the same on the basis of the latest extravagance of academic philosophy. There are times when it is better to believe a peasant than a pedant. Despite all the talk of the sanctity of life, I do not regard the issue as particularly ‘religious’. But I am not so sure that our underlying and uncontroversial beliefs about homicide, beliefs which people are just not prepared to give up (or rather, are not yet prepared to give up) can deeply be understood without religious beliefs which I and many others have been, perhaps understandably, reluctant to adopt. Nietzsche, I imagine, saw this only too viii

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well. About these beliefs I will only say here that the philosophical foundations of agnosticism appear to me not as strong as they once seemed, and that I for one am continually tempted to jump ship. And insofar as this is so, it is in part an outcome of my work on this controversy. I do not ever remember that questions about abortion featured at all in my upbringing, in my teenage years say. I certainly heard plenty about religion at my school, but abortion seemed not to be a matter of public concern at that time. It must have seemed beyond consideration. The issue first came to my attention when, as a student of psychology, I chanced to read Glanville Williams’s newly published The Sanctity of Life and the Criminal Law,1 taking it up, no doubt, because it was not on the reading list. This book also discussed other matters: suicide, euthanasia, and contraception (though what this last had to do with the sanctity of life was, and remains, something of a puzzle). The book was derived from lectures given at Columbia University, and seems to have had a crucial impact at the time on the development of (what is called) liberal thinking about abortion. For a brief while Glanville Williams was my guide. It must have all seemed pleasantly shocking and agreeably secularist. To me, ‘both human history and the history of ethics was just beginning’, and I wanted to be part of it.2 It was around this time that I found myself, with a few other students, interviewing A. J. Ayer for a TV programme. He answered all our questions with his customary energy and ease. Naturally I wanted to ask him about the sort of issues I had been reading about in The Sanctity of Life and the Criminal Law. In fact, I afterwards sent my copy of the book to him, which he then read ‘with pleasure and approval’. The book must have caused a stir, for it was picked over by a panel of notables on the then Third Programme. It received, I remember, a curiously cold response from the philosopher on the panel, who seemed not willing to join in the discussion at all and was given a quarantined space all to herself. Not much pleasure or approval there. She was G. E. M. Anscombe, at that time just a name to me. As it turned out, I was later to find myself in tutorial conversations with both these philosophers at Oxford and I successively learned much from them.3 1 The Sanctity of Life and the Criminal Law, London: Faber and Faber, 1958. Glanville Williams, Professor of Law at Cambridge, was from 1962 to 1997 President of the Abortion Law Reform Association. 2 I owe this phrase to Derek Parfit. In Reasons and Persons (Oxford: Clarendon Press, 1983) he heads one of his sections: ‘How both human history, and the history of ethics, may just be beginning’. He claims that ‘Non-Religious Ethics has been systematically studied, by many people, only since about 1960’ (p. 453). The debate about Glanville Williams’s book dates from 1958, slightly before history. 3 Some idea of what Elizabeth Anscombe must have said can now be gleaned, almost 50 years later, from ‘Glanville Williams’ The Sanctity of Life and the Criminal Law: a Review’, in Mary Geach and Luke Gormally. eds, Human Life, Action and Ethics, Essays by G. E. M. Anscombe, Exeter: Imprint Academic, 2005.

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By the time I reached Oxford, however, I had long forgotten the problems of abortion and kindred topics. My days were spent largely on the philosophy of psychology and the philosophy of language. I dare say the matter never crossed my mind until, many years later, my wife was pregnant with our fourth child. Since she was then well on in her thirties she was of course offered ‘the tests’. Well, who wants a damaged baby? I was, I remember, quite anxious that the chromosomes should carefully be counted. I just refused to consider what if. Distressing choices, I must have said to myself, should not be faced while it was still unsettled whether the question arose. In dedicating the book to the memory of the child in question, my son and good friend Nicholas, who died on the cliffs of Glen Clova while I was writing it, I cannot help thinking back to these beginnings. I am acutely aware that had ‘the tests’ turned out differently, he might well have been killed by doctors, with my connivance, before he was born. Luck saved him – and me. How many there are who have not been lucky.

Part 1: Introductory

1.1 The academic problem and the unhappiness behind it In September 1995 three pro-choice activists in Boston sat down with three pro-life activists. They were answering a call from civic leaders, the state Governor and the local Catholic bishop, for talks between the representatives of ‘choice’ and of ‘life’ after a man had shot dead two receptionists at clinics in the area. After more than 150 hours of conversations over the next five and a half years these six activists decided to reveal to the world at large what they had achieved. And what was that? On the substance of their disagreement: nothing. ‘Since that first fear-filled meeting, we have experienced a paradox. While learning to treat each other with dignity and respect, we have all become firmer in our views about abortion.’1 It is here, when all else fails, that our curious study philosophy has a part to play. Philosophy is the art of the intractable. It is what we call upon when we do not know what further information would be relevant. As so often, we need to recognise that our difficulties might have to do with understanding better the information we already have. We may need to retreat a bit to consider more carefully our presuppositions. And we doubtless need at least to recognise that there are several problems, not just one. Some of these problems might be of our own making. But other problems must lie deep in the nature of things. No one may yet know how to deal with this or that aspect. We must think things out patiently and slowly. If we do so we may hope to learn something not just about the immediate issue but about moral philosophy and perhaps even about ourselves.2

1 Anne Fowler, Nicki Nichols Gamble, Frances X. Hogan, Melissa Kogut, Madeline McComish and Barbara Thorp, Boston Globe, 28 January 2001. 2 We do ourselves no good by misdescribing or mystifying our difficulties. Kristin Luker in her well known book, Abortion and the Politics of Motherhood (Berkeley: University of California Press, 1984) gives an unfortunate account of the difficulty of agreement. ‘The two sides’, she says, ‘share almost no common premises.’ But 1

2

Worth and Welfare in the Controversy over Abortion

The difficulties faced by these patient negotiators were doubtless only in part intellectual. Sometimes people simply want different things. The topic is also quite difficult to face up to. There are questions which are hard to raise, let alone discuss. One is not surprised to fi nd that a pro-life group in England was prohibited from presenting its election broadcast on television on the grounds of ‘taste and decency’. This is of course very striking in view of what is otherwise thought tasteful and decent enough to be shown on television. Perhaps the abortion issue threatens to undermine the security we find in being thought moderately decent.3 I have wished in this book to remove certain hindrances that beset the abortion debate, to look for partial progress, to examine some of the arguments, and to narrow to some extent the area in which a solution may lie: a difficult and disturbing enough task even in the space offered by a book. These introductory chapters will provide some context to the enquiry, and in particular explain how I have come to focus on worth and on welfare. Arguments used which seem to support ‘life’ and arguments which seem to support ‘choice’ can both be unsatisfactory as I hope in what follows to show. In particular I have in mind bad thoughts about foetal worth in the first case, and about foetal welfare in the second. I do not claim that both then, how would anyone know this? No one can survey their own beliefs – for one can be reminded of what one believes. Furthermore, no one can know in advance which beliefs might turn out to be relevant. Argument can after all surprise us. Quite apart from all that, people can come to agree starting from different premises, for different valid arguments can of course share the same conclusion. 3 The Pro-Life Alliance is a political party in the UK and it wished to air its programme as part of its campaign in the 2001 general election. The High Court, upholding the ban, said that broadcasters were merely protecting viewers ‘from offensive images which included graphic footage of aborted foetuses’ (BBC website, 24 May 2001). The Pro-Life Alliance then offered to ‘blur’ the images, but this was not considered sufficient. Perhaps there was blood in evidence, which would still have looked distressingly red on a blurred image? But this would hardly be relevant, for it is a matter of routine these days to show detailed pictures of operations, with plenty of red blood to be seen. The Pro-Life Alliance listed various stressful images which have appeared on television screens in the UK and which they say have been defended by the broadcasting standards authorities, rejecting viewers complaints. These include explicit footage of bodies in a Kosovo mortuary, graphic scenes of a postmortem, the stoning of two men found guilty of adultery, other executions, a 15-year-old boy sodomised by a 29-year-old, various exotic genital mutilations, a rock musician defecating on stage, footage of a Brazilian boy whose face and penis had been chewed by a pig, etc. This raises the question: what then is so special about abortion? Part of the story must be this: that abortion is quite unlike execution or killing in a war, in that so very many of us are personally involved, either directly or at one remove. This will of course include the broadcasters and their technicians, the members of the broadcasting standards authorities, lawyers, judges and officials of the High Court, etc.

Introductory

3

sides are equally confused, but that there is at least some confusion on both sides seems undeniable. Doubtless too there is confusion and error in this book. One can only set out in the spirit of Tartakower: the mistakes are all there, waiting to be made. Any discussion of this topic should start by thinking of the problems faced by many pregnant women. This is admittedly an academic book. But we cannot but be aware of the quite unacademic unhappiness beyond the library and the lecture room. Very many women across the world face difficulties for which abortion is thought to offer the only way out, and often this will be deeply troubling to them. More generally, we might speak of the difficulties faced by parents, or prospective parents. We only have to think of the reassurance parents are now offered ‘not to have a disabled child’. It seems inconceivable that we as a community would now throw away this opportunity, especially when we add the usual comfort-clause that no one ‘with moral objections’ is obliged to avail themselves of it. This opportunity will seem even more precious when we realise that most would-be parents are only proposing to have one or two children. How difficult it must be to stand aside from the crowd and refuse the benefits. If abortion is bad in the way its critics say it is, a woman who refuses to have ‘the tests’ on this ground displays a remarkable courage. It is not true that heroism only concerns what is supererogatory. It may not happen very often, but people can find themselves in a situation where the demand of justice, that is to say of what is owed, is the demand for pretty well everything they hold dear.4 We need then to meditate on these difficulties faced by parents. Perhaps our conventions and practices need to be reorganised in a way which would give them better support. This is more a matter for us as citizens than as academics.5 It is obviously possible for people to help in ways which cause no moral controversy. As someone whose life is spent in libraries I am continually impressed by, and grateful for, the patient work put in by so many who show this practical concern, so often on a voluntary basis. It is easy 4 Perhaps I should add the obvious point that there is no reason to suppose that all women who want an abortion are desperate and consider themselves in difficulties which drive them to abortion: the feminist writer Naomi Wolf has suggested not, and she is in a better position to know this sort of thing than an academic philosopher. Much of her article is devoted to the vigorous unmasking of various pro-choice pretences (Naomi Wolf, ‘Our Bodies, Our Souls’, New Republic, 16 October 1995, reprinted in the UK, New Statesman and Society, 20 October 1995). 5 Politically, one might want to combine elements of what is conventionally right and left. See Alasdair MacIntyre’s note explaining why he was not going to vote in the 2004 presidential election, seeing that one party failed to respect the lives of the unborn while the other failed to respect the needs of their mothers. ‘The Only Vote Worth Casting in November’, www.nd.edu/~ndethics/macintyrevote. shtml.

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Worth and Welfare in the Controversy over Abortion

to forget that abortion might seem to be the only way out just because of the poverty of what we bystanders, as individuals or as a community, have to offer.6 Sometimes indeed we fail to understand what is possible. Thus we might take it for granted that continued pregnancy in a 14-year-old must mean the end of her education and that abortion is therefore necessary. But need this be so? Might it not be possible to turn things around? Might we not make something good emerge from the difficulty, a good which might not have been achieved otherwise? As I write, just such a teenager, who had been reluctant to attend school at all, was now showing herself determined to sit for exams, supported and encouraged imaginatively by her local authority.7 Disagreements begin when we ask what kinds of solution to these difficulties are permissible. If there is such a thing as moral obligation at all, there will obviously be some limits to the kind of assistance which can be demanded, or offered, or indeed to the legitimacy of self-help. Everyone, whatever they think about abortion, will agree with that. This brings us back to the academy. We say so casually that a doctor must do his best for his patients, but only if we exclude all sorts of doings will this have a chance of being true. In real life we hedge such a remark with tacit restrictions. A physician might say ‘I came into medicine to help people’, and that sounds fine, but it would not always be an honourable defence of his (or her) conduct. It would all depend on what form the helping took. It is odd to have to say this, but it turns out to be necessary.8 What, in the case of those who are unhappy to be pregnant, are the ‘helping limits’? We cannot ask this question without moving beyond moral problems that are peculiar to abortion. For what is usually wanted is that a certain developing human individual will cease to exist, the fact that the individual is still in the womb providing the opportunity, in a society which at present more or less forbids infanticide, to bring this about. If this

6 Those who think that there are ‘abortion rights’ often like to say that abortion should be ‘safe, legal and rare’. But this might easily in practice go along with hostility towards those who help pregnant women to make it rarer, by offering abortion alternatives. In 1997 Glasgow’s Cardinal Winning introduced a scheme to provide financial help to enable pregnant women to keep their babies. Opponents have described it as ‘bribery’. It has even been said to ‘reduce choice’ (BBC News, 11 October 1999). 7 BBC Today programme, 5 March 2001. 8 A plea of just this kind was recently made by a Colorado doctor, one of four plaintiffs in a lawsuit against anti-abortion activists, and the director of the Boulder Abortion Clinic. ‘My medical colleagues and I went into medicine to help people, and we do.’ See Warren M. Hern, ‘Free Speech that Threatens My Life’, New York Times, 31 March 2001. An ad for the film Vera Drake reads: ‘Vera sees herself as simply helping women in need, and always does so with a smile and kind words of encouragement.’ I think we are supposed to say: so that’s all right then.

Introductory

5

were not at issue, we would be inclined to repeat the conventional formulae, saying that what a pregnant woman ‘does with her own body’ is up to her, or that it is a matter between her and her doctor. We would certainly not be saying that she would first have to consider impartially the interests of all sentient beings, in that comical phrase so solemnly invoked in the strange realms of moral philosophy. We would go along with the spirit of these ritual remarks about bodily autonomy. (I mean it would be pedantic to insist that so much wronging, after all, involves the wrongdoer ‘doing something with his own body’.) If justice, in the sense of what is owed, lays a burden on someone, it is not always a burden which it is entirely that individual’s own affair to carry. Here the very language of ‘owing’, with its suggestion of dollars and pounds, can be misleading – for in monetary matters we do think that it is an individual’s private responsibility to pay up. Others are not expected to bail him out. Most debts are voluntarily acquired, after all. But some of the ‘owings’ under justice are simply visited upon us, and may be severe. A child, let us say, suddenly demands care quite beyond what is usual on account of its unexpectedly acquired disabilities. Justice suddenly demands that one changes one’s whole life. One has to take on a different role, become a different person, lay aside cherished prospects. Could it not also be a requirement of justice that others rally round – either as individuals directly or through public institutions? Sometimes, though much less commonly, a pregnant woman will face a very different problem. She will want the protection of the moral law and of the law of the land against someone who might threaten to kill her unborn offspring – and a particular kind of protection at that. She will want such an action to be classified as murder (as legally it is classified in certain American states9) rather than as the theft of a body-part, let us say, or battery, as if there were no third party involved. In so doing, she will demand that the developing individual within her be acknowledged and respected by the community, not necessarily as a citizen, but as a vulnerable 9 See the Californian Supreme Court ruling in People v. Davis, 872 P. 2d 591 (Calif. 1994), holding that ‘third party killing with malice aforethought of a foetus is murder . . . as long as the state can show that the foetus has progressed beyond the embryonic stage of seven to eight weeks’. It rejected the claim that the foetus would have to be viable. The judgment also refers to and discusses similar statutes in Arizona, Illinois, Louisiana, Minnesota, North Dakota and Utah, commenting that in these cases, unlike in California, ‘the murder statutes do not require that the unborn have reached a particular stage of development’. Injuring the unborn can have legal consequences in England too. ‘A man who stabbed his pregnant girlfriend, wounding their unborn child, was given two life sentences yesterday’ (The Times, 23 November 1999). A useful review of the law as it stands in the various American states can be found in ‘Foetal Homicide’ at <www.ncsl.org/ programs/health/fethom.htm>.

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Worth and Welfare in the Controversy over Abortion

human being, and that there be no pretence in the law that it somehow isn’t there.10 Recognition, she will insist, should be accorded not just when its life is threatened by design, but also let us say when this life is taken in a road accident, perhaps caused by a reckless driver. This problem can even affect women whose unborn babies die naturally: If your baby died before birth, you will not receive an official death certificate. This can feel disappointing because it somehow denies the fact that your baby was alive inside you! As an alternative, some hospitals provide a “baby certificate,” which lists the baby’s name, date of birth and other life affirming information. You can also design your own certificate or find a print shop to make one for you.11 Is an unborn offspring entitled to this recognition and protection? Must this recognition be denied simply in order that those who perform abortions can feel less anxious about what they do? This is a very real question for some women.

1.2 Questions and their context The arguments we shall be considering in this book will proceed as if we are just concerned with pregnancy. It is in the main a book about the abortion controversy. However, it is important at the outset of our discussion to see the broader picture, for very often similar questions will arise where there is no pregnancy at all, no question of abortion, nor of a battery upon pregnant women. We do well to remind ourselves that there is a range of cases which seem to raise similar issues. An appreciation of this context will remove certain distractions which make thinking difficult. What, for example, are we to say about a proposal to destroy embryos which have resulted from fertilisation in a glass dish, embryos which have never been inside a woman’s womb? It might prove very useful to have this freedom. At the present time the pro-life movement seems to be preoccupied not so much with abortion as with the destructive use of human embryos to provide tissue with which to treat diseases. Again, if artificial wombs are eventually possible, a controversy is bound to arise whether we may (‘painlessly’) dispose of the human individuals inside them, or use them for testing drugs, or ‘harvest’ them for their body-parts. We might 10 Phillips, J, in de Martell v. Merton and Sutton Health Authority, [1992] 3 All ER 820, at 831, talks here of ‘the fiction . . . which denies the living creature which became the plaintiff a persona in the period prior to birth’, a fiction which the law in this case had to fi nd a way around. 11 Deborah L. Davis, Empty Cradle, Broken Heart: Surviving the Death of Your Baby, Golden, Colorado: Fulcrum Publishing, 1991, p. 71.

Introductory

7

not think it appropriate to refer to such destruction as abortion. Lastly, a number of well-regarded philosophers have in recent decades been defending infanticide – while admitting perhaps that one must be duly cautious about side-effects. Such a defence, at one time rather daring, is by now quite usual, and the case for it is carefully and non-directively presented in nearly every anthology of practical ethics. What might once have been the gasp of astonishment has become the yawn of familiarity. Where we are concerned with pregnancy, it is not always the termination of pregnancy – standardly abbreviated as TOP12 – which will concern us. Let us leave aside the fact that the mere induction of birth early, a common enough practice, is the deliberate termination of a pregnancy and confine ourselves to lethal procedures. The lethal procedures involved in so-called ‘pregnancy reduction’ – employed where a woman is expecting several children – tend in practice to keep the pregnancy going. I do not know of anyone writing about these matters who seems to have noticed this point. And where we are concerned with lethal termination, it is not always the woman’s own pregnancy which is at issue. A woman who wants there to be an abortion might not herself be pregnant, for she may have ‘rented a womb’ and be hoping, because of her changed circumstances, to have a surrogate abortion. Anyone paying all that money will probably contract to receive a ‘perfect’ child – no missing fingers, etc – and will want imperfect specimens selected out. Or again she will want just one child to be born, and will insist that a twin should not also survive.13 All of these cases involve homicide in the early stages of life, or at least what is said to be such. It is this, in the main, which is our topic. We should not even assume that when we are concerned with pregnancy, and are discussing allegations of homicide, that we are necessarily concerned with women, since it is presumably only a contingent fact that only women can be pregnant. A womb is not stricly necessary. A baby can develop in the abdominal cavity outside the womb and survive. It might soon be possible for a male to be pregnant in this way. Male seahorses seem to be able to cope with pregnancy. A report at a scientific gathering that male pregnancy was now a fact might be met with some scepticism, yet it would not reasonably be dismissed as a barely intelligible fairy story or 12 It could be that this remarkable abbreviation is confi ned to the UK, where we may find it even in academic journals. Talk of ‘termination of pregnancy’ in the UK has no doubt been proved popular on the ground of what is not mentioned. Those who use it seem not to have noticed that ‘to top’ is a verb meaning to kill (perhaps originally, to kill by decapitation). 13 ‘A British woman pregnant with twins is suing a California couple, saying the husband and wife backed out of a surrogacy contract after she refused to abort one of the foetuses’ (CNN, 14 August 2001). The case was widely reported. There was some disagreement whether the pregnant woman was ‘requested’ or ‘told’ to have the abortion.

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Worth and Welfare in the Controversy over Abortion

fantasy. Robert Winston, perhaps the best known fertility specialist in the UK, has said that such a feat would certainly be possible. One day there might be a demand for male pregnancy clinics in the name of equal opportunity. Still, those who believe that abortion is murder are hardly going to think differently or make exceptions when it is a man who is pregnant. And those who talk of the right to do what one likes with one’s very own body, will talk similarly in this case too. Are we at any rate essentially concerned with reproduction? No. This is perhaps surprising, but it will help us to handle our topic to see that this is so. We need to remember the range of cases we mentioned. It is particularly obvious that someone who is wondering whether a new-born baby may be gently ‘put down’ if terminally ill, or whether it may be sedated and left to die if affected by Down’s syndrome, is not thinking about a reproductive question. The question only arises because reproduction has already occurred and the fact is perhaps unwelcome. (I am assuming of course that breast feeding and toilet training and elementary schooling are not part of the reproductive process. There is perhaps a harmless element of stipulation involved.) Sometimes the question whether we are concerned with reproduction is part of the issue to be discussed. This simple point is nearly always missed. At the present time much is made of a distinction between reproductive and therapeutic cloning. The terminology is tendentious if therapeutic cloning already involves reproduction. Perhaps I should say at this point that our topic is not about sexuality – except of course for Freudians who think that every topic is about sexuality. Our problems would be just the same if scientific research was able to provide women with babies parthenogenetically – an advance which may arrive sooner than we think. There seems to be a good deal of associative unthinking in this matter, both among those who are for choice and those who are for life. Some examples. Historian James Mohr, writing about the nineteenth century, says: ‘Christian women could not and would not be involved with such an unchaste and unnatural procedure, and as a consequence, there was no reason to discuss the matter in their publications.’14 Whence the ‘unchaste’? Would infanticide count as an unchaste topic too? Judge and academic Richard A. Posner, in his book entitled Sex and Reason, includes a section on abortion. What is a discussion of abortion doing in an academic book about sex, especially when it is said at the outset, and reasonably enough, that abortion is usually objected to as a form of infanticide? The morality of infanticide is hardly related to problems about sexuality.15 An exhaustive (981-page) study of Roe v. Wade by David Garrow is entitled Liberty and Sexuality.16 The prominent campaigner Lawrence Lader 14 Abortion in America, Oxford: Oxford University Press, 1978, p. 183. 15 Sex and Reason, Cambridge, Mass.: Harvard University Press, 1992, p. 272. 16 Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, New York: Macmillan, 1994. Just over a third of this book is devoted to controversies over

Introductory

9

wants us to think that having an abortion is a kind of sexual behaviour. He talks of ‘prohibitions, not only over abortion, but over other forms of sexual behaviour as well’.17 Philosopher Georgia Warnke would like to stress the supposed association with sex in the minds of abortion opponents. ‘For pro-life advocates, not only is human life sacred, so is the act of intercourse through which new life begins.’18 And what about the bed sheets one wants to ask? Wouldn’t they be considered just a little sacred too? Sidney Callahan, who is pro-life, does not go quite so far. But she states that ‘how one interprets and defines sexuality is critical to abortion discussions and decisions’.19 With due allowance for the obscurity of ‘interpretation and definition’ in such a context, this seems to be arbitrary and unfounded. Pro-choice pioneer Mary Anne Warren writes: ‘One reason that abortion is controversial now is that it has become a symbol of contemporary cultural and political struggles over sexual morality and the social roles of women.’20 Seeing that this is something of a received opinion, I should perhaps say on my own behalf that I have no view whatsoever on the social roles of women21 and find sexual morality impossible on the whole to think well about. So these ‘struggles’ will have little part to play in what follows. A discussion of sexual morality might indeed involve reference to abortion, but abortion is a topic to itself.22

17 18

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22

contraception. It is of course possible to think of abortion as a form of ‘birth control’, and indeed to think of infanticide in this way, as controlling a certain consequence of birth – as in Linda Gordon’s Women’s Body, Woman’s Right: A Social History of Birth Control in America, Harmondsworth: Penguin, 1977; for example, p. 28. In regard to infanticide ‘Birth Correction’ would be the better term. Much homicide might be seen as birth correction, I suppose. Abortion, Indianapolis: Bobbs-Merrill, 1966, p. 90, italics added. Legitimate Differences: Interpretation in the Abortion Controversy and Other Public Debates, Berkeley: University of California Press, 1999, p. 90. Professor Warnke’s book was singled out for discussion at a meeting of the American Philosophical Association. ‘Value Choices in Abortion’, in Sydney and Daniel Callahan, eds, Abortion: Understanding Differences, New York: Plenum Press, 1984, p. 287. Moral Status, Oxford: Clarendon Press, 1997, p. 208. In this respect I am unlike Mill, who quaintly wrote: ‘The great occupation of woman should be to beautify life’ (‘On Marriage’, in J. M. Robson, ed., Essays on Equality, Law, and Education: The Collected Works of John Stuart Mill, Vol. XXI, Toronto: University of Toronto Press, 1984, p. 44). People like to assimilate the objection taken by Catholics to abortion with that other objection they make to contraception. This is clearly a useful move. Not only is the teaching against contraception much despised, but the association plays down disturbing thoughts of homicide – two birds with one stone. Sometimes, of course, this will not be dishonest, but merely unthinking. The BBC programme Panorama ran a feature called ‘Sex and the Holy City’ (12 August 2003) which included a good deal of comment on abortion. The reporter, Steve Bradshaw, said that ‘trying to stop abortions is just one way the Vatican is trying to impose its sexual values across the world’ (BBC website). Most people oppose infanticide. Should this too be seen as an attempt to ‘impose sexual values’?

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Worth and Welfare in the Controversy over Abortion

About abortion in particular I am going to assume, as is natural, that abortion is a failure if the pregnancy ends with a living baby, a baby which then must be kept or given up for adoption or perhaps killed. If the individual in the womb has already died of natural causes then any subsequent medical procedure in connection with it will not be counted an abortion. 23 As I said: what is wanted almost invariably is that a certain developing human individual will cease to exist. (I do not, of course, mean that this is wanted for its own sake. Perhaps it would not be intelligible to claim to want such a thing ‘just in itself’ and for no further reason.) What is paid for, the service, is that by such and such a time there will no longer be such an individual. If there were some way of proceeding which would give the baby a chance of a healthy normal life this would deliberately be avoided. If the foetus happened to be viable, its heart might need injecting with potassium chloride, or its head might need crushing or cutting off. Of course, no one would want to dwell on this aspect. But it would just be embarrassing in a particular case if at the last minute someone were to wheel in an efficient artificial womb, the latest Sony Pregnatron just arrived from Tokyo. Not every choice is welcome. I am going to consider arguments which aim to legitimise abortion in this sense, where death is not a by-product or sideeffect (or even something one could somewhat cheatingly imagine to be a side-effect: what counts as a side-effect is clear in some cases, but there is a large zone of indeterminacy). That is enough to be going on with.24

23 It is perhaps rather pedantic to make this stipulation. But Sarah Weddington, the lawyer who argued Roe v. Wade before the US Supreme Court, is prepared to put a case for abortion rights in the following terms. ‘What if a woman is discovered to be carrying what is already a dead foetus? Surely she should have the right to an abortion’ (A Question of Choice, New York: Penguin Books, 1993, p. 252). 24 Bernard Nathanson, who had once been in charge of a large abortion clinic, wants vehemently to insist in his anti-abortion book that abortion is not killing. ‘Medically speaking, abortion is not the killing of the foetus, never has been, and (I trust) never will be. I repeat. Abortion is not the killing of the foetus. Rather abortion is the separation of the foetus from the mother. The fundamental misunderstanding here corrupts the entire debate. Though in practice death has become the aim as well as the result of separating the foetus, the medical term does not imply any intent to destroy it. From Alan Guttmacher’s essay in the first medical anthology on abortion (1954) through recent statements of the American College of Obstetricians and Gynecologists, the point is made that the foetus is not the doctor’s target, and that its death is a by-product of its removal’ (Aborting America, New York: Doubleday, 1979, p. 177, italics in text). Indeed, Dr Nathanson, following an older usage, does not want to call what happens after viability abortions at all. By contrast, Leonora Lloyd of the National Abortion Campaign says rather plainly and clearly that ‘it is important to remember that the desired outcome, even in a later abortion, is a dead foetus’ (R. Gillon, ed., Principles of Health Care Ethics, Chichester: Wiley, 1994, pp. 573–4). Charles Rodeck and Susan Bewley (in S. Bewley and R. Humphrey Ward, eds, Ethics in

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Abortion thus understood is not to be classed with self-defence, where the use of minimum force would be expected, and the child might chance to live – to everyone’s satisfaction. Still less should it be classed with an assertion of one’s property rights in one’s body, or resistance to a ‘hostile takeover’.25 There has been much discussion of abortion as mere detachment – like turning an unwelcome guest out of one’s house – with death as a sad foreseen consequence, a ‘letting die’ rather than a killing, which one would have avoided if one reasonably could (but one must be allowed one’s privacy, after all . . .). Perhaps abortion is sometimes like this. Deliberate detachment gives us a spectrum of cases. At one end of the spectrum we have ordinary induced birth, where a woman decides for one reason or another not to continue the pregnancy. Those opposed to abortion have no objection to that. At the other end, where death is certain, detachment might incur the guilt of murder, either because it is a mere pretence that the death is unintended, or because, as seems reasonable, we should not insist that the kind of wronging we class as murder must in every case involve the intention to kill (in this respect, we are of course following the legal concept of murder in the common-law tradition). But the topic of mere detachment is not our concern. What people mean by abortion emerges clearly from what they choose to mean by a safe abortion. Cases where a pregnant woman has a cancerous uterus removed can involve foetal death which is clearly not wanted – even reluctantly, in the way someone may want to go to the dentist. A woman might wait, hoping against hope, day by day, that the operation can be postponed long enough to give the baby a chance of survival. I once saw a harrowing programme

Obstetrics and Gynaecology, London: RCOG Press, 1994) reasonably contrast mere termination of pregnancy, which might, as they point out, be undertaken to save the life of the foetus, with abortion ‘with the aim that the foetus does not survive’ (p. 262). And they point out, for example, that ‘extra-amniotic infusion is now less used because it has a higher failure and infection rate, and also may result in a live baby’ (p. 263, italics added). The authors regard foetal survival as an ‘appalling complication’ (p. 263). 25 Implantation is described by Miriam Stoppard as ‘the fi rst step in the embryo’s hostile takeover of the innocent mother and a sign of the uncompromising savagery to come’. The ‘vandalizing’ embryo, she says, acts ‘like a malignant cancer’, the mother’s uterus having to ‘absorb the ferocity of the baby’s attack’. ‘You thought you were having a baby?’ Think again, ‘your baby is having you’ (‘Forced Labour? Birth is More a Hostile Takeover’, Times Higher Education Supplement, 26 January 2001.) This would all be just amusing chatter in the ante-natal clinic if it were not for what ethicists tend earnestly to say about self-defence, enslavement and property rights. L. W. Sumner expresses himself more soberly, but in the same vein. ‘Not only does pregnancy violate a woman’s physical integrity . . .’ (Abortion and Moral Theory, Princeton: Princeton University Press, 1981, p. 8.) Would having an aged parent to look after violate one’s social integrity?

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on TV involving just that. The poor woman was eventually given her dead baby to caress. This will not be the sort of case under consideration here. Catholics often say that this operation is justified under so-called ‘double effect’. And to be sure, it seems to me that some doctrine involving double effect considerations is required in moral philosophy. I half suspect, however, that a reasonable doctrine of this kind might often be too weak to give us the result we would like, even in this case. But I will not pursue the matter. Our central problem concerns killing: the killing of (what is said to be) a developing human individual. And this, as we have said, whether or not the individual is detached from a pregnant woman – it might be in an artificial womb, a hospital incubator or a homely cradle. It might be in a petri dish. Is it sometimes permissible to kill young human individuals, if that is what they are? Wouldn’t that always be murder? Wouldn’t it always be murder if we can rule out, perhaps as fanciful, considerations of selfdefence? And if we are not to talk of murder here, should we at least view killing as the destruction of something specially valuable? Is that our real worry, hidden behind our worried language? Don’t we all, whatever our views, think that what is destroyed is somehow valuable, but differ, understandably enough, when asked just how valuable it is, and what could be worth sacrificing in order to preserve it? Or do we think (in addition perhaps) that what is destroyed has the most fundamental right of all which is being violated? Do we understand this reference to a right? If we talk concernedly about human rights abuses around the world, is there not a human rights abuse which has become a daily part of the respectable life of our own community, and therefore not to be mentioned? 26 Or could we confidently reply that someone at this early stage in life cannot possibly have rights – any more than there could be rights possessed by cabbage plants? After all, it will be said, a human individual at this stage of life cannot have plans, cannot be disappointed, cannot assert a right, cannot stick up for the rights of others – that much would be agreed by everyone. Would this in turn show us that abortion is not – could never be – murder? Or does the wrongfulness of murder not turn upon the possession of rights at all? Many of these issues are rather general, and will even be of interest to those (if any) who simply do not care how the dispute over abortion is 26 People talk of ‘the human rights community’, which must surely be a partisan organisation of mutual admirers. We could hardly expect its members to recognise abortion as an infringement of a human right. Frances Kissling says with evident satisfaction: ‘The human rights community is moving steadily towards recognising a woman’s right to choose and there is no countervailing view in this community that even considers the question of whether or not foetuses are rights-bearing entities’ (‘Is There Life after Roe?’, Conscience, Winter 2004/05, <www.catholicsforchoice.org/conscence/current/LifeAfterRoe.htm>, p. 2 italics added).

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to be decided. Indeed, we will probably not think about these matters well unless, at least to some extent, we can detach ourselves from the practical anxieties and retreat into the study.

1.3 Down with murder or up with maternity? It will help us to focus on the question of killing if we reflect that our topic has nothing to do with a fondness or fi xation on maternity. Or indeed on the equivalent paternity – should men become capable of gestating. Given that abortion is bad in the way usually supposed, what would be required of a pregnant woman? I want to suggest: much less than many moralists might suppose. Opposition to homicide represents a minimal requirement in a sense, something not in the least impressive. What more generally is required could perhaps be put like this: that the pregnant woman is required to treat her foetus with (what could vaguely be called) ordinary care. It will be quite usual for women to want to do more than this minimum, of course, and even to talk quite extravagantly of what is required of them. But it would be mere moralism to take this talk seriously, though it might be attractive enough in its place. What is required, the ‘treating with ordinary care’, would usually involve doing rather little, but simply leading a normal life. Someone might wish to comment that the woman’s body is doing rather a lot, or that her circulation is working overtime, that her glands put out this and that, etc. The amount of activity which goes on under the headings of digestion and metabolism might be pretty impressive too come to think of it. Books on our subject sometimes like to remind us of this sort of thing lest we be insufficiently appreciative, so let us be duly reminded. Let us now suppose that for some reason the pregnant woman is liable to have a miscarriage unless she stays in bed, the opponent of abortion need not suppose that she is required to stay there, still less that she should be forced to do so. (‘With some pregnancy complications, the mother and her foetus may benefit from a very sedentary existence’ says Williams Obstetrics.27) Again if the woman needed some medicine that might well cause a spontaneous abortion as a side-effect, this would not show that it was wrong of her to take it.28 All this would involve a very different discussion. Surely a woman might be entitled to take certain risks? Analogies might be 27 F. Gary Cunningham et al., eds, Williams Obstetrics, 20th edn, London: PrenticeHall International, 1997, p. 240. 28 It has recently been suggested that miscarriage is correlated with taking aspirin. Suppose that there is a causal influence. Why should someone who thinks abortion is murder suppose it wrong on this account for a pregnant woman to swallow an aspirin for her headache?

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found helpful. Thus we might ask what a woman would be entitled to do if she were to wake up one day to find that she had become attached by various tubes to someone else during the night, and was now providing irreplaceable life support. Would one be entitled to behave in ways which might risk his life? Smoking? Walking about? In special circumstances of course it could easily be wrong to act in a way which increases the likelihood of a miscarriage. This is because any action which is in general all right can be wrong if done for a bad reason. If abortion for Down’s syndrome is gravely wrong qua homicide, and qua unjust discrimination against the already disadvantaged, then it would seem to be wrong to risk miscarriage by having amniocentesis if this is done with a view to eliminating one’s offspring if affected. Recent research at St Bartholemew’s Hospital, London, claims that for every Down’s syndrome baby identified by amniocentesis, four unaffected babies are miscarried.29 A woman who did not happen to feel sad after a miscarriage should not be the subject of any reproach. This is worth underlining. No one opposed to abortion need insist that a woman be ‘maternal’. It might of course be true that those opposed to abortion also tend to admire baby-bearing. Abortion opponents might even come, by some proceess of association, to be fond of babies. I know of someone, long opposed to abortion for foetal handicap, who once felt privileged to hold a young baby born with spina bifida, where the killing option, though doubtless available, had not been chosen. It is true that we regard someone as doubly wrong who kills someone for whom they have (perhaps very rudimentary) duties of care. But this is not particuarly or exclusively a maternalist thought, for we think exactly this about a doctor who kills a patient (who might perhaps be a foetal patient). And of course this is a side issue in regard to abortion. The mistaken idea that the objection to abortion has something to do with an odd enthusiasm for birth – perhaps it will be called ‘pro-natalism’ – is very common. No doubt it helps to suppress an uncomfortable thought. Lofty-sounding sentiments of a pronatalist character are freely attributed, as if these were of the essence. The judgment in Casey, for example, talks of those whose view is based on such a reverence for the wonder of creation that any pregnancy ought to be welcomed and carried to full term . . .30

29 As reported in the Independent, 5 April 2001. One imagines that Professor Dworkin – about whom more in a moment – would come out strongly against the practice, on grounds of the loss of all that ‘intrinsic value’. 30 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 853. This pious attitude of reverence is even-handedly contrasted with another from the abortion-friendly side of the fence: ‘that the inability to provide for the nurture and care of the infant is a cruelty to the child’. Moralists tend not to be pleased

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The question at issue, say the justices, is whether the state can insist ‘upon its own vision of the woman’s role’.31 Yet why must someone opposed to abortion (or indeed contraception, since that seems also to be under discussion) think that a woman ought always to welcome being pregnant? Such a sentimental idea is harmful to clear thinking on this topic. Elizabeth Anscombe was a philosopher twice arrested for protesting about abortion (as I have recently learned). And she was indeed prepared to say there were ‘times and places where child-bearing was a woman’s pride and many children her honour’. However, she also felt free to talk about the ‘reckless and callous begetting of children’.32 Hardly a maternalist turn of phrase. And not one to fit the Casey piety. A woman might well be heard to say: ‘Dammit, I’m pregnant again!’ How could anyone take exception to that? It would be quite in line for a friend who takes it for granted that an abortion would be murder to sympathise with her: ‘Rotten luck!’ Perhaps the woman is determined this time not to fall in with ‘the vision of a woman’s role’. She will have the child adopted. Far from protesting, opponents of abortion might well be offering to assist her. It can even be all right to be pleased about a miscarriage. Since there are very many people opposed to abortion, there are no doubt some so silly and insensitive to think that a teenager who is unhappily pregnant should be made ‘to pay for her mistake’ by being made to keep the baby. But it is no part of the view that killing an unborn child is a wrong to think such a thing. A miscarriage in such circumstances is not the ‘unjust avoidance of punishment’. Quite generally, a woman (or the man in the case) can sometimes, all things considered, welcome without reproach the fact that their baby has died, whether born or unborn. This would not even be evidence of hardness of heart, as it might well be in the case of the death of a toddler. It is here that talk of ‘bonding’ has a place – though no doubt a certain amount of ‘bonding’ must go with a baby in the womb after ultrasound or after quickening. It is reasonable to spend medical resources on the saving of born children in particular, partly because they tend to be particularly loved. when the sincerity of this unlovely excuse is put to the test by the provision of help for both mother and offspring. 31 Casey, 852. 32 ‘You Can Have Sex Without Children’, Collected Philosophical Papers, Vol. 3, Oxford: Blackwell, 1981, first quote p. 82, second p. 83. And there is no reason to suppose that in admitting that begetting can be reckless and callous she would have gone as far as the illiberal Mill. Mill claimed, in On Liberty of all places, that the state was entitled to prevent poor people from marrying, people who could not show that they had the means of supporting a family. ‘On Liberty’, Chapter 5, para. 15, in J. M. Robson, ed., Essays on Politics and Society: The Collected Works of John Stuart Mill, Vol. XVIII, Toronto: University of Toronto Press, 1977, p. 304.

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There is a general point here to be made about death. It is quite often reasonable to be gratified by someone’s death, and not just because one considers it the best thing from the deceased’s point of view. Someone who is a pain in the neck drops dead, leaving a job opportunity for one’s friend Bill. One says: ‘Thank heavens!’ Why must a reasonable devotion to the sanctity of life rule out such a reaction? It would be distinctly unimpressive (though no doubt expected) for someone keen on ‘abortion rights’ to express shock horror.33 This point is quite important. There is no such thing as the natural or the appropriate reaction to a death, the mandatory response of the long face. To an undertaker a death means a business opportunity. It would be especially comical to suppose that there was an appropriate response to the death of organisms generally, even if we confine our attention to those which are ‘sentient beings’. A man might be more upset by the death of his goldfish than by the death of his uncle – he would not necessarily have to reproach himself for that. And of course we should not be drawing earnest conclusions about their respective ‘moral statuses’! Nor should we be wondering whether goldfish-days are somehow more valuable than avunculardays. If all this makes it more difficult to understand the objection we rightly make to murder, then that is progress. This whole topic invites humbug. And how many there are who respond to the invitation. I know very well, as we all know, that people are dying all the time. They are dying right now as I write. Each full stop marks the full stop of someone’s life. I am quite unmoved. Everyone would say something of the kind if they were not trying to make a good impression. In truth, it would be rather alarming to learn that death had just been abolished. Environmentalists would be particularly upset. People might well retort: ‘If you don’t feel upset a little bit at the thought that an individual, NN, has died, you cannot really think of him as a human being. You must think of him as sub-human, a robot, a crocodile perhaps – or a mere foetus.’ This species of ‘argument’ – it is hard to avoid the scare quotes – turns out to be quite popular. In particular, we are told: ‘You cannot “really” think of this miscarriage as the death of your child, because the appropriate reaction to the death of your child is XYZ and your reaction is PQR.’ This is often thought decisive: ‘So there . . .’ It seems to me an exceptionally feeble consideration, which would not be accorded weight if it did not allow us do what we want

33 ‘Pro life advocates link the principle of the sanctity of human life to the need to accept, gratefully, new human life in all its forms and in all circumstances’ (Warnke, Legitimate Differences p. 93). Some of them might be generous or yeasaying in this way. But why need they be? It is hardly of the essence of their case – the hard-edged case that many people would evidently like to hide beneath a lather of scented soap. Professor Warnke is here tripped up, like so many, by the misleading connotations of the phrase ‘pro-life’.

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to do without feeling too bad about it. Sometimes people feel devastated at a miscarriage, sometimes relieved, quite often a bit of both. Each reaction can be appropriate. What dies, however, is the same in each case.34 Abortion liberals do not like to refer to their opponents as pro-life. They prefer to say anti-choice or anti-abortion. In this, their animus leads them aright. It is most misleading to say that the aim of their opponents is ‘the preservation of foetal life’.35 That better describes a specialist in foetal medicine. Janet Radcliffe Richards assumes the presence of a ‘principle’ in the mind of the abortion-opponent who is not just moved by disgraceful prejudices ‘perhaps unconscious’, to wit: ‘that life is more important than freedom and the absence of suffering’.36 Allowing for a certain unclarity as to meaning, I do not see how an abortion opponent who supposes abortion to be murder need sign up to such a grand generalisation. He or she might reasonably think it right on occasion to support measures to protect freedom or reduce suffering, measures which will eventually, sooner or later, have lethal consequences. We all do, whatever our views about abortion.

1.4 A limited objective The central problem then concerns killing rather than life-saving. Now it is not part of my purpose to provide (what might be called) a comprehensive solution to this central problem. I could hardly do that, for I do not know of such a solution. Here, for once, is a book on this subject which does not pretend to answer all your questions. My treatment, as I have suggested, is confined to certain topics within the field. I will certainly not be attempting to prove that it is bad to kill a baby, before or after its birth. People who believe that it is gravely wrong to kill a baby – as I do – simply lack such a proof. At least, we have nothing which would frogmarch any competent philosopher to the conclusion in question. The place of proof in our lives

34 Arguments of the kind ‘you cannot honestly believe it is a baby because you do not shed tears as you would have to if you really thought . . .’ spread about like the common cold. Or the argument, on similar grounds, might be that you cannot believe it is really a ‘person’ (whatever that is). For an example here see Simon Blackburn, Being Good, Oxford: Oxford University Press, 2001, pp. 64–5. Simon Blackburn is Professor of Philosophy in the University of Cambridge. See also Margaret Olivia Little, ‘The Moral Permissibility of Abortion’, in Andrew I. Cohen and Christopher Heath Wellman, eds, Contemporary Debates in Applied Ethics, Oxford: Blackwell, 2005, p. 28. 35 ‘. . . the conservative, whose aim is the preservation of foetal life’. Christine Overall, Ethics and Human Reproduction: A Feminist Prespective, Boston: Allen and Unwin, 1987, p. 79. 36 Janet Radcliffe Richards, The Sceptical Feminist, London: Routledge, 1980, p. 217. See also p. 283 below. I prefer Bill Shankley: ‘Football is not a matter of life and death. It’s much more important than that.’

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is grossly exaggerated. Philosophers themselves soon run out of reasons and carry on regardless. Furthermore, it is extraordinarily easy for a philosopher of modest ability to ‘justify’ the most monstrous conduct. This is one of the first things a student should learn on a course in ‘practical ethics’. It induces the right kind of scepticism. (As an exercise, the reader might like to consider in how many ways he might ‘justify’ the killing of toddlers or destroying the world. Hint: he could start by saying ‘suffering should be prevented at all costs’, or again, ‘there is, philosophically speaking, no such thing as moral obligation’.) Apart from this inability to provide a proof, I am quite uncertain what to say in particular about human zygotes, morulas and blastocysts. These entities should not be referred to as ‘babies’. It is not that this would be upsetting, or ‘rhetorical’. To call them babies would be at best unnatural and at worst untrue. But would they be human beings? Not every human entity is a human being, a human blood corpuscle, for example. Those who are opposed to abortion often say with confidence that human zygotes, etc., are all human beings, and thump their textbooks of embryology. For all I know they might be right in their conclusion; but nearly all of what I have to say will bypass this issue. I suspect that it is not a straightforward ‘empirical’ question – the answer being well known to every textbook writer.37 I imagine that it is at least in part a conceptual issue in biology. If there is a subject called philosophy of biology it would be dealt with there. It seems to me important to admit the existence of such a discipline. There are certainly conceptual unclarities in biology and these can have a bearing on our subject. Thus it has become surprisingly usual to ask whether a foetus (or embryo or zygote) is a ‘full’ human being. Perhaps there is thought to be comfort in it. However, we should settle fi rst what this obscure question means. Do we know that a toddler is a full human being? Is a puppy a full dog? If there were centaurs we might indeed wonder whether to say that a centaur was a full human being, but even here the question would not really be satisfactory. Such questions arise because our grasp of our concepts is not wholly secure. This is a very familiar situation in philosophy. However, even if the opponents of abortion are not right to say that human zygotes, morulas, etc., are human beings, this admission might not be as big a concession as they tend to suppose. For certain anomalous

37 More unusual, however, is the appeal to the textbook of embryology to establish, in support of ‘choice’, that doctors who have consulted such a volume, even if they recall little of it, will somehow know that abortion is not murder: ‘Some doctors are opposed to abortion, strongly upholding the right of the embryo. But the major issue that confuses them is not that they think abortion is murder – they usually vaguely remember sufficient embryology to ensure that this is not the case . . .’ (Malcolm Potts, Peter Diggory and John Peel, Abortion, Cambridge: Cambridge University Press, 1977, p. 533).

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human entities, or quasi human-beings, or whatever we call them – human entities which are significantly unlike blood corpuscles – might come under the protection of the moral law in just the way human beings do. That is perhaps not implausible. Again, people who say that human beings are ‘valuable’ – not an altogether satisfactory notion as we shall see – might be entitled to claim that these anomalous human entities are equally ‘valuable’. It is so very often assumed that those who are pro-life will say: the killing in question is wrong if and only if what is killed is a human being. But what entitles us to attribute to them the ‘only if’ part of this claim? This question might become acute where a philosopher offers a restricted account of what it is to be a human being. If for example a newborn baby is not to count, and is instead referred to as a ‘potential’ human being rather than a real one, the ‘only if’ will be rejected. However, I do not discuss the issue – even though, what we ought to say about human zygotes and morulas is coming to be of practical importance as people wonder whether they can do wrong by destructively experimenting with them, perhaps with the aim of ‘doing good’. The debate here seems to me to share all the difficulties of the one I shall be engaged in – with the addition of a few more. Perhaps these difficulties are easily settled, as is often supposed by those who are pro-life – but perhaps not. Perhaps there will be indeterminacy – after all, even someone who believed that a human being starts to exist at conception might have to admit that since the process of conception is continuous there will be times at which it will be indeterminate whether we yet have a new human being. I make no judgement about these matters. In what follows I may occasionally bring up questions about zygotes, etc. But in the main they are not my business. I shall largely confine myself to the ‘if’ part of the above claim: the thought that the killing in question is wrong, and indeed gravely wrong, if what is killed is a human being. And I shall adopt a naive approach, or what might appear to be such, as to what counts as a human being. People opposed to abortion sometimes like to wear a little gold badge showing tiny feet. I shall largely be guided by this icon, and in the main will confine myself to human individuals or entities which have such feet, or would have them if they were not maimed by injury or heredity. I shall assume that non-disabled members of the human race, ‘men’ generically speaking, have feet. People who think that abortion is permissible suppose that it is often all right to dismember a foetus, and that seems to their opponents to be murder. I am interested in this difference of opinion. Dismembering presupposes members. This restriction in the scope of our enquiry is in no way a matter of sentiment. It is not as if it were especially cuddly to be the kind of being which has lower extremities. The assumption is a temporary one for purposes of argument. No one who is pro-life has reason to be cross about it. It is merely a matter of setting a modest target. Why should we have to solve all our

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problems at once? Why is one expected to have a well worked-out position across the board? Perhaps we will need to say something special about morulas, etc. But we can come back to that another day, after we have made progress with matters which ought to be easier. It is quite often said, by philosophers at least, that certain developing human beings (‘with feet’ let us say) are somehow not ‘persons’ and that this entitles us to kill them, or to kill them ‘for a serious reason’ such as saving a reasonably large sum of money, etc. It is this kind of thought which will concern us. Doctrines of this kind divide human individuals into two categories, those protected from assault under the shield of justice, and the others not, being insufficiently developed. We will not be much concerned with the various definitions of personhood introduced for this liberating purpose, though such a task can be quite entertaining in an academic sort of way. Instead we will look at the substantive claims which lie behind the introduction of a special use of ‘person’ in the first place. That there are two such categories is increasingly being taken for granted. Indeed this category of ‘persons’ comes into quite elementary treatments, as if there were no difficulties in the notion. In fact the word ‘person’ need not itself appear, and homicide need not be under consideration. Here, for instance, is a remark selected as an epigraph by the well regarded philosopher of mind Daniel Dennett: Once the child has learned the meaning of ‘why’ and ‘because’ he has become a fully paid-up member of the human race. That seems to have a certain charm. Joining in, one might try other possibilities: ‘Once someone has blushed for shame . . .’, ‘Once someone can be held legally liable . . .’. ‘Once someone has said “I love you”. . . .’ Texans will insist that one must have visited Texas. We assume that the thought of homicide is not even on the horizon. No one supposes that those who are not ‘fully paid up’ can be used for target practice. Here, however, is something rather more sinister, just one step along the road. It is a clip just culled from an exam paper by a good student. He is writing about the idea of ‘equal rights’. Babies do not have the concept of what a human right to life is and, therefore, without comprehending this right, can be seen in a sense to be not fully under its protection. The remark is presented just as it is, without further discussion. He had evidently learned to be cautious: ‘in a sense . . .’, ‘not fully . . .’. We cannot therefore be sure what conclusions he would have drawn. Abortion or infanticide were not on the syllabus at all. The student had simply been doing his own study. Things of this sort are a commonplace in academic

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circles. What is here a student’s remark could easily have been memorised from a textbook. It will be noted that no special meaning of ‘person’ had to be introduced. Here the question arises: what can we take for granted? Or rather: what can we nowadays take for granted. I expect that the time is upon us when a division of human beings into those protected under the moral law and those not protected, or only, as it were, half protected, will be said to be where we start out from. The question will be: how is this to be explained? Various accounts will be offered, and there will be many academic papers on the topic, leading to further, more complex, accounts. Or again, a difficulty with what is said by philosopher Robinson will take the form: How can Robinson’s theory of virtue, piety and integrity be reconciled with the fact that it is quite all right to kill a baby? Exam papers will ask: Seeing that it it is seriously wrong to kill a six-year-old but not seriously wrong to kill a toddler (religious considerations aside), what is the morally relevant difference between the cases? We can be sure that a moderately competent student will fi nd some ‘morally relevant differences’, a good student rather more. Moral theory and metaphysics respond to just such needs. It is no longer thought sufficient to raise the objection ‘but that would mean deliberately killing a child’. After all, what is so special about a child, we shall be asked. (‘If you must use such an emotive word.’) What are its ‘morally relevant characteristics’? I would be very surprised if anyone could say. Someone opposed to abortion as baby-killing could not, I believe, explain, in the face of modestly competent philosophical enquiry, why it is bad to kill a toddler – that is to say in the way it is still thought to be bad. Quite generally, our understanding of what underlies the morality of homicide is very defective. I have been struck while working on this subject how often the public discussion does not directly concern the plausibility of moral judgements, but turns on certain background considerations. I have selected some of these for attention in this book, thinking that we are likely to make more progress if we attempt to settle some relevant issues. We shall be taken up with questions like: is the right to life an atypical right? What sorts of beings have a good of their own? Can we understand the claim that a human being is valuable? It will be noted incidentally that none of these questions about rights, worth and welfare are about abortion as such. That is all to the good. Some of our discussion will have just as much relevance to disagreement in environmental ethics, for example. I would like to think the pages which follow would offer something of interest to someone quite

22

Worth and Welfare in the Controversy over Abortion

uninvolved with the abortion controversy. The topics are important in their own right. In our consideration of these topics we shall often be concerned about what it makes sense to assert or to suppose. The idea that philosophers often go wrong by saying what is nonsensical rather than false was of course made much of – perhaps too much of – by logical positivism in the 1920s and 1930s. Our very reasonable rejection of positivism since that time should not lead us to lose the insight that questions of sense, and not just questions of truth, are important in our subject. We do not need the doctrine of verification to see that people can become very muddled when handling abstract questions. Nor need a rejection of what is said as meaningless – or at least as insufficiently clear to be discussed – be brash or scientistic.38

1.5 The permissive case will be represented in this book by the work of various philosophers. But in particular by the ‘liberal’ arguments of Ronald Dworkin. What liberalism is. Do we then have this freedom to take young human life? To dismember? If we are to consider this question well we need to know what is being said in defence of this freedom, and to represent it fairly and in some detail. In 38 Perhaps I should indicate here a further way in which my enquiry is limited. A publisher’s reader regretted that this book did not discuss what the position of the law should be. I have deliberately left out this much discussed topic, though I know it is of interest to many. It seems to me secondary. I shall confine myself to a few brief points. First, that it is not reasonable to ask ‘Whose choice should it be, the government’s or the pregnant woman’s?’ (with the obvious expected answer) before we have settled that someone should be given the two-way power to decide in the first place, the only question being who should be given it. Second, that someone who urges that abortion (perhaps just ‘later’ abortion) should be made a crime need not be suggesting – a strange thought! – that pregnant women or doctors are somehow less able to make moral judgements, or are less to be trusted, than other people. Third, that even if abortion (or ‘later’ abortion) is recognised by legislators to be murder it would not follow that they should make it a crime. One might say much the same thing about a proposal to make duelling illegal in a country in which it is largely accepted. The law must take into account all manner of pragmatic considerations. What would follow is that the law should not talk or act as if there were a right to abortion. The law can frown where it does not forbid. It can refuse to support litigants. If abortion is murder the law should at least refuse to support a woman who wished to sue her doctor for not having given her the chance to kill her offspring, or again where an incompetent procedure had resulted in that dreadful complication: a surviving child. Fourth, that if abortion were were made illegal on the ground that it is murder, it would not follow that those involved should be dealt with just like those who commit other kinds of murder, shoot a business rival, say, or poison an aunt. Nor conversely could we conclude from the punishments provided by statute

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this way, we might hope to move the debate on a bit, either by acknowledging ground already won, or by clearing away obstacles. I shall for the most part (though not exclusively) build my argument around the most broadly well-received among modern attempts to defend this freedom to kill: that offered by Ronald Dworkin in three chapters of his easily accessible book Life’s Dominion, parts of which I shall expound and discuss with some thoroughness.39 Ronald Dworkin will no doubt be thought the most eminent academic to write on this topic in recent times. This does not of course entail that his work on this subject is pre-eminently good. But it has evidently been well thought over, for he seems effortlessly able to provide answers to all objections. His work is especially useful to us, for it raises just the questions we singled out for attention just now, to do with the right to life, the concept of a good of one’s own, and the idea that human individuals have a special kind of value. I shall argue, at the very end of this book, that he has had a very useful insight, without quite seeing its importance. It is equally significant that his book is devoted to the reconciliation of the warring parties to the dispute about abortion and therefore might for this reason seem to have a certain plausibility. It will appeal to all those who complain – perhaps rather conventionally and even unthinkingly – that the debate has become ‘polarised’. A reconciling book might be thought to that the law did not ‘really’ regard abortion as murder (a mistake frequently made in discussions of the history of these matters). Fifth, that where abortion (perhaps just ‘later’ abortion) is a crime we should be careful to describe things correctly. It is quite tendentious, but exceedingly common, even among people supposedly possessed of critical minds, to say that such a law ‘forces women to have babies’ or ‘forces women to remain pregnant’. It would be as tendentious to maintain such a thing as it would be to say that the law wittingly punishes the innocent on the mere ground that innocent people unfortunately suffer (sometimes quite grievously) when a man is justly sent to jail. Sixth, that it is not an objection to the introduction of a law against abortion, thought of as murder, that the rich will still be able to obtain abortions abroad. Whatever ‘equal opportunity’ may be, we need not seek to provide equal opportunities to kill the innocent. 39 Life’s Dominion, London: Collins, 1993. Ronald Dworkin is Jeremy Bentham Professor of Jurisprudence at University College, London, and Sommer Professor of Law and Philosophy at New York University. For many years he was the Professor of Jurisprudence at Oxford. Material from this book has been reprinted in numerous anthologies. Some of the arguments about abortion had appeared earlier in ‘Unenumerated Rights: Whether and How Roe v. Wade Should be Overruled’, University of Chicago Law Review, 1992. This article has recently been republished under the name ‘What the Constitution Says’, in Professor Dworkin’s collection, Freedom’s Law, Oxford: Oxford University Press, 1996, alongside several related articles. References to Life’s Dominion will be indicated by the abbreviation ‘LD’; Freedom’s Law by ‘FL’. Practically all that I have to say about Life’s Dominion concerns just the fi rst three chapters – perhaps a third of the whole. Two later chapters of the book deal with euthanasia, and I shall not be remarking on these.

24

Worth and Welfare in the Controversy over Abortion

be ‘moderate’ in its claims – though the significance of such an estimate, as is often forgotten in discussions of abortion, plainly depends upon the range of comparison, of what lies round the corner.40 The book will perhaps seem to offer a certain sensitivity missing in the writings of ostensibly bolder ethicists. Often it presents in an elaborate way what many people outside the academy, one suspects, are half inclined to think but are unable to express. All this goes some way to explain why the critical reception has been almost embarrassingly rapturous – as we shall see in the next chapter. My remarks must on the whole be critical. However, I hope also to point out what must be praised and underlined. In the search for truth, a critic is a collaborator. We are concerned about thoughts rather than a thinker, however wellregarded. Ronald Dworkin’s ideas on these matters, though doubtless original in many ways,41 are part of a stream of contemporary opinion in which many academics, so sceptical in other ways, have a remarkable confidence. No doubt we are all under considerable pressure ‘not to let the side down’. However, when we consider Professor Dworkin’s case rather generally, it might seem that on this particular point or that, another philosopher (it might be Joel Feinberg perhaps, or Bonnie Steinbock) can produce a better defence of it. From time to time, therefore, we shall turn to discuss what various other writers have to say. Naturally I do not want unfairly to attribute to Professor Dworkin the ideas and arguments of others who think rather like him. It is important to see ideas in their academic context, especially, as here, where this context is rich and remarkable. Someone with not the slightest interest in the outcome of the debate might well be intrigued by the oddities of it. At times I will be presenting various exhibits from the academy, as in a museum. It is instructive to see just what can be thought by those who are paid to think. It is to be hoped that the reader will be patient with

40 The ‘moderate’ convict to young Pip: ‘You bring me, to-morrow morning early, that file and them wittles . . . You fail, or you go from my words in any partickler, no matter how small it is, and your heart and your liver shall be tore out, roasted and ate. Now I ain’t alone, as you may think I am. There’s a young man hid with me, in comparison with which young man I am a Angel. That young man hears the words I speak. That young man has a secret way pecooliar to himself, of getting at a boy, and at his heart, and at his liver. It is in wain for a boy to attempt to hide himself from that young man . . . I am a keeping that young man from harming you at the present moment with great difficulty. . . . Now, what do you say?’ 41 I do not wish at all to criticise Ronald Dworkin for ‘being unoriginal’, if that is what he is. Sometimes he may say what is new. But like anyone of sense, he is not concerned about such a thing. ‘I do not wish to claim originality for my work: that is the most foolish claim an author can make’ (‘Posner’s Charges: What I Actually Said’, posted on the internet at <www.nyu.edu./gsas/philo/ faculty/dworkin/papers/posner>).

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this, the documentary side, of this book. I have tried to confine my attention to authors who seem to know what an argument looks like and who offer their thoughts in reasonably clear prose. This latter requirement cuts down the field considerably, for like the unexplored depths of the ocean the universities nurture some very strange creatures, but it still remains large. Since readers in a wide variety of disciplines read books of this kind, and since what is said might often seem to those new to this topic to be somewhat odd or implausible, I will sometimes state where these authors are employed or for what they are noted. This is a practice followed by Dworkin himself. Specimens in a museum need to be labelled. In the title to this chapter I put the word liberal in scare quotes – so often necessary in regard to such labels. In this case, something more needs to be said. Although Dworkin appears before us as peacemaker, it is clear from his other writings that he considers himself to be a liberal, and because of the way this word has come to be used we will naturally suppose that the abortion-peace is to be made on pro-choice terms. And the other writers whose views we shall examine will doubtless think of themselves as liberals too. However, if we do not want the use of a political label to replace thought, we should not assume at the outset that what deserves to be regarded as a liberal view of abortion will have to be pro-choice. A liberal might have to take a very different line. And then he might well be called not just a conservative, but an extreme conservative.42 The liberalism offered in the marketplace of ideas is like feminism, a package deal, and the question will arise for anyone with a critical mind whether a belief in or support for ‘abortion rights’ must be included.43 42 The latest example to come my way. Margaret Olivia Little talks about ‘Extreme conservatives’ who claim ‘abortion to be the moral equivalent of murder’. Those who say that it is a form of murder must presumably be entirely off the Richter scale (‘Abortion’, in R. G. Frey and Christopher Heath Wellman, eds, A Companion to Applied Ethics, Oxford: Blackwell, 2003, p. 313). 43 Some documentation. Elisabeth Mensch and Alan Freeman express their liberal unease at the outset of their long, ‘search for compromise’ article on the abortion controversy ‘The Politics of Virtue’ (Georgia Law Review, Vol. 25, 1991, p. 934, also published as a book, Duke University Press, 1993). ‘We have both been identified with the left-liberal side of law and politics, a setting in which unquestioning adherence to the pro-choice position has seemed obligatory.’ Columnist Katha Pollitt clearly finds it difficult to see how a North American liberal can be anti-choice. She has been made uncomfortable by the position on this issue of paradigm liberal Dennis Kucinich, chairman of the Congressional Progressive Caucus. ‘From tax cuts for the rich and the death penalty (against) to national health insurance and the environment (for), Kucinich has the right liberal positions.’ Very reassuring. Unfortunately, she says, as if revealing a secret, he is ‘a solidly anti-choice politician,’ and she details his voting record (‘Regressive Progressive?’, The Nation, 27 May 2002. It might be a mere coincidence, but after this drubbing Dennis Kucinich has suddenly become a progressive progressive,

26

Worth and Welfare in the Controversy over Abortion

It is hard not to be attracted to liberalism is some shape or form.44 There seems something honourable about it. We are not thinking of the modern refrain that we ought to be ‘tolerant’ and ‘inclusive’ – offered to us without the slightest indication of what and of whom and in which way. We might not be in the least attracted to the liberal doctrine of wife-beating: let us say, the idea, once claimed to be part of the common law, that a man must be allowed to chastise his wife so long as his stick is no thicker than his thumb.45 No doubt there have been liberals who have taken this view. They will have talked about rights, privacy, etc.; they will compassionately have insisted that a wife should not be permanently harmed. But we tacitly exclude such liberties. Assuming then this precautionary fi ltration, what, shall we say, is a liberal, broadly speaking?46 ‘and now, just in time for his announcement of his presidential bid, affirms Roe v. Wade on his website’, reports Katha Pollitt, The Nation, 10 March 2003). The Archbishop of Canterbury and head of the world-wide Anglican Church, Rowan Williams, is said repeatedly in the press to have liberal social views. What is not said is that he has long been a member of the English pro-life group, The Society for the Protection of the Unborn Child. Naturally, a reporter writing for a newspaper like the Guardian will talk of opposition to abortion as if it must be a ‘conservative’ or ‘right-wing’ affair. It is what its readership will on the whole like to hear. For example: ‘The ground was laid for an epic battle over abortion yesterday after conservatives delivered their most significant blow in decades to a woman’s right to choose.’ The report later talks of ‘the anti abortion movement and other causes of the Christian right’. It does not mention that the measure under discussion in the House of Representatives was supported by nearly a third of the Democrats (62 for, 133 against) (Guardian, 6 June 2003). (When the measure reached the Senate, 21 October 2003, the vote among Democrats was 17 for, 30 against.) 44 I say ‘in some shape or form’ because even Ronald Dworkin is only a liberal on his own terms. Readers of Professor Dworkin’s earlier work will know that he rejects the idea that there is a ‘right to liberty’. And Life’s Dominion clearly shows that he also rejects Mill’s ‘harm principle’: the idea ‘that the only purpose for which power can be exercised over any member of a civilized community, against his will, is to prevent harm to others’. For in Dworkin’s view, the liberal state may sometimes forcibly protect items of (what he calls) intrinsic value. (See LD, p. 149, mentioning Mill in this connection. Also, for example, FL, p. 97: ‘government sometimes acts properly . . . when it requires businessmen to spend money to avoid endangering a species’. As we shall see, some species are said to have ‘intrinsic value’.) 45 The idea that English Common Law allowed such beating is amusingly and instructively discussed by the philosopher Christina Hoff Sommers in Who Stole Feminism?, New York, Simon and Schuster, 1994, pp. 203–7. See also the Victorian kidnap case of R. v. Jackson QB1 [1891] 671, where the Lord Chancellor remarked: ‘such quaint and absurd dicta as are to be found in the books as to the right of a husband over his wife in respect of personal chastisement are not, I think, now capable of being cited as authorities in a court of justice in this or any civilized country’. 46 I have in mind a social or political outlook. ‘Liberal’ has other uses. A liberal Christian, for example, is not someone with views about the economy, helping

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One answer might be this. A liberal is someone who thinks that there are aspects of what we vaguely call ‘morality’ which are not matters of obligation or of social demand. ‘Morality’ under these aspects, the liberal will say, should not be pressed upon people even where it would be practicable to do so. This is an eminently reasonable view. Morality, it would seem, comprises more than a set of demands. The moral law (the phrase is of course to be found in both Kant and Mill) can indeed involve an extreme imposition on our liberty, as liberals will recognise like everyone else, and where practicable we would all expect the positive law to back it up, as Mill says in the last chapter of Utilitaranism.47 However, there is another part of what we are inclined to call ‘morality’ which encompasses diverse, and sometimes incompatible, ideals from which we may select as the spirit moves us. Raising a family can plainly be an excellent and challenging way to lead a life. But Helen Prejean chose another path, spending her life campaigning against capital punishment. One would not have to be convinced by all her arguments to see something wholly admirable in this alternative. No one, not even an anti-abortion ‘maternalist’, will suppose that she should have been forced instead to have babies and raise them. And perhaps there is another part of ‘morality’ which enjoins personal prudence or good sense, one of the cardinal virtues, perhaps indeed the most cardinal of them all. The law-like part of morality might insist – ‘Do not lie!’, ‘Do not kill!’, ‘Pay your debts!’, etc. But otherwise, within these bounds, it leaves us at liberty – perhaps more than many moralists are apt to suppose. Often, on this version of liberalism, we are free to choose – perhaps to be ungenerous, perhaps to be unattractive and annoying, perhaps to be unwise. But the choice is ours. It is our own affair. In these matters, the liberal is someone who is unfriendly to the busybody, and is rather cool towards the improver. The liberal slogan would seem to be: ‘Live and let live’. Yet what happens when we turn to the debate over abortion? We find that the word liberal seems to have been appropriated; it has been been given a different, and altogether more sinister, meaning. Abortion is not just the action of someone who might have been a little more generous or a little less irritating. ‘Live and let live’ would not be the favoured phrase at all. the poor and weak, or whatever, but is rather a Christian who does not believe in God, or in a personal God, or in a divine lawgiver, or in the divinity of Christ, etc. 47 ‘It would . . . chime in with our feelings of fitness, that acts which we deem unjust should be punished, though we do not always think it expedient that this should be done by the tribunals . . . We should be glad to see . . . injustice repressed, even in the minutest details, if we were not, with reason, afraid of trusting the magistrate with so unlimited an amount of power over individuals . . . The idea of penal sanction, which is the essence of law, enters not only into the conception of justice, but into that of any kind of wrong.’ ‘Utilitarianism’, Chapter 5, para. 13, in J. M. Robson, ed., Essays on Ethics, Religion and Society: The Collected Works of John Stuart Mill, Vol. X, Toronto: University of Toronto Press, 1969, p. 245.

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Worth and Welfare in the Controversy over Abortion

There is another aspect to what has been called liberalism, something less passive than a tolerant attitude of live and let live. Liberals have thought of themselves as the guardians of the voiceless, children among them. In On Liberty Mill raised a protest on behalf of the young: ‘One would almost think that a man’s children were supposed to be literally, and not metaphorically, a part of himself, so jealous is opinion of the smallest interference of law with his absolute and exclusive control over them.’48 Here again, abortion seems to have had the power to make black into white, to make up into down. A liberal in this regard is now to be someone who wishes to support the strong in an assault upon the weak. ‘Absolute and exclusive control’ is continually called for. It is said to be a right. Unborn human individuals are regularly supposed to be bodily parts49 – if indeed they are not characterised as parasites.50 To be sure, this astonishing turnabout is often obscured by the claim that these liberals are standing up for the weak, namely for women. It is readily forgotten, in this context, that this represents a somewhat inaccurate and unfortunate stereotype. The voiceless are those whose liberty we hold in trust. And it would be a contemptible liberalism which cared only about the liberties of those at present able to exercise them. And suppose it be said that liberalism is more concerned with equality rather than the mere protection of the voiceless? Abortion seems to flout equality in the most dramatic possible way, since the most basic protection offered to many under the moral law is, as a matter of design, not to be available to all. When it comes to the teachings about justice and wronging by which we are to live, some of our fellow individuals are not to count. The shield of justice is not to be extended over them. They are nobodies. They can be cut limb from limb. Their remains are not even entitled to a decent burial. Ronald Dworkin’s work on abortion might be seen as an uneasy, and I shall argue unsuccessful, struggle to come to terms with these paradoxes.

1.6 Something for everybody The teachings in Life’s Dominion will, as I have said, provide the framework for our discussion here. Professor Dworkin’s book has provoked admiration 48 Mill, ‘On Liberty’, p. 301. 49 ‘Medically and legally the embryo and foetus are merely parts of the mother’s body and not yet human’, write Keith Hindell and Madeleine Simms reassuringly. In case there are residual doubts, they add that at twelve weeks the foetal head is ‘grossly misshapen’ (Abortion Law Reformed, London: Peter Owen, 1971, pp. 47–8, published with a charming frontispiece of David Steel MP, hero of the British 1967 Abortion Act). 50 ‘Pregnancy is a parasitic relation . . .’ (Sumner, Abortion and Moral Theory, p. 8). A defi nition of ‘parasite’ is given in a supporting footnote, together with the comment: ‘Host and parasite need not be members of different species.’

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in a way quite unusual for a scholarly work. We shall first illustrate this reaction and then seek to understand it. Even before its birth, the book was the object of considerable devotion and care. A fine team of midwives were on hand, to judge at least from the lengthy acknowledgements page, including Thomas Nagel, Frances Kamm, Joseph Raz, Derek Parfit, John Finnis and G. A. Cohen, names which will be known to more or less every student in moral philosophy. A draft of the book was used as the basis of a seminar in Oxford conducted by its author and the philosopher Bernard Williams, regarded by some as the leading moral philosopher of his day. Its influence already extended beyond the academy. When in a landmark case the Court of Appeal in England concluded that a hospital could lawfully cease to feed a comatose patient Tony Bland, a manuscript of Life’s Dominion, with its intricate account of ‘the sanctity of life’, was found helpful by one of the judges, Lord Hoffman, as he generously acknowledges.51 The book’s emergence into public view was widely celebrated. Articles by Professor Dworkin based on it appeared in The Times (‘When Can a Doctor Kill?’, 27 April 1993) and the New York Times Magazine (‘Life is Sacred. That’s the Easy Part’, 16 May 1993). And as one might expect, the New York Review of Books came out with an extract (‘Feminism and Abortion’, 10 June 1993). A special debate was held in London to mark the book’s arrival before the public. The Independent joined in with a full-page ‘profile’ of the author. The Times, for its part, went so far as to speculate that he might shortly be elevated to the United States Supreme Court, an event we are still awaiting. Life’s Dominion was described (admittedly by its publishers) as ‘the most important and original examination of this controversy to have appeared in many years’. ‘The reader leaves the book’, they said, ‘with his thinking on the questions which it tackles immeasurably clarified.’ To be sure, no one would normally bother with such talk. Grand claims are made for every book. But in this case appreciative reviews quickly followed, for once entirely bearing out a publisher’s estimates. Almost immediately the book was being characterised as ‘a miracle’, ‘a meticulous and rich reformulation of how we think’, ‘important and compelling’, something which ‘illuminates the very nature of how we live our lives’, etc.52 Two commentators even went so far 51 ‘It seems to me that in such an unusual case as this, it would clarify my own thought and perhaps help others, if I tried to examine the underlying moral principles . . . In so doing, I must acknowledge the assistance I have received from reading the manuscript of Professor Ronald Dworkin’s Life’s Dominion’, Judgment of 9 December 1992, Airdale NHS Trust v. Bland [1993] 1 All E.R. 825–6. For a nice example of an American case relying heavily on Life’s Dominion, see the 1999 case in the Montana Supreme Court, Armstrong v. State 1999 MT 261. 52 Some further appreciations for the record: Susan Sontag proclaimed Life’s Dominion as Ronald Dworkin’s ‘most seasoned, most necessary book’, that the argument it contains is ‘fresh, agile and improving’. Its author was complimented by

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Worth and Welfare in the Controversy over Abortion

as to refer to Life’s Dominion, quite without irony, as a courageous book, and a third informed us that the argument in it is brave. This is a little odd, for how could anyone be tempted to break the good professor’s windows for writing a work which seems to offer all of those capable of throwing a stone

Baroness Helena Kennedy, chair of the UK Human Genetics Commission, on his ‘great clarity and wisdom’. T. M. Scanlon of Harvard, writing in the New York Review of Books (15 July 1993), was singularly impressed. Ronald Dworkin, he said, is ‘our leading public philosopher’; in this work he shows a ‘characteristic brilliance and subtlety to the values at stake’, a brilliance which has given us ‘an exciting, thought provoking and potentially very constructive book’. Professor Tribe, the leading constitutional lawyer, also of Harvard, referred to it as a ‘wonderfully rich and evocative investigation’, ‘a feast for the mind and balm for the soul’; adding for good measure that it was ‘Dworkin’s masterpiece’, in which he displayed ‘enormous ingenuity and insight’ (New York Times, 16 May 1993). Dame Mary Warnock said (Spectator, 29 May 1993): ‘it is of immense value to have so intelligible and sympathetic a discussion of the moral issues’. The philosopher A. C. Grayling, referring to Professor Dworkin as ‘the world’s leading philosopher of law’, tolds us that ‘in this book he shows that complicated questions can be discussed with originality, profound insight and utter clarity’. Indeed nothing, it seems, would ever be the same again: ‘From now on’, he wrote, ‘there can be no discussion of abortion and euthanasia that does not start from here’ (Financial Times, 12 June 1993). ‘It is a work of considerable humanity’, said Christopher Belshaw of the Open University in Mind (July 1995). The book was ‘timely, generous, and above all sane’. Jeremy Waldron, Professor of Law at Columbia University, said: ‘Life’s Dominion gives us a deeper account than any we have yet had of what is at stake in these life-and-death controversies, and is clearer, more sensitive in its arguments than anything that I have read’ (London Review of Books, 12 May 1994). Eric Rakowski, Professor of Law at Berkeley, said that we were offered ‘a remarkably coherent argument’ from ‘our most thoughtful and influential legal philosopher’ (Yale Law Journal, 1994). According to Stephen L. Carter, Professor of Law at Yale, writing in the New Yorker (9 August 1993), Professor Dworkin is ‘as thoughtful and creative a legal scholar as the American academy currently possesses’ and his new book ‘is as thoughtful and creative a scholarly treatment as the subject is likely to receive’. ‘As a new and stronger case for a woman’s right to choose . . . one would have to pronounce it a resounding success.’ John A. Robertson, Professor of Law at the University of Texas, talked about ‘the richness and subtlety of his highly accessible and compelling account of why society should defer to individual choice about abortion . . .’ (‘Autonomy’s Dominion’, Law and Social Enquiry, Journal of the American Bar Foundation, 1994, p. 458). Professor Robinson was specially impressed with the book’s more cosmic insights: few thinkers, he says, ‘have confronted as forthrightly as Life’s Dominion does the religious or spiritual nature of these dilemmas’ (p. 457). A philosopher at Cambridge, David Mitchell, said in the Times Higher Education Supplement (16 July 1993), that the writing is of ‘an exemplary lucidity and sensitivity’, and claims that the work is ‘rich in original argument’, ‘marks a major advance’ and ‘sets a new standard’. Karen Armstrong, author of many books on Christianity, etc., is full of admiration: ‘Dworkin refuses to simplify these immensly difficult issues: he leads the reader through the moral and legal maze with mastery and humility. His book is learned, passionate, careful, eloquent and highly readable’

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exactly what they want?53 For Life’s Dominion does indeed offer something to everyone. This is a generosity, I shall argue, which we should not be grateful for. There is indeed something of value in this book, but it does not emerge here. Let us see how this versatility operates, looking at the book first from one side then from the other side of the fence. (Sunday Times, 13 June 1993). Conor Gearty, now Professor of Human Rights Law in the University of London, wrote in the the Independent (12 June 1993) that the book is ‘brilliantly argued and utterly convincing’, adding that it should be ‘required reading for every member of every legislature that has to address the abortion issue’. The reputed ethicist James Rachels says of Ronald Dworkin: ‘Readers of his earlier books will have high expectations, and they will not be disappointed . . . It is a tour de force that could have been written only by an accomplished philosopher who has thought long and hard about a great many matters’ (Bioethics, 1994, p. 268). Frances Kamm, of Harvard University, herself a well known writer on these topics, said that the book ‘does a superb job of providing . . . an account with complex and subtle philosophical reasoning, always aimed at elevating the nature of the public debate’ (‘Abortion and the Value of Life: A Discussion of Life’s Dominion’, Columbia Law Review, 1995, p. 160. I shall return to Professor Kamm’s essay several times in what follows). Eileen L. McDonagh in her admired book Breaking the Abortion Deadlock (New York: Oxford University Press, 1996, p. 199) said of Life’s Dominion that it offered ‘perhaps the most philosophically complex and persuasive denial that a foetus is a person’ (we discuss this curious aspect in Chapter 3.2 below). Frances Olsen, Professor of Law at UCLA, said of two articles in the New York Review of Books published as a sort of preliminary to Life’s Dominion: ‘Ronald Dworkin recently presented the conventional liberal argument in support of Roe v. Wade in what is perhaps its most elegant form to date’ (‘Unraveling Compromise’, Harvard Law Review, 1989, p. 109). It perhaps should be noted that Conor Gearty and Helena Kennedy are both eminent Roman Catholics. I do not, of course, wish to suggest that these reviewers had no critical comments to make. Eric Rakowski’s review in the Yale Law Journal, for example, is 70 pages long, and could hardly consist entirely of praise and exposition. And not every reviewer liked Life’s Dominion. Jenny Teichman made some good critical points in ‘What is Sacred? Ronald Dworkin and His Answers’ (Polemical Essays, Aldershot: Ashgate 1997). And Peter Singer in the British Medical Journal (23 October, 1993, pp. 1077–8) complained that Professor Dworkin did not engage with other writers: Glover, Hare, Kuhse, Parfit, Rachels, Tooley or Warren. (This last is odd: Ronald Dworkin was actually helped by Derek Parfit – who offered ‘long, generous and searching comments’ (LD, p. 261), – and the book refers to Rachels (p. 248) and Tooley (p. 245). It does not, however, refer to Peter Singer as Professor Singer was too modest to mention.) 53 Academics who argue in favour of abortion, but with a slightly furrowed brow, are certainly not in any danger from their colleagues who just love to hear this sort of thing put across in this sort of way. It is curious that Amy Gutmann can admiringly say of Judith Jarvis Thomson that ‘she has dared to defend the morality of abortion’ (Introduction by Professor Gutmann to Judith Jarvis Thomson’s Goodness and Advice, Princeton: Princeton University Press, 2001, p. viii, italics added). The morality of abortion is continually defended on university campuses by legions of the timid, and Judith Thomson’s well known ‘Defence of Abortion’

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Suppose that a reader is outraged by abortion, and thinks it an infamous assault on the weak for whom we have a responsibility of care. What is there for him? Dworkin could hardly be more reassuring. First of all, he is offered ‘a sovereign commitment to the sanctity of life’ (LD, p. 238). This is a matter which ‘we all take so seriously’ (LD, p. 238). ‘Each separate human life’, it is proclaimed, ‘has an intrinsic and inviolable value’ (LD, p. 27). It is indeed ‘worthy of a kind of awe’ (FL, p. 93). It is ‘a miracle’ which ought not to be ‘frustrated’ (LD, p. 90). ‘Human life is sacred just in itself’ (LD, p. 11). This is theme which catches the editorial eye. The review in the Financial Times (A. C. Grayling) appears under the title ‘With Respect for the Sanctity of Life’. The review in the New York Review of Books (T. M. Scanlon) is proudly headed ‘Partisan for Life’.54 Needless to say, this ‘sovereign commitment’ extends to the life of those in the womb – the book is quite explicit on the matter, referring to ‘the sanctity or inviolability of every stage of every human life’ (LD, p. 238, italics added). The individual in the womb is ‘something we should respect and honour and protect as marvelous in itself’ (LD, p. 73). This is ‘a value that unites us as human beings’ (p. 238). We all agree that it is ‘in principle wrong to terminate a life’ (LD, p. 34). The life of every single human individual ‘commands respect and protection . . . no matter in what form or shape’ (LD, p. 84). It has ‘intrinsic creative importance’.55 We must all show a ‘reverence for the wonder of creation’.56 ‘I myself believe’ he says, ‘that an abortion is morally wrong when it does not show respect for the intrinsic value of every human life, in no matter what stage or form . . .’.57 That sounds a severe test. Is there anything we ever do which shows such comprehensive respect? No wonder the reviewers found the work so inspiring. Someone opposed to abortion might indeed be inclined to think that this stress on sacredness, reverence and commitment is just a little overdone. ‘Steady on now!’ he might exclaim, ‘We’re not asking you to worship it. We’re just asking you not to kill it.’ Anyway, not content with having expressed this reverence, Professor Dworkin often talks frankly about what is going on behind closed doors in our hospitals and clinics.58 This is, in part, what makes his book of value.

54 55 56

57 58

has proved more popular than perhaps any other philosophical article. She must have known she was onto a winner. For references to Grayling and Scanlon, see note 52, this Part. New York Review of Books, 10 June 1993, p. 28. This, though very much in Ronald Dworkin’s style, actually comes from Planned Parenthood v. Casey, 505 US 833, at 853. The phrase is singled out by Professor Dworkin (LD, p. 171) as a way of conveying this notion of sacredness. Sovereign Virtue, Cambridge, Mass.: Harvard University Press, 2000, p. 431. Often he talks frankly in this way, but not always. Sometimes he is restrained by prudence. When talking about the abortion of disabled individuals he avails himself of the popular and so often innocuous phrase ‘bringing a child into the

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Someone who has an abortion is not, in Professor Dworkin’s view, simply failing to rescue – as if she were refusing (reasonably or unreasonably) to give life-saving bone marrow. Abortion is not a matter of ‘letting die’. We are not entitled to the (surely sometimes quite dubious) comfort of that phrase. As everyone knows, if there is a chance of foetal survival, steps are taken to prevent it. Human individuals are the subject of deliberate attack. ‘Abortion generally requires a physical attack on the foetus, not just a failure to aid it’ (LD, p. 111). Professor Dworkin clearly wants to emphasise this point, for the sentence also occurs twice in his collection Freedom’s Law (pp. 48 and 87). Those who are involved in abortion, he says, without mincing words, are engaged in ‘deliberate killing’ (LD, p. 3). Theirs is a ‘choice for death’ (LD, p. 3). One can hardly get more forthright than that. He does not take refuge in scare quotes. Abortion is not for him merely alleged killing.59 His article in The Times introducing Life’s Dominion is entitled, as we saw, ‘When Can a Doctor Kill?’ In his article ‘Objectivity and Truth,’ which is not particularly about abortion, abortion is described in passing as ‘the deliberate killing of an innocent human being’.60 In case anyone is not sure what ‘human being’ means, what is killed is said in Freedom’s Law (unsurprisingly of course) to be ‘a member of the animal species Homo sapiens’, and (a little oddly) ‘a human organism whose life has begun’ (FL, world’ (LD, p. 33). It should be realised what ‘not bringing a child into the world’ means in this context. It won’t simply be a matter of avoiding pregnancy, you can be sure of that. It will be . . . well, what the above paragraph indicates. Margaret Olivia Little’s article ‘The Moral Permissibility of Abortion’ affords an excellent example of what I here complain of: p. 36 quite bristles with such misleading phrases. The context, of course, is one of impressive ‘responsibility’, of not wanting to burden the poor child with more life. One might be tempted ‘to bring a child into existence’ which is ‘already burdened by rejection’, but ‘responsibility’ says no. This is all rather familiar. If a mother looks after her toddler in the usual way would we describe this as bringing a toddler into the world? Bringing an older toddler into the world? Bringing a teenager into existence? Would she perhaps have to answer for doing these things? 59 Scare quotes are often a comfort for those who favour what is called choice. Even the normally forthright Katha Pollitt resorts to them. ‘That the woman who “kills” one baby can be and often is a loving mother to another is just mindboggling’ (‘Everything’s Up to Date in North Dakota’, Tikkun, January/February 1990, p. 58). Of course it is a matter of interest that parents can kill their children. In fact, most (born) children who are killed ‘die at the hands of their parents or carers. Those most at risk are babies under one year old’, writes Mary Marsh, director NSPCC (The Times, 10 August 2002), adding: ‘it is not true that these cases are rare and are becoming less common’. The rate ‘has not dropped for more than 25 years’. Perhaps the ability to kill one’s children is a manifestation of intelligence, as human sacrifice is. Thus if there is such a thing as maternal instinct, intelligence enables people to transcend it. 60 ‘Objectivity and Truth – You’d Better Believe It’, Philosophy and Public Affairs, 1996, p. 98.

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p. 85).61 In describing the controversy in his anthology The Philosophy of Law, it comes naturally to Professor Dworkin to talk of ‘the unborn child’ (as legal documents quite often do, and as ‘foetus’ is often still defined in dictionaries, though we could have expected that to have changed by now).62 And insofar as the killing is concerned, deliberate must surely be the right word – the thing is done with care and skill by doctors, etc. It is often necessary – though Dworkin does not mention this – to count the body parts, a stressful activity calling for ‘desensitising strategies’ and a little recontextualisation.63 And though innocent is an odd semi-technical notion when used in debates about homicide, it does not matter much for present purposes how it is interpreted. It might seem odd that there should be this insistence that abortion involves killing. But it is admirable of Professor Dworkin to emphasise the fact, for it is denied or covered up by distinguished legal academics. Lawrence Tribe, for example, talks of abortion as if it were like refusing to give a kidney in order to save a life, and so does Cass Sunstein. In Constitutional Choices Professor Tribe contrasts the idea that men are not to be forced to 61 I say oddly, because the qualification seems somewhat redundant. What would a human organism be whose life had not yet begun? Anyway, things become more complicated in Life’s Dominion. By this time Professor Dworkin had come to think that the phrase ‘human being’ is ambiguous, though the different senses are not explained (LD, p. 22). Is ‘rabbit’ similarly ambiguous I wonder? Professor Dworkin does not explain why ambiguity gives trouble here – so often ambiguity gives no trouble at all, and such trouble as is caused is easily avoided. Any ambiguity that there might be seems of little conseqence, for those who are opposed to abortion seem to use ‘human being’ in the plain sense recognised so clearly in Freedom’s Law, and I think implicitly at least in Life’s Dominion. Compare also Joel Feinberg who says: ‘But the term “human being” is subtly ambiguous’ (Freedom and Fulfillment, Princeton University Press, 1992, p. 56). The ‘subtly’ here is nice. It suggests refi ned appreciation or perceptiveness. If we still fail to perceive the ambiguity, why, we must be missing something. For more on the alleged ambiguity see the much reprinted article by Mary Anne Warren, ‘On the Moral and Legal Status of Abortion’, The Monist, 1973. Professor Warren talks surprisingly about a sense of ‘human being’ which means ‘something like “a fully fledged member of the moral community” ’. I seem to have lost my membership card. 62 Ronald Dworkin, ed., The Philosophy of Law, Oxford: Oxford University Press, 1977, p. 13. 63 Wendy Simonds, Abortion at Work: Ideology and Practice in a Feminist Clinic, New Brunswick, NJ: Rutgers University Press, 1996. Women working at the Center ‘developed strategies’ that ‘enabled them to desensitise themselves’. They would, for example, make sure that the parts did not become arranged in order, in ‘the “broken doll” configuration’. Or they would ‘never look at the face’ when ‘processing tissue’ (pp. 86–7). ‘Many realised they had the power to recontextualise their work; they could deliberately see late abortion as interesting rather than disgusting’ (p. 71).

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donate organs to save their children’s lives with the thought that it is all right for the community to force poor women to act as ‘incubators’ by not being willing to provide them with free abortions.64 In his later book, The Partial Constitution, Professor Sunstein refers to abortion as ‘a refusal to allow one’s body to be devoted to the protection of another’, and compares this with a refusal on the part of a man to undergo a ‘risk free’ kidney transplant to save a child.65 None of this sounds like the deliberate killing that Dworkin is talking about. As for the other side of Dworkin’s coin, that abortion is not just the withdrawal of the helping hand, the point is still well worth his making. It is important to note in this connection how unnatural it is to see gestation as a matter of giving aid. (What! Continuously, 24 hours a day? And for nine whole months!) This point will be clear when we consider what is essentially the same process in a non-human mammal, a rabbit say. A pregnant rabbit helps its foetal rabbits only in the vestigial sense in which it helps its fleas. It is not that it is impossible for a woman to assist her developing child. Thus a woman might indeed be said to be helping her foetus grow well by choosing to eat certain dietary supplements recommended by her doctor, and this might indeed be thought of as benevolence. To be sure, a pregnant woman ‘provides’ oxygen in a sense – just as the soil ‘provides’ nutrients to a tree, whose leaves in turn ‘provide’ shade to a grateful cow. And we will equally say that a woman’s lungs provide her with oxygen. But we would hardly want to conclude that the two of them are continuously and faithfully giving aid. And no one would call them ‘life savers’ except playfully. It is if anything even more misleading to suggest that a gestating woman is acting creatively, especially if we would not be prepared to say such a thing about a pregnant rabbit or a tree putting forth leaves in the spring. (Perhaps it sounds complimentary to women. Fancy being able to engage in such sophisticated creating continuously – even when fast asleep or when concentrating on a mathematical proof! And fancy being able to create two babies at the same time! How does she do it?) Even those voluntary actions on the part of the pregnant woman which could be counted as the providing of care should not be thought of as ‘creative’, as if the newborn baby was somehow being created by them. Plainly, when the baby is born, and is being fed and kept warm, no one would say that these activities amounted to ‘creating a toddler’.66 64 Lawrence Tribe, Constitutional Choices, Cambridge, Mass.: Harvard University Press, p. 245. 65 Cass Sunstein, The Partial Constitution, Cambridge, Mass.: Harvard University Press, p. 274. 66 For a conspicuous failure to consider these matters see Margaret Olivia Little, ‘Abortion’. Professor Little contrasts what she calls ‘metaphors’ – metaphors which ‘depict gestation as passive carriage’ – with ‘the truth’ which ‘is of course far different’. She goes on in the same paragraph to talk about ‘providing’,

36

Worth and Welfare in the Controversy over Abortion

Abortion then is killing. And this killing is said to matter in a very fundamental way. It is a kind of dishonouring. ‘Something is sacred or inviolable’, Dworkin explains, ‘when its deliberate destruction would dishonour what ought to be honoured’ (LD, p. 74). He pointedly reminds us of ‘the horror we feel in the wilful destruction of a human life’ (LD, p. 84). We are horrified at the dishonour done to innocent human beings when they are killed by our doctors. And as we all know, there is a great deal of this wilful destruction going on. (One hears said that abortion is the commonest surgical procedure.) It is very important, we are told, that these lives ‘flourish and not be wasted’ (LD, p. 74). All this is strong language, but perhaps in the circumstances understandable. To be sure, one might well wonder who is covered by this phrase ‘the horror we feel’. For there are those for whom wilful destruction is all in a day’s work. As I once heard an abortion doctor say, ‘one gets used to it’. But the ‘we’ is certainly intended to include the author of Life’s Dominion. That is why Professor Dworkin is called a Partisan for Life. Needless to say all this threatens to disconcert some of Professor Dworkin’s loyal readers. They will certainly not be accustomed to such ‘foetocentric discourse’ – as it is sometimes known in the academic trade. They will regard what he says as inflammatory. Does he really have to talk about ‘deliberate killing’ in this way?67 They might even accuse him of inciting violence against abortion doctors, in effect if not in intention. How, they might anxiously ask after all this frankness, is he going to be able to support the abortion status quo? But they need not worry; they are in very safe hands. No one is going to be called ‘our leading public philosopher’ who ‘donating’, ‘creating’ (‘creating blood’), ‘delivering’ – and says ‘assistance it plainly is’. This she adds ‘has crucial implications for abortion’s alleged status as murder’ (all p. 315). She does not go so far as to say that the developing child puts in an order for various nutrients, but it is hard to see why not. Later she tells us that ‘decisions to abort often represent, not a decision to destroy, but a refusal to create’ (p. 322) – making it sound like the proposal of an artist to take time off. 67 It is interesting to see what happens to all this upsetting talk about ‘deliberate killing’, when Professor Dworkin is synopsising. Chapter 7 starts out with quite extraordinary tact (LD, p. 179): ‘Abortion is the waste of the start of human life. Death intervenes before life in earnest has even begun. Now we turn . . .’ What is missing? All this could be said of miscarriage. Dworkin could easily have expressed what he really believes, making use of his word ‘deliberately’: ‘In having an abortion, we deliberately lay waste or ruin someone else’s life, before he (more probably she) has had a chance of appreciating what life in earnest is all about.’ I am not here arguing that he is right to believe this about every abortion, for it might be difficult to know what to say about the very earliest stage of pregnancy, and technical innovation might make very early abortion possible. But it is his view, and he is obviously right to be troubled in mind if it is even remotely possible that this is correct.

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would seriously frighten them in this matter. The edition of Life’s Dominion printed in the UK has the subtitle ‘An Argument about Abortion and Euthanasia’. However, the US edition seems wisely to have expanded this description, adding ‘and Individual Freedom’. No doubt it was feared that sensitive liberal readers, hearing all this stress on the sanctity of life, might be put off. These nervous readers need, it would seem, to take the deeper view. As the philosopher Galen Strawson remarks in his review of Life’s Dominion for the Independent on Sunday (13 June 1993): ‘To go deep is to see that to be “pro-life” is to be “pro-choice”.’ The remark is reprinted in the middle of the review, in large letters, in case anyone missed it. It well represents the spirit of the book. This emphasis on the inviolability of human life should in fact be reassuring to those in the business of taking it. It is indeed an emphasis which has suddenly come into its own. For the Democratic Party has begun to realise, after the 2004 presidential election, that a public acknowledgement of the exceptional value of foetal life might be necessary if it is ever to secure the White House once again. That enthusiast for ‘choice’ Frances Kissling recently wrote an article asking whether ‘we’ had perhaps ‘ceded too much territory to antiabortionists by not articulating the value of foetal life’. On the strength of this, a commentator detected that Ms Kissling might be leaning towards the pro-life position. ‘The fact is, I am already pro-life’, she replied. After all she had written in her article that pro-choice values ‘include respect for life, recognition of foetal life as valuable and a concern for fostering a society in which all life is valued’.68 This kind of claim is not new. Pamela Maraldo – when president of Planned Parenthood, one of the largest abortion providers in the United States – was able to proclaim her organisation to be pro-life. This was clearly quite an achievement. ‘We can begin again to inculcate America with our values’, she said. ‘We are the real pro-life force in America. I want to take the moral high ground.’69 (In truth of course, the heart of the debate about abortion entirely occupies the moral low ground: that minimal part of morality which concerns what we strictly owe one another. That is why both sides talk about rights.) Certainly there is in Life’s Dominion this sovereign commitment to the total, complete and absolute inviolability of every stage of every human life, a fundamental commitment which unites us all as human beings . . . But what will it cost, the nervous reader will ask, to agree with such a pronouncement? The truly extraordinary thing about Professor Dworkin’s teaching about inviolability is just how untroubling it can be. Its yoke is easy and its burden light. 68 ‘Is There Life after Roe?’ 69 J. Warner, ‘Mixed Messages: Where is Pamela Maraldo Taking Planned Parenthood?’, Ms, November–December 1993 Vol. 4, No. 3, p. 25.

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Worth and Welfare in the Controversy over Abortion

Remember the title of Professor Dworkin’s article in the New York Times, mentioned above: ‘Life is Sacred. That’s the Easy Part’. No doubt he meant that it was easy to recognise it. But in fact it can turn out remarkably easy to live with it too. The sovereign fundamental commitment is quite compatible with the deliberate killing of the innocent. People who learn to believe in Dworkin-sanctity will be able to destroy their offspring – let us say in the furtherance of their careers. It is not surprising that this will be thought a sufficient reason. That is the way of the world. What is so new and refreshing is to hear this explained in terms of the sanctity of life. A doctor could specialise in gruesome late abortions – and perhaps earn a good deal of money in the process – all the while being overwhelmed with the unutterable sacredness of the seriously unwanted infants he is daily disposing of. The keen-eyed reader will have noticed the occurrence of the phrase ‘in principle’: it is ‘in principle wrong to terminate a life’ (LD p. 34, quoted above). And we are all said to accept that ‘in principle human life is inviolable’ (LD, p. 84). To be sure, the very occurrence of the word principle in one’s manifesto sets a good tone, and it is elsewhere a favourite item in Professor Dworkin’s vocabulary. But the phrase ‘in principle’ is what British readers will associate with that well-known civil servant Sir Humphrey Appleby. Professor Dworkin, it would seem, wants to defend abortion even where others who seem eminently sensible and loving are willing to adopt the individual whose life is in question. For ‘many women would suffer great emotional pain for many years if they turned a child over to others to raise and love’ (LD, pp. 103–4). In case we have doubts about this, Professor Dworkin cites an example where a Catholic woman, seeking to justify having an abortion, claimed that this had once been the case when she had previously ‘turned a child over’. Of course, many women might also suffer great emotional pain for many years if they were to destroy their offspring instead – there seems to be evidence, matching anecdote for anecdote, for this too. The curious thing is that someone can be thought to show a reverence for human life who is prepared to say: better killed than cared for.70 Inviolability in Life’s Dominion tends, as we have just seen, to be not-quiteinviolability. But something might be better than nothing. We are told that ‘abortion is never permissible except to prevent serious damage of some kind’ (LD, p. 33). That sounds pretty restrictive. How many abortions do we hear about that are necessary to prevent serious damage? But just how 70 This passage about adoption is significant, for it reinforces what we have been saying: that Professor Dworkin is talking about a right to destroy one’s offspring, not just to detach oneself from it and ‘let it die’. An abortion is here exactly of the kind we are considering: the procedure is a failure if the child survives it and grows up like any other child, ‘for others to raise and love’.

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restrictive is it? We do not have to look far. In the very next paragraph, we find Professor Dworkin claiming that it would have been all right deliberately to kill (his own honest language, of course, but not employed here) a foetal thalidomide victim (LD, p. 33). To be fair, Dworkin emphasises later that the liberal doctrine does not imply contempt for disabled individuals (LD, pp. 98–9), and we might take his word for it. But we are thinking here of the ‘serious damage’ claim – that abortion is never permissible except to prevent serious damage. Yet if a foetus already lacks arms, the damage is done. What damage is one preventing by destroying utterly the whole of the body which remains to it? The old story! Strong claims are made which are scarcely spoken before they are being weakened. It is the old absolutely never, well hardly ever, I mean quite often really slide. The general impression that the reader will get from Professor Dworkin is that although an abortion, like a funeral, is somehow a solemn occasion, one can more or less do what one wants, even beyond the fi rst couple of months of pregnancy, provided one is sufficiently earnest and conscientious in the doing of it.71 ‘Abortion?’ he seems to be saying, ‘Ain’t it a shame!’ Did I say ‘seems’? When, in casting an initial glance at Life’s Dominion, this phrase first crossed my mind I wondered whether it wasn’t rather unfair and polemical to describe his outlook in this way. Yet the phrase turned out to be a near quotation. There is scholarly accuracy in it. Abortion in Professor Dworkin’s view, and apparently in everyone else’s view, is ‘a shame’ (LD, p. 84). The deliberate ending of a single human life is ‘objectively a shame’ (LD, p. 81). It is, for what its worth, ‘a cosmic shame’ (p. 13). So Ain’t it a shame! is precisely the message. It would have made a good title for his book.72 In 1920 a legal scholar, Karl Binding, joined with the psychiatrist Alfred Hoche to publish a book now well remembered. It was called Permission for 71 In a section of her article ‘Abortion’ – it is called ‘The Sanctity of Life: Respect Revisited’ – Margaret Olivia Little, after appreciative remarks about Life’s Dominion, asks us to consider whether ‘crass jokes’ should perhaps be avoided during an abortion (p. 319). They might after all make us ‘morally queasy’ (p. 320). Clearly a nice topic for the ‘ethics’ class. Sample jokes might be compiled and their queasibility put to the test. 72 Naomi Wolf’s ‘Our Bodies. Our Souls’ (see note 4, this Part) takes very much this line, and indeed mentions Professor Dworkin. ‘Ain’t it a shame!’ is the message here too. One has to be honest, she says, and admit just what one is doing. One must be serious about the whole business, promising in advance to repent and make amends – to prepent, one might say – while waving a fond goodbye to the individual one is about to wrong. ‘Ain’t it a shame!’ also seems to be the attitude of Whoopi Goldberg: ‘But, yeah, we wept . . . we wept going for those abortions, we wept coming back . . . because both times this was something made from love.’ (Angela Bonavoglia, The Choices We Made, New York, Random House, updated edn, 1992, p. 119, ellipses in text.)

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the Destruction of Life Unworthy of Life.73 Karl Binding was at the end of a distinguished career. He is described by the historian Michael Burleigh as ‘one of Germany’s leading specialists in constitutional and criminal jurisprudence’.74 The book was written at a time when German scholarship was second to none in the world; and of course, it was not yet tainted with Nazism. Michael Burleigh refers to the premises from which Binding argues in this book as ‘unimpeachably liberal’.75 Now the phrase ‘life unworthy of life’ is not one we would be inclined to use nowadays, even if the thought behind it has not quite gone away. We cannot help remembering what it eventually meant for psychiatric patients in Germany, and indeed what happened after that; and indeed, without remembering what it might have meant for psychiatric patients outside Germany – in England, let us say.76 And one would clearly not be turning to such an unpopular phrase in connection with Life’s Dominion. Life’s Dominion is written in quite a different 73 Die Freigabe der Vernichtung lebensunwerten Lebens, Ihr Mass und Form, Leipzig: Felix Meiner, 1920, on the web at <staff-www.uni-marburg.de/~rohrmann/ Literatur/binding>. There is a translation by Walter E. Wright, under the title ‘Permitting the Destruction of Unworthy Life: Its Extent and Form’, in Issues in Law and Medicine, 1992. I have preferred the perhaps more usual translation of the title given by Michael Burleigh in the book cited in the next note. 74 Death and Deliverance: ‘Euthanasia’ in Germany, 1900–1945, Cambridge: Cambridge University Press, 1994, p. 15. 75 The book, when one gets beyond its rather disagreeable title, is what would be called liberal in its conclusions too. In so many ways it has not dated. Thus there is much talk of compassion as a motive for killing, and of course an absolute insistence on securing consent where the patient is competent. In the case of children, the mother of a child is naturally to be given a ‘choice’ whether the killing should proceed. An ethics committee is to be consulted (where there is time). There is an insistence that killing should be painless. There is the by now familiar compulsion to invent a sense of ‘not really alive’ to characterise the living. And we find the search for a soft word (here ‘release’) to describe what is done to them. Lastly, we find throughout our modern assumption that someone who has the misfortune to be completely dependent somehow lacks dignity as a human being. As a secondary matter, the book evinces a responsible attitude to social costs. All this is quite current. The work of Binding and Hoche is surely due for rehabilitation. If they did not get everything right – that had to wait for the early 1970s – they were remarkable pioneers. 76 Virginia Woolf on an uncomfortable incident, writing in her diary, 1915: ‘On the towpath we met and had to pass a long line of imbeciles. The fi rst was a very tall young man, just queer enough to look twice at, but no more; the second shuffled, and looked aside; and then one realised that every one in that long line was a miserable ineffective shuffling idiotic creature, with no forehead, or no chin, and an imbecile grin, or a wild suspicious stare. It was perfectly horrible. They should certainly be killed. We found a market going on at Kingston, as if it were Marlborough. We bought a pinapple for 9d. . . .’ (Anne Olivier Bell, ed., The Diary of Virginia Woolf, Vol. 1, London: Hogarth Press, 1977, p. 13). It should not be thought that such an opinion was particularly unusual among intellectu-

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spirit. Its tone is reverential. What we are offered is something quite different: Permission for the Destruction of Life Worthy of Life. Is this an advance? Even those who are not particularly opposed to voluntary euthanasia have been disturbed by the permissive claims of Binding and Hoche. For many, the worry has been that some are to be killed for the good of others – family members, society at large. This is, as it happens, a very secondary consideration in Binding and Hoche, but even a trace of it makes us liberals nervous. We would be decidedly cautious about this kind of altruism in regard to euthanasia. However this element is much in the mind of of abortion advocates. It is almost always the good of others they have in mind (though there are certain well known pretences used to cover this up). Permission for the destruction of life worthy of life – for the sake of others. That seems to be what is on offer.

1.7 ‘What people really think’ How can Professor Dworkin make all those admissions about ‘deliberate killing’, etc., at so little a cost? Here is someone, we might say, who allows himself to be handcuffed, stuffed into a weighted sack and thrown into the sea from the top of a cliff, only to emerge moments later a free man. How is the trick done? Answer in brief: Professor Dworkin appropriates the way people talk about the sanctity of life and puts it to a novel use. He uses it in the interest of what we might call adult liberation. It might seem at fi rst sight that few people who object to abortion could be persuaded to follow him, even though they are all adults and stand to gain. But, he argues, they are more or less persuaded already. Professor Dworkin, it would appear, has made a significant discovery: that the familiar and uncomfortable objections that people often make to abortion do not represent what they really think. The public protest says one thing, but the thought behind it says another. He wants us all to get away from the nasty idea that abortion, even later abortion, in the second trimester, let us say, is doing to the unborn human individual what Dr Shipman, graduate of my university, was convicted of doing to so many of his patients – an idea which has distinctly awkward implications. People who say such a thing, he argues, cannot really be in earnest about it, although they evidently seem to be in earnest about something. What they want, indeed what everyone wants whether they are pro-life or pro-choice, is to avoid ‘insulting’ (his word) ‘the value of human life’. ‘Almost everyone shares, explicitly or intuitively, the idea that human life has objective, als. For more, see Donald J. Childs, Modernism and Eugenics: Woolf, Eliot, Yeats and the Culture of Degeneration, Cambridge: Cambridge University Press, 2001. I am indebted to Professor Childs’s book for putting me on the track of this particular quotation.

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intrinsic value that is quite independent of its personal value for anyone’ (LD, p. 67). This is a doctrine which is usefully open to differing interpretations (LD, p. 70), but which enables everyone to exercise their moral passions, without, one hopes, being a nuisance to others in the free exercise of theirs. This forms the basis of the reconciling project. On this view, abortion is on the whole sad rather than bad. What people who are opposed to the procedure really think, according to Professor Dworkin, is, as we have already suggested, that it is such a pity to destroy one’s offspring, or for a surgeon to do the deed on one’s behalf. And the good news is that those who speak up for what are called abortion rights think just the same! – with perhaps a difference of emphasis (replacing ‘such’ with ‘rather’). It was generally admitted in these discussions, even before Dworkin’s researches, that no woman ever went in for having abortions as an agreeable pastime. Which woman would enjoy surgical intermeddling with her reproductive system? Which woman would want a doctor to scrape around, and perhaps dismember something or other inside her that she (and the nurses) would rather not see? But we can now say more. Those seeking to have abortions, even those later abortions, when the embryo has become a foetus, which pretty uncontroversially involve the killing of human beings, indeed the killing of human beings that it is their evident responsibility to protect and cherish, are quite as deeply concerned as the other lot about the value of human life – though in this case it may of course be a concern for the value of their own lives, business prospects, etc., abstractly considered (LD, p. 60).77 The ‘abstractly considered’ is important, for otherwise the decision might risk being called selfish. Professor Dworkin puts his point here by referring us to the ‘abortion decision study’ discussed in a well-known book by the Harvard psychologist Carol Gilligan, In a Different Voice.78 Here 29 women

77 ‘pretty uncontroversially involves the killing of human beings’. For a philosopher who thinks that human beings, along with cats, horses, are not animals – are not, to put the matter pedantically, organisms belonging to the animal kingdom – and that a human foetus in mid-term is only an animal and not a human being, see Jeff McMahan, The Ethics of Killing, New York: Oxford University Press, 2002, and my discussion of it in ‘Death Sentences’ (Philosophy, forthcoming). 78 In a Different Voice, Cambridge, Mass.: Harvard University Press, 1982. Of the 29 women interviewed only four are known to have decided against abortion. Two miscarried, and the decision of a further two is unknown (p. 72; Ronald Dworkin also gives these figures). I should perhaps add that Professor Gilligan does not claim that her study tells us much about what women in general think about the abortion decision (p. 72). However, in a later edition she talks of the ‘strong resonance’ she feels with Dworkin’s account of what people really think on the topic as opposed to what they might say. See ‘Letter to Readers’ in the 1993 reprint, p. xi.

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were interviewed about abortion. All of them considered abortion an option, and nearly all of them eventually decided to go ahead. Only one of them appears to have mentioned murder, and even this, says Professor Dworkin, was hardly to be taken seriously (LD, pp. 58–9). Instead – to everyone’s surprise, we can only assume – they all ‘talked and wondered about responsibility’ (LD, p. 59, italics added). What is more, ‘some of them said that the selfish choice would be to have their babies’! (LD, p. 59, italics added. To have in this context, we must remember, is to turn down the killing offer). Professor Dworkin’s suggestion on the basis of such evidence – he recognises that the sample will not be typical of all women having abortions – is that people on the point of choosing to have an abortion, in a country in which the procedure is, to say the least, controversial, and is commonly referred to by quite ordinary and sober people as baby-killing, would, if they consent to being interviewed about it, report they are being ‘unselfish’. They would make themselves out to be sensitive and caring people. One can almost hear them say: ‘I did it for you!’79 If they had been of an academic bent they might also have claimed to be preserving, or honouring, or not wasting, abstract value, a quantity they would have read about in ethics books. All this gives us an important result. Whatever the choice, virtue rules. And one might add, people seriously prepared to have an abortion tend not to say that it is murder.80 From all this we may conclude that their eventual decision to have an abortion was very respectful of the sanctity of life broadly considered. As Professor Dworkin puts it, each of these abortionchoosers was taking up the ‘challenge to show respect for all life’ (LD, p. 60, italics added). Well then, seeing that even those who dispose of their offspring tend to be devoted to this sanctity and respect, there is every hope that we, the parties in the abortion debate, can all get together and make a convivial evening of it, celebrating jointly the value of human life and congratulating

79 Catharine MacKinnon: ‘Many women have abortions as a desperate act of love for their unborn children.’ Ach! So! It gives a wholly unexpected meaning to ‘She loved him to bits’ (see her ‘Reflections on Sex Equality under Law’, Yale Law Journal, 1991, p. 1318). I originally came across this reference in Janet Hadley’s Abortion: Between Freedom and Necessity, London: Virago 1996, p. 85. She adds that it finds Catharine MacKinnon in an ‘uncharacteristically delicate moment’. An indispensible source on this matter is of course Naomi Wolf’s ‘Our Bodies, Our Souls’ (see note 4, this Part). 80 This finding is quite parallel to another, which is just about to be made, the results to be published in The Times and the New York Review of Books, after a preliminary announcement at a specially convened wine and cheese party in Tate Modern, that candidates who are being interviewed for a job – 98.31 per cent, in fact – make out that they are eager and competent, and in general are on their best behaviour.

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one another on our quiet, dignified unselfishness and piety. One is reminded of Mr Squeers and Mr Snawley: ‘I should wish their morals to be particularly attended to,’ said Mr Snawley. ‘I am glad of that, sir,’ replied the schoolmaster, drawing himself up. ‘They have come to the right shop for morals, sir.’ ‘You are a moral man yourself,’ said Mr Snawley. ‘I rather believe I am, sir,’ replied Squeers. ‘I have the satisfaction to know you are, sir,’ said Mr Snawley. ‘I asked one of your references, and he said you were pious.’ ‘Well, sir, I hope I am a little in that line,’ replied Squeers. ‘I hope I am also,’ rejoined the other. ‘Could I say a few words with you in the next box?’ ‘By all means,’ rejoined Squeers with a grin.81 Like a good showman, Professor Dworkin seems eager to tell us just what a wonderful audience we are. Of course there will remain disagreements about the comparative value of this or that. That can hardly be helped. But these disagreements, even if they are between atheists, can usefully be supposed ‘religious’, and hence, according the First Amendment of the American Constitution, a no-go area for legal intervention. (One can see this coming a mile away without one’s specs at dusk on a foggy evening; it arrives in fact in Dworkin’s Chapter 6.) 82 The idea that people who say that abortion is murder hardly ever believe it seems to me deeply implausible, and that Professor Dworkin’s arguments in favour of this view are bad. It would be a distraction, however, to consider this matter here. As for the substance of the matter, it seems to me very arguable that at the very least by eight weeks or so, and probably quite a bit earlier, abortion can, with dry and undemonstrative accuracy, be described as murder, something morally comparable, let us say, to the killing of a toddler.83 Furthermore it seems to me very arguable that the

81 Charles Dickens, Nicholas Nickleby. 82 Arguments of this general character must be quite common. Joel Feinberg, for example, suggests that the objection to abortion, in the fi rst trimester at least, cannot be incorporated into law since this would involve the ‘establishment’ of religion forbidden under the Constitution. See his article ‘Abortion’ in Freedom and Fulfillment, p. 75. 83 Or, if you like: the killing, in a way that is pretty painless and quite unfrightening to the victim, of a toddler, unwanted by its parents or carers, in circumstances that will never come to light and cause distress. That would certainly be counted murder, even if permitted by corrupt laws of the country in queston, the particular child being Jewish let us say, and the society anti-Semitic.

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value story, as we might call it, is unintelligible. And if it is unintelligible, people cannot really believe it whatever they say.

1.8 Why it is wrong to kill. Are there two independent reasons? We can usefully approach the doctrine of Life’s Dominion by considering an innocent-seeming question. Let us assume that we have a sufficiently adequate understanding that actions can be ‘wrong’. This notion is doubtless quite problematic when it comes to philosophical enquiry, as so many notions are, but we will not go into that here. Let us then ask why is it wrong for us to kill other human individuals – when that is to say it is wrong? Of course, we leave aside incidental exacerbating circumstances. Anyone who teaches moral philosophy will recognise that the explanations people put forward for their quite uncontroversial moral beliefs are often unsatisfactory. And this will assuredly include the explanations offered by moral philosophers. No doubt the notion of ‘explanation’ involved is not very clear. But at any rate, we expect there to be a deeper understanding of these matters, but find that it often eludes us. And here it really is illuminating to get away from issues about which people, for good reason or bad, disagree. We should not be racking our brains about abortion or capital punishment or the targeting of civilian populations during a war. We should think of what we suppose to be the plainest of moral truths. ‘It is wrong to kill an aunt for a legacy’ or ‘It is wrong to shoot a toddler in a playground’ might do as examples. We are all confident here.84 Yet although we understand very well that these judgements are true – no one in such a case would accept the wide-eyed plea ‘I did not know it was wrong!’ – we are apt to offer inadequate accounts when we seek to understand what it is that we know. Professor Dworkin’s work has a merit here missed by those who have so much praised it. It shows up very well both that there is a problem of understanding and how far we are from solving it. To see how our understanding of what we know falls short in this way we need not restrict ourselves to the case of homicide. Consider a simpler matter: the bill that is to be paid. Very many people, when asked why one has to pay, will exclaim: ‘Well, you wouldn’t like it if someone refused to pay your bill!’ That this is an inadequate understanding of our obligation to pay bills is very evident, for we often owe money to corporations, which 84 At least if we so much as accept the category of ‘the wrong’ at all. Someone might, I suppose, say that ‘wrong’ and ‘all right’ are tied in with a conception of ethics which they reject. This is not of course to say that it would be impossible for them to criticise the killing of the aunt or the toddler in other terms – as unjust or improvident, etc.

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have no feelings to be hurt, or to the taxman, whose feelings on the matter can be discounted. We can also steal goods from forgetful individuals which we are confident will not be missed. This example of explanatory inadequacy is, of course, quite superficial; we are merely illustrating the general idea. Our convictions in regard to the killing of aunts, etc., are not of course contingent upon the convincingness of the answers we give to the philosopher’s question why it is bad to kill. To undermine our explanatory answers is not to undermine our moral convictions at the bar of reason. Suppose that we have always taken it for granted that the objection to murder turns upon a right to life. At least this much is true, we say to ourselves, even if ‘this much’ does not take us very far. We then meet a philosopher – not Professor Dworkin – who tells us that the whole idea of a natural right of this kind is a nonsense. There are indeed difficulties with the notion. Anyway, we are impressed by the way he argues. But we will not now draw a liberal conclusion, claiming a new freedom. We will not say that murder is permissible after all. We will properly search for another explanation why murder is bad, assuming we are sufficiently interested in the topic. In regard to what is obvious, conviction comes first, and the deeper understanding comes a poor second. Thus we shall be inclined to think that there is a right to life because murder is bad, and not vice versa. To borrow an image from Wittgenstein: the house supports the foundations.85 An understanding of the wisdom in our objection to (what is uncontroversially regarded as) murder is, I suspect, pretty difficult. We can of course say something, but we will lack the whole picture.86 Of course, there is nothing to stop an action from being wrong on more than one count. This is particularly evident when we consider an individual action rather than a kind of action. In this sense there need be no such thing as the badness of a particular act of killing. Thus the killing of a certain child may be complained of both as murder and as a betrayal, a betrayal of the child in view of our responsibilities of care. Or it might be bad because one is a doctor and it is contrary to some oath one has taken. It might also be a bad example to others, cause considerable distress to third parties, deprive 85 ‘I have arrived at the rock bottom of my convictions. And one might almost say that these foundation walls are carried by the whole house’ (On Certainty, Oxford: Blackwell, 1969, para. 246). 86 Here I would like to draw attention to Jeff McMahan’s striking and I believe accurate remark: ‘Although the belief that killing is normally wrong is as universal and as uncontroversial a moral belief as we are likely to fi nd, no one . . . has ever offered an account of why killing is wrong which even begins to do justice to the full range of common sense beliefs about the morality of killing’ (‘Killing and Equality’, Utilitas, 1995, p. 1. See also his The Ethics of Killing, p. 189). This is to my mind a fair comment, and would remain a fair comment about our beliefs even if they deviated to some extent from ‘common sense’.

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people who long for a child of the opportunity of caring for it and loving it, etc. But special circumstances apart, murder just as such might be bad for more than one reason. If we are asked why killing someone, a child say, is a bad kind of action, and we are making our first steps towards understanding, we will perhaps come up with two answers. We will say that individuals have ‘a right to life’, of course. That is very natural. But we might also say that ‘human life is valuable’ – thinking here of a special kind of value constitutive of sacredness or at least indicative of it. The rights answer and the value answer would not be carefully distinguished. In fact, all we would have in hand would be a couple of catchphrases – hardly anything much thought over. Elucidation would be called for. It is here that Professor Dworkin appears to help us. He himself offers these two answers, but wants us carefully to distinguish them. That sounds like a good thought: we often run different things together. This distinction between having a right and having a value enables Dworkin to make a crucial move. Very often, we may presume, a killing will be objectionable on both grounds at once. In the case of most of us, it would be a twofold wrong were we to be deliberately killed (LD, p. 108). Something valuable or sacred would be destroyed, and in addition our right to life would be violated. But here we encounter a surprise. At a sufficiently early stage of our lives (we are told) we lacked this right to life, and had only our value to protect us. Accordingly, early killing (abortion, the killing of a foetus in an artificial womb, and presumably infanticide) never involves the violation of a right to life; all we have is ‘just’ the destruction of something precious. This is indeed more or less admitted (we are to believe) by those who oppose this destruction, at least when they are not being carried away by purple prose, their own or their advisor’s. Of course it is not only a human foetus that is alleged to have this value: as I have just indicated, we are all said to have it whether we are at the foetal stage or not. Professor Dworkin says, rather unusually for a liberal, that it might be all right for the state to forbid suicide for this reason (LD, p. 108), that is, in order one might say to preserve the objectively precious, This sounds a matter of great seriousness, though it has its comic side. One might after all choose to kill oneself in some value-enhancing way, say by feeding oneself to objectively precious Siberian tigers which would otherwise become extinct. Or one could make up for the loss by having one’s remains turned into a work of art, following the example of Jeremy Bentham. Works of art are said to have this special value which human beings also have. This distinction between an appeal to an individual’s rights and an appeal to his value is thus of practical importance. It could help us, we might suppose, to solve other disputes about homicide. We could perhaps make use of Professor Dworkin’s idea to raise an objection to capital punishment

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– in fact it is hard to believe that someone has not already taken this line. We would argue that although certain criminals, fairly convicted of certain crimes, had indeed forfeited the right to life as people say, this would not be the end of the matter. In lacking a right to life, these criminals would, in this respect at least, be in the position of unborn babies (as seen by Professor Dworkin). Still, these criminals, just like the babies, would be objects of value, and not to be killed unless this would be needed to preserve intrinsic value overall – one thinks perhaps of using them as life-saving organ banks. It might be necessary to assess with some care the value of this or that criminal. These days, no doubt, an ‘ethics committee’ would be set up to advise the state governor, the home secretary, or whoever has to make the decision. This new idea seems then to be quite powerful. It must be acknowledged, however, that opponents of abortion have been a little slow to accept this ‘value not rights’ reformulation of what they think. And this, even after the publication of Life’s Dominion and the prominent reviews it received. For example, 45 of these opponents, mostly academics, and including Mary Ann Glendon of Harvard Law School whose views are taken seriously by Dworkin (LD, pp. 61–5), persist in talking about the rights of the unborn. In their manifesto ‘The America We Seek’ they say, for example, The right-to-life of the unborn will not be secured until it is secure under the Constitution of the United States.87 and The renewal of American democracy according to the highest ideals of the Founders requires us to stand for the inalienable right-to-life of the unborn, to stand with women in crisis, and to stand against the abortion license.88 On the other hand, the Dworkin formulation has seemed curiously plausible to those on the ‘liberal’ side. Frances Kissling, president of the oddly named Catholics for a Free Choice, also aims to end the abortion war.89 Indeed, as if in anticipation of Professor Dworkin’s own findings, she herself has recommended that those who are pro-choice should acknowledge 87 Society, July/August 1997, p. 15. 88 Ibid., p. 16. 89 ‘Ending the Abortion War: A Modest Proposal’, The Christian Century, Vol. 107, No. 6, 21 February 1990, pp. 181–4. Frances Kissling is upbeat: ‘politicians considered pro-life are defecting to the pro-choice camp daily’ (ibid., p. 180). Free Choice Catholics, it seems to me, might increase the flow still further with the assistance of a patron saint. Might I respectfully suggest St Uncumber? (Feast Day 20 July).

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‘foetal life as valuable’ but should not be ‘conferring . . . rights on the foetus’.90 In the matter of rights they should simply talk of the woman’s right to make what are coyly called ‘reproductive health decisions’.91 Like Professor Dworkin, she too considers that abortions are a shame. Perhaps she goes somewhat further. ‘The goal of caring people’ is ‘eliminating all abortions’. This will require in a way unexplained ‘a radical transformation of society’.92 Ironically, Professor Dworkin’s account of the distinction between our rights and our worth might well have taken its origin from his reading of John Finnis, a professor of law at Oxford, and a Catholic not at all for a free choice. In 1977, Dworkin edited an anthology called The Philosophy of Law. It included not only the well-known article by Judith Jarvis Thomson on abortion – what anthology would be complete without it? – but also a reply to this article by Professor Finnis. In his introduction to the anthology, Professor Dworkin wrote a comment about this last which contains, I believe, the seed of his further thoughts: John Finnis’s reply is valuable . . . because it argues that it is wrong and pointless to conduct the debate about abortion as a debate about competing rights. Finnis believes that abortion is wrong, not because the balance of rights cut against it, but because acts that take life in any circumstances, including suicide, deny the fundamental value of life, and so are wrong quite independently of any theory of rights. The issue he thus raises is of great importance, because it questions certain widespread assumptions about the justification that is needed for any constraint on liberty.93 This is the view which was to emerge 15 years or so later in Life’s Dominion. Professor Dworkin’s key distinction between our worth and our rights sets us an agenda. We must ask two independent questions: 1. Can we make sense of the idea that the badness of a killing can be explained by the value of what is destroyed? 2. Did we at an early stage of our lives lack a right to life? The first question will occupy us in the next part, Part Two. I shall attempt to show, insofar as such a thing is capable of demonstration, that a certain would-be idea of intrinsic value which appears in Life’s Dominion (and, it 90 91 92 93

Ibid., p. 181. Ibid., p. 183. Ibid., p. 184. Dworkin, The Philosophy of Law, p. 13.

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must be said, in many other people’s writings too) has not been given a sense. The idea that we lacked a right to life at an early stage of our existence is based upon the suggestion that at that time we had no good of our own – no welfare – which such a right would exist to protect. So the second question largely resolves into 2a. Did we at an early stage of our lives lack a welfare? Parts Three and Four are devoted to a consideration of this question. In effect, we shall first criticise an argument which might tend to make people uncomfortable about abortion, and then criticise an argument devoted to setting their minds at ease. Eventually we will return, in Part Five, to consider the initial thought, that the destruction of value and the violation of rights form distinct reasons for objecting to homicide. I shall argue that although it is indeed misleading to see things in this twofold way, Dworkin’s idea eventually leads us towards a better understanding – though so much remains to be understood.

Part 2: Worth

In Part Two we shall investigate with some thoroughness whether it really makes sense, after all, to talk about the intrinsic value of human beings, of paintings, of animal species, etc., where this is given as a reason why they should not be destroyed. Of course, we shall be specially interested in the idea that human beings have this value. The idea that we must not kill human beings because they are in some way valuable – or at least that we should be reluctant to kill them for this reason – is exceedingly common, and it is this general conviction which will be our topic. It is worth our taking considerable trouble with it, for otherwise it seems to be here to stay. We shall, of course, be paying special attention to Ronald Dworkin’s rather worked-out version of this story, but many people fall in with this general idea of value quite independently. Jeff McMahan, for example, is a writer whose recent ruminations on these topics have been much praised. He tells us – and the ink is hardly dry – that the reason why it is wrong to kill (what he chooses to call) a person – where it is wrong – is that such a killing would be ‘an egregious violation’ of that person’s ‘intrinsic worth’.1 This appeal to value or worth is quite natural. If we are going to say that people are valuable at all, ‘intrinsic’ seems the right word. And we certainly understand the remark or instruction ‘Don’t throw that away! It is quite valuable.’ I mean, as this might be said in daily life, far from the academy.

1 Symposium on Jeff McMahan’s The Ethics of Killing, in Philosophical Books, 2005, p. 2. I should remark here that Professor McMahan in The Ethics of Killing (New York: Oxford University Press, 2002) argues that his notion of ‘worth’ is not the same as Dworkin’s ‘sanctity’ (p. 331). But they seem to be allied notions. In explaining how an individual’s worth explains the way it is wrong to kill, McMahan points out how such a killing is, among other things, ‘to annihilate that which is irreplaceable’ and ‘to show contempt for that which demands reverence’ (p. 242) – which is exactly the language which Dworkin would use about ‘intrinsically valuable’ items like paintings. 51

52 Worth and Welfare in the Controversy over Abortion

Eventually I am going to argue that we cannot make anything of this talk of intrinsic value – whether we are asserting or denying its presence. The background which makes the ‘daily life’ remark so readily comprehensible is missing. But first we need to have some thoughts about what is vaguely called the sanctity of life.

2.1 The concept of the sanctity of life In this initial chapter I am going to fall in line with the idea that to talk of the sanctity of life and the value of life come to the same thing, at least in the context of the problems which here concern us. These phrases are pretty unclear on the face of it, and hence this assimilation will not seem obviously incorrect, though we should even now feel some discomfort over it. But we should feel even more unease over a destruction of distinctiveness of another kind. This is the topic of the present chapter. What is it that has this sanctity or value? It is natural to suppose that we have in mind the sanctity or value of the human individual, the individual who has the life. Professor Dworkin, for example, seems at first sight to take this view. Thus in the section ‘The Sanctity of Each Human Life’ it is ‘each individual human being’ that is said to have this remarkable value, seeing that every one of them is a ‘masterpiece’ to the credit of God or Nature (LD, p. 82). It is the individual that is said to be a triumph. ‘Any human creature, including the most immature embryo, is a triumph of divine or evolutionary creation’ (LD, p. 83). So Professor Dworkin is thinking of a property of individuals. It is not as though we were proposing to deprive an individual of a valuable possession, namely, his life. A human individual’s life is his existence. That is to say, a human individual is an animal, and an animal continues to be just so long as it continues to be alive. To kill is to destroy. A dead parrot is not a parrot in the very worst of health. It is, as we all know, an ex-parrot.2 It might seem pedantic to insist on this. But not so. There is a distinct danger that the vague but possibly significant idea of the value or sanctity 2 Some philosophers seem to want to say that a corpse is an animal – though an animal not perhaps in the best of condition. One still owns an animal, for a while at least, after one’s pet rabbit has died. There it is, in a heap at the bottom of its hutch. I suppose this is correct in a sense – in what we might call the butcher’s sense. On this account, a corpse would not have to remain intact or even complete. One would still have one’s pet animal when it had been skilfully incorporated into a rabbit pie – provided the pie was yet uneaten. And even then, some philosophers will want to say, no doubt, that there is a scattered object – one’s rabbit – existing in different places, in the way various discrete bits of land go up to make the United States. Alternatively, one might keep one’s animal by having it stuffed and put on the mantelpiece. Perhaps that involves yet another sense of ‘animal’ – the taxidermist’s sense.

Worth 53

of life will lose distinctiveness where distinctiveness is important. For example, there is a danger that offences coming under the sanctity of life will be taken to include a great range of featherweight misdemeanours – for example, the mere inconveniencing of others. That might seem far-fetched. But consider: if I inconvenience Smith a bit of life does not go quite so well. It would be hard to say that Smith himself somehow became less valuable when inconvenienced. However, if I express the doctrine in terms of the value of his life, then inconveniencing will tend to raise what will be called sanctity of life issues. Outside the academy, at least, ‘recognising the sanctity of life’ would commonly be taken to mean something down to earth like resisting the temptation to kill. The phrase in quotes would be interpreted as a whole. More accurately perhaps: it would mean resisting the temptation to kill the innocent. No doubt we would have to add a rider: ‘. . . and not just because one fears the police, or because killing would be bad for business’. Dworkin himself says that the idea that we should respect the sanctity of life is not just the idea that it is wrong to kill people: ‘the idea of sanctity is meant to offer a special kind of reason why killing people is wrong’.3 There is something correct in this remark: we need to say, in the way explained, that talk of sanctity is meant to exclude certain answers. That would be enough to give it a role. To be sure, this would be thought a bit too tidy. What we have just described would be recognising the sanctity of life in the primary way. In a secondary way, such recognition would involve something more indeterminate – but still connected with homicide. Someone who recognises the sanctity of life might have to be prepared in some degree to prevent others from killing, though acknowledging that this is largely the job of the police. The demands of sanctity might also include not allowing someone in one’s charge to perish by neglect, or taking steps to save someone who could fairly easily be rescued: the italics suggesting a considerable limitation of scope. It would certainly not require the infliction of burdensome life-prolonging treatment on the terminally ill. Nor would it require enormous expenditures to prolong a life for a day.4 Because of these secondary matters 3 Letter in response to Richard Stith, to New York Review of Books, 28 March 1991, italics in text. 4 People sometimes feel free to attribute very fanciful ideas to those who are opposed to the killing of the innocent, perhaps carelessly, perhaps in order to discredit them. Philosopher Alison Hills remarks: ‘Some people think that human life is sacred and should be preserved in all circumstances’ (Do Animals Have Rights? Thriplow: Ikon Books, 2005, p. 142, italics added). The and from the context is evidently and hence. I wonder whether anyone who claims to believe in the sanctity of life would wish to assert such an extravagance? Physiologist Clifford Grobstein talks about ‘right-to-life insistence that foetal life be continued, whenever and however possible, as an absolute value in any circumstance’ (Science and the

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especially, the notion can hardly be expected to be precise. People might well differ as to what this recognition required – in regard to capital punishment or warfare for example. But for all this indeterminacy, they would see something distinctive and limited about the issues involved. Significantly, however, Dworkin does his bit to destroy this distinctiveness, and we may be sure that in this respect he is not alone. Ordinary people who believe in what are called abortion rights will often feel uneasy about the matter. They will not want to say that women have a right to destroy their children. On the contrary, they will have a need to appear as devoted to the sanctity of life as anyone, perhaps especially devoted to it. For this purpose what is wanted is a use for this impressive phrase which is as broad and indeterminate as they can get away with. It should be aspirational and open ended rather than forbidding. The idea that the sanctity of life controversies are about war, capital punishment, self-defence, abortion and euthanasia – which straightforwardly raise questions about homicide – would be an embarrassment. To be devoted to the sanctity of life could not simply mean: to live by the conviction that it is wrong to kill the innocent and to encourage others to think likewise. It would include, say, becoming a doctor. Or encouraging others to take exercise and keep off fatty foods. Perhaps one recognises the sanctity of life in some very minimal way simply by breathing. Breathing preserves life. And of course we would all be encouraged to look beyond preserving. A cheery disposition helps to maintain the quality of life. Dworkin explicitly rejects the view that respect for the sanctity of life ‘requires only that we do not kill, and has nothing to do with preserving or protecting’ on the ground that although ‘respect for the lives of handicapped people would require us not to kill them, it would give us no reason to help them at all’.5 We should not be so distracted by the kindly concern exhibited in such a remark to notice the semantic dilution involved. We need not deny that we have reason to help. The question is: does this issue come in here? A general atmosphere of edification surrounds any talk of helping the handicapped. The smoke in a smokescreen need not smell bad. As we have seen, Professor Dworkin likes to use the word ‘insult’ in connection with the sanctity of life. What do you think ‘the greatest insult to the sanctity of life’ would be? The targeting of a toddler? Chopping the head off a hostage kidnapped off the street and having the procedure videoed for the TV networks? Or perhaps something on a larger scale? September 11? The willingness of governments to drop hydrogen bombs? The deliberate reintroduction of smallpox into the world? Auschwitz? Rwanda? Not at all. Unborn, New York: Basic Books, 1988, p. 116). He does not refer us to anyone who has maintained this quite extraordinary opinion. Our remarks on avoiding miscarriage in Chapter 1.3 are relevant to all this. 5 Letter in response to Richard Stith, New York Review of Books.

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‘The greatest insult to the sanctity of life is indifference or laziness in the face of its complexity’ (LD, p. 240). Abstraction-distraction this might be called. One could hardly meet a better example of it. But Dworkin does not quite leave things here. He also gives a somewhat more definite account of what it is to recognize the sanctity of life. Recognition ‘means . . . not frustrating investments in life that have already been made’ (LD, p. 99). This takes us away from harsh questions of homicide. Idleness would turn out to be a sanctity of life matter. Having got some way with the piano, investing considerable time and effort, one would show some sort of failure to recognise the sanctity of life by not keeping up with one’s practising. We shall have more to say about this talk of ‘investment’ later.6 Anyone who feels threatened by talk of the sanctity of life, thinking that it has especially to do with homicide, can help themselves not just by being very abstract but by being biologically inclusive. People who are willing to kill a baby when moderately pressed will often have qualms (at least on paper) about stepping on a blade of grass. Naturally there will be little obligations and larger ones. One would need a little excuse for stepping on the blade of grass, a somewhat more weighty one for mowing a whole lawn, etc. With that understood, the broad account of the sanctity of life – the sanctity of protoplasm, one might say – is quite popular among those who believe there are abortion rights as one might expect. Three specimens: ‘It is wrong to destroy life, whether it be human life, or animal life, or vegetable life for no good reason.’7 ‘The wanton, pointless destruction of any living thing, aside from being terribly stupid from a self interested point of view, is indefensible.’8 ‘Living organisms are not to be killed or otherwise harmed, without good reasons. . . .’9 Naturally, all these authors are pro6 I am not sure how closely Professor Dworkin adheres to this ‘investment’ account. Life’s Dominion explains how one can intelligibly be said to ‘offend against the sanctity of life’ by having sexual intercourse without the desire to conceive. ‘In Catholic tradition, and in the imagination of many people who are not Catholics, it is itself an offense against the sanctity of life to make love without that desire: that is the basis of many people’s opposition to contraception’ (LD, p. 96, see also p. 158). How is this extraordinary idea supposed to relate to the thought that respecting the sanctity of life ‘means . . . not frustrating investments in life that have already been made’ (LD, p. 99)? (Incidentally, I suspect that Catholics might want to make two distinctions: between (i) ‘Not (particularly) wanting X to happen’, and (ii) ‘Wanting X not to happen’, and between (iii) ‘Wanting X not to happen’ and ‘Taking steps to ensure that X does not happen’.) 7 A. T. Nuyen, ‘Moral Contracts and the Morality of Abortion’, in Kai Nielsen and Steven C. Patten, eds, New Essays in Ethics and Public Policy, Canadian Journal of Philosophy, Supplementary Volume VIII, 1982, p. 153. 8 Richard Flathman, ‘The Theory of Rights and the Practice of Abortion’, in his Toward a Liberalism, Ithaca: Cornell University Press, 1989, p. 184, fn. 9 Mary Anne Warren, Moral Status, Oxford: Clarendon Press, 1997, p. 149.

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choice. Indeed, it will be said ‘when the interests of life in this larger sense [i.e. all life on this planet] are taken into consideration, the pro-choice position is actually the one most deserving of the adjective “pro-life” ’, a popular claim as we have seen.10 Of course, some destruction of living things is necessary. And this indeed might provide an opportunity for denying altogether that there is such a thing as a right to life. ‘There is no right to life in any society on Earth today . . . We raise farm animals for slaughter; destroy forests . . . All these beasts and vegetables are as alive as we.’11 No doubt this destruction is a shame. In a perfect world it would not happen. But it would be churlish to complain about abortion doctors in particular, who merely do in a little way what we all do in a big way. The thought that the sanctity of life is just to do with murder (more or less) will seem by contrast to be very narrow, fi xated and obsessive. In fact, those who are opposed to abortion will continually be accused, we can be sure, of not caring about the welfare of children once they are born. ‘Prolifers think that life begins at conception and ends with birth’ has been a popular saying for some time. The versatile Carl Djerassi, ‘the father of the contraceptive pill’, who teaches a graduate class in ethics at Stanford, still considers it worth an airing: ‘The pro-life people tend to be obsessed with life before birth but pay very little attention to it afterwards. Quite often the same people who are against abortion are also against gun control and for the death penalty.’12 Katha Pollitt expresses the point with more vigour: What is it about babies that drives people so wild? Not real babies, mind you . . . but theoretical babies . . . On behalf of real-life disabled babies – 10 We came across this sort of claim in chapter 1.5, in regard to Galen Strawson, etc. The present version is the work of Ronnie Zoe Hawking, ‘Reproductive Choices: The Ecological Dimensions’ selected to be reprinted in James E. White, ed., Contemporary Moral Problems, 6th edn, Belmont, CA: Wadsworth, 2000, p. 198. This is the concluding sentence of the article. Earlier we are told that ‘planetary life itself, construed in the larger sense as encompassing all the diverse extant as well as the potential future forms arising through the evolutionary process, is faced with a crisis of unprecedented proportions’ (p. 188). But it is not all bad news. The ‘termination of almost a million and a half pregnancies every year in the United States for instance, has served to lessen significantly the toll on the global ecosystems’ (p. 191). This article had earlier been published by the American Philosophical Association. 11 Carl Sagan and Anne Druyan, ‘Abortion: Is it Possible to be both Pro-choice and Pro-life?’, in Carl Sagan, Billions and Billions: Thoughts on Life and Death at the Brink of the Millennium, New York: Random House, 1997, p. 166. Carl Sagan was a recipient of 23 honorary doctorates. 12 ‘The Guardian Profi le’, Guardian, 26 August 2000. Carl Djerassi, in addition to teaching ethics, is an organic chemist, a novelist, playwright, art collector, the recipient of 17 honorary doctorates, etc. Of course, we shouldn’t lazily go along with the belief that people who are pro-life will be more likely than others to

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not to mention their older brothers and sisters – the ‘pro-life’ movement has yet to stir a finger. But Peter Singer’s books – now there’s a real threat to infant welfare!13 This is for many an irresistible thought. It finds its way into cartoons.14 The critic and commentator Robert Hughes declares confidently that those opposed to abortion ‘prefer the unborn to the born’.15 (He thinks it has something to do with ‘innocence.’) The irresistible thought beguiles that heroine of the cause Sarah Weddington: ‘Why don’t those who claim to be “pro-life” do more to improve the lives of kids in poverty?’, she asks. Of course, we do not know how much they already do, or indeed how much she does, and do not need to know in the least. This is all a big distraction – as perhaps it is meant to be.16 The short answer to the complaint that those opposed to abortion care little about babies once they are born is this: let the US Supreme Court hand down a right to infanticide, and let there be a million cases a year, and just watch how passive the anti-choice crowd will be about it, how little they care about life after birth. And we can usefully remember that people who are (wonderfully or tiresomely) pro-life are not just concerned with the very young. They also insist that a dependent and helpless adult is not to be starved to death – as in the case of Terri Schiavo. We have yet to be told that they do not care a bit in what condition these dependent people are kept, so long as they are fed. But give it time.

13

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15 16

support the death penalty. For what it is worth, a Gallup survey of 1990 designed to probe attitudes to abortion found that 75 per cent of those who identified themselves as strongly pro-choice said they favoured the death penalty for persons convicted of murder, compared with 68 per cent of the strongly pro-life. This survey is discussed in James Davison Hunter, Before the Shooting Begins, New York: The Free Press, 1994, pp. 106 and 269. ‘Peter Singer Comes to Princeton’, The Nation, 3 May 1999, p. 10. Ms Pollitt has not done her homework. Peter Singer is famous or infamous for his views about what she would call ‘real-life disabled babies’. He wishes to extend ‘the right to choose’ to include infanticide. I have on my desk two pro-choice cartoons reprinted in Reproductive Freedom News. In one (September 2000) a middle-aged man is saying to some poor unfortunate: ‘We’ll protect you till you’re born; then you’re on your own punk!’ (italics in text). In the other (June 2000) another middle-aged man is bearing a placard which reads ‘Ban Partial Birth Abortion’. He is bending over and addressing the abdomen of a pregnant woman who looks as if she is about to have her baby: ‘We’re only concerned with saving your life’. The woman is saying ‘What about mine?’ Robert Hughes, Culture of Complaint, New York: Oxford University Press, 1993, p. 53. Sarah Weddington, A Question of Choice, New York: Penguin Books, 1993, p. 283. I say that this is perhaps meant to be a distraction as it occurs in a fi nal chapter on tactics – what one can do in order to be a ‘champion for choice’ (p. 268).

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Of course, this, the irresistible thought, is a frivolity. On a more serious matter though, it could well happen that our community is unreasonably concerned with the welfare of born infants – as well as not caring enough for the welfare of those unborn. ‘The welfare of the child must come first’ is an attractive slogan. Yet the reiteration of this slogan can be the cause of much misery and injustice to many women whose babies are taken away from them on the suspicion that these children might, just might, be harmed. The fact that a child would be more likely to flourish in a different home is certainly not a sufficient reason for transplanting it. More interesting for our present purposes, however, is the thought that ‘infant welfare’ is what is principally at stake in the controversy over abortion. It is totally misleading. Katha Pollitt should have asked ‘What is it about wronging or injustice that drives so many people so wild?’ People are often particularly concerned about injustice, and indeed with particular injustices. Would it be reasonable to complain about those opposed to unjust discrimination that they seem, as a body, to have no particular concern for those who, for some reason, are no longer at risk of being unjustly treated in this way? That they do not campaign for more hospitals, or against slippery pavements? It is very natural that those who are upset by a wronging will side with the wronged, and be noticed for it. Peter Geach tells us of a Viking who was named Bairnsfriend ‘because he would not share in the popular sport of tossing infants from spearpoint to spearpoint’.17 But it is quite evident that people who object to abortion, as a wronging, are not simply driven by thoughts about the welfare of babies, theoretical or otherwise. An article in the Sunday Times (1 September 1996) was headed ‘Tissue from Aborted Foetuses Used to Save Unborn Babies’. It reported that the technique in question was condemned, not praised, by a representative of the anti-abortion charity Life. That is what one would expect. Furthermore, abortion opponents would nearly always object to ‘foetal reduction’ designed to save foetal lives overall. As for born babies, we have now had the case of the conjoined twins, legally known as Jodie and Mary, who could not both survive. Those opposed to abortion tended to think that Mary should not be killed to let Jodie live. It is not of course that they wanted both babies to die, but they believed doctors should not attempt to save the life of a patient by killing another patient. This shows very well the difference between idea of the sanctity of life (which bids us not to kill) – and the idea that life is valuable (which bids us to conserve value, if necessary by killing). We shall return to this difference in the next chapter. But for the moment we are going along with the idea that sanctity and value come to the same thing.

17 Peter Geach, The Virtues, Cambridge: Cambridge University Press, 1977, p. 32.

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In the summer of 1996 in England a professor of obstetrics announced that he had had a hard decision to make. He was going to abort one of a pair of ordinary healthy twins, the woman being ‘in straightened circumstances’.18 The professor was known to be opposed to abortion, which is presumably why he had only performed 3,000 of them. About the dismembering that is sometimes involved he said: ‘I don’t find it pleasant but I am of sufficiently tough constitution to do it.’19 In the present case he satisfied his conscience by arguing that if he did not kill one of these babies the woman would have both killed elsewhere. Now this at first sight would seem to be no argument at all. One is not entitled to kill Smith on the mere ground that if one sits on one’s hands someone else is going to kill both Smith and Robinson. Armed, however, with Ronald Dworkin’s distinction we can sort this out. If Smith is a grown-up with rights we could of course not kill him for such a reason. But if Smith is still in the womb and only has a value, things will naturally be different. Killing the one will conserve value. In fact the killing will surely be obligatory. (There might still be a problem here for the sensitive ethicist. He might still wonder whether one would have to be scrupulously fair in deciding which twin to kill – tossing a coin perhaps – in order to give the twins ‘equal opportunity’. Or whether, if one twin were disabled, one would have to compensate for its ill luck by favouring it.) That killing might be undertaken out of respect for the sanctity of life interpreted as a matter of ‘intrinsic value’ might seem to many to be Professor Dworkin’s great contribution to the abortion debate. He invites someone who is thinking of abortive killing on the ground of disability to ask themselves whether acting or refraining would represent the ‘more terrible frustration of the miracle of life’ (LD, p. 90).20 There is more to this effect at LD, p. 151. Here we learn that if someone is ‘deformed’, it is possible that one ‘best serves the intrinsic value of life’ by killing him.21 This, says Professor Dworkin, is indeed ‘controversial’. It is simply something one might gravely consider. Considering things of this kind apparently encourages in oneself a ‘sense of moral responsibility’. Of course, after the individual to be disposed of has developed sufficiently to have a right to life, it would be murder, even in Professor Dworkin’s view, to serve the intrinsic value of life in this way. 18 A considerable amount of money was then raised to help her cope. The poverty bit of the story subsequently turned out not to be true; she was a career woman whose husband was a company director – but all this is hardly relevant here. 19 Guardian, 8 August 1996. 20 Such a phrase is surely a terrible frustration of the miracle of language. 21 In the article in The Times ‘When Can a Doctor Kill?’ (27 April 1993) the point is made using the description ‘seriously deformed’. Not killing in such a circumstance, it is thought, ‘would itself frustrate or damage human life in some other grave way’.

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No doubt we are expected to say: ‘Killing someone merely valuable, someone who fortunately happens to have no rights, would be a shame, perhaps a dreadful shame, but when the infringement of a right would also be involved – well that would be something else entirely!’ But what would this amount to? Isn’t it also a shame when a right is infringed? And if so, how would the shames be compared? For all we could tell in advance the destruction of a valuable thing of the kind in question might by far outweigh in cosmic frightfulness the mere infringement of the right? And might not a bout of serious thinking whether to kill an older child with a right to life also encourage in oneself a ‘sense of moral responsibility’? What killing, one wonders, could not be done in the name of the sanctity of life and the threatened ‘frustration of miracles’? We argued (pp. 47–8) that capital punishment might be attacked in the name of the sanctity – here meaning the intrinsic value – of life. But might not it also be defended? Even if capital punishment were not considered to be a deterrence, it might simply be meted out in solemn recognition of the sanctity of life of the victim. Relatives of the victim in particular might see the matter in this way. Other killings too could be sanctioned by appeal to this impressive but elusive value. The very existence of X or Y, degenerate specimens using up valuable resources, might be thought an insult to this value as manifested in other, normal, individuals. Certain psychiatric patients might be held to be a parody of mankind. Their very presence might be thought an offence, an insult, to ‘human dignity’. We might remember the passage from Virginia Woolf’s diary about the imbeciles on the towpath, quoted in note 76 of Part One. The thought that everyone has this value is surely a fragile thought. Even if everyone has it, the language of value invites the language of tradeoff. Consider the wholesale bombing of cities during a war. The dropping of the atomic bombs on Japan, presumably undertaken after serious thought, and with regretful worryings about the ‘moral cost’, in order to shorten the war and prevent further bloodshed, would have been undertaken in the name of value. ‘In a perfect world this would not happen.’ As we know, this life-saving reason is offered over and over to defend those bombings – almost obsessionally, one might say, as if to ward off a thought not to be thought.22 Naturally, I am not arguing that these actions would have to be counted legitimate just because the value of life was being ‘honoured’ or ‘reverenced’ – as I suppose we should say. Far from it. Nor of course would Professor Dworkin come within a mile of supposing so. Honouring the sanctity of 22 A correspondent to the London Review of Books (5 September 2002) helpfully reminds us, referring us to the United States Strategic Bombing Survey of 1946, that if we had not dropped the two atomic bombs we would have had to kill many more civilians by having to continue with the conventional bombing of civilian targets.

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life in these ways would by no means guarantee rectitude. One might after all be infringing other people’s rights, and their weight might more than counterbalance sanctity considerations – though as we saw, it could be hard, not to say impossible, to determine when this is so. The honouring of sanctity would simply be an attractive aspect of what might, on the whole and all things considered, be held to be a mistake. All in all then, the notion of life’s value (sanctity, inviolability) can acquire an unruly life of its own. This is entirely to be expected. It is the price to be paid for the destruction of distinctiveness.

2.2 Why the notion of sanctity or inviolability should not be thought of as a kind of value It is quite usual for writers in this field to think of sacredness as a kind of value. And we have ourselves rather gone along with this idea for purposes of exposition. Nevertheless I want now to argue, that insofar as there can be a right and wrong in regard to these indistinct concepts, sacredness is not to be thought of as a kind of value at all. We have already seen difficulties in the value account of sanctity when we briefly considered the notion of ‘foetal reduction’ and again the case of the conjoined twins, Jodie and Mary. Here in each case, where killing-tosave is in prospect, the vague and possibly unsatisfactory idea of sanctity speaks up against, whereas the vague and possibly unsatisfactory idea of value speaks up in favour. Again, a pregnant woman who would be thought firmly to believe in the sanctity of life, and who would never consider having an abortion even if made pregnant by a rapist, might nevertheless put up with the risk of miscarriage, refusing for example to take extra rest when advised to do so by her doctor, as in the case we discussed in Chapter 1.3. This ‘nevertheless’ would be hard to understand if everything had to turn on the ‘value’ of her unborn child. This incongruity is especially easy to see if we imagine another woman in just this predicament who refuses to follow her doctor’s advice in order, if possible, to procure a miscarriage, other methods not being available. It is natural to talk of sanctity of life when we are thinking of the teaching that we are not to lay our murderous hands upon one another. By contrast, the idea of value seems more apposite when talking about the duty to rescue.23 This is because the notion of costs are here relevant. We are not to count the costs of respecting the sanctity of life, at least where this is 23 It is instructive to see that John Harris in The Value of Life (London: Routledge, 1985) introduces the topic of value by talking about the duty to rescue. Indeed he does so three times. See the first page of the Introduction (p. 1), the opening page of Chapter 1 (p. 7) and then the page long section entitled ‘What do we mean by value?’ (pp. 8–9). Dodgy questions about killing are naturally left for later. When the time comes Professor Harris does not say (as far as I can see) that

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narrowly construed: that is part of what we have in mind by talking of sanctity in such matters. But it is perfectly reasonable to consider the cost, even in a purely monetary sense, when thinking whom to save. This is a regular part of public health care. And we will reasonably be prepared to spend more saving some rather than others, thus regarding some as ‘more worth saving’ for one reason or another. Someone might be inclined to express this by talking about their differing value, though we might not find such language comfortable, or even particularly intelligible. However when we think of the sanctity of their lives, we will think them all alike. They will have an inviolability which does not differ in degree.24 That there is a difference between sanctity and value also comes out when we think of everyday talk of sanctity in cases not involving homicide. Thus we talk about the sanctity of contract. We are obviously not referring to the value of contract as an institution, or the value of any particular contract. We talk about the sanctity of property. We do not have in mind the worth of property in some sense or other. Other people’s private letters are regarded as sacrosanct, but not necessarily precious. I remember being solemnly told at school that the lavatories were sacred, meaning that a certain privacy was to be respected in connection with them. We children were no doubt teasing some unfortunate boy who was shy about his natural functions. It was not being suggested by the authorities that these places had a value over and above their utility. In the letter to the New York Review of Books, previously cited,25 Professor Dworkin rejects as ‘too crude’ the view that the doctrine of the sanctity of life simply means ‘that it is wrong to kill people’. ‘The idea of sanctity’, he it is wrong to kill people because they are valuable. Rather, to kill someone deprives him of an opportunity, an opportunity to value his own life (p. 17). Or again (a second view) killing deprives the individual of something he in fact values (p. 83). 24 Peter Singer and Helga Kuhse, in their article ‘Should all seriously disabled newborns live?’, lump together value and inviolability, as would seem to suit their case. ‘Few people, if any, ultimately take the view that all human life is equally valuable and inviolable to its logical conclusion’ they write. (Peter Singer, Unsanctifying Human Life, Helga Kuhse ed., Oxford: Blackwell, 2002, p. 236) And what would this ‘taking to its logical conclusion’ amount to? ‘The view that all human lives . . . are equally valuable or inviolable would, if applied consistently, have the grotesque consequence that life would have to be prolonged even in a situation where the patient would not benefit from such efforts or would be harmed by them’ (p. 237). If in both quotations we leave out the reference to equal value, where would the difficulty be? The view that everyone is equally inviolable (it is surely individuals rather than their lives which are the subjects of violation) would not have this ‘grotesque’ consequence. For why should we think that a patient is violated at all if we decide to give up trying to rescue him with stressful treatment and let him die in peace? 25 See p. 53 above.

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says ‘is meant to offer a special kind of reason why killing people is wrong’. I indicated that there is something correct about this. If there is not much of a reason offered, the killing is at least to be seen in a certain light. We are not simply to say that the blood would make a mess on the carpet. The question is: in what light? In what way is it to be seen? Dworkin’s answer is quite straightforward and accurate. ‘Part of the sense of the sacred is a sense of taboo’ (LD, p. 149). We might say in the abortion case: a taboo against destroying the developing child. We talk about the sacred in order to erect a fence. ‘Comment is free but facts are sacred’ said C. P. Scott of the Manchester Guardian. The facts may or may not be valuable, but in either case it is taboo to tamper with them. To be sure, we will not want to say that every taboo involves the sanctity of something or other, and this might be what Dworkin had in mind by talking of a part of the sense of the sacred. The etiquette-taboo of the merely ‘not done’ is hardly enough. Nor would we think here of dietary restrictions, like the Pythagorean abhorrence of beans (perhaps not unconnected with the prevalence of favism in Mediterranean countries). Rather we would have in mind an unthinkableness based on respect, perhaps for an individual, perhaps for an institution. As we would all agree, we should only live by a sanctity-taboo if there is a good reason somewhere at the back of it. Mere talk of sacredness, even if appropriate, hardly gives us a reason – it merely indicates what we would like to be able to explain. We certainly expect there to be a further story. To be sure, we may rationally accept such an interdiction without comprehending this reason, as children do and must do. Or without wholly comprehending the reason, for there are obviously degrees of understanding in this matter. As it happens, the work of Ronald Dworkin serves well to illustrate this point. In an article about the trial of several Argentine military leaders,26 he wrote: ‘The world needs a taboo against torture. It needs a settled undoubted conviction that torture is criminal in any circumstance, that there is never justification or excuse for it, that everyone who takes part in it is a criminal against humanity.’ He admitted that there is: ‘a widespread opinion that it is justifiable sometimes, that it is defensible when carefully aimed only at extracting information needed to save lives from terrorism, for example.’ Yet he insisted that ‘torture cannot be surgically limited only to what is necessary for some discrete goal, because once the taboo is violated the basis of all the other constraints of civilisation, which is sympathy for suffering, is destroyed.’ This is instructive. For it is evident that sympathy for suffering is not at all a sufficient basis for the constraints of civilisation. As people will hasten to point out, it can often be perfectly all right to cause suffering. It is innocently done every day in medicine and dentistry. One might cause severe and lasting misery by refusing to marry a suitor. As a community too 26 ‘Report from Hell’, New York Review of Books, July 1986, quotations from p. 16.

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we need to be able to disappoint, and sometime the disappointment is grievous. Furthermore, we need to be able to punish, for foolish pity spoils the city. If in all these instances we may hurt, why not by torturing where torture is unfortunately ‘required’? But we see an enormous difference. It is a matter of wronging. Justice begins, one might almost say, where sympathy for suffering leaves off. There is nothing too wicked that might not be called for under the rubric ‘sympathy for suffering’, including torture. When we object to torture, an appeal to inviolability and human dignity is surely essential, and this aspect is not captured at all by tearful talk of pain-avoidance. This point is especially important in connection with abortion. People can easily be got to think: ‘A foetus cannot yet feel pain, how could it matter if we dispose of it? A pregnant woman, however, might well suffer if she does not get the abortion she wants, to say nothing of the man in the case who might have to pay out for many years . . .’.27 Still, when all this is said, it would not be irrational for Professor Dworkin to stick to his taboo, for the bad reason he gives is more a rationalisation of his conviction than a ground for it. There need not be anything wrong with rationalisation. Much of the best philosophy consists of it, where we are seeking to understand better what we know or think we know. We perhaps think that a certain teaching or a certain tradition is wiser than we are likely to be. This could be sensible humility – or it could be laziness. But if we are rational we will assume that there is a point to a teaching which we accept.

27 Phillipa Foot also says that we need an absolute ban on torture, and mentions Ronald Dworkin’s article. Interestingly, her brief remark, like Dworkin’s, seems inadequately to illuminate the reason, for she talks about seeing torture ‘as the ultimate negation of the impulse humans have to come to each other’s aid’ (Footnote 21, Natural Goodness, Oxford: Clarendon Press, 2001, p. 78.) Torturing a terrorist suspect might be called for under the heading ‘aid’, that is to say aid for those thought to be under threat. This is recognised for example by Alan Dershowitz, of Harvard Law School, who thinks it might be all right on occasion for the highest authorities to issue ‘torture warrants’. (‘Dershowitz: Torture could be justified’, CNN March 4, 2003). Incidentally, Professor Dworkin does not simply think that it must always be wrong to wrong someone, that is to say, to treat him unjustly. His absolute rejection of police torture does not therefore arise in this way. And indeed, despite appearances, it is not inconsistent to say that it can be all right to wrong. After all, this italicised thesis is rejected by Socrates in the Crito, as a matter of substance. That Dworkin considers it an open question whether to wrong someone comes out in his remarks on the proposal to treat those thought to be associated with terrorism in certain judicial ways, lacking the usual safeguards. He says that we should have the candour to admit that what is proposed is unjust. He goes on to ask whether the current emergency is so serious ‘that we must act unjustly’ – calling this a ‘difficult question’. (‘The Threat to Patriotism’, New York Review of Books, 28 February 2002, p. 49.)

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On this understanding we should not unthinkingly disparage something called ‘taboo morality’.28 In particular, it seems perfectly reasonable and necessary to say that the life of a child is sacred in the way this notion is normally but rather vaguely understood. We recognise a taboo in this case, a hands off. The word ‘inviolable’ does indeed seem appropriate, as Dworkin realises. In the mid nineteenth century, Dr Stephen Tracy wrote, The life of this new human being is sacred, and no one but God himself either has, or can have, the least shadow of a right or liberty to take it away.29 This is more or less how the notion of ‘sanctity of life’ is still used, in regard to abortion and elsewhere. One simply has no business to kill the innocent, even to preserve several other people. When Peter Singer talks of ‘unsanctifying’ human life, it is this sort of thing he objects to. This reference to God should not of course distract us. The notion of the sacred we are discussing is quite at home in a secular world. We do well to recognise this in view of a kind of religiosity which is apt to creep into Professor Dworkin’s language, a religiosity which some will find appealing and some appalling. It seems unnecessary. The worldly business-man grumbling about his taxes will rabbit on about the sacredness of his earnings. If people who are much exercised by the sanctity of life tend to have certain religious convictions, this must have something to do with the particular case, not merely because it involves an unthinkableness based on respect. For our purposes in this book, it is crucial to note that if we think of the sacred in this informal way, the idea of the sanctity of life need not be an alternative to the idea that individuals have a right to life. An appeal to the rights of the individuals at risk of being killed may come in when we try to account for this sanctity. Thus the existence of such a right might be We might also note that Professor Dworkin appears to be tempted to join the very many who object to the idea that firm rules might have a place in what we teach about conduct. In ‘Tyranny at the Two Edges of Life’ (New Perspectives Quarterly, Winter, 1994, p. 19) he complains about ‘the postulation of abstract absolutes expected to apply to unforeseen circumstances’. If this were a speech to the multitude this remark would be followed by loud applause. But come the next morning one would probably remember that to rule out torture by the police is to reject this permissive appeal to unforeseen circumstances. 28 I notice that Bertrand Russell in discussing this matter chose to employ the unusual spelling ‘tabu’, perhaps in order to hint at superstition, black magic and unreason. Human Society in Ethics and Politics, London: Allen and Unwin, 1954, pp. 29–33. 29 The Mother and Her Offspring, New York: Harper and Brothers, 1858, p. 109, quoted in Marvin Olasky, Abortion Rites, a Social History of Abortion in America, Washington: Regnery, 1995, p. 114. Opposition to abortion was very usual among American doctors in the nineteenth century.

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mentioned in order further to specify the way in which human life is sacred. Dworkin can talk of the sanctity of life as something which gets violated30 – and that does suggest that a right is involved. Rape is both a rights infringement and an invasion of the sanctity of the person, and I doubt whether we would want to make a distinction and talk of two offences. The idea of sanctity of property would certainly be spelled out by talking of rights. (We might not, in so doing, be talking up this sanctity. We might be explaining why property is not reasonably to be considered as sacred as all that.) However we might be able to understand the sanctity of life in a conceptually economical way, without bringing in rights at all – a distinct advantage to anyone still haunted by Bentham’s talk of ‘nonsense on stilts’ and ‘bawling on paper’. The connections here remain to be explored. We shall return to the subject of this paragraph at the end of this book – in Part Five. Dworkin wants to help himself to the language of ‘the sanctity of life’, but it must be said, at minimal expense. Let us think of his use of the notion of inviolability. The word sacred, he says, means inviolable, (LD, pp. 25 and 73), and of course we need have no quarrel with this.31 What he says follows the dictionary. Yet what would inviolable mean? Is it simply an impressive word without any substance to it? It is perfectly possible for a philosopher to employ the word inviolable without simply striving for effect. Consider the use made of it by Robert Nozick in his much read Anarchy, State and Utopia (Oxford: Blackwell, 1974) which Professor Dworkin will naturally know well. ‘Individuals are inviolable’ says Professor Nozick firmly (p. 31). This means, he explains, that they are not to be sacrificed or used for the achieving of other ends, unless perhaps they give consent. Individuals may not be violated even ‘for the greater social good’ (p. 32). Nozick maintains that we are required to act within strict ‘side constraints’, and that these side constraints ‘express the inviolability of others’ (p. 32). Whatever one may say about the libertarian political use to which Nozick eventually puts these notions, it is very clear that he is honestly talking of a kind of inviolability. He expresses a Kantian thought, a thought which was surely treated by Kant as a sort of axiom.

30 See e.g. FL, p. 254: ‘The sanctity of life, properly understood, is not violated by such a killing’. 31 Jenny Teichman however is perhaps correct to see a logical difference between inviolability and sanctity. ‘Inviolability has no degrees, whereas I think the sacred does; after all, we have the holy, and the holier than thou, and the holy of holies, and so on’. (‘What is Sacred? Ronald Dworkin’s Answers’, Polemical Papers, Aldershot: Aldgate, 1997, p. 112.) Suzanne Uniacke argues that a teaching as to inviolability is an appropriate response to the sacredness of something (‘Is Life Sacred?’, in Ben Rogers, ed., Is Nothing Sacred?, Abingdon: Routledge, 2004, p. 75) and Ronald Dworkin seems to admit in his reply (p. 141) that we have distinct concepts here.

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If someone said to me that the life of a baby in the womb – I mean something with arms and legs and organs – was inviolable, I, like almost anyone else, would take him to mean that it was to be safe from deliberate poisonings or dismemberings, etc., especially on the part of those who are trusted with its charge, its mother or its doctor. One thinks of the Dictionary: ‘not liable or allowed to suffer violence; to be kept sacredly free from . . . assault’. The violation of an individual is often taken to mean rape, thought of as a bodily assault not to be contemplated or excused. Let us return to that phrase from the dictionary: ‘not liable or allowed to suffer violence; to be kept sacredly free from . . . assault’. Presumably, if this language in Life’s Dominion is not the merest show, we are to think of the person of the foetus as similarly protected. If human life ‘at every stage’ really is sacred, as Dworkin insists, we ought to find this out if we can, and hence accept this taboo. What is amazing is that Professor Dworkin can judge it perfectly proper to cut up an inviolable baby in the womb, in a second trimester abortion, whose life he says is sacred, and which is therefore protected by this taboo, for the sake of advancing one’s career (we need not deny that such a thing is important), or because the inviolable baby has, or might have, Down’s syndrome. Dworkin thinks abortion is all right granted a sufficiently unfrivolous reason, and as everyone knows these are typical of what are counted such. He might at least have required that the remains be given a decent burial. Would not the remains have this sacredness too? One reads his book expecting him to say this at any moment, but . . . Professor Dworkin retains the mere language of protest and the intimations of piety given by the regular use of this language. And all this without the burdensome substance of the matter. Frances Kamm in Abortion and the Value of Life conjectures that Professor Dworkin uses the language of sacredness and inviolability for tactical reasons: so that ‘his position can thereby appear to give more to conservatives than it really gives, thus mollifying them.’ (Kamm, p. 171) This seems to me rather too narrow and calculating a verdict. I think that Professor Dworkin really is carried away by the verbiage and its associations. He says: I look at the sanctity of life as true. I feel this. It is my conviction that we do wrong to insult that inherent, objective value of life.32 32 ‘Tyranny at the Two Edges of Life’, (p. 19) It is important to notice this passage, for in talking about sanctity he so often seems merely to be reporting what others might judge to be sacred. Jeff McMahan understandably, but mistakenly, says: ‘Dworkin himself never explicitly endorses the claim that human life is sacred in this sense [i.e the sense explained in his book]; he is reporting what he thinks other people believe’ (The Ethics of Killing, p. 331). The matter is fi nally put to rest in the recent ‘The Concept of the Sacred’, published of course after Professor McMahan’s book, which ends by saying that human life as we know it is ‘obviously and indisputably sacred’ – only expressing an odd reservation about such people as might some day be ‘created entirely from non-organic chemicals’, presumably in some laboratory. (Is Nothing Sacred, p. 142.)

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Yet one is not too sure whether he would be glad to see this verbiage taken up. If it were proposed to amend the American Constitution to include a provision ‘that the life of every human being, born or unborn, is to be treated as sacred and inviolable’ how does one imagine that Professor Dworkin would be encouraging people to vote? What would he be saying in his next elegant article in the New York Review of Books? My guess is that he would be seriously alarmed at such a prospect.

2.3 Acceptable uses of ‘intrinsically bad’, ‘intrinsically good’ and ‘intrinsically valuable’ Having separated the idea of sanctity from the idea of value, we are now better able to think about the latter on its own. In particular we are better able to take up our main concern, the contention that people, paintings, and certain species of animals or plants have a special kind of value called intrinsic, a value which gives us a reason not to destroy them. But it is still wise for us to proceed slowly. This chapter takes up yet another preliminary issue. I want to consider certain acceptable ways of using the phrases ‘intrinsically good,’ ‘intrinsically bad’ and ‘intrinsically valuable’. Some readers might want to take it for granted that there are such uses and pass straight to the next chapter. We only need to look into this question because the kind of talk we shall eventually criticise relies somewhat for its appearance of legitimacy on its association with these other uses. ‘Intrinsic’ is surely an academic word that is perhaps not quite at home in our everyday talk. Talk of intrinsic value might indeed be an inheritance from medieval scholastic philosophy. 33 In modern discussions the language crops up in various places. Let us think first of the way in which actions are called ‘intrinsically bad’. We can ask: is this action a case of torturing? Is it procuring the condemnation of the innocent? Is it killing a child? – that sort of thing. We can use the phrase ‘intrinsically bad’ to characterise kinds of actions, such as torturing, for example. And individual actions of these kinds – a particular deed which counts as torturing, etc. – might also be called intrinsically bad. Other kinds of action will not be intrinsically bad. Posting a letter, for example, or kicking a stone. However, particular actions of these latter kinds may yet be bad, depending on the particular circumstances of the case, or again of the end for which they are pursued, or yet again because the agent thinks the particular action is bad. Thus giving a present, is not an intrinsically bad kind of action. Indeed it seems positively amiable. But a particular action of this kind may be bad because the agent believes (correctly or incorrectly) that the object is not his to give, or again because he hopes the recipient 33 See note 40, this Part.

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will harm himself with it. A particular action will be all right, or perhaps good, if it is neither intrinsically bad, nor incidentally bad in some way or other: that is to say, if it passes all the tests. (I say ‘or perhaps good’ – leaving open the possibility that any action which has no defect must be counted good, if only because it is done to some purpose, exhibiting rationality or good sense.34) Someone might indeed believe that there are no kinds of action which are intrinsically bad in the above sense, but this would not be a criticism of the concept. The concept would be clear enough, but, in his view, nothing would fall under it. He would perhaps want to say that lying, torturing, or whatever are of necessity bad for the most part, but you could never rule out ‘having to’ do actions of these kinds. This is the view called consequentialism by Elizabeth Anscombe when she coined this word in ‘Modern Moral Philosophy’.35 Promise-breaking is a bad kind of action in a way, but on the above test it would not be an intrinsically bad kind of action, since everyone thinks that it is all right sometimes to break a promise. We might, however, introduce an extended definition of ‘intrinsically bad action’ to include kinds of action which are, as described, defeasibly bad in this way. We might possibly give the phrase ‘intrinsically bad’ a use not in relation to actions but in relation to states of affairs, or happenings. Some states of affairs are misfortunes – for individuals or groups. But only some are intrinsic misfortunes. Compare pain and rain. To know what pain is, is to see it as prima facie a misfortune. Not so with rain. We need to know why people complain of rainy days, when they do. Ducks – they say – like rain. We might have been like ducks. In the light of all this, we might choose to say that pain is intrinsically a misfortune for people and that rain is not so. People will be taught to regret the fact that others suffer from misfortune (perhaps undeserved misfortune) and in this spirit they will say, perhaps, that certain misfortunes are ‘intrinsically bad’. This, one might say, is a secondary use of ‘intrinsically bad’: the teaching is not founded on a concept of value independently understood. We bring to our judgement of value the assumption that properly regulated sympathy is a virtue. Perhaps a toughminded Nietzschean would take another view. One could not hope to decide the issue by investigating from scratch whether Smith’s toothache really was A Bad Thing – as opposed to a misfortune for Smith. There would still be something to investigate. Although within a certain system of belief Smith’s toothache would be judged bad for no further reason, this being the 34 I have discussed this possibility in ‘Modern Virtue Ethics’, in T. D. J. Chappell, ed., Virtues and Values, Oxford: Clarendon Press, 2006. 35 G. E. M. Anscombe, ‘Modern Moral Philosophy’, in Collected Philosophical Papers, Vol. 3, Oxford: Blackwell, 1981, p. 36. (This article was fi rst published in Philosophy, 1958. The OED, under ‘consequentialism,’ seems unaware both of this source and this sense.)

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teaching, further reasons should exist why this background system of moral belief is correct in this particular and the ‘Nietzschean’ system incorrect, even if no one is as yet very good at articulating these reasons.36 There will be other uses of the word ‘intrinsic’ in connection with value. We might find it natural to call something ‘an intrinsic good’ if it is necessarily a good to the individual who has it, if it is necessarily a benefit, or something that necessarily makes a thing better of its kind. We might claim, for example, that virtues (patience, courage, etc.) are intrinsic goods, meaning that we would not call something a virtue unless it were a good to its possessor, or rendered its possessor good of its kind. This would be so, according to this claim, even where the virtues in question are qualities of inanimate objects. The virtues of a bicycle would be those qualities which made it a good or efficient bicycle. True enough, someone might happen to be brought low by his possession of a virtue – he might be killed by his courage – but this would be the exceptional case: virtues, of necessity, would be suitable gifts for a fairy godmother to give to a child at its christening. On this view, virtues would be an intrinsic good, while a quality like the ability to get one’s way might be thought too contingently connected with one’s good to count. A fairy godmother could not safely give one such an ability; she would have to know what other qualities one had. Some things are wanted, as we say, ‘for their own sakes’, as Aristotle noted in the famous discussion at the beginning of his Ethics. It is natural to refer to such things as intrinsically valuable, at least if this wanting is not based upon some defective understanding. We will also call something intrinsically valuable if it is worth having for its own sake even though the individual in question does not happen to want it. The individual might be a child, not yet the master of the necessary concepts. A happy life is something of intrinsic value to such a child, for to ensure that the child would have a happy life would be bestow a benefit worth having for its own sake. Someone might want to talk here of what the child would want for its own sake if the child were rational and well informed. In the light of this we might wonder whether we should strain to bring the concept of wanting into the account of intrinsic value. We might say that a certain trace element is instrumentally valuable to a plant – its presence in the soil helps it to 36 Michael Zimmerman (The Nature of Intrinsic Value, Lanham, Md: Rowman and Littlefield, 2001), takes up a passage in Philippa Foot: ‘It seems preposterous to deny that there are some things that a moral person must want and aim at insofar as he is a moral person and that he will count it “a good thing” when these things happen . . .’, and he comments: ‘But this is all that is at issue when something is intrinsically good’ (p. 26). (See Philippa Foot, ‘Morality, Action and Outcome’, in Ted Honderich, ed., Objectivity and Value, London: Routledge, 1985, now reprinted in Foot’s Moral Dilemmas, Oxford: Clarendon Press, 2002.) Naturally, we have no quarrel with such non-explanatory or derivative talk of intrinsic goodness, except that it might mislead philosophers.

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remain healthy. Health itself, by contrast, might be thought intrinsically valuable: it constitutes being in good condition, it does not merely facilitate it. That wanting so often comes in to our account – as it should – would be a fact about the concept of wanting rather than about the concept of intrinsic value understood in this way. We surely do not need to talk of what a plant would want for its own sake if it had a mind of its own! (For more on the concept of welfare in relation to plants, see Chapter 4.5.) There seems to be a difference between necessity and contingency in regard to what is wanted for its own sake. ‘A happy life’ is something which seems necessarily wanted for its own sake (though not necessarily wantedall-things-considered, of course, for people sometimes lay down their lives for causes). But there are things which simply happen to be wanted for their own sakes. Thus some people, but not all, want to walk in the countryside, though not to any further purpose (they may not want to work off fat, or break in their boots, or look for a photo opportunity, or extract money for a good cause from ‘sponsors’). The flourishing of another person, or of a tree, etc., can be intrinsically valuable to individuals in this way. A payoff would not be expected or relevant, though it might naturally be welcomed. This concern is the most ordinary thing in the world (though, perhaps, for all that, it is surprising when thought of in a certain way). If a great number of unrelated people care for the good of the admirable Robinson in this fashion we might be inclined to say that Robinson’s flourishing just is intrinsically valuable in its own right, and not valuable to anyone – but no doubt this in an inclination to be resisted. We could not conclude that instances of flourishing, health, amusement, etc. were ‘good things’, or ‘good states of the universe’, or ‘proper existents from an abstract point of view’. Or rather we would not yet have given any sense to these phrases. Intrinsic value in the sense we have introduced is always value to. It is value relative to a subject or to individuals. We should not, for all that, call this use of intrinsic value ‘subjective’, for this suggests that there can be no fact of the matter or that disagreements cannot be resolved. (‘Relativist’ and ‘individualist’ might well be misleading too.) This then gives a sense – or perhaps several related senses – to ‘intrinsic value’, and it is possible that the phrase is sometimes used rather in the way we have just characterised. Something that is wanted (the academic will no doubt prefer to say ‘valued’) as a means to something else might be said to be instrumentally valuable, assuming of course that it is indeed suitable. Naturally, something or someone can be of both instrumental and intrinsic value, and sometimes the distinction is not one which we are happy to make: as when one finds a friend good company. Whether the two categories exhaust the field I leave to one side. ‘Instrumental’ is not perhaps the best word for our purposes. A sense of humour is no doubt valuable in this way, but no one would think of it as anything like an instrument. ‘Use value’ might be a better phrase.

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What is of more importance is to note that – as with the notion of intrinsic value just discussed – the wanting is quite unnecessary to the value. We can say, as above, that certain trace elements are valuable to a plant, being conducive to its health. Judith Jarvis Thomson correctly does not bring in wanting at all. For her, instrumental value is ‘the goodness or badness the thing inherits from what it causes.’ This appears somewhat defective in another way, in that it only naturally fits certain cases. Rain is valuable to plants via what it causes. But actual instruments, screwdrivers for example, are not naturally thought of as having beneficial causal results. Rather, we produce beneficial results by using them. Even in the human case where wanting is possible, wanting is obviously not a necessary condition of the presence of instrumental value, for we are often ignorant of what is of value to us. Jeff McMahan forgets this elementary fact in regard to abortion when he writes: ‘In most cases in which an abortion is at issue, the foetus is unwanted and therefore has no positive instrumental value’. Of course, we often realise that something had instrumental value only when it is too late, and we have destroyed the item in question. In fact, it is quite unusual for something to have no instrumental value whatever. This is what makes it difficult to load up the car when setting out for the municipal tip. People are always of instrumental value. True, they are constantly reminded that ‘unto dust they will return’, but they change into compost before that. 37 This account of intrinsic value, distinguished in this way from instrumental value is fairly clear. Perhaps all too clear for philosophical purposes. Objects, activities, or whatever, have an instrumental value if they are valued [I presume she means rationally valued] for the sake of something else – tools, money, and chores would be standard examples. A common explanation of the supposed contrasting kind [of goodness], intrinsic goodness, is to say that a thing is intrinsically good if it is valued for its own sake, that being the obvious alternative to a thing’s being valued for the sake of something else. This is not, however, what the words ‘intrinsic value’ mean.38 Well, ‘intrinsic value’ can be a technical phrase, and a philosopher may introduce it as he likes – provided of course that what purports to be an introduction is intelligible. Professor Korsgaard prefers to say that intrinsic goodness is a goodness which is non-relational. However we cannot be sure 37 Judith Jarvis Thomson, The Realm of Rights, Cambridge, Mass.: Harvard University Press, 1990, p. 132, fn 6. Jeff McMahan, The Ethics of Killing, New York: Oxford University Press, 2002, p. 334, italics added. 38 Christine Korsgaard, ‘Two Distinctions of Goodness’, Philosophical Review, 1983, p. 170.

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in advance whether a non-relational account of something can be given. A non-relational concept of, say, the distance to London, would be the intrinsic distance, the distance-in-itself rather than its distance from anywhere in particular. That would seem an unpromising phrase to introduce! But in regard to goodness the matter is unclear. Being a good friend is clearly a relational matter, being a good tap dancer is perhaps not, for tap dancing is not judged in relation to something else, at least in the way being a friend is. This might not lead us to a concept of non-relational value, because it would be odd to say that ‘a good tap dancer’ meant ‘a valuable tap dancer’. It is not too clear outside a special context what this last would mean. But perhaps we already have a sense of intrinsic value which is, as it were, comparatively non-relational. In the everyday, non-academic world material goods might be said to have intrinsic value. The thought would be that they are worth good money on the open market and are not just of sentimental value to an individual. Thus when property was found to be missing at Buckingham Palace the police at Scotland Yard found it natural to use the phrase in just this way: A Yard spokeswoman said items of ‘intrinsic value’ were thought to have been taken from an office. ‘They were of no personal or sentimental value to any member of the Royal family.’39 The contrast here is plain. Writing towards the end of the seventeenth century, John Locke had a use for the phrase ‘intrinsic value’. In the famous chapter on property in the Second Treatise he writes (section 37): This is certain, that in the beginning, before the desire of having more than men needed, had altered the intrinsic value of things, which depends only on their usefulness to the life of man . . . It is not perhaps easy to see how this is to be taken. But ironically it rather suggests that Locke’s understanding of the phrase intrinsic value is what nowadays would be called use value or instrumental value. This of course would not be a mistake: it is simply that the phrase ‘intrinsic value’ has been given different senses. I wonder whether either the Yard spokeswoman or John Locke would say that an endangered species or an endangered baby were items of intrinsic value. 39 Observer, 3 October 1999. Another example, this time from a catalogue of Fired Earth. ‘Fired Earth was started with . . . a second-hand typewriter and a motley collection of old office furniture, much of it still about . . . We think we should also admit to paying the princely sum of a thousand pounds for the name Fired Earth. It encapsulated the very essence of our business, terracotta tiles, and was probably the only thing at the outset to have any intrinsic value.’

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Perhaps we could say the following. Resort to ‘intrinsic’ suggests a certain contrast which might differ from case to case. It invites the question ‘by contrast with what?’. Think of a certain violin. People might want to own it for all sorts of reasons: to play it, because grandpa once played it, because it would look nice on the wall, to keep it out of the hands of Smith, because one’s ownership of it would make Robinson envious, because it would make a good investment . . . We would say that a violin is essentially a musicmaking device, and might incidentally be useful in these other ways. We might then want to say that its intrinsic value or worth is its quality for music-making purposes.40 But intrinsic value could come in in another way. Suppose that old violins tended to be bought as investments, and imagine that a story had recently been circulating that the glue used to make them was proving unstable. Then presumably the market price of violins among investors would fall. A man might discover that this story was based upon a scientific misunderstanding. He would then be in a position to say, giving advice to investors, that violins were currently undervalued. And one way of putting this would be to say that the intrinsic value of old violins was currently higher than the market value. The phrase ‘intrinsic value’ does seem to be used in this kind of way among investors. What we have said in these paragraphs has an importance for our project. They show that our enquiry in this book is not about ‘the existence of’ intrinsic value, as if the description intrinsic value was unambiguous and well understood, but might have proved, alas, not to apply to anything. Rather, as we have said, we are concerned to ask in the particular case whether this somewhat technical phrase has been well introduced. In Dworkin’s work, a notion of intrinsic value has not perhaps been well introduced. That is a matter for our investigation. We should not allow this would-be concept to hitch a free ride on the back of the usages we have just described. Illegitimate free-riding of this kind is perhaps quite common in philosophy. The rest of this chapter will take up some examples. It is important for our argument to see how easily we can be misled. Consider the entry under ‘good-in-itself’ in The Oxford Companion to Philosophy.41 The entry is by Mary Warnock, and this is the whole of it (italics in the last sentence added). 40 John Locke also makes use of the phrase ‘intrinsic value’ in his writings on money. See Patrick Hyde Kelly, ed., Locke on Money, Oxford: Clarendon Press, 1991, e.g., p. 234. The editor comments in his introductory materials: ‘the concept of intrinsic value derives from scholastic philosophy and denotes the inherent capacity of an object to perform certain functions, e.g. the “intrinsic value” of bread is to assuage hunger’ (pp. 82–3). This is not too clear in sense for ‘inherent’ like ‘intrinsic’ stands in need of an explanation. 41 The Oxford Companion to Philosophy, ed. Ted Honderich, Oxford: Oxford University Press, 1995.

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A good-in-itself is otherwise referred to as an intrinsic good. Aristotle in the Nicomachean Ethics made use of the idea, in attempting to define the good for man. He distinguished between things pursued for their own sake (such as health) and things pursued for the sake of their consequences (such as money). He concluded that there was a number of different things that were goods-in-themselves. To his list of health, sight and intelligence, we may now add such values as the continuing existence of diverse species of animals. This ‘addition’ just slips by so casually. But seems quite questionable. Would Aristotle have made anything of it at all? Health, sight and intelligence are human goods. Smith’s health is a blessing to Smith, Robinson’s to Robinson. In each case it is worth having for its own sake, as we say. A healthy man is doing well, is in good condition. No doubt health is also valuable for what it enables the individual to do. But none of this enables us to say, or even to understand what is meant by saying, that the continued existence of diverse species of animals is just a good in itself – that this is ‘a value’, as the misleading jargon might have it. In respect of whom would this be a good? We can hardly say that the universe is doing well on this account. The idea of intrinsically good states of affairs as viewed from nowhere in particular seems foreign to Aristotle. What is supposed to be the good of ‘there being this species still in existence tomorrow’? Or the good of ‘there continuing to be several species of this or that kind next week’? Mary Warnock’s innocent seeming add-on is thus very problematic in sense. I shall return to consider the good of biodiversity later, in Chapter 2.15. It is a familiar enough argument that if there are items of instrumental value, something must have intrinsic value. But this will not help us understand a phrase like ‘the intrinsic value of there being diverse species’ as it comes up in these discussions. Jeremy Waldron in his review of Life’s Dominion writes: The concept of intrinsic value . . . is a difficult one to isolate . . . it is easy to confuse the proposition that we judge something to be of value with the instrumental proposition that something is judged to be of value to us. Nevertheless, there could not be instrumental value unless there were intrinsic value: the chain of instrumentality must end somewhere.42 Naturally, when we are discussing ‘the good for man’, and the idea that chains of instrumentality must end, we once again think of Aristotle. But this would appear to be an improper attempt to recruit him. Aristotle opens his Ethics by pointing out that we do not choose everything for the sake of

42 London Review of Books, 12 May 1994, p. 11, italics in the last sentence added.

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something else: ‘for the process would go on to infinity, so that our desire would be empty and vain’.43 That seems fair enough. But it does not show that there is such a thing as abstract, cosmic, Dworkonian, intrinsic value, that there are some things that are of value, but (amazingly) for the benefit of no one, man nor beast. (Is this perhaps what Korsgaard was attempting to have in mind by non-relational value?) What we have to accept is the commonplace idea that some things can be of value to us, but for no further purpose. These are things (circumstances, events) that are wanted, but not for anything. The proposition that one of these things is of value to us in this way is not, despite what Professor Waldron suggests, an ‘instrumental proposition’; it is not the proposition that one of these things is somehow useful. Jenny Teichman, elsewhere a critic of Life’s Dominion, insists firmly that human individuals have intrinsic value. She supports this conclusion by saying: The states and qualities of human beings . . . could have no intrinsic value if human beings as such had no intrinsic value . . . If human life itself is not an ultimate value, how can human beings give value to other things?44 Once again, we find an acceptable use of intrinsic value being used to underwrite a use which would seem dubious. The implied argument seems unconvincing, insofar at least as it can be understood. We could hardly say that nothing could be intrinsically valuable to Smith – that he could want nothing for its own sake – unless Smith himself was somehow intrinsically valuable. One might well wonder, when we are talking of value, what sort of ‘giving’ is involved. If a sensitive nose is of value to a gazelle, does the gazelle give value to its nose? Could it be said quite generally that the necessary conditions of value give value? This might call for gratitude. Where would we be without thieves, seeing that thieves give value to all our precautions? In Jenny Teichman’s last sentence there appears to be a curious appeal to that not wholly reliable medieval tag: You cannot give what you do not have. True enough, you cannot give someone a cold (in the everyday way we use 43 Aristotle, Ethics, 1094a 20. 44 ’Life and Its Meanings’, in Polemical Papers, p. 161. Jenny Teichman writes about Life’s Dominion in ‘What is Sacred? Ronald Dworkin’s Answers’, reprinted in this volume. It is not even true that for a man to value something for its own sake – that people should not be unjustly treated, for example – he must also value his own continued existence for its own sake. In a depressed mood he might think of his life as worthless, or as having worth only instrumentally (‘perhaps I can still be of use to the children . . .’).

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this phrase) if you don’t have a cold – which fits. You cannot give news unless you have news to give. Something cannot heat unless it is itself hot, one says, which again seems to fit. But then one remembers that old breakfast cereal advertisment, displayed no doubt in the cold of winter: ‘Food does not have to be hot to heat you.’ And you can certainly cheer someone up while not yourself feeling cheerful. A king-maker, furthermore, need not himself be king. A very silly book can impart wisdom, if only as a salutary lesson. When Professor Dworkin says that human beings are intrinsically valuable he is not just saying that many people happen selflessly to love these human beings, and therefore want them to continue in being and to flourish for no further reason or instrumental purpose. Nor is he saying that each individual loves himself for his own sake. He is saying that every human being just has this value whether or not he is intrinsically loved, a value consequent upon a (supposedly) interesting property of the object, such as its origins. That Smith remains alive is not just a good from the perspective of his friends, those who care for his welfare because they love him, or a good from his own perspective. It is simply a good thing, cosmically speaking. Smith, on Dworkin’s account, is an abstractly excellent existent whether or not he happens to be prized for his own sake or would be prized in this way if only people knew him. For this reason, it would be bad to poison him (without excuse). Perhaps the whole universe could be said to have an intrinsic value, which would be the grand sum of the value of the people, the paintings, the species, the cultures, the national flags, the evolutionary processes, the structure of crystals, the complexities of Latin grammar, and so on. It is this kind of language which, I shall argue, we at best appear to understand.

2.4 Supposed kinds of intrinsic value in Life’s Dominion We need now to consider the account of intrinsic value that Professor Dworkin actually gives, and the distinctions he makes. Others who offer us what I call ‘a value story’ – who base an objection to homicide on the intrinsic value of human individuals – might not offer quite the same account. They might think, for example, that organisms, human organisms especially, had intrinsic value just on account of their complexity and their ability to sustain themselves and to reproduce, a view which Professor Dworkin repudiates.45 But since Dworkin has thought about these matters 45 Suzanne Uniacke draws our attention to this possibility in ‘Is Life Sacred?’, with particular reference to the opinions of John Kleinig on the ‘self-renewing’ and ‘self-integrating’ character of organisms, which in his view calls for ‘esteem’ (pp. 70–1). Professor Dworkin is distinctly unimpressed with life’s self-sustaining and adaptive properties: see his article ‘The Concept of the Sacred’, p. 142.

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more systematically than most, we will acquire a good feel for this family of would-be notions if we outline what he has to say. This outline will attempt to give sense to these would-be notions, or at least the impression of sense. Though I have tried to be accurate here – not at all a straightforward task – it might be sufficient for the busy reader simply to acquire a rough impression of this terrain, attending in particular to what Dworkin has had to say about human beings. Intrinsic value of human life, of living human individuals, would seem, according to the Dworkin value story, to be a category of great importance to us. We would be seriously handicapped in our thinking not to recognise it. Just how handicapped we would be emerges from a remarkable claim: our opinions about how and why our own lives have intrinsic value crucially influence every major choice we make about how we should live.46 We must at least recognise the intrinsic value of ourselves, it would seem, otherwise we could hardly make any important decisions at all. We must, as this remark indicates, even have some view about the how and the why. Let us take the first steps in this direction. There are, we are told, two broad kinds of intrinsic value. One kind of intrinsic value Dworkin calls ‘incremental’. The prospect that an item will have this sort of value gives us a reason to bring it into being – and not because it would be attractive or useful (that would be a bonus). It is just better that it should come to be. The world is (cosmically, abstractly) a better place for its existence. Knowledge is one of the items said to have this sort of intrinsic value. We should regret that there is not more of it, even if it is evident that the knowledge in question is totally useless – and even if the person who knows does not care to know, and no one else cares that he knows either, nor needs to care. We might note in passing that this thought about knowledge is distinctly odd. If you tell someone something he did not already know, and he believes you, you will, on this account, have increased the amount of intrinsic value in the universe, though it seems hard to say even roughly by how much. But now that it is possible to broadcast to millions at a go, one can perhaps augment the total value most impressively in this way. To be sure, there is an unclarity in the notion of new knowledge. In one sense I acquire new knowledge only if I find out something which no one else knows – what I have currently in my pockets, for example. Perhaps it is only new knowledge in this sense which is intrinsically valuable? Would it be intrinsically valuable for there to be true propositions written down in books, with evidence cited where necessary, even if no one currently knows what is said in them?

46 Ronald Dworkin, ‘What the Constitution Says’, FL, p. 99.

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We must be careful to distance this special talk of the world’s being a better place from a way this might be said in everyday life. The world is a better place – we would naturally and unphilosophically say – for the existence of a telephone system, dental anaesthesia, swimming baths, friendship, sliced bread . . . Without such things our lives would be impoverished, perhaps greatly, perhaps marginally. Here the items under discussion will not particularly be such as would be called intrinsically valuable by those whose talk we are examining. We must have in mind: a better place from a cosmic perspective. We are not thinking of vulgar utility, comfort or enjoyment. We must now turn to consider another kind of cosmic intrinsic value, one which is non-incremental. The prospect that an item will have this value gives us no reason to bring it into being. The world would not necessarily be an abstractly better place for its existence.47 The important example of this kind of value, at least for our purposes in this book, is the value that we ourselves are said to have. To the relief of all those concerned about overpopulation, the value of a human being is not, he says, incremental – emphasising the point ‘several times’ (LD, p. 87). Individuals who have this second kind of intrinsic value are said to have the characteristic: sacredness. ‘The hallmark of the sacred as distinct from the incrementally valuable is that the sacred is intrinsically valuable because – and therefore only once – it exists’ (LD, pp. 73–4). When we talk about the sanctity of life it is this sort of thing we are talking about. If something has this intrinsic value and is sacred this very fact would supposedly give us a reason not to destroy it.48 Professor Dworkin is very fond of the word ‘sacred’. He wants to put us right about the notion. The idea of the sacred, though ‘familiar’, has been ‘widely misunderstood’ (LD, p. 25). Human beings have sacredness which is bound up in some way to their having a kind of non-incremental intrinsic value. The word ‘incremental’ is a little misleading for this purpose. It might be better to talk of Intrinsic Production-Worthiness. To call a value incremental is not simply to say that the addition of an item which possesses it to our store increases the value of what we have. For presumably this might also be true of objects which have that kind of intrinsic value which marks them out as sacred, this value, according to this account, not being an incremental value. Thus a collection of paintings by Tintoretto is

47 This is now made clear in Dworkin’s article ‘The Concept of the Sacred’, p. 139. We would have to say, I suppose, that destroying the object may well be bad on account of this value, but not because the world thereby became a (cosmically) worse place. 48 People sometimes destroy something because they consider it valuable, and perhaps this might happen in the case of intrinsic value too: one thinks here of a sacrifice offered to a god, or possibly the competitive destruction which would take place at a potlatch among the Kwakiutl.

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presumably of greater intrinsic value than any one of them on its own. It would be a greater outrage to destroy them all. Still, we might judge, with Professor Dworkin, these paintings have merely sacred intrinsic value, in the sense that we would have had no reason to wish in advance that Tintoretto would paint them. Perhaps we are thinking of Tintoretto’s later paintings, after he had painted enough. I am here going along with Dworkin’s suggestion (LD, p. 74) that he was somewhat over productive. Not everything that is sacred has intrinsic value. Some things have sacredness ‘by association or designation’, and these need not have the value called intrinsic. This shows us that for Professor Dworkin the division between items of intrinsic and instrumental value is not exhaustive. Flags – or indeed Egyptian cats – can have a value by association or designation, but this value falls into neither of these categories; it is not intrinsic or instrumental. So there is at least one more category of value. We could bring out Dworkin’s thought here in the following way, though this involves something of a conjecture. If flags were not only sacred but had intrinsic value we would be disturbed by the thought that a manufacturer was about to pulp a warehouse-full of them on the ground that they were surplus to requirements. But since a sacred flag is only sacred and has no intrinsic value, it would only be wrong to destroy it in a way indicating contempt. The category of things which are sacred but which do not have intrinsic value is rather brought in for completeness, and will not much concern us. Human beings, paintings, rare animal species etc. have both intrinsic value and sacredness value, and it is here where we need to focus our attention. Paintings, even bad paintings, are not lightly to be sent for pulping. And the same goes for people.49 If items are sacred and (unlike sacred flags) are also of non-incremental intrinsic value,we would not have any particular reason to produce them. That after all is what is meant by talking about the value as ‘not incremental’. But we can say more. We would have reason not to produce them. As

49 See ‘The Concept of the Sacred’. This article settles that on his intended analysis not everything sacred has intrinsic value – a matter, I think, not really made clear in Life’s Dominion. In this article flags are once again the chosen example. They can be sacred without having intrinsic value. But even with the help of this recent article there still seems to be a difficulty. Professor Dworkin writes here that if something is sacred ‘it must not be destroyed except for the most urgent kind of reason: for example, perhaps only to protect something else that is sacred’ (p. 142). I have thought it best to regard this – what we might call the strong principle of sacredness – as something of a slip. I do not think that Professor Dworkin would want to object to the pulping of the surplus flags. The strong principle of sacredness might seem more convincing in relation to a particular flag carried in a particular battle, and now preserved in a place of honour for the nation. But it is clear that Dworkin does not merely have particular flags in mind (LD, p. 74).

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Frances Kamm has pointed out50 we would have a prima facie reason against the production of these sacred things, for once they are around we have to be at some pains not to destroy them, and even to care for them – a right regular nuisance.51 An accumulation of sacred things, one might say, would be like an accumulation of nuclear waste: the stuff would have to be housed, and for thousands of years. What a burden to leave to our progeny! Think again of Tintoretto. We have no reason to regret, Dworkin suggests, that Tintoretto did not make more pictures. But once made they have to be found a home, guarded, kept at the right temperature . . . Tintoretto clearly has a lot to answer for. Perhaps we could get our own back by destroying some of his pictures. As for human beings, it is a great blessing that they cannot (yet) be preserved indefinitely. A human being who is not ‘sacred by association or designation’ (I am assuming he might be sacred in this way too – a king, perhaps, or an ambassador, thought of as a walking flag) is said to be sacred as a result of investment as we have seen. We should, I think, regard this as an explanation of how it comes about that entities have this sanctity-involving value, rather than a definition of the concept. The concept is supposed to be more or less understood. Someone who thought – disagreeing with Dworkin – that ‘complexity’, or ‘uniqueness’, accounted for this sanctity-involving value, or was at least part of the story, would be offering a different explanation for the possession of the same characteristic. No doubt definition and explanation are not here sharply distinct. Explanation and making sense seem up to a point to go hand in hand. If we accept the investment account it perhaps52 follows that we do not (much) trample on, besmirch, outrage, offend or whatever, the sanctity of life if we kill someone who is likely to die soon. He might be terminally ill, or he might be about to be shot by someone else. Similarly, where one steps in and destroys a painting which is scheduled to be destroyed later in the afternoon. In either case the ‘investment’ is about to be wasted anyway. Someone seriously impressed with all this might wonder whether investment sacredness would be proportional to durability, so that infi rm people would be less sacred than those in robust health. We shall return to consider this idea of investment in Chapters 2.13 and 2.14.

50 Kamm, ‘Abortion and the Value of Life’, p. 179. 51 I am assuming that once we recognise that something is valuable we will be reluctant to destroy it. A vandal, however, might fi nd it rather excitingly outrageous to destroy valuable things. And when it is a matter of sacrificing something to a god, the most valuable items would deliberately be chosen. Thinking of people as especially valuable might encourage human sacrifice. 52 I say ‘perhaps’ on the ground that it does not fit very well with what I called the strong principle of sacredness, laid down in ‘The Concept of the Sacred’ quoted in note 49, this Part.

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Are production-worthiness (the kind of value attributed here to knowledge) and sacredness (what a painting or a person or a flag might have) exclusive kinds of value, or can something have both? One would assume the latter. As we saw in regard to Tintoretto, we are surely to rejoice that he produced some pictures to begin with, and did not spend his whole career in the dye works; but after a certain amount of painting we are to consider that he had produced a cosmic sufficiency. That seems to be Dworkin’s thought. In production-worthiness a law of diminishing returns would operate. If this is correct, the earlier but not the later pictures would have both kinds of intrinsic value. We might not of course be able to tell which are the earlier pictures, and possess the double value-dose. Knowledge of what has happened can be utterly irrecoverable. (Or must we see things quite differently, and say that the painting of the later pictures has diminished the production-worthy intrinsic value of the earlier ones?) What about human beings? Do they have not only sacredness but also incremental value? Could they have incremental value? Professor Dworkin denies that human beings are incrementally valuable. This point is plainly a matter of some importance to him. As we saw, he says that he has emphasised it ‘several times’. He simply says ‘we do not treat it [human life] as incrementally good’. Of course one wants to ask when such things are said: are ‘we’ right? The mere fact that people are also Dworkin-sacred does not answer this question. Might not human life have an intrinsic productionworthiness to which we are blind? Would human beings have this incremental value if they were rarer? One might argue that people must have incremental intrinsic value just as knowledge does. After all, since every human being knows something, and the existence of knowledge has incremental intrinsic value, we would have reason to be producing more and more people. The general idea that to say that life is sacred is to say that it has some kind of objective value is not of course unique to Professor Dworkin. Intelligible or not, this sort of talk is quite familiar. Peter Singer, for example, says: ‘We may take the doctrine of the sanctity of human life to be no more than saying that human life has some very special value.’53 The way this is presented by Peter Singer – the ‘we may take . . . to be’ – is surely correct. A phrase like ‘the sanctity of life’ is to be made something of, and it might seem that in talking about ‘very special value’ we were succeeding in capturing what people might have in mind. It is a rather portentous abstraction and one looks to see how one’s author is using it. Indeed we might not even get a constant use from one work to another. Consider Peter Singer once again. In his essay ‘Life’s Uncertain Voyage’ he characterises the doctrine of the sanctity of human life (which he rejects) as the doctrine ‘that all human 53 Peter Singer, Practical Ethics, Cambridge: Cambridge University Press, 1st edn, 1979, p. 73, 2nd edn, 1993, p. 84, reference to this last edition.

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life is of equal worth’.54 Of course he must mean ‘of great and equal worth’, otherwise the doctrine would not have the expected kind of impressiveness. Be that as it may, we should at least note that the accounts are different, and that Professor Dworkin waves a flag for the first, but definitely not for the second.55

2.5 Has this terminology of intrinsic value been adequately introduced? Let us now reflect on the (would-be) notion of impersonal mattering, and in particular the (would-be) thesis that human beings possess this characteristic. What we are given is some bit of theorising which at least appears to be problematic in sense. We are introduced to a way of talking and we will naturally want to ask whether it has been well introduced – well introduced by the various philosophers who favour it. For we are not being taught something like simple arithmetic involving concepts which people have used successfully for generations and about which we do not even begin to have doubts (even though philosophers can and should raise awkward questions about them). Professor Dworkin freely admits that the language of intrinsic value as it appears in his text will seem suspect. Some may say, he suggests, that it is ‘mysterious’ (LD, p. 25, see also p. 69) – indeed that it is ‘too mysterious or metaphysical even to make sense’ (FL, p. 86). However he has a remarkable confidence in the notion, handling criticisms with a magisterial ease.56 There is a suggestion that those who call this would-be notion in question are going to be soulless and narrow counters of coin: ‘No doubt the free market economists of the Chicago School would argue that worrying about the “intrinsic” value of human life is only a superstition.’ Not our sort at all.57 54 Peter Singer, ‘Life’s Uncertain Voyage’, in Philip Pettit et al., Metaphysics and Morality, Oxford: Blackwell, 1987, p. 154, italics added. 55 I say ‘definitely’ for that seems to be the moral of the ‘investment’ account of sanctity: there has, presumably, not been equal investment in the production of each of us. But for a doubt see pp. 138–9, below. 56 See Frances Kamm’s article ‘Ronald Dworkin on Abortion and Assisted Suicide’, Journal of Ethics, 2001, drawing on her Columbia Law Review article, which raises six difficulties about what Dworkin says about ‘intrinsic value’. Ronald Dworkin provides six succinct replies in the same issue. Revised criticisms follow in Frances Kamm’s ‘Ronald Dworkin’s Views on Abortion and Assisted Suicide’, in Justine Burley, ed., Dworkin and His Critics, Oxford: Blackwell, 2004, followed by further succinct replies. (Frances Kamm does not, however, disagree with his curious idea that a foetus somehow has value which is a value to no one, not even to itself.) 57 Ronald Dworkin, ‘Tyranny at the Two Edges of Life’, New Perspectives Quarterly, 1994, p. 18, italics added.

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One does not need to be a philosopher (or indeed an economist) to see something fishy about the proposition that human beings are valuable. ‘My aunt is worth a great deal.’ Flattering perhaps, but surely the words rather grate on one’s understanding.58 And matters are scarcely made any better by the insertion of the word ‘intrinsic’, or indeed the word ‘inherent’ (LD, p. 159): ‘My aunt is intrinsically valuable.’ One does not need to be a philosopher, but one does need a pinch of tell-it-to-the-marines astonishment at the odd things philosophers say.59 The word ‘intrinsic’ in such a context would have to be some sort of philosopher’s technicality. We would need to have it explained to us. Professor Dworkin naturally sees that there is some explaining to do. For the idea is not simply that people value their own lives, want to go on living, would want to go on living if they were not depressed, etc. Nor is it the view that a human life has the potential to be deeply rewarding to the person whose life it is, unlike say the life of a cockroach. And not even if this thought is much amplified by being given a Christian context.60 Nor is it the view that other people happen to love certain human beings, value them, and like to see them around: in a case of homicide, no one can even begin to excuse himself by claiming that the victim under the knife had but few friends in the world. No, the intrinsic value of life is a notion altogether more esoteric. Most of us, it would appear, seem to need special 58 True enough, economists seem to be able to work out the value of pretty well anything. You and I are worth, apparently, about $750,000 each, at 1985 prices. (Perhaps more if valued as a pair?) I take this figure from Dan Usher’s ‘The Value of Life for Decision Making’, in Ellen Frankel Paul et al., eds, Ethics and Economics, 1985, p. 191. In a broadcast in 1995, the then Minister of Health, Virginia Bottomley, said that the government initiative to vaccinate babies against measles had saved about 50 lives, at a cost of £400,000 apiece – apparently money well spent. 59 There is indeed a historical oddity about this last remark. G. E. Moore became a philosopher, he explained, because he was filled with just this astonishment. He was puzzled about what these odd philosophical pronouncements could mean. (‘An Autobiography’, in Paul Arthur Schilpp, ed., The Philosophy of G. E. Moore, 2nd edn, New York: Tudor Publishing Company, 1952, p. 14). But it is to Moore above all that we should look to find this curious emphasis on an ‘intrinsic value’ unrelated to our needs and wants. In criticising this part of Moore’s legacy we are following in his footsteps. (For Moore’s own later doubts about the would-be concept he did so much to promote, see note 135, this Part.) 60 ‘What people are for is … to home in on God … It’s this potentiality, this incredible possibility, of the knowledge of God and of sharing in his nature which Christianity holds out to people and because of this potentiality every life, right up to the last, is infinitely precious. Its potentialities in all things the world cares about may be slight; but there is always the possibility of what it’s for’ (Elizabeth Anscombe, ‘Contraception and Chastity’ in Michael D. Bayles, ed., Ethics and Population, Cambridge, Mass.: Schenkman, 1976.) This value would be value to the individual concerned, and to others who love him.

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assistance from on high in order to understand it. It is ‘one of the most fundamental purposes of traditional religions’ to make belief in this sort of thing ‘seem intelligible’ (LD, p. 156). The word seem here is well chosen. The traditional religions surely have their work cut out, at least when dealing with anyone of ordinary good sense. Anyway, once one has this idea, we are told, it somehow spreads itself about one’s being, like a host of cancerous secondaries: ‘each person’s own conception of what that idea means radiates throughout his entire life’ (LD, p. 28, italics in text). Darker, and darker yet. Professor Dworkin is at some pains to perform this elucidatory office for secular, though sometimes religiositising, man. I think he must himself be uncomfortable with the notion. For example, there is obviously something rather odd about all this talk of insult – of insulting the intrinsic value of life – how can one possibly insult something so abstract? One might just as well talk of insulting a meridian line or a coincidence. True enough, one could insult someone’s memory, but that is a way of insulting him. Dworkin talks about intrinsic value or sacredness as if it were the God he cannot quite believe in. At one point he even suggests that sacredness is something which might be offended by what we do (LD, p. 24). One begins nervously to suspect that this sublime value, having taken offence, might punish us for our transgressions. How then is the notion to be introduced? The difficulties here seem manifest. We cannot for example introduce a notion merely by saying what it is not. In offering his explanations, Dworkin is assiduous in telling us what intrinsic value isn’t. However, a negative definition, so to speak, can leave us very much in the dark. ‘A tove is neither a weekday, nor a spoon, nor a ticket to Ramsgate, that’s what a tove is!’ Sometimes an account of X will tell you both what X is and what it is not. Definitions of intrinsic value are often given in this form. Christopher Gowans, for example, offers us an explanation: To say that persons are intrinsically valuable means that they are valuable, but not merely because they have instrumental value as means to some valued end or as parts of some valued whole.61 61 Christopher Gowans, ‘Moral Theory, Moral Dilemmas, and Moral Responsibilities’, in H. E. Mason, ed., Moral Dilemmas and Moral Theory, New York: Oxford University Press, 1996, pp. 208–9. Professor Gowans, for example, simply refers to this as familiar in philosophy, gives a simple definition, and passes on to what he is really concerned to defend: that we are also ‘irreplaceably valuable’. To believe these two doctrines of value, he suggests, is somehow essential: ‘That we regard persons as being intrinsically and irreplaceably valuable is one of the most significant features of our understanding of ourselves’ (p. 210). However, we can say that human beings are ‘irreplaceable’ without talking the language of value. We can simply say e.g. that a woman is not entitled to kill a baby on the mere

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An explanation of this sort can, however, run into trouble. There is a danger that one will take with one hand everything one has given with the other, as in: To say that pebbles are ‘intrinsically’ owned means that they are owned but not by anyone, or by any community or corporation. Given a sufficient number of exclusions, intrinsically valuable objects would all find themselves in the same box as Lichtenberg’s elusive knife, the knife without a handle the blade of which has been lost. Nor does it help us to appeal to ‘objectivity’. Dworkin tells us that ‘human life has objective, intrinsic value’ (LD, p. 67, italics added) and that we have ‘a responsibility . . . to protect human life as an objective or intrinsic good’ (FL, p. 84, italics added). ‘We consider an individual life valuable not only to itself, but objectively. That idea is quite central to our culture.’62 Far from helping us to understand the notion, this insistent introduction of the word ‘objective’ makes for an extra difficulty. Objectivity seems on this account to be reserved to the intrinsic. It appears that we are to take the or in ‘objective or intrinsic’ to be or in other words. However, insofar as the word ‘objective’ is clear at all, it would seem evident that kinds of value with which Dworkin is evidently not concerned are quite objective. If I have my house valued I want an objective judgement on its value from an expert who demands a fee. This expert is not to be moved by his personal likes and dislikes, or those of his wife Betty. He might have to train himself to be objective. He claims, perhaps rashly, something about the way things are, which (I suppose) is what people are on about when they use the word objective. For the value of something to be objective in this sense this value would not of course have to be independent of what people want or need, or more generally of the needs of organisms.63 Nor will it do to make a vague gesture towards ‘our experience’. Professor Dworkin claims that the notion is ‘a familiar part of our experience’ (LD, p. 69), but this reference to experience, though it has a robust, down-toearth sound to it, is really something of a cheat. This is not an unusual situation, perhaps, when philosophical academics feel driven to invoke ground that she proposes to have another a baby (or two) just to make up. Talk of value hardly explains this conviction! 62 Dworkin, ‘Tyranny at the Two Edges of Life’, p. 16, italics in text. 63 We need to ask of course in the particular case what a claim as to ‘objectivity’ amounts to. Despite Dworkin’s talk of objectivity, Gilbert Harman mentions the account of intrinsic value in Life’s Dominion as providing one more item of support for his general thesis that moral claims are not objective. See Gilbert Harman and Judith Jarvis Thomson, Moral Relativism and Moral Objectivity, Oxford: Blackwell, 1996, p. 11.

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‘experience’. (Think, for example, of the appeal to religious experience.64) Dworkin cannot surely mean that we detect intrinsic value with our eyes and ears. Or again that we endure an experience like dizziness in the presence of the valuable object, a dizziness which is supposed to be revelatory. Perhaps he merely means to convey that those of us with more ‘experience of life’ are especially able to discern it. But we would have to know what intrinsic value is before we could understand, and then appraise, this claim. So his explanations, though welcome, fall short of what we need. Thomas Nagel seeks to defend this notion of intrinsic value, if not by an appeal to personal experience, at least by drawing on each person’s own thoughts. In his book The Last Word, we are each of us invited by Professor Nagel to think of our own case. There is apparently an intelligible, if gloomy, view on offer: that each of us, when ‘considered impersonally,’ is quite valueless! – that each of us is ‘objectively’ worthless!. My exclamation marks here indicate how Professor Nagel expects us to react to such a suggestion: This judgment . . . is in my opinion . . . difficult honestly to accept. Can you really believe that objectively, it doesn’t matter whether you die of thirst or not – and that your inclination to believe that it does is just the false objectification of your self love?65 The assumption here is that there is such an intelligible but gloomy thought which we cannot, if we are straight with ourselves, accept.66 But someone who rejects the suggestion that there is such a thought will not of course say that he himself is impersonally valueless or objectively worthless. For him there will be nothing for him to be gloomy, resigned, or perhaps toughminded, about. He won’t say that his life fails objectively to matter, in 64 For useful cautions about appeals to experience, see Anthony Kenny, Faith and Reason, New York: Columbia University Press, 1983, pp. 55–8. ‘I think that the phrase “religious experience” is an unfortunate one; not because of anything to do with religion, but because of the confusing nature of the relevant concept of “experience” ’ (p. 55). 65 Thomas Nagel, The Last Word, New York: Oxford University Press, 1997, p. 122. As it happens, this book is dedicated to Professor Dworkin. Another prominent philosopher who wishes to talk of intrinsic value in the way under dispute is Robert Nozick. See below, Chapter 2.8. 66 Perhaps there is even a hint that someone who considers himself intrinsically worthless must suppose he is not entitled to put in a claim for anything – to have his bill paid, for example. I don’t know whether Professor Nagel would go so far. But the much anthologised environmental philosopher J. Baird Callicott takes seriously a ‘proof of the existence of intrinsic value’ which turns upon this thought. ‘Human ethical entitlement’, it is said, ‘is grounded ultimately in our claim to possess intrinsic value’. (‘Intrinsic Value in Nature: A Metaethical Analysis’, Electronic Journal of Analytic Philosophy, 1995, p. 1.)

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Professor Nagel’s tone of voice. Nor, of course, will he claim to be ‘subjectively valuable’, still less ‘only subjectively valuable’. In fact it is quite unnatural for a man to say that he himself is valuable at all (as distinct from, let us say, a valuable member of the crew). And this is not at all a matter of conventional modesty. Thomas Nagel is apt to refer to the view he opposes as ‘egoistic’.67 But someone who can only understand his value as ‘a valuable member of the crew’ and the like can hardly be said to be working with an egoistic conception of value. If anything, one would call the concept un– egoistic. Nor is Professor Nagel entitled to monopolize the word ‘impersonal’. The question whether one is a valuable member of the crew can be judged quite impersonally. How can we be so much as tempted to talk of objective mattering? Well, someone in mortal danger might well be inclined to say to himself: ‘Those other people have a reason, simply on account of my condition and nothing else, to rescue me!’ He will think (if a philosopher, at least) that there just is such a reason, no further explanation being called for or possible. He will similarly suppose that others have a reason to relieve his pain. It is as if distress itself issues demands. We need not ask here how strong these reasons might be, and whether they exist when the unfortunate individual has foolishly brought about his unhappy state. The question is: are there such reasons at all? Isn’t it merely the case that in such circumstances we would naturally like there to be reasons? Or again that we make this supposition simply to derive the improving conclusion that we have these unexplained ground-floor duties to help others? If five pounds would suit me, does that very fact miraculously create some kind of obligation upon bystanders to pass such a sum into my hand?68 In his earlier book, The View from Nowhere, Nagel writes: it seems that some of [our] interests give evidence that their objects have an intrinsic value which is not merely a function of the satisfaction that 67 Nagel, The Last Word, p. 122 (twice). 68 John Searle writes: ‘Intuitively, it seems reasonable to suppose that if I am in pain I have reason for wanting to alleviate my pain. My feeling this degree of pain involves feeling a need for its alleviation. My need for pain alleviation is for me a reason to alleviate my pain and I even believe that others, where they have the ability and the opportunity, have a reason to help alleviate my pain. But I cannot believe that they have a reason for helping me, without committing myself to believing that in the same situation where the pronouns are reversed, I am bound to recognize that I have a reason for helping them. It is rational of me to want them to help me, for the reason that I am now in need of help. But then in consistency when they are in need of help I am committed to recognizing the existence of their need as a reason for my helping them’ (Rationality in Action, Cambridge, Mass.: MIT Press, 2001, p. 161, italics added). This kind of argument must have tempted many a philosopher. But why should any circumspect person subscribe to the belief expressed in the italicised phrase?

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people may derive from them or of the fact that anyone wants them – a value which is not reducible to their value for anyone.69 But once again, a suggestion has to make sense before there can be any question of evidence, and here it at least appears that there is no sense in it. Little wonder that Professor Nagel goes on to add: ‘I don’t know how to establish whether there are any such values.’ This is both frank and revealing. But the problem under discussion is not a matter of establishing or failing to establish the existence of anything or of how things are. Professor Nagel’s remark is not at all like ‘I don’t know how to establish whether this person died of arsenic poisoning.’ In raising our doubts about intrinsic value we are not concerned with knowledge. We are not engaged in that sceptical teasing which is a feature of a certain style of philosophy (Do we know that there are other minds, that there was a past, that the sun will rise, etc.?), or asking the perhaps rather unclear question whether our unproblematic talk of X’s (numbers, points of the compass, etc.) commits us to believing that X’s ‘really exist’ or are ‘objects’. Our problem is with the content of Professor Nagel’s would-be thought, not with its credibility. It is rather suggested, to return to Ronald Dworkin, that we already implicitly understand this notion of intrinsic value. Like Thomas Nagel, he thinks it sufficient to draw on each person’s own thoughts. This time the thoughts involve aesthetic judgement: We say that we want to look at one of Rembrandt’s self-portraits because it is wonderful, not that it is wonderful because we want to look at it. (LD, p. 72) The contrast drawn here cannot be faulted. But it is hard to see what this remark is supposed to show. It hardly provides a notion of intrinsic value with a sense. We could say something analogous to the remark about Rembrandt in connection with anything we have a standard interest in. We want to hear a joke because it is funny; we do not say it is funny because we want to hear it. That truism, however, does not seem to tell us anything about intrinsic value. Professor Dworkin nowhere suggests that a joke is an abstractly valuable ingredient of the universe. We want to eat the ice cream

69 Thomas Nagel, The View From Nowhere, New York: Oxford University Press, 1986, p. 153. To be sure, anyone will admit that items can be valuable in a perfectly unproblematic way even though no one can derive satisfaction from them and no one wants them. In the fi rst place, all sorts of useful things are not wanted because no one knows that they are useful. And of many things known to be useful it is rather unnatural to say that people ‘derive satisfaction’ from them. Think of traffic lights, air-bags, white lines along the road, etc.

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because it is nice, it is not nice because we want to eat it. We want to inspect the drains because they are giving problems, they are not – unless they are very unusual drains – giving problems because we want to inspect them. A painting which became wonderful when for whatever reason we wanted to look at it would be like something out of a fairy story. The first half of what is said above about a fine painting will have a point because a contrast is possible. One might have a great range of reasons for wanting to look at a painting other than the wonder of it: to fi nd out whether it is damaged; to see whether it is the original or a copy; to assess what some fool might be prepared to pay for it; to boast to one’s friends that one has seen it; to find out whether the colours would match one’s carpet; to assess whether it could be suitably reproduced on one’s chocolate boxes; to encourage lascivious thoughts; to be seen looking at it by others; because it was painted by a friend or an ancestor; because one wanted to recognise someone similar to the person depicted; to glean some information about history; to reconstruct a building depicted in it and since destroyed in a war; to avoid using a similar technique in one’s own painting; to keep a promise; to pass an exam; to test one’s eyesight; or out of simple curiosity. We would not say that it was wonderful simply because we wanted to look at it. One can want to look at bad paintings, even under that description, and for aesthetic reasons. One learns to appreciate what is good by contrast with that which is not so good, and an introduction to a few specimens of the latter might be part of one’s education. We even want to keep open the possibility that a painting might not be wonderful even though very many people, even educated people, enjoy it – that there might be a rather general corruption of taste. The aesthetic interest of a painting is related in a roundabout way to the interest people happen to find in it. One thing we cannot do is to want to look at a painting because it is wonderful, if to be wonderful means simply that it would be ‘a bad thing, from a cosmic perspective’ were the painting to vanish. Just imagine someone offering such a reason! I do not doubt that the value story has an imaginative grip, and might come in handy. Many people will very reasonably execrate the infanticide currently practiced in parts of India. If they could honestly use the value story as a reason, perhaps one reason among others, why this killing should cease they would gladly avail themselves of it. But if I am right they cannot with a good intellectual conscience take up this weapon. In this sense, what I have to say is of no joy to me. In arguing that the value story is unintelligible I am arguing, thus far, on the side of those who want the moral freedom to commit infanticide. No matter. People can be kept from bad deeds by bad reasons. Limited or local rationality, the broad picture being unavailable, or not attended to, can easily lead in the wrong direction. If the objection to abortion or infanticide had to rest entirely on the value story, there would be no objection, and the opposition would rest on mere

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prejudice: the sooner we entirely discounted it the better. (One could say exactly the same about a proposal to kill one’s neighbourhood grocer.) Professor Dworkin, in making so much of ‘seriousness’ and ‘inviolability’, would irrationally nourish a guilt which so many women, to say nothing of their spouses and doctors, could well do without. I imagine that there will be those who are ‘pro-choice’ who will feel impatient with Dworkin for this very reason. His language, if not his thought, will be disconcerting to them.70

2.6 How language we appear to understand can nevertheless be unintelligible In claiming that this curious idea of intrinsic value is not intelligible I must repeat and underline a qualification I made at the outset of Part Two: it is not intelligible where a claim about this value is given as a reason why the valuable item should not be destroyed. I speak in this qualified way because it seems to me that this talk of value is best seen as a reflection of people’s objection to murder, rather than something that might help us understand why the objection is sound.71 Thus we should not necessarily take exception 70 One is not surprised to hear Leslie Cannold describe the idea that ‘the foetus is intrinsically and independently valuable’ as an ‘anti-choice view’, and as something ‘profoundly anti-feminist’ (The Abortion Myth: Feminism, Morality and the Hard Choices Women Make, St Leonards, New South Wales: Allen and Unwin, 1998, p. 75, italics in text). She does not refer to Life’s Dominion. 71 Several people seem to have come to a similar conclusion. I list those known to me. First Roger Wertheimer. We talk, he says, of the value of a human being as if it explained and justified the usual teachings that we should not harm others ‘whereas actually the attribution of value is a consequence of the rationality and categorical character of moral choices, not a precondition of them. The propriety of sacrificing one person to save the life of many in some cases and the impropriety of doing so in other cases cannot be explained in a coherent calculus of value’ (‘Applying Ethical Theory: Caveats from a Case Study’, in David M. Rosenthal and Fadlou Shehadi, eds, Applied Ethics and Ethical Theory, Salt Lake City: University of Utah Press, 1988, p. 254). Second, Anne Maclean: ‘Talk about the value of life in this context can be nothing other than talk about how we may treat the possessor of that life; it is not talk which explains how we may treat the possessor of that life’ (The Elimination of Morality, London: Routledge, 1993, p. 34, italics in text). This thought is not confined to those who, like Roger Wertheimer, oppose abortion. Leslie Cannold perhaps has the same idea when she writes: ‘The key to understanding women’s assumptions regarding the value of foetal life is to remember that they follow from women’s beliefs about the morality of abortion, they are not the reasons behind them’ (The Abortion Myth, p. 116). There is something right about this remark, though of course we need to talk about beliefs generally, not just ‘women’s beliefs’. Think too of John Harris who explains what it is for lives to have something called ‘moral value’ thus: ‘Talk about the lives of individuals having moral value refers to the moral reasons we

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to the remark in the House of Lords Walton Report: ‘the special worth of human life is at the heart of civilised society’.72 And it could well be that the use of this language induces a certain respect in us, that we will behave somewhat better in a society in which this language is current – though after reading Dworkin, and seeing the uses to which it can be put, we might well be having doubts about that. Similar remarks might be made about the notion of ‘respect’ itself, as it appears in these discussions, a respect which is deemed to be due but does not reflect the qualities of one individual as against another, a qualfication which once again seems to cut an ordinary notion adrift from its anchorage. We may be glad to hear this peculiar use in these contexts – but as far as explanation is concerned the work remains to be done. The solemn language does not do it for us. We might even go further, and allow that talk of the special value of the human individual has a minimally explanatory role. It excludes something, just as sanctity-talk excludes something – as we saw (p. 53). It expresses the view that what is wrong with killing Smith is not just this or that: is not just that Smith does not particularly want to die, or again that Smith can be expected to ‘contribute to society’, as we say. Or again, people might say that human beings are intrinsically valuable simply to stress that they should not be thought of as a mere assemblage of ‘instrumentally valuable’ body-parts and tissues. There would be no contrast here with the objection to homicide expressed in terms of rights. This talk of value would remind us of what we know or think we know. If a genuine explanation can be uninformative save in this exclusionary way, then we have an explanation here. These concessions might be said to give the philosopher of intrinsic value all that he wants. If so, that is fine. The satisfied reader could pass straight to Part Three. Explanation in some richer sense, or at least a better understanding, is very much what Professor Dworkin is after. ‘Astronomers discovered the planet Neptune . . . only after they realised that the movements of the

have for respecting claims to continued existence made by or on behalf of such creatures’ (‘The Concept of the Person and the Value of Life’, Kennedy Institute of Ethics Journal, December 1999, p. 294). Here again claims about value would not be offered to explain why we have ‘moral reasons’ not to kill. We will be inclined to talk about value just because we think we have these reasons. 72 Lord Walton of Detchant (Chairman), Report of the Select Committee on Medical Ethics, London: HMSO, 1994, p. 13. ‘[Section] 34. Belief in the special worth of human life is at the heart of civilised society. It is the fundamental value on which all others are based, and is the foundation of both law and medical practice. The intentional taking of human life is therefore the offence which society condemns most strongly. [Section] 35. ‘Witnesses spoke in different ways about the value which human life holds . . . Nobody suggested that human life did not have its own intrinsic value’. Ronald Dworkin gave oral evidence to this committee.

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planet Uranus could be explained only by the gravitational force of another celestial body, yet unknown, orbiting the sun further out’. For many people, he says, ‘the idea that life has intrinsic value . . . is the undiscovered planet that explains otherwise inexplicable convictions’ (LD, pp. 69). It is because a more richly explanatory notion of intrinsic value – this would-be idea that certain items (which might include human beings, biological species, paintings, ways of life, certain events, or whatever) are just ‘good-in-themselves’ – seems to play a key role in much contemporary moral philosophy, that I have thought the issue worthy of a fairly painstaking examination. It has an importance far beyond the particular controversy about abortion which forms the framework of this book. In regard to the concept of intrinsic value itself, the real difficulty arises, I believe, from a radical misunderstanding of the grammatical category of the adjective ‘good’, a matter we shall come to in the last chapter of this Part. David Lewis once remarked: ‘Any competent philosopher who does not understand something will take care not to understand anything else whereby it might be explained.’73 Taking the hint, I should admit at the outset that we philosophers should be slow to claim that what other (sober) philosophers say is nonsense. That is why the discussion to come has to be a fairly long one. We must avoid certain quick solutions. Thus nothing I have to say will depend upon the thought, sometimes encountered in philosophy, that to admit that certain claims make sense would be to commit us to a belief in queer or uncanny entities – in this case intrinsic values. This consideration is of very little help. Magnetism has been thought pretty rum, but no one is tempted to say that the word ‘magnetised’ lacks sense. Nor do I want to argue that the only things which can intelligibly be said to exist are either straightforwardly perceptible or would be suitably discussed in physics books, adding that intrinsic value conspicuously fails this (admittedly somewhat indeterminate) test. That drug-taking is or is not foolish, that humility is or is not a virtue, that inflation is or is not rising – these are quite discussable matters but are not about the perceptible or the physical. (And if they are about the perceptible or the physical in some very indirect way, then intrinsic value might be so too.) Again, we shall not insist that would-be propositions about the intrinsically valuable must be nonsensical because we could not in principle verify them. Considerations of verifiability can however be put to gentle, undogmatic use. Unverifiability can at least suggest that (once again) we philosophers are talking through our hats, especially where the notion seems fishy to begin with. We can also ask questions of the form: if such and such were true would this other thing be true? Too many failures here to find our way would undermine our confidence that we knew what we were talking about. We should expect the process to take time and to be untidy. Doubts about 73 David Lewis, On the Plurality of Worlds, Oxford: Blackwell, 1986, p. 203.

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logical positivism, with its swift test of meaning, should not rob us of the insight that we run the risk of saying what is senseless rather than what is false. We must now take up an objection which threatens to wreck my case at the outset. It will be said that the explanatory value story can’t possibly be unintelligible simply because so many people appear to understand it. Let us look into this. Of course we can think we understand something when we turn out not to understand it – nothing could be more familiar. But the objection we are at present considering remains. For we not only appear to understand this talk of intrinsic value, we tend up to a point to agree in our (apparent) judgements. If we were to conduct a survey and people had to answer, straight off, whether the existence of human beings had objective intrinsic value they would overwhelmingly be inclined, I am sure, to reply yes rather than no. They will take a different view of, let us say, toenail clippings. This consensus seems to show that the question must make sense. If the question could not be understood, we could not respond to the survey at all, or at the very least our answers could be expected to be distributed at random between the yes and the no. Wittgenstein would sometimes make a mark on a blackboard, or a blot on a piece of paper, and ask whether or not the mark fitted exactly into its surroundings.74 We are all inclined to say yes. Certainly, yes rather than no. But on second thoughts, would we know what was being asked? Something fits exactly when (given some standard of exactness appropriate to the context) there is a very good fit between its edge and another edge. Think of a bit of wood skilfully inlaid into another. But in the case of the mark or the blot we do not have two edges to consider. It would be silly, for example, to look at the blot more closely with a magnifying glass. What would one be looking for? So the question of accuracy of fit cannot arise. We had the impression of understanding a question, but as it happens no real question was being posed. The language of ‘fitting’ seemed to do some work. But this is an illusion. We do not understand what failing to fit would mean in such a case. We can however see why people tend to answer in a uniform way even though the question is misasked. We should not be surprised to fi nd that people would almost unanimously agree that human beings had this abstract value which sounds so imposing – at least if they are not asked to consider whether the question should be rejected. After all, we are taught not to kill, and that immediately suggests value. And in any case, the yes sounds heart-warming, serious, etc.; and of course it costs nothing at all. This last may perhaps be doubted, but at the very least this yes is going to be quite costless to anyone with a mod74 See Ludwig Wittgenstein, Philosophical Investigations, trans. G. E. M. Anscombe, Oxford: Blackwell, 2nd edn, 1958, para. 216.

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erately ingenious or devious mind such as one acquires by the study of philosophy or law. I am not of course asserting that the value story appears before us like a sentence in Greek to the Greekless, otherwise the many purchasers of Life’s Dominion would be demanding their money back. Nor is the value story so obviously senseless that almost any competent philosopher who is working in this area would see as much right away. It is a story invented by philosophers after all. The story gives the impression of sense, it appears to throw light on the way it is bad to kill, and when forced to choose whether to go along with it, we plump for an answer accordingly. And it is perfectly easy to see why we turn to the yes rather than to the no. Concepts exist in a web of other concepts. But it is possible for us to cut away these vital connections without quite realising what we are doing. Remember the ordinary way in which we said that the world containing this or that would be a better place, swimming baths, sliced bread, etc. Without such things our lives would be impoverished, perhaps greatly, perhaps marginally. Someone might then attempt to sever this thread, and say that something or other is ‘just’ valuable – explicitly rejecting any talk of impoverishment. And it is quite possible that we will now have cut ourselves off from intelligibility. Such a severance need not be noticed. Earnest discussion involving our marooned would-be concept could continue pretty well indefinitely, particularly in universities. There is an obvious difficulty in showing that a view is defective from the point of view of sense. Strictly speaking there will be no such view. There will therefore be no such thing as expressing this view adequately. But how can one honestly criticise what someone says if one does not first give an adequate account of his opinion? If one tries to give a clear account it will seem to miss something: it will seem to be a travesty, a parody, to miss out that je ne sais quoi. What we need is some ersatz for accuracy: something we can call the adequate expression of nonsense. Ideally – though this is a good deal to expect, humanly speaking – the person criticised will say: ‘Yes, that is just what I meant!’ But the process is not going to be clear cut. Language has a kind of versatility of its own. One is inclined to say that one cannot put an event into a hole. The very supposition would not make sense. The categories simply do not mesh – so there is no such thing as putting an event into a hole. But then – one could have a birthday party in a cave. Or select the right size of test-tube to enclose a reaction. It must be admitted that our understanding of what we say and believe is frequently defective, but we do not judge it to be nonsense for that reason. Even mathematicians, as Frege showed, were inclined to give inadequate accounts of what it is to add one number to another. We should therefore not give up a would-be notion as senseless simply because we are having some difficulties with it. Nor can we complain of senselessness on the mere ground that what is said in terms of this notion is not completely clear: we

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struggle to be clear in regard to very many meaningful concepts, but we so often have to fall short. Sometimes we must use language which we realise must miss the mark because it is not possible to express our would-be thought – as Frege realised when trying to explain the notion of a mathematical function.75 However there comes a time, after many difficulties with a notion which perhaps we have unwisely introduced, to set the whole matter aside as a misunderstanding. We should eventually ask ourselves, in the course of our discussion, whether such a moment has been reached. The notion of ‘having sense’ is pretty unsharp. We can usefully return to Wittgenstein here. Wittgenstein talks about the ‘inclinations’ we have to use particular words in certain contexts. We might playfully ask, for example, what colour the vowels are. ‘For me the vowel e is yellow.’ Given the two ideas ‘fat’ and ‘lean’, would you be rather inclined to say that Wednesday was fat and Tuesday lean, or the other way around? (I incline to choose the former.) . . . I want to use these words (with their familiar meanings) here. – Now, I say nothing about the causes of this phenomenon. They might be associations from my childhood. But that is a hypothesis. Whatever the explanation, – the inclination is there.76 Wittgenstein says that the uses of ‘yellow’ or ‘fat’ in such contexts are secondary (though not metaphorical). Now I think that in this way we could ask rather playful questions about value. ‘Is a bird’s nest better than a rabbit hole?’, ‘Is the top of the tin better than the bottom?’ I am inclined to say ‘yes’ to both questions. And if that counts as understanding them, then I understand them. All the same, this should not make us totally incapable of criticising what is often said about value as nonsensical. For what is wanted by those who talk about intrinsic value is something more than this minimal, and playful, comprehensibility.

2.7 Permission to destroy items of value: countervailing obligations contrasted with mere licences For the next few chapters we shall be considering the difficulties we would have to face if we were seriously tempted to put this supposed concept of value to use. It may serve as an intimation that all is not well.

75 P. T. Geach and Max Black, eds, Translations from the Philosophical Writings of Gottlob Frege, Oxford: Blackwell, 1952. See ‘On Concept and Object’: ‘By a kind of necessity of language, my expressions sometimes miss my thought . . . I fully realize that in such cases I was relying on a reader who would be ready to meet me half way – who does not begrudge a pinch of salt’ (p. 54). See also a similar remark in ‘What is a Function?’ (p. 115). 76 Wittgenstein, Philosophical Investigations, II: xi, p. 216.

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What interests us in this particular chapter is how the argument as to permissibility is supposed to work. We are supposed no doubt to compare the intrinsic values of what is lost and gained, hoping that the destruction of a valuable item (a tree, a baby, a painting, or whatever) will turn out to be all right. Now it is significant that this claim might be made in two quite different ways, and we need from the outset to distinguish them. First, the destruction might turn out to be obligatory, and hence permissible for this reason. (What one must do, trivially one may do.) Or second, it might be that the destruction is merely permissible – licensed. We need to know which of these claims is under consideration. If we have no way of knowing, this rather suggests that we do not know what we are talking about. A comparison might help to make the distinction clear. We find just such a difference of view in regard to the ethics of killing in self-defence, where killing the attacker is the only way of saving one’s life. Some may judge that self-defence is obligatory: so that if this involves the death of the assailant, as in the case envisaged, one must kill. The obligation not to kill is overridden by a counter-obligation to preserve oneself. This is (perhaps) a Jewish view of the matter.77 Others however may think that one has a choice in such a situation: one may defend oneself, but need not. One has a licence. Thus for example a mother being attacked by her deranged child might choose, at the critical moment, to die rather than defend herself in a way that would kill it. She has a licence but chooses not to use it.78 The obligation or the permission to destroy might presumably concern the destruction of anything of intrinsic value. But let us confine our discussion to the case of abortion. What seems at first sight to be required is a counterobligation: that is to say an obligation sufficient to outweigh the obligation ‘that we all take so seriously’ (LD, p. 238) not to take life. After all, human life is said to be so very sacred. Surely only a competing and suitably imposing duty could make it all right to take a life? We would have to be able to lay our hands on our hearts and say: ‘We can do no other’. This seems to be what is at issue when intrinsic values are to be weighed. Abortion is said to be wrong ‘unless the intrinsic value of other lives would be wasted by a decision against abortion’ (LD, p. 60). This remark is made in the context of a 77 That this is a Jewish view was suggested to me by Rabbi Daniel Schiff. 78 I have, incidentally, tried to write the above in a way which does not presuppose that the killing in either case is intentional. It is arguable that private individuals living in civil society may not intentionally kill even in self-defence. This was Elizabeth Anscombe’s view. ‘When a private man struggles with an enemy he has no right to aim to kill him, unless in the circumstances of the attack he can be considered as endowed with the authority of the law and the struggle comes to that point. By a “private” man, I mean a man in a society; I am not speaking of men on their own, without government, in remote places: for such men are neither public servants nor “private”.’ ‘War and Murder’, Collected Philosophical Papers, Vol. 3, Oxford: Blackwell. 1981, p. 54.

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‘carefully accurate’ account of what ‘most people think’. It seems from this context however that we are to believe that most people are level-headed in this particular matter and that Professor Dworkin sides with this majority. Here we seem to be subject to a requirement to minimise life-waste. Here the woman’s choice is going to be determined either way by duty, save where there is the prospect of equal waste whatever she chooses. This doctrine seems to leave the pregnant woman in chains – bound every bit as much as the most rigorous pro-life teaching would insist. In either case there is, morally speaking, no choice whatever. Pro-life says you mustn’t. Value-theory, if we may call it that, says either you mustn’t or you must, depending on the details of the case; there is little room for the merely may. In the Preface to the Vintage edition of Life’s Dominion, Professor Dworkin writes about ‘enemies of freedom of choice’ (LD, p. x). But in one respect he might find himself in their company, differing with them only on the question of public policy: how best to encourage the triumph of the good. ‘Morally’ there would be little or no choice. The insult to intrinsic value, one might say, is to be minimised. There would of course be the case, presumably rare, where the intrinsic value lost is equal either way. Perhaps there would be the opportunity for choice in this circumstance. And even here, the sterner moralist would no doubt insist that one ought to settle the matter by lot: heads I let the baby live, tails I pursue my career (or whatever). It is commonly assumed – except in China – that if a woman does not want an abortion, well that is just fine. She need have no anxieties. In the usual case, the pregnancy is welcomed and friends rally round with their congratulations. Pretty ultrasound pictures are pinned up and oohed over. But all this suggests that the public are not seriously concerned with intrinsic value. The philosophers have not succeeded in putting over their hard teaching in this regard. Sure enough, the new baby has its value. But at what cost does it continue to exist? The roughest of estimates will not have been made. New babies cost money, and money, public or private, can nearly always be used to conserve what would be called ‘the intrinsic value of other lives’. Madeleine Simms, one of Professor Dworkin’s many admiring reviewers, and a former general secretary of the Abortion Law Reform Association, can help us here with the latest calculations. ‘By the latest calculations’, she writes, ‘it [an unwanted baby] will cost more than four times as much in N.H.S. expenditure alone as a wanted abortion, thereby reducing the N.H.S. resources available for other urgently needed medical procedures. Ten per cent of cardiac patients die on the waiting list for heart surgery, for starters. In terms of public health, where is the morality in that?’79 Where indeed? It is perhaps those who are too inhibited, lazy or

79 ‘Foetal Positions’, a review of Life’s Dominion, New Statesman and Society, 4 June 1993, p. 37.

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cowardly to have abortions who are the real killers, allowing their babies to be born at the expense of all those poor cardiac patients. In this last paragraph we have been assuming that it is always ‘the intrinsic value of other lives’ which is in the balance. But Professor Dworkin seems not to have given an entirely sympathetic account of his own view. Granted that abortion wastes a life why would it be permissible only to prevent the waste of the intrinsic value of other lives? Why this concentration on life? Would the waste of the intrinsic value of other, non life-related, items have no weight at all? That would appear to be wholly against the spirit of Life’s Dominion. Someone might offer to pay the woman to have an abortion – the child’s father might be immensely rich and want the matter hushed up and disposed of. The money could then go towards preserving the inanimate stones of Venice.80 The savings to be made out of abortion are not inconsiderable, and, when all the estimates are in, the procedure might be thought quite often compulsory, at least on the balance-of-value account under discussion. We should not pretend to be offended by the intrusion of ‘crass financial considerations’. For as we have just seen we may assume that the money saved is to be devoted to the preservation of endangered Venice. Or indeed paintings, animal species, unusual cultural practices, etc., to say nothing about the provision of heart operations. John T. Noonan, writing in 1979, assembled some useful statistics in this area. (They would by now of course need some adjustment for inflation.) One recent estimate of savings put the ‘welfare cost’ of mother and child at more than $6,000 as against $360 for an abortion, so that Medicaid in California in one year alone saved the taxpayers almost a half-billion dollars by funding 77,000 abortions. Planned Parenthood Affi liates of California, Memo, October-November 1977, 3. The financial argument is also pressed vigorously upon state legislatures. For example, on March 13, 1978, the author was present at a hearing before an appropriations subcommittee of the California Senate considering state funding of abortion. A county health officer speaking on behalf of all county health officers urged the funding on the ground of financial savings calculated by him at $4,061 per pregnancy times 70,000 pregnancies, or $284,270,000 a year. He observed, ‘That’s only one year’s crop,’ and ‘We’ll be supporting them [i.e., babies born on welfare] for the next eighteen years.’81

80 I am leaving aside here obligations which arise not from the need to preserve net intrinsic value but from other sources – via promises for example. One might have promised to do something (e.g., take someone on a European holiday) for which one’s abortion was a prerequisite. Surely that might be a factor? And how would we factor it in? 81 John T. Noonan, A Private Choice, Abortion in America in the Seventies, New York: The Free Press, 1979, pp. 200–1.

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Noonan also noted the argument that there would be ‘savings in criminal conduct eliminated because potential criminals had been eliminated’.82 In regard to this last, we can now say more. A piece in The Economist, ‘The criminal unborn’, reports the unpublished findings of John Donohue of Stanford University Law School and Steven Levitt of the University of Chicago. ‘A steep rise in abortion after 1973 [the year of Roe v. Wade] has meant that many individuals prone to criminal activity in the 1990’s were never born’. The financial implications are spelled out: ‘Current crime rates would be 10–20% higher if abortion had not been legalised. Using current estimates for the social cost of crime, the authors estimate the concomitant social benefits of abortion to be in the order of $30 billion a year’.83 In one respect infanticide is rather more likely to be required of us than abortion, for the benefits must be much the same while the cost of the procedure must be a good deal lower. No doctors need be involved. One could very well employ workers on the statutory minimum wage, people just about able to pull on a string or hold down a pillow. Similar consideration would apply when it came to the disposal of people suffering from congenital disabilities of mind, assuming, as with neonates, that we had only to consider their intrinsic value, comparing it with what we might spend on art galleries, etc. Michael Burleigh reports a real life estimate of the economies to be expected from one such disposal programme, involving some 70,000 deaths. In marmalade alone, for example, total consumption over an estimated lifetime would have amounted to 5,902,920 kg.84 The attractions of this ‘can do no other’ mode of justification is plain. Here morality compels us to act, so the choice is taken out of our hands. Not so when we turn to the other mode, where an appeal to the net value of what would be lost is invoked simply to claim a licence. A licence betokens liberty. We are left free to choose either way. A fishing licence does not oblige us to fish, but simply allows us to do so. Naturally, those who are always talking about ‘choice’ will tend to think of our value-weighing problem in this way, especially when they are not actually confronted by such a choice. We might naturally suppose this licence to be more readily available to some people rather than others. I am thinking of those who have already done their bit in regard to value, or who sincerely propose to do so. For people can beget people. And they can also save the lives of those already in existence. This might well have to be taken into account. It would be a 82 Noonan, p. 40. 83 The Economist, 14 August, 1999 p. 42. See now Steven D. Levitt and Stephen J. Dubner, Freakonomics: A Rogue Economist Explores the Hidden Side of Everything, New York: William Morrow, 2005. 84 Michael Burleigh, Death and Deliverance, Cambridge: Cambridge University Press, 1994, pp. 160–1.

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simple matter of justice. It would only be reasonable to allow those who had already had babies, or who had saved lives, a licence to dispose of one or two lives in return. Someone might indeed set about saving a few lives in advance in order to allow themselves a certain leeway in case of future emergencies. Perhaps they would not need to have gone so far as to have had babies themselves; they might simply have invested a great deal in other people’s babies, by working as a midwife let us say, and putting in overtime. After many years of construction it would be a little ungenerous to begrudge a little destruction. In cases of doubt, they might even promise to construct a little more in the future. Since for good reason or bad, caring is so much in the hands of women, does not this give us a wholly new slant on ‘a woman’s right to choose’? Uncreative, uncaring people might have to provide stronger reasons for killing than those who already have investments in the moral bank. And once again, as we have been reminding ourselves, there are many items which have intrinsic value that are not human individuals: in particular, paintings. This might suggest to us that prolific artists are entitled, when it suits them, to kill a few young humans who are as yet only protected by their intrinsic value. And that those mothers who have often resisted the temptation to abort their babies could – fair’s fair – have an occasional bash at some of their less agreeable canvasses. The ethics of all this remains to be resolved. We turn now to consider some further difficulties for the value balancer.

2.8 Could we find out whether something had this value, and (roughly) how much value it had? The value-balancer has now to face some further questions, elementary but quite baffling. How would he discover that something was Impersonally Precious? Could he be taught how this is done while at school? Would it be suitable for the kindergarten, or would we have to reserve it for the sixth form? Could some people make a living out of such enquiries, setting up as Intrinsic Valuers with an office in the better part of town? Would clergymen be expected to be good at this sort of thing? The old? The young, who can approach the matter with a fresh eye? Let us return in particular to Professor Dworkin’s own example: the intrinsic value of knowledge (LD, pp. 69, 73). As we saw earlier, the idea that knowledge has intrinsic value is very peculiar, at least if one is to suppose, as would seem the case, that new knowledge increases the total value of the universe. But we now have to turn our mind to practical questions, questions that would be faced, let us say, by the trainee intrinsic valuer. Would an individual’s knowledge of two people’s telephone numbers add up to more intrinsic value than the knowledge of any one such? Would it add up to twice the value? To roughly twice the value? Would the

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knowledge of a six-figure number be more valuable, intrinsically speaking, than the knowledge of a five-figure number? Perhaps it would be insisted that only some items of knowledge have intrinsic value, knowledge of higher things, etc. – of numbers perhaps, but not, certainly not, of telephone numbers! But even here there is a difficulty in assessing how the intrinsic value incrementally increases with new knowledge. Is a child who finds out at school that there are an infinite number of numbers suddenly blessed with an infinite increase in its knowledge? And would this knowledge have infinite intrinsic value? Would the possession of such knowledge render the child itself of infinite value? Noah Lemos, an authority on intrinsic value, is able to make rather curious comparative judgements: I, for one, would prefer many trivial cognitive states, such as knowing how many phone numbers are in the local phone book, to the existence of one bacterium.85 This remark rather epitomises our difficulty. It is even odder than it looks. For it is possible to take a pride in knowing things. But if it is the intrinsic value of knowledge which is under discussion, it is surely irrelevant whose knowledge it is. One has to be able to prefer that this item of knowledge exist somewhere, in some mind, to the existence of that (presumably harmless) bacterium. This suggestion runs us into a difficulty about the limits of sense: about what is to count as ‘preferring’. A judgement of preference is not just the report of an internal impression, an impression which might surprisingly, not to say miraculously, attach itself to any item in relation to any other.86 In so saying, we need not deny that rather rum ‘better than’ questions can be asked and answered, perhaps in a not-too-serious spirit, as when we asked above whether a bird’s nest was better than a rabbit hole. The trouble begins when the answers are thought to embody estimates of something independent: the actual comparative value of things where we are not concerned with usefulness – the value of this bit of knowledge weighed against the value of that bacterium. If knowledge turned out to have intrinsic value we could perhaps turn this discovery to good liberal use. I have in mind of course a discriminating liberalism, according to which some human beings count for less. Killing grown-ups would certainly be undesirable, for knowledge would be destroyed in the process. Every grown-up can be expected to know something, if only 85 Noah Lemos, Intrinsic Value, Cambridge: Cambridge University Press, 1994, p. 96. Children often ask baffl ing questions of this sort – ‘Which is better, a kangaroo or a kettle?’, etc. 86 This remark might seem somewhat cryptic. For a classic discussion of the way mental attitudes are internally related to their objects see Philippa Foot, ‘Moral Beliefs’, reprinted in her Virtues and Vices, Oxford: Blackwell, 1978, pp. 112–16.

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his name. Babies, however, are know-nothings and as such are less valuable. This is a liberating thought. Professor Dworkin seems to have missed this enabling exercise of reason. It is very much of a piece with what goes on in the bolder reaches of ‘practical ethics’. Let us consider in particular the intrinsic value which for Professor Dworkin entails sacredness – the kind that is supposed to be especially relevant to the abortion issue. Professor Dworkin tells us that although paintings have this sort of value, the value of a person could well be ‘vastly greater’ (LD, p. 73). This suggests all sorts of questions – and we ought to be able to say, roughly, where we would look to fi nd answers to them. Consider, for example, Rembrandt’s picture, The Night Watch. Is it worth, very roughly – for precision is not crassly to be insisted on – a tenth of a male two-year-old child with a club foot? A twentieth? A two-hundredth? And how would the child compare with a first edition of Hobbes’s Leviathan, slightly foxed? Or with a foetus of 14 weeks? Or with an endangered species of beetle? Would it matter whether the human being had behaved badly? Would Rembrandt’s picture count for more than the notorious Yorkshire Ripper? Would it be about on a par with the total value of those present inhabitants of Armley Jail who have been justly sentenced for crimes of violence? (Robert Nozick tells us that ‘the immoral person is a less valuable being than the moral one’.87) Would two people be just twice as valuable as a single one (of the same age and condition)? Could we say that these two paintings, this plump neonate, and such and such species of frog were in sum somewhat more valuable than a certain act of kindness conjoined with the works of Shakespeare? Or (to consider the other ‘associational’ kind of sacredness) with 22 assorted national flags and an Egyptian cat? Or would we simply have no idea what we were talking about? What would be the relationship between the objective intrinsic value of something and damage to it? Would damage be expected to decrease this kind of value? To be sure, not everything that has intrinsic value can be damaged. Events, apparently, can have intrinsic value (LD, p. 69), but we do not naturally talk of damage to events. Nor is it easy to see what would be meant by damage to a species. But paintings can clearly be damaged. Someone once cut off a large slice off The Night Watch so as to make it fit onto a wall. Is it now of less intrinsic value? Would the missing fragment have some value? A foetus can be damaged too. It is now possible for surgeons to operate on a foetus. Suppose a careless surgeon accidentally 87 Robert Nozick, Philosophical Explanations, Oxford: Clarendon Press, 1981, p. 409. This, interestingly enough, seems to bail out all those ethicists who down the years have been troubled by the question ‘Why be moral?’ We, the virtuous, can now tell the other lot: ‘Come, come. You can’t possibly want to become less valuable!’ Philosophy does make progress after all.

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deprived a foetus of a leg, or so damaged its brain as to render it unlikely, in later life, to gain admittance to Oxford. Would this decrease the intrinsic value? And by a little or a lot? Would the detached foetal leg have some value? Damage might actually increase intrinsic value, making the damaged item unique in some way? Who could tell? Stamp collectors value misprinted stamps. As the collectors seem not to want these stamps for anything, and they are clearly of benefit to no one, perhaps their value is intrinsic? People are inclined to say that any animal is more ‘valuable’ than a mere plant. They would be even more adamant if the animal were a mammal. But why should we agree? Robert Nozick, who has clearly thought a good deal about such questions, suggests that a mouse is not more ‘valuable’ than an 800-year-old redwood tree.88 How could one possibly resolve such a controversy? Might a mouse become every bit as valuable if, because of some genetic modification effected in the laboratory, it had lived very much longer than most mice? Professor Nozick also suggests that ‘planetary systems and scientific theories’ have intrinsic value too. Can we, however, so much as ask whether the kinetic theory of gases is of more value in itself than a certain redwood? Surely, we would want to say, the answer is no. And this, we would add, is not a matter of our limited knowledge, for we do not begin to understand what we would need to find out to settle the matter. Is a human foetus more valuable than a grown-up mouse or less? A distinguished gynaecologist I know who gives talks under the heading ‘Confessions of an Abortionist’, and who has not only read his Singer, his Hare, and his Judith Jarvis Thomson, but can give a skilled account of what they say, tells me that although a foetus certainly has some value, it is about one mouseworth. He certainly gives the impression of knowing what he is talking about. He knows more about foetal life than most of us will ever know. Mightn’t this estimate be about right? Might it not indeed be an overestimate, the gynaecologist having been carried away by his emotions? Of course we are not very sure what a mouse is rightly valued at. Tom Regan, the well-known ethicist, has given some thought to this matter, and has concluded that a mouse is just as valuable as you or I.89 Would human beings be more valuable than other animals? Once again, if forced to come up with a yes or a no, people, with the exception of dog lovers and Tom Regan, will tend to choose the former. This might well be called the conventional response. But do we understand what we are asking? We might be struck by the following honest confession to be found in Jonathan Glover’s book, Causing Death and Saving Lives: ‘I am inclined to the conven88 Ibid., p. 415. 89 See below, p. 138.

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tional view that animal life is much less important than human life, but my reasons when written down have a disconcerting air of intellectual dishonesty, as though they were merely constructed to rationalise my nonvegetarianism. So they are not included here.’90 But if we are wondering why it is all right to eat pigs and not people, if that is what we think, are we going to be helped in the least by asking whether, abstractly considered, people are somehow More Important than pigs? For we are not considering importance to someone; Lord Emsworth, for example. We are just concerned with Importance In Itself. If one asks such an unsatisfactory query is it any wonder that the merest rationalisation results from it? We are told that there are different kinds of value, intrinsic value being just one kind. Could we then add up valuations of different kinds to produce a grand total? A painting might have intrinsic value, a market value, and a value for teaching purposes. Could these be lumped together to form the Overall Value? It seems very odd to suppose so, but it doesn’t follow that philosophers haven’t tried.91 The difficulties that we have encountered in this chapter spring up as soon as we try to take this notion of intrinsic value seriously. We seem to lack any criterion of this value, and any criterion for comparing valuable items. Utter incommensurability would be a sign that the notion of values is not intended to carry any explanatory weight. We would be back with the idea that our inclination to talk of the value of human life simply reflects our beliefs about murder, and does not account for them.92 I talk of ‘utter’ incommensurability, because what we have found is not simply a question of the incommensurabilities we meet with in daily life. Perhaps there is no answer to the question, asked by a child let us say, whether Wagner was a ‘better composer’ than Brahms. For the reply might be that they should be assessed on different ladders. In an uninteresting sense they were doing the same thing, in an interesting sense they were doing different things. Comparative questions about the cosmic intrinsic value of things do not seem to admit of a common-sense solution of this kind. But one might give it a try. We might postulate the existence of many different categories of ‘intrinsic value’ and deny that there is any meaning in the question whether something is more valuable than another save wihin a

90 Jonathan Glover, Causing Death and Saving Lives, Harmondsworth: Penguin, 1977, p. 16. 91 ‘William Frankena, Chisholm, and others have suggested that the overall value of a thing is the sum of its intrinsic value, its extrinsic value, and any other sort of value it might have’, reports Fred Feldman, who seems to think that talk of such conglomerating makes sense (‘Hyperventilating About Intrinsic Value’, Journal of Ethics, 1998, p. 345). 92 See above, p. 91.

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single category.93 Here one acts upon the principle: when in doubt about a suspect concept introduce complexity and hope no further difficulties will arise. But I do not think that Dworkin would want to take this line. He needs to be able to compare the value of pretty disparate items. So we are back to our question about the criterion of comparison. At this point we are perhaps inclined to say that there is a criterion of value and of comparison, but insist that these are not criteria that can be stated or explained. Rather these matters would be determined by judgement. Is this the way out we need? I do not think so. A criterion cannot be provided by appealing to judgement in this fashion. To be able to judge is a capacity, and we need to know independently what is to count as a successful exercise of this capacity. There needs to be a way of putting the claims of intrinsic valuers to the test. At this point we need to bring in those old friends of critical thought, the chicken-sexer and the water diviner. Chicken-sexers, it is said, do not know what they see in a newly hatched chicken which leads them to judge male or female: but we can find out whether they are good at their job. A claim to be able to tell that there is water underground by means of a twitching twig would be perfectly intelligible, even though no one could explain the causal process involved. One understands what is meant by saying that there is water under the ground, and so one would be in a position intelligibly to assert or deny that someone has the uncanny power in question. One knows independently what it means to say that there is water under the ground. But nothing of the kind is possible to us if we have simply to rely on ‘judgement’. What Professor Dworkin has to say (LD, p. 80) about the way people are in fact inclined to call this but not that intrinsically valuable is indeed most instructive. Debarred from choosing what is of mere economic value, they naturally choose what is interesting or is aesthetically pleasing, (though not necessarily to them): that is to say, they choose what is valuable to human beings in a sense of value not in dispute. Why else would they be concerned about the Siberian tiger, no doubt thought of as magnificent and as interestingly rare, but not about a kind of beetle more or less indistinguishable from other beetles? Why else would they be talking about redwood trees? Again, consider the following remark about the demise of cultures: ‘we think it a shame when any distinctive form of human culture, especially a complex and interesting one, dies or languishes’ (LD, p. 72). Well, naturally enough, if it is interesting, we might want it to be kept going for that reason, though perhaps not if it featured slavery, human sacrifice or contempt for women . . . Interestingness is a perfectly ordinary if rather vague 93 Robert Nozick, perhaps, would want to say this: ‘Some things I cannot easily compare, so perhaps there are separate rankings, better pictured by parallel lines or by lines which cross like an X, rather than by one vertical line’ (Philosophical Explanations, p. 415).

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value-description. What Professor Dworkin needs is an example of a totally uninteresting form of human culture that is yet worth preserving, something whose intrinsic value shines forth unencumbered with other more mundane excellences.

2.9 The plight of the abortion counsellor Much of our discussion about the intelligibility of intrinsic value talk is not confined to its role in the abortion controversy, and that is just as it should be. We are concerned after all with a general question about the concept of value. But since abortion is the topic which frames this book, let us take time in this chapter to consider the singular difficulty we would have in putting these thoughts of intrinsic value to practical use in this narrow area. If the doctrine that the growing embryo or foetus has this special intrinsic value were one we could understand, we would expect to be able to put this discovery to work, though doubtless only in a somewhat rough and ready way. If on the other hand the whole idea were just a muddle, we would expect to find, well . . . what in fact we do find. We shall be helped to see the difficulties here if we consider the unenviable position of an ‘abortion counsellor’, employed by a hospital as someone of robust good sense. The pregnant woman might wish to consult the counsellor on these matters, and will naturally put the counsellor into the picture, presenting the facts of the case which might have a bearing on the intrinsic value of this or that. The counsellor will then have to be able to provide rough assessments of the value of what is to be destroyed, bearing in mind the investment, of a suitably significant kind, that has gone into it, so as to help the pregnant woman make her choice in line with the all important value considerations. It might be necessary for the counsellor to assess ‘the complexity of the foetus as an organism’ – some people think this has a bearing on its worth. Then there would have to be an investigation into the intrinsic worth of other things which might be preserved if the baby was destroyed. We must remember here that the issue does not turn on how much the pregnant woman ‘values’ the item in question, where the role of a counsellor could be expected to be somewhat minimal, a humble matter of facilitating or reminding. It is objective, cosmic value we are concerned with here, how much of it is going to be lost, how much is going to be saved. Indeed this very fact raises a difficulty. Counsellors, it is said, are to be ‘non-directive’. But where intrinsic values are at stake it is hard to see how this would be appropriate. Even to suggest that a baby might be valuable sounds pretty directive. And we can hardly expect a suitably ethical counsellor to say: ‘Your baby has an enormous cosmic objective intrinsic worth, but of course whether you take this into account in the slightest is entirely up to you, and in fact you might want to forget that I ever mentioned it’.

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(Admittedly, it is not very clear what it is to be non-directive. Is it sufficient not to badger or raise one’s voice? I once heard a counsellor comforting a troubled woman about fifteen weeks into her pregnancy, telling her ‘There are no right and wrong answers here’. Does that count?) Abortion opponents have caused offence by insisting that women seeking abortion must first be ‘informed’ about foetal development and abortion alternatives. Yet anyone who is truly concerned about the intrinsic value implications must also insist on an informing imperative. To be sure, the phrase ‘informed consent’ is somewhat misleading in this special context. Generally speaking a doctor does not need to get informed consent before treating a patient. A patient might reasonably refuse to be informed about a procedure, being too timid or too busy. He could give a generalised consent to treatment within a certain range. But clearly, if we have to take something into account in deciding what to do, we need to be appropriately informed. Here, the pregnant woman will need to know the valueconsequences of what she proposes to do. And the counsellor’s job cannot just be client-centred. She has not only to help but to warn. This has nothing to do with ‘a lack of respect for women’s moral decision-making’ (a curious phrase sometimes to be heard in this connection). After all, the counsellor will in all probability be a woman too. And who is there, woman or man, who can claim a blanket respect for the decisions they make? Don’t we insist that people be held accountable? Feminists apparently insist that the ‘complex decision’ is the one that the woman concerned is ‘best placed to make,’ at least according to Professor Dworkin, and he seems to think they judge aright. They have added, he says ‘a very important dimension to the abortion debate’ (LD, p. 57).94 However the idea that the pregnant woman is best placed ought to seem very questionable to anyone able to take seriously the theory of intrinsic value and who was not already in love with this comfortable conclusion.95 Why would a person contemplating abortion, who would often have a strong interest in a particular outcome, be in the best position to judge in 94 These feminists, he says, are quite like the rest of us in being very ‘responsible’ about abortion. Thankfully, their thinking is not ‘cramped’ by the ‘one dimensional’ idea that abortion is murder (LD, p. 57). May the Lord save us from cramps and the single dimension! They believe instead that what so many women set about having killed at their friendly local clinic is ‘a creature of moral consequence’ (LD, p. 57). It is not always a sign of virtue to claim to find a decision ‘complex’. No doubt such talk is defensive. It will be thought to reflect seriousness of purpose. In all probability however it will simply reflect an unwillingness to face a hard demand. 95 In cases of surrogacy where one woman is having a baby for another there will be two women involved. Have we any idea who is in the best position to judge here?

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this matter? Would she not, rather, be in a poor position? Surely the sensitive judgement-apparatus would need shielding from the wind of partiality. We might just as well say: ‘If you want to know whether a new railway line is needed go by the opinion of the householders whose view would be adversely affected.’ Or: ‘If you want to know whether Smith should be prosecuted just ask his rivals in business.’ Professor Dworkin’s own value theory threatens here to come up with a result that he would not like. What we have said so far might sound rather intimidating. But perhaps the story about intrinsic value and our responsibilities in regard to it just has this consequence. ‘Abortion is always a grave moral decision’ says Dworkin. And that seems correct. After all, something inviolable is up for violation. Yet there might be a way out, a way in which the abortion counsellor’s task might prove less stressful. To be sure, the initial estimates of intrinsic value might be weighty. But the counsellor, one can only assume, simply has to calculate the net loss of value, the destroying being compared with the saving. There must be occasions when the killing is almost, but not quite, excused. In such a case it would surely amount to little more than a peccadillo, like forgetting to pay a very small bill to a very large (and possibly disagreeable) company. Such a finding might be quite significant when it comes to post-abortion counselling where the client is thinking anxiously about what she has done. The philosopher Ruth Anna Putnam wrote in 1989, looking back on Roe v. Wade: ‘I am one of those who demonstrated in favour of legalising abortion in those days. I still believe that abortion must remain legal. But I also believe that many, perhaps a majority, of those fifteen million abortions [in the US since Roe] are morally indefensible’.96 She writes as if all those who agree with her could be expected to be ‘horrified’ at this outcome. However, if morally indefensible abortions turned out in nearly every case to be small faults, to be explained by saying that the balance of intrinsic value had only just tilted the wrong way, perhaps we could all relax and think about something of more importance. This attractive suggestion immediately runs into an elementary problem. How is the counsellor to discover and set out the rough comparative values so that proper decision can be made? How would she recognise a peccadillo for the purposes of post abortion reassurance? How indeed would those who train counsellors train them in these skills? In the previous chapter we saw how ill equipped we were to answer even the most basic value questions – whether these three babies are worth more or worth less than those 23 paintings, etc. – even when rough assessments only were called for. In view of what we have already considered, the prospects for helpful counselling do not look good. Would the counsellor learn to judge well by long 96 Ruth Anna Putnam, ‘Being Ambivalent about Abortion’, Tikkun, 1989, p. 81, italics added.

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experience in her job? If so, the person most likely to know the answers might well be a full time hardworking abortionist who will have faced these decisions very many times. In a rational world, experienced abortionists would be expected to have developed a good nose in this matter, and would be offered spare time employment as counsellors. Don’t people say that it is a requirement of employment justice that the most suitable be appointed? But this appeal to the benefits of experience meets with an instant hiccup. How could anyone benefit from experience if there were never any way of knowing whether he had in the past hit or missed the target? The abortion counsellor will perhaps attempt to learn from some specific cases which come up in Life’s Dominion. Let us take up two abortion-reasons which are held to be light if not totally weightless, and one such reason which is held to be sufficient. There is for example the case of the longawaited trip to Europe.97 ‘It would be wrong for a woman to abort her pregnancy because she would otherwise have to forfeit a long-awaited European trip, or because she would find it more comfortable to be pregnant at a different time of year’ (LD, p. 33). This is indeed the sort of stand which has earned Professor Dworkin the title ‘partisan for life’. But how, on the value story, could the abortion counsellor confirm this opinion, even in the crudest way? Would it be all right for a woman to have an abortion if she proposed to combine a trip to Europe with a little work – an academic conference let us say? Or if she wanted to write a travel book? Or to visit art galleries? Or to sample great wines? Is there not cosmic value in developing a fastidious palate? And if these further reasons are thought frivolous, could several frivolous reasons add up to a serious one? One wonders whether Dworkin is really making use of his theory in coming to his conclusions, or whether as a partisan for life he is allowing his enthusiasm to run away with him. Professor Dworkin’s second example of a reason without merit is of more interest. He thinks it would be unacceptably trivial, considering the value of the infant in question, for a woman to have an abortion just because she would prefer a baby of the other sex. Amniocentesis is of course used overwhelmingly for this reason in India. So this is a matter of practical importance. The abortion counsellor might be asked questions about it and she will not want to be caught out. How can Professor Dworkin tell that sexselection is not a serious ground? she might ask. People will assume that the reason for sex-selection must count as ‘sexist’ or offensively anti-woman. But might not a feminist justly consider herself entitled to kill off her unborn sons, or perhaps just one or two of them, as a gesture of reverse 97 The idea that women might shockingly have an abortion in order not to miss a trip to Europe must be something of a stock example. We fi nd it for instance in a paper by James Foster Scott read before the Washington Obstetrical and Gynecological Society in 1895. (‘Criminal Abortion’, American Journal of Obstetrics, Vol. XXXIII, 1896, p. 82).

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discrimination? And why indeed need the reason be so high-minded? If a woman, who has several boys already, longs to have a baby girl, and proposes to abort the current boy in the hope of a girl next time, how is Professor Dworkin or anyone else to show that her reason is frivolous? Mrs Cheryl Berriman . . . described herself as ‘desperate for a little girl’. Already the mother of five boys, her desire is so great that she is willing to risk £1,500 (the average cost of treatment at the London Gender Clinic) even though her husband is unemployed.98 Confronted by someone seeking an abortion for this purpose, Professor Dworkin might insist: ‘But can’t you see? The life of that infant in the womb is inviolable!’ His questioner, troubled in mind though she might be, would surely manage a smile, especially when she reflects what ‘inviolable’ amounts to in Dworkin’s book. Of course, abortion on the grounds of ‘the wrong sex’ might be regarded as a discriminatory wrong in certain cases. Foetuses, or since we are dealing with a question of discrimination where we are to be sensitive about nomenclature, foetal persons, would have a right not to be assaulted and killed on the grounds of sex. But Professor Dworkin is debarred from taking this line, as he believes that the foetal persons who get aborted, in India let us say, have no rights at all – can have no rights – save not to be wantonly hurt. Persons they may be – for who knows nowadays what people might have in mind by this description? – but they are not, he insists, persons-withrights (LD, pp. 22–3). (This ‘no rights’ thesis is of course a matter we will shortly be taking up.) 99 One reason which Professor Dworkin appears to regard as sufficient to justify killing is the pain a woman might feel in having her child adopted, as we saw (p. 38). I fully realise that any male, safe in the knowledge that he does not run the risk of becoming pregnant, who claims to lack sympathy for any pregnant woman in distress whatever her reason might be, is not going to be well received. And this even if, as in the present case, the happiness of other women is involved. women are often very concerned indeed to adopt, and adoption might well lead to joy and fulfi lment for many years – an obvious point which Professor Dworkin unaccountably fails to notice. There is said to be a ‘shortage’ of babies.100 Perhaps this is

98 Rosalind Coward, writing in Observer, 4 July 1993. 99 Professor Dworkin seems to have retreated somewhat from his objection to sex selection since Life’s Dominion. See ‘Tyranny at the Two Edges of Life’, New Perspectives Quarterly, where he talks of an exception for people ‘who already have three children of one sex and want one of the other’. 100 A report in England, for example, claimed that there were ten couples seeking to adopt for each available baby. BBC News at One, 14 July, 1993. Dorothy Wertz says (writing about the US): ‘There are waiting lists of parents who would adopt

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largely due to the prevalence of abortion. So we must ask ourselves, whatever our sex, whether we should have a tender regard to the plea of a pregnant woman who claims that she will feel miserable ‘for years’ if she does not go ahead and kill her inviolable offspring. Misery does not always earn solicitude.101 At this point, the hard-pressed counsellor will remember that the whole issue is supposed to turn upon the weighing of intrinsic value lost and gained. If a counsellor sets about weighing up the misery of having to give up a baby for adoption against the thought that the baby, if unterminated, will bring joy to another woman, won’t the story about intrinsic value have dropped out of the picture? We would be back among the Benthamites, calculating the pleasures and the pains. Now many women will be anxious to adopt. Would the counsellor, ever mindful of equal opportunity, have to track them all down and estimate in each case, not the likely joys and fulfilments of parenthood (utilitarian computation being set aside) but rather the probable net increase in intrinsic value of each woman (or indeed man) when endowed with the baby in question? With this absurdity added to the job description there would surely be no counsellors left. The whole matter would have to be turned over to the local ethics committee. Any abortion counsellor still so improbably in post, will next have to turn her attention to the uncomfortable issue of ‘harvesting’ or ‘recycling’, not of course a recycling of the intact living baby – we have just discussed that – but of its body parts. Every human being who is now a claimant was once a humble resource. That at least is our new, ethical, perspective on development. A foetus is not only said to have intrinsic value; it will be thought to have a use value, to be a bag of bits. That might appear a little

children with Down Syndrome and other more serious conditions.’ ‘The Need for Fictive Lines,’ Society, July/August, 2001, p. 28. 101 The painfulness of having a baby adopted might be related to some extent to current adopting practices, which we should not regard as unalterable. We might also note the following. Having a baby adopted is not of course succumbing to a disability. But a research fi nding about disability might yet be relevant. There is some reason to suppose that patients are apt to be unduly pessimistic in their estimate of how they will cope with disabilities, illnesses, etc. See Julian Savulescu’s ‘Rational Desires and the Limitation of Life-Sustaining Treatment’, Bioethics, 1994, Part II, pp. 202–8. Note too the results of a study of 43 cases of surrogate motherhood reported at the annual conference of the European Society of Human Reproduction and Embryology in Vienna, 2002. The researcher, Fiona MacCallum said: ‘It is often assumed that surrogate mothers will have difficulties handing the child over following the birth. In fact, we found only one instance of the surrogate having slight doubts at this time, with all other mothers reporting no problems’. We should note that in just over threefifths of the cases, the surrogate mother was also the genetic mother, conception being effected through artificial insemination. BBC News, 1 July, 2002.

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crude. But there are ways of using a foetus which will be thought ‘respectful’ – for the preservation or enhancement of intrinsic value attached to other items, including (it might turn out) other foetuses. Would it therefore be permissible – even obligatory – to keep an inviolable foetus on the go until its useful organs were mature enough to be harvested? That sounds like a very serious reason indeed. However it is oddly said that that a woman should not be influenced in her decision whether to kill her foetus by thoughts about the usefulness of its body parts. This rather goes against our suggestion that the pregnant woman needs to make an informed choice. The Polkinghorne Committee, set up in the UK in order to consider the ethical implications of this sort of thing, said very confidently: The prior decision to carry out an abortion should be reached without consideration of the benefits of subsequent use. The generation or termination of pregnancy to produce material for research or therapy is unethical.102 One must not, the Committee said, treat the foetus ‘as a “thing” ’. We might find this niceness puzzling. Dworkin of course has said very firmly that ‘the life of a single human organism commands respect and protection’ (LD, p. 84). Kantians, seeing the word ‘respect’, will of course say that a foetus is not to be used as a mere means. But what would this amount to? Possibly one would treat the ‘donor’ foetus with sufficient respect if one killed it in a solemn manner for what one deemed a serious reason. This would seem to accord with Professor Dworkin’s own interpretation of the somewhat arcane Principle of Mere Means. The principle tells us, he suggests (LD, p. 236), ‘that people [ought] never be treated in a way that denies the distinct importance of their lives’. That is the kind of remark which appears to be closing doors but is in fact opening them. If it can be all right for the pregnant woman to kill a foetus in her own interests – and this is not thought of as ‘treating it as a thing’ – why would it not be permissible for her to kill one in the interests of others? Surely no one is going to appeal to the idea that this would be to use her disposable offspring as a mere means, and cry ‘unethical!’ Professor Dworkin himself writes ‘Women may one day be encouraged to become pregnant just to produce lifesaving tissue through an abortion at the right moment’ (LD, p. 240), and adds – very understandably in the

102 Review of the Guidance on the Research Use of Foetuses and Foetal Material, London: HMSO, 1989, sec 4.1. (I believe that regulations in the US follow the Polkinghorne rule, and prevent the pregnant woman from being reminded of the possibility of altruistic abortion of this kind.)

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light of what has gone before – that we do not yet know whether such a policy is compatible with this ‘inviolability’ on which he lays such stress. ‘It would,’ he says, ‘be absurd to speculate.’ (p. 241). And why would the tissue have to be life-saving? It is hoped that foetal girls will soon have the opportunity to ‘donate’ their ovaries posthumously, becoming the youngest mothers ever. Every year, it would seem, we find new uses for bits of babies. Rich possibilities lie ahead. Perhaps by now the giving – or should we say the taking? – has already begun. And why should the drug companies not make use of purpose-bred foetal individuals for testing purposes? This might well conserve intrinsic value. People would initially be horrified at such a suggestion, but perhaps only because drug companies are unpopular. No doubt these companies would describe in considerable detail the truly horrible conditions which some people have to endure in the absence of foetal-tested drugs and treatments, conditions which those who protest about foetal use must be held, in considerable part, ‘responsible for’ – especially when they continue to protest when these material facts are pointed out to them. There would of course be coloured pictures. Companies particularly eager to appear ethical would be sure to point out how foetal testing saves having to experiment on mice (they would of course include pictures of mice). Such experiments would raise all those anxieties about unfair discrimination on the basis of species. Abortion counsellors should indeed take the possibility of foetus farming very seriously, for it is put forward as patently innocent in Professor Singer’s Practical Ethics, read by one cohort of students after another and often taken as a guide. ‘I see nothing inherently wrong with . . . pregnancies being undertaken in order to provide foetal tissue’, he says.103 To be sure he ‘dislikes’ the thought of such a practice being put on a commercial basis, but other people might quite like the idea, arguing perhaps that it is more efficient to manage things in this way, and that efficiency saves lives. One could easily imagine such farming being introduced in a progressive country like Holland, if not immediately, within the next decade when people have had time to get used to the idea, ‘are ready for it’ in the indispensable phrase used on these occasions. It would perhaps be called ‘illegal’ for a few years, and those who went in for it would have to make a show of following official guidelines (or at least some of them) if they were not to be prosecuted. And why would the individuals to be recycled have to be unborn? As John Harris very reasonably says in his popular textbook, the event of birth ‘is an arbi103 See the new section ‘Making use of the foetus’ in Practical Ethics, 2nd edition, p. 168. Professor Singer adds a proviso: ‘so long as the women involved are freely choosing to do this.’ Might not this condition be relaxed somewhat if the advantages for other sentient beings – impartially considered of course – are sufficiently great?

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trary point of no moral significance’.104 Already, in Honduras, ‘the practice is for baby-farmers to adopt retarded children and use their organs as human “spare parts” ’.105 One can almost hear a baby-farmer, Life’s Dominion under his arm, insisting that one of these children, considered as a set of magnificent working organs, was of much greater intrinsic value than the retarded and defective whole. And why would the children have to be retarded? Jeff McMahan has carefully explained, and at considerable length, how it might be permissible, or even obligatory, to kill and recycle quite normal newborns – in order to save lives.106 Now I am far from suggesting that Professor Dworkin does not appreciate some of the difficulties we have described in these last pages. In a dark but solemn passage he says about the decisions we face: We discover what we think about these grave matters not in advance of having to decide on particular occasions, but in the course of and by making them. (LD, p. 100). This remark107 is nicely calculated to relieve us of the burden of enquiry. The idea that we cannot think such things out in advance is, I suspect, the making of a virtue out of a necessity, given the terms in which the matter is to be resolved. Knowing what we know about the value story, it is only

104 John Harris, The Value of Life, London: Routledge, 1985, p. 128. 105 I am assuming one may believe the Observer. See ‘Takeaway Babies Farmed to Order’, 26 September, 1993. 106 Jeff McMahan, The Ethics of Killing, Oxford: Oxford University Press, 2002, pp. 359–60. And why would the one killed and recycled have to be a child? Killing to save is becoming more acceptable to ethics experts by the hour (for some references see below, p. 173). In this way they have more or less caught up with what people have said for years about the mass bombing of civilians in WW2. 107 It is a remark curiously reminiscent of the Oxford ‘intuitionist’ H. A. Prichard. Professor Prichard ended his famous 1912 lecture ‘Does Moral Philosophy Rest on a Mistake?’ by saying: ‘If we . . . doubt whether there really is an obligation to originate A in a situation B, the remedy lies not in any process of general thinking, but in getting face to face with a particular instance of the situation B, and then directly appreciating the obligation to originate A in that situation’. Moral Obligation, Oxford: Clarendon Press, 1949, p. 17. It is interesting to see this mystical methodology appealed to, no doubt independently, in the abortion community. Ava Torre-Bueno, who has worked as a Director of Counselling for Planned Parenthood, tells us: ‘I have never been pregnant nor had an abortion. I have a few more years of fertility left, and if I were accidentally to become pregnant, I do not know if I would have the child or an abortion. Like every woman, I can only make that decision when, and if, the time comes.’ (Peace after Abortion, San Diego, CA. 2nd edn, 1997, p. 5. my italics.) To be sure, one can only take a fork in the road when one reaches the fork in the road. That does not stop one looking at the map before setting out.

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to be expected that there will be no general guide in it. And there is a further virtue. If one can no more make the same decision twice as step twice into the same river, and if one is not in a position to judge except while actually making the decision, this rather disarms in advance the embarrassing possibility that one’s decisions can reasonably be subject to criticism, even criticism at the hands of one’s later self. (It also keeps at arm’s length the nagging thought that there are some kinds of action which one ought not to be contemplating at all, and that this might be one of them.) I said ‘even criticism by one’s later self’. But in fact, such plausibility as the doctrine might possibly boast will hardly extend to retrospective judgement. Surely we can ask shortly after the decision whether we weighed the intrinsic values correctly? I cannot think that Professor Dworkin would want to say that such retrospective weighing is quite impossible. And in any case, he would surely want to say that some abortions could be ruled out ahead of time, and even without the help of an expert in intrinsic valuation. One only has to consider the famous case of the European holiday we have just discussed. Why might someone be tempted to say that one can only weigh intrinsic values when decision-time is imminent? Well, the actual prospect of destroying one’s own offspring might concentrate the mind. To that extent we must allow for a pinch of truth in the idea that we learn what we think ‘in the course of making decisions’. Dr John Collee was for a while a lively medical correspondent for the Observer. When his ‘partner’ became pregnant, they were very mature about it all. They both sat down with pen and paper, as advised by the abortion counsellor, to write a couple of sides deciding for life or for death: ‘It was, on reflection, the most important thing either of us had written in our lives’, he said. ‘Predictably, the anti-parenthood lists dealt with things like losing mobility and losing independence. The pro-parenthood lists were more vague. Somewhere I just wrote Abortion Seems Wrong, meaning wrong in the moral sense of the word, which is strange because that’s something I never previously believed. My view has always been that abortion is liberating and therefore a good thing; although, strangely, when it is your own foetus the sense that it involves killing becomes very strong’ (Observer, 2 January, 1994). Rush Rhees writing about euthanasia said ‘I do not think that anyone is qualified to speak about it unless he has had to make this decision, as doctors commonly do’ (Moral Questions, Basingstoke: Macmillan, 1999, p. 109). This is a milder thesis than the one offered by Prichard. One confrontation at the bedside would presumably suffice for the future. But the claim is still unreasonable, though it sounds well.

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But someone might argue that Dr Collee’s judgement had been warped by sentimentality, and that what he had previously believed in a calm hour represented a more balanced opinion. Who could tell? We have seen in this chapter that the practical application of this idea of sacred value lands us with many unsolved mysteries. Now this very fact itself has a practical importance. Suppose that we do, after all, have some unconfused notion of the intrinsically valuable but that we are singularly bad at detecting it, as our argument might suggest. Would we not end up with what Professor Dworkin would regard as an unacceptable conclusion? For it might be held irresponsible and wicked to destroy what might turn out, who knows, to have immense intrinsic value. The counsellor would surely have to err on the side of caution. This is a point hard to miss. Think of the way environmentalists are perpetually urging caution upon us. (We will usefully remind ourselves that they too are often concerned to preserve what they suppose to be items of intrinsic value.) This would seem to lead to a strongly ‘conservative’ position. As we know, many thoughtful people judge that a human being is infinitely valuable. This, one might almost say, is the usual view among those who talk about the value of life. Now if there is even a small chance that they are right, one could hardly risk putting the knife in. Without going quite as far as infinity, Dworkin seems to have intimations that human individuals possess immense value. He says in regard to abortion ‘if it is a horrible desecration to destroy a painting . . . even though a painting is not a person, why should it not be a much greater desecration to destroy something whose intrinsic value may be vastly greater?’ (LD, p. 73). Thus in having an abortion one would risk something vastly worse than what is already admitted to be a horrible desecration. How could one bring oneself to be involved in what might be more horrible than horrible?108 It is important not to exaggerate here for mere effect. The abortion would not be more serious than ‘the destruction of all human art and knowledge’ – in Professor Dworkin’s view at least (LD, p. 81). He does not explain why, but we can easily supply the deficiency. Such a destruction would lead to the immediate extinction of everyone, for without any knowledge no one would know how to feed himself, etc. And that would presumably represent an enormous loss of value. But the destruction of a 108 Appealing to infi nity might prove treacherous. Suppose every foetus, or every toddler, etc. had infinite value, a claim one does hear from time to time. The idea that human beings are of infi nite value, far from being restrictive as is always hoped by those who introduce it, would appear to me to be most unrestrictive. There are an enormous number of human beings, and we may assume that we are not able or willing to kill them all. Short of that, the doctrine of infinite value would liberate us. Kill any one, kill any hundred – how could it matter? There would still be infi nite value left. There would be residual infi nite value right up to the very last man.

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foetus might be pretty serious none the less. It might well be much more serious than the destruction of all the works of Rembrandt, as the word vastly (‘. . . whose intrinsic value might be vastly greater’) rather suggests. That would seem reason enough to close down the clinics. Remember that 1.3 million such risks are taken every year in the USA alone. There are about 170,000 annual risks in the UK. And each year a million secondtrimester risks in India.109 Of course there is said to be countervailing value at stake. A setback to the pregnant woman’s career prospects say. But who has ever been moved to suppose that a such a setback would represent a sacrifice of infinite intrinsic value? Who has ever felt the need to say that, though pretty bad, it would not be worse than the destruction of all human art and knowledge?

2.10 Might human beings turn out to have no intrinsic value? The last chapter ended on rather an alarming note. Huge values, like huge voltages, are enough to make anyone cautious. In this chapter we take a step away from the practical concerns of the abortion counsellor and turn to a more general issue. No doubt it was always a bit ludicrous of us to expect applied ethics actually to be applied. Let us return to something a little more removed from daily life. We need to raise some radical possibilities. In doing so, we might eventually find reason not to be alarmed after all. Professor Dworkin, as we know, writes as if various species of animals or plants have intrinsic value, intrinsic value of the kind which entails sacredness. This is a possibility he takes very seriously. He seems to have doubts about insect species, as well he might (LD, p. 80). Perhaps he suffers here from a touch of ‘species-favouritism’, but let us not delay over such frivolities. This idea that at least some animal species are sacred raises an interesting issue. Most people in history until quite recent times seem to have cared very little for the preservation of species of any kind. And insofar as anyone cared it can hardly have been on the ground of sacredness. No matter how learned they have been, our forbears seem to have been totally unaware that species might have this remarkable property. Now in one way we should not be surprised that people could be so ignorant, for, as we have seen, Professor Dworkin insists that intrinsic value is an ‘objective’ quality – which is surely meant to indicate that items could have this quality even if no one were aware of the fact. And the value of something is not going to be hard to miss, like a bright colour in broad daylight. Our novel enlightenment about species brings rather forcefully before us how deeply we can 109 Figures from BBC documentary, ‘Let Her Die’, 28 September 1993.

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be mistaken more generally as to the bearers of this objective quality. If our ancestors were so ignorant, what about us today? After all, we who judge are but an infinitesimal part of the cosmos. It cannot be easy for us to judge from the cosmic point of view. What other surprises might be in store for us? Mankind has only been sensitive to these questions in the last hundred years or so, since the time of G. E. Moore, or perhaps a little earlier, the time of Brentano, say. The adventure is just beginning. What else might turn out to have intrinsic value? Might we discover to our astonishment that pebbles on the beach possessed this property, and in a peculiarly concentrated form? On the other hand, what might turn out to lack this value? In this chapter I want to consider two ‘negative’ possibilities. First, that we cannot know how much of this value human beings possess, which in turn suggests that the answer could be none. Second and more radically, that we can know that human beings entirely lack it. Nietzsche wrote: One would have to be situated outside life, and on the other hand to know it as thoroughly as any, as many, as all who have experienced it, to be permitted to touch on the value of life at all; sufficient reason for understanding that this problem is for us an inaccessible problem.110 It would appear too that Christians of rather different outlook have agreed with Nietzsche’s opinions here, if nowhere else. Thus the authors of a Catholic working party report ‘Euthanasia and Clinical Practice’ say that the value ‘in itself’ of a human being’s existence ‘cannot in this life be known to anyone’.111 And the revered Protestant theologian Dietrich Bonhoeffer held just such a view. In regard to saving-the-mother-or-savingthe-baby cases, he seems initially to concede that the comparative value of the parties might be a relevant consideration. But he argues, hardly surprisingly, that we are not going to be able to judge the issue. ‘The question whether the life of the mother or the life of the child is of greater value can hardly be a matter for human decision’, he says.112 Albert Schweitzer felt obliged to be even more sceptical about these matters: he thought we were ill placed to compare the value of living things quite generally: 110 Nietzsche, The Twilight of the Idols, ‘Morality as Anti-Nature’, trans. R. J. Hollingdale, Section 5, Harmondsworth: Penguin Classics, 1990, p. 55. See also p. 59: ‘The Problem of Socrates’, Section 1: ‘the value of life cannot be estimated’ – even to raise the matter at all shows apparently that one lacks wisdom. 111 Reprinted in Luke Gormally, ed., Euthanasia, Clinical Practice and the Law, London: Linacre Centre for Health Care Ethics, 1994, p. 43, fn, see also p. 95. Report first published 1982. 112 Dietrich Bonhoeffer, Ethics, ed. E. Bethge, London: SCM Press, 1971, p. 176 fn.

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To undertake to lay down distinctions of value between different kinds of life will end in judging them by the greater or lesser distance at which they stand from us human beings – as we ourselves judge. But who among us knows what significance any other kind of life has in itself, and as part of the universe?113 Someone who kills germs, let us say, ‘is conscious of acting arbitrarily’ and ‘knows that he bears responsibility for the life which is sacrificed’.114 Naturally, this ethic ‘marks off no skilfully defi ned circle of duties’.115 This is, no doubt, part of its attraction. There is a remarkable consensus here on the side of doubt. But might we not be a little bolder, and conjecture that human beings have little if any of this value? After all, Professor Dworkin and his friends might have all made a ghastly mistake, moved as we all are (as it is said) by a pride in our own species.116 The major advances in our knowledge of the world have been made in the teeth of human pride. There has been a continual need to downgrade man from his presumptuous belief in his own importance. (That at any rate would seem the received view of intellectual history.) It is perhaps time for the next great Copernican step. Down with people and up with pebbles! It is already evident that we need to take pebbles far more seriously than heretofore. After all, they are more durable than human beings, and they could be said to have a greater unity. Many of them are spherical, and this might reasonably be supposed the perfect shape – at least from a cosmic perspective. Moreover, pebbles are one and all incapable of moral fault, in this respect being made in the image of God. And we might need to take account of the way they have come to be – the investment put into them by countless ocean waves. So there is much to be said for the value of pebbles. There is however another, more radical, possibility: namely that neither people nor pebbles have intrinsic value. This, as it happens, was the view

113 Albert Schweitzer, My Life and Thought: An Autobiography, trans. C. T. Campion, London: Allen and Unwin, 1933, p. 271. 114 Ibid. 115 Ibid, p. 273. 116 I am taking it for granted, as being rather in the spirit of his book, that Professor Dworkin himself believes that human individuals, including unborn children, have this value, this inviolability as he calls it. But perhaps this is not to be taken as read. Eric Rakowski, who acknowledged Professor Dworkin in 1991 as ‘a friend, mentor, and gentle critic for the past eight years’ (Equal Justice, Oxford: Clarendon Press, 1991, p. vii) and who is therefore in a better position to judge than I, suggests otherwise. In his view, Professor Dworkin estimates that ‘prenatal foetal life’ entirely lacks this value (or has at best very little of it) but that for some reason he is not letting on (‘Ronald Dworkin, Reverence for Life, and the Limits of State Power’, Utilitas, 2001, p. 60). (Dworkin does not reply to this bit in his ‘replies’ in Burley, Dworkin and His Critics.) But see above, p. 67.

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of the immensely painstaking G. E. Moore, and since he was more or less the founding father of this way of thought, the original sponsor of the concept among analytic philosophers, we must surely give weight to what he said. To him it was quite clear that human beings could not have any intrinsic value. Nor ‘material things’ either – so there could be no intrinsic value in paintings or Siberian tigers. Nor in pebbles. ‘One thing, I think, is clear about intrinsic value,’ he said, ‘. . . that it is only actual occurrences . . . not such things as men, or characters, or material things, that can have any intrinsic value at all.’117 Let us leave aside pebbles, paintings and tigers, and stick with the question as it arises in connection with human beings. Let us imagine we met someone who said, with confidence, that an individual human creature had no intrinsic value whatever. How would Dworkin demonstrate to such a person that he was making a big mistake? Or if ‘demonstrate’ suggests too high a hurdle, what considerations might be offered to put matters straight? If something had been overlooked, a short reminder would surely correct the deficiency. As we noted in the last chapter, many people like to say, remarkably, that everyone is of infinite value. This enormous value should be something one could hardly miss. But perhaps it has simply been asserted, or breathed, into existence. People have no doubt convinced themselves that they do not have to respond to down to earth questioning in this area. They have picked up the idea that they can more or less say what they like as far as the more arcane kinds of value are concerned – so why not go for the big one? It might be thought that there could hardly be anyone so blind to in-itself people-worth, at least among those who have thought about these matters. But there are. We have just noted the confident opinion of G. E. Moore. And he was not alone. Moore’s distinguished contemporary at Cambridge, McTaggart, seems to have been equally confident: ‘It is generally agreed that only the spiritual can have value.’118 And it is ‘intrinsic’ value that he says he has in mind.119 I doubt whether Professor Dworkin thinks that human beings, including foetuses, are ‘spiritual’ entities. Modern writers too can think that human beings lack this value. Jonathan Glover, for example, considered to be a distinguished philosopher of life and death, says quite plainly: ‘there is nothing intrinsically good

117 G. E. Moore, ‘The Nature of Moral Philosophy’, Philosophical Studies, London: K. Paul, Trench, Trubner, 1922, p. 327. Of course, we might be unclear when to say that two philosophers were making different estimates about the intrinsic value of this or that, or whether they meant something different by ‘intrinsic value’ in the first place, or whether they had differing unintelligible accounts to offer. 118 J. McT. E. McTaggart, The Nature of Existence, Vol. II, Cambridge: Cambridge University Press, 1927, section 788. 119 Ibid., section 786.

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in a person merely being alive’.120 That suggests that a person has no intrinsic value, for, as we said, to be alive is to continue to be. How would one set about convincing someone prepared to say such a thing, and in such a forthright manner, that he should believe in Dworkonian sanctity? Professor Glover admits, interestingly for our purposes, that he has ‘no way of refuting’ someone of a contrary opinion.121 This is exactly what one would expect if the whole notion were simply a nonsense. Shelly Kagan, after many pages of enquiry, admits that it is possible that only facts will turn out to be capable of having intrinsic value.122 Whatever facts are, human beings aren’t such. Facts don’t walk and talk. Fred Feldman, at the end of his enquiry, is inclined to assume that ‘the candidates for intrinsic goodness are states of affairs’.123 Once again, that excludes people.124 Michael Zimmerman, in a book-length treatment of this topic, considers states of individuals as the bearers of intrinsic value, or perhaps occurrences, or events.125 We should not say, for example, that a rare stamp has intrinsic value, he explains, but that this value belongs to a state of the stamp: its being rare.126 A human being is not a state or an occurrence or an event. So perhaps it will turn out that no human being can be said to have this special kind of value. But consider another possibility. It might turn out that many human beings have it after all, but not the very young, a matter of crucial importance for our present discussion. Peter Singer, who also has a reputation as an authority on our topic, tells us with casual confidence that before a foetus is capable of feeling pain its existence has ‘no “intrinsic” value at all’.127 Peter Singer would have no difficulty with the thought that a foetus is a human being. Indeed it suits him to stress the fact, for he can then say that people who accept abortion – a steadily increasing majority

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Jonathan Glover, Causing Death and Saving Lives, p. 138. Ibid., p. 45. Shelly Kagan, ‘Rethinking Intrinsic Value’, Journal of Ethics, 1998, p. 293. Fred Feldman, ‘Hyperventilating About Intrinsic Value’, p. 354. And there is a more radical possibility still. Could it happen that although the phrase ‘intrinsically valuable object’ made quite clear sense, nothing whatever fell under this description, just as nothing falls under the description ‘blue rose’? I think that Professor Dworkin admits this possibility, for he says: ‘It is not my present purpose to recommend or defend any of these widespread convictions about art and nature’, and adds with admirable frankness: ‘Perhaps they are all, as some skeptics insist, . . . superstitions’ (p. 81). He even allows for the possibility that these convictions are all of them ‘inconsistent’ (saying, italics added, that they might be ‘inconsistent superstitions’). That suggests deep trouble. How could we even begin to put such doubts to rest? 125 Michael Zimmerman, The Nature of Intrinsic Value, p. 52. 126 Ibid., pp. 8, 42. 127 Peter Singer, Practical Ethics, 2nd edn, p. 151.

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– all recognise that we should not be up-tight about the mere killing of members of our species.128 Dworkin seems equally confident that such a foetus has this value, a value such as to make this existence inviolable. What a curious difference of opinion! And yet again: John Harris is a professor paid to know about this sort of thing. He has devoted a whole book to the value of life. One sees it carried about by ‘ethics’ students. He tells us that there is ‘no moral difference’ between an (unfertilised) ovum and a born baby.129 A born baby is of course a human being and an ovum is not. Dworkin, we must assume, thinks that there is an extraordinary moral difference, a dazzling difference in intrinsic value. How come that two such people, with the opportunities they have to look into this matter, and access to the same materials, books, conferences, etc., come to such hugely differing views about what should surely be staring them in the face? And we can find yet another example of dissent. Richard Hare, whose writings on moral topics are respected by so many, thinks that there would be absolutely no reason, based upon its present value, not to kill a foetus, leaving aside the value of what it is quite likely to turn into: ‘the foetus does not have now, at the present moment, properties which are reasons for not killing it . . . A foetus before it has achieved sentience does not currently possess any properties that could be morally relevant to its treatment and which are not possessed equally by oysters and earthworms.’130 Professor Hare is very confident. Professor Dworkin, at the same university, reading the same books, etc., appears equally confident that any human being has an intrinsic value not possessed by an oyster. How reluctant we are to examine our assumptions in this area! People who talk about intrinsic value tend to think for example that a child in arms has a great deal of it. A mere doll by contrast, though it looks just like a child, is thought to have very little. Might they have got this exactly the wrong way round? After all, the origins of a doll manifest intelligence, whereas a child was never designed – it owes its ‘design’, they say, to natural selection acting on random changes. Paintings have intrinsic value, it is said, and a doll is a representation as a painting is. Apart from that, a doll

128 Peter Singer, Rethinking Life and Death, Oxford: Oxford University Press, 1995, pp. 84–5, 90. 129 John Harris, ‘Not all Babies should be Kept Alive as Long as Possible’, in Raanan Gillon, ed., Principles of Health Care Ethics, Chichester: John Wiley, 1994, p. 644. Professor Harris fi rst says, agreeing with another author who writes in this volume, Alison Davies, that ‘there is no moral difference between the newly fertilized egg, the zygote, and the newly born baby, the neonate’. He then adds, disagreeing with Alison Davies: ‘for me there is no morally significant difference between the unfertilized egg and the zygote’. 130 R. M. Hare, Essays on Bioethics, Oxford: Clarendon Press, 1993. p. 172, italics in text.

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is self-sufficient and fairly changeless. A child by contrast has continually to be tended and is never the same from day to day. Self-sufficiency and immutability might be thought perfections. At this someone might protest that we cannot be serious. Isn’t it just obvious that a child has this value, and indeed possesses it in abundance? But Rosalind Petchesky, who must have pondered these matters every bit as long as Professor Dworkin, would disagree, and would call upon other expert witnesses. ‘Social historians’, she writes, ‘document . . . that the “preciousness” of each child is a modern – and thoroughly ideological – notion.’131 Professor Petchesky backs this up with four scholarly references. Later she writes of the foetus: ‘we can only recognise its value in a context of relationship with others’,132 and explains this remark by talking about the concerns of the man and woman involved, of other members of the family, and those wanting to adopt. She adds in case we have missed the point that these carings and needs ‘cannot be used to argue that the foetus has value in and of itself’.133 How are we to know whether to agree with Professor Petchesky or with Professor Dworkin? Especially if we were anxious not to be ‘thoroughly ideological’. How are we to take a single step in resolving the matter? Do we call for a show of hands? And how could we be sure that people understood what they were being asked to vote upon? But suppose that children had some intrinsic value at least. What about that casual assumption that they are, at any rate, of more value than juvenile mice? According to Helga Kuhse and Peter Singer, we are in danger of being misled by a mere instinct. ‘One might be tempted to say that it is simply an instinct for any creature to regard the lives of members of its own species as far more valuable than the lives of any other species.’134 These disagreements among those who ought to know, if anyone does, rather suggest, though of course do not prove, that we have no idea what this talk of intrinsic value amounts to. Or are we to explain these disagreements by saying that the intrinsic value of a baby is very hard to detect? Or by claiming that it can only be shown to exist by arguments whose force is very difficult to appreciate? But the philosophers in dispute do not talk like this. To some it is just obvious that the value is there for all to see, to others it is equally obvious that it ain’t. It is of considerable interest that no one expresses themselves tentatively. ‘I thought the baby was worth three

131 Rosalind Petchesky, Abortion and Women’s Choice, New York: Longman, 1984, pp. 328–9. 132 Ibid., p. 334. 133 Ibid., p. 345. 134 Helga Kuhse and Peter Singer, Should the Baby Live?, Oxford: Oxford University Press, 1985, p. 123. A curious temptation. What brute animal could have this thought – supposing it were sufficiently intelligible to count as a thought? What mouse could regard mice as more valuable than frogs, etc.?

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baby mice, but I was not sure. I am now rather inclined to think it was worth much more, possibly as much as twenty three.’ Tentativeness suggests that the judgement is answerable to something. Perhaps then we should neither assert nor deny that babies have this peculiar kind of value, but content ourselves with an explanation of our curious propensity to talk in this way? Professor Dworkin perhaps realises that there is a difficulty in showing that human beings have intrinsic value. For, rather late in the day, he gives a peculiar account of the matter. Someone who asks whether human life has any intrinsic value is, according to Dworkin, asking whether life has any meaning or point (LD, p. 156). This is a distinct surprise. We seem to have moved on to an entirely different topic. . . . He looked again and found it was A bar of mottled soap. This is a surprise since it has been carefully explained to us that the sacredness in question depends upon past investment. The meaning of one’s life and the investments put into it seem to be independent of one another. One might think that one’s life had a point without knowing, or caring, what had been invested in one. Or one might think that a good deal had been invested and that one’s life had no point whatsoever. And there is another difficulty. Something’s having a point is not a matter of degree. Value, whatever else it is, is essentially a matter of more and less. How is it that ‘meaning or point’ comes in at all? For as we have seen Professor Dworkin wants to say that certain species have this curious property of sacredness. And it is hard to see what could be meant by the meaning or point of a species. In the next chapter, we shall take up this idea that for a life to have intrinsic value is for it to ‘have a meaning’. For it seems to give us a reason to be glad that our own lives at least are endowed with this value (if they are). And as we will see, we are sorely in need of a reason.135 135 I should add that Moore, returning in 1932 to consider what could be made of the philosophical talk of ‘intrinsic goodness’ which he had done so much to promote, says very honestly: ‘I do not think that the meaning of the phrase is at all clear.’ The matter he adds is one which puzzles him extremely. He offers three possible accounts, the first two decidedly problematical on his own reckoning, the last being more straightforward: something being intrinsically good, in this latter sense, when it is worth having for its own sake. No human being could be intrinsically good in this sense, for (he says) anything ‘had’ in this context must be an experience. (One might think this last too restrictive. Health is not an experience but might be worth having for its own sake.) See ‘Is Goodness a Quality?,’ in Philosophical Papers, London: Allen and Unwin, 1959, fi rst reference p. 92, second p. 95.

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2.11 How could the mere intrinsic value of a thing be a matter of concern to us? The thought that human beings might lack intrinsic value entirely could well fill us with dismay. But have we any reason to be downhearted? I think not. It is hard to understand how the issue could be of the slightest concern to us one way or the other. In general, intrinsic value – mere intrinsic value one might say – seems to be a remarkably uninteresting characteristic. Why cannot we say, quite happily: ‘I wouldn’t bother with that if I were you, it is only of intrinsic value’? In The View From Nowhere, Thomas Nagel writes as if things of intrinsic value have a practical importance which they could in certain circumstances lose. (He chooses to talk here of ‘external’ values, but the context shows that ‘external’ is merely a variant of ‘intrinsic’.) The problem is to account for external values in a way which avoids the implausible consequence that they retain their practical importance even if no one will ever be able to respond to them. (So that if all sentient life is destroyed, it will still be a good thing if the Frick Collection survives.)136 This suggests deep trouble. If these external values have been around for a long time, might they not have gradually lost their practical importance without our noticing it? Might this have happened to at least some of them? How would we notice such a thing? When something is of value to us in the ordinary way there is often no trouble at all. The milk goes sour, and the matter is obvious. But what is it for an abstractly externally valuable object to retain an importance qua abstractly externally valuable?137 We have been casually assuming in our discussion so far that the intrinsic value of something gave us a reason not to destroy it. When, for example, in the previous chapter we quoted the opinion of Richard Hare, ‘the foetus does not have now, at the present moment, properties which are reasons for not killing it . . .’, we took it for granted that intrinsic value would, in his view, have been one of these properties, this being the common opinion among those who use this language. But it is this common opinion which is now in question. ‘Something is intrinsically valuable’ we are told ‘if its value is independent of what people happen to enjoy or want or need or what is good for them’ (LD, p. 71). This comprehensive statement, of a kind which by now is rather 136 Thomas Nagel, The View From Nowhere, p. 153, italics omitted. 137 I have to write here in this rather professorial manner, for there is no difficulty in the thought that an item of supposed intrinsic value – a corkscrew, perhaps – might retain an importance for us in the ordinary way.

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familiar, sets up our present problem. The news that something intrinsically good might well perish unless we intervene is supposed, or so we have hitherto assumed, to give us a reason to do something; this preservation is supposed to be of some interest to us; either us as individuals or us collectively. Yet Professor Dworkin’s comprehensive exclusions seem to have undermined all the possibilities. Intrinsic value, one might say, is austere. It is, one might say, detached rather than derived value. It is detached from what would otherwise have made it interesting. Preservation of what is merely of intrinsic value and no other is not wanted, it is not needed in view of something else one wants, it is not good for us. It is not good for people we care about, or for people generally. Nothing of human importance hangs on our treatment of intrinsically valuable things. What else of relevance remains? It is as if one were to say: ‘It’s frightfully important that you do not kill this club-footed child (or for you to avoid destroying this species of beetle, etc.) though neither you nor anyone else happen to care, nor need to care one whit, whether such individuals (or species) are destroyed. Nor need anyone care whether a rule forbidding such killing or destroying is taught and reinforced by persuasion or by law . . .’ Or again: ‘This painting must not be allowed to perish because of the experience it makes available, though its value, its intrinsic value, is quite independent of what mankind enjoys or wants or needs . . . .’ What kind of importance could this be? It is not really an answer to say that the importance is transcendental (LD, p. 167). One might just as well talk of the transcendentally useful, a name given to what is quite remarkably handy, but for nothing at all, or of the transcendentally inspiring, items capable of inspiring nobody. To call a value intrinsic, it would seem, is to pettyfog it. Some people think that an individual, Smith, can only have reason to do what will further his own good or his own concerns (some of which, of course, will probably be altruistic). Others think that this account is too narrow – that he will also have at least a defeasible reason to further the concerns of others, irrespective of whether he cares or needs to care about their good. For present purposes we can go along with this latter, more inclusive, account of reasons, though it might seem distractingly moralistic. Even on this more inclusive or lax account of reasons, no one will have a reason to preserve things of intrinsic value, save incidentally. Or are we to say that there is a unique kind of reason to preserve what has intrinsic value, a cosmic reason as it might be called? Perhaps we have two special faculties, one to detect the value and another to detect the reason to care for it? It might be thought that the question raised in this chapter cannot arise. After all, the very idea of intrinsic value is defined for us via the notion of reasons for action. Something has ‘incremental’ intrinsic value, we were told, just when we have a special kind of reason to want there to be more of that thing. By contrast, something was said to have the intrinsic value

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that implies ‘sacredness’ just when we have a special sort of reason to preserve, or at least not to destroy, what has the value, but not to create it. In either case, there could not, by defi nition, be items of intrinsic value which we had no reason to produce or at least to preserve. But the fact that a special sort of reason is invoked – what we called a cosmic reason – gives the game away. What person of good sense, or of human sympathy, or of a concern for justice would allow himself to be influenced by merely cosmic reasons? ‘You ought to . . .’ might sound intimidating. It indicates a cost for noncompliance. But it need not sound intimidating once one realises that there is only a cosmic ‘ought’ involved. (There is something about the very word ‘intrinsic’ which serves to mask our present concern. It suggests that the value goes deep into the innards of a thing and cannot rub off: the item is real silver through and through, it is not just silver-plated.) Even if the preservation of what has intrinsic value could not be seen as in any way important to us as human beings, might this not be of interest to eccentric hobbyists? If people can want to preserve old tin lids, why not things of intrinsic value? But it is hard to see how even this is possible. One needs a reason for collecting. Things that have intrinsic value are not necessarily rare or curious or antique. They do not seem to occur in sets, giving the collector an incentive to acquire the lot. They do not look attractive when stuffed. That at any rate is not part of their essence, as intrinsically valuable. Sometimes they are not even the sort of thing that can be owned or traded. Nor has anyone ever thought of setting up a museum to display the intrinsically valuable: with paintings in one room, babies in the next, and specimens of endangered animal species down the corridor. To be sure, the present difficulty might be turned to Professor Dworkin’s advantage. If a concern for the preservation of items of mere intrinsic value is at best an eccentric hang-up, one of Dworkin’s central theses would be established beyond cavil. For one of his chief purposes, perhaps indeed his one and only purpose, is to show that there ought not to be anti-abortion laws aimed at forcing people to have a regard for the intrinsic value of human life (see especially LD, pp. 154–9). If a concern for mere intrinsic value is so inexplicable, Professor Dworkin must be right. How could an acceptable law be so irrational? In fact, Life’s Dominion seems to concede too much. It is allowed that the state may legislate to protect certain items on the ground that they have intrinsic value (LD, pp. 149–50). But how can this be? Fancy using government revenues merely to preserve something that will never be of use or interest to anyone just because it has this colourless and tedious property! Libertarian philosophers, like Robert Nozick, have wondered how a government could have a right to take money from people who have a fair amount of the stuff, and hand over the takings to those who have somewhat less. But at least someone stands to benefit. By contrast, when intrinsic value is preserved no one, now or in the time to come, need benefit in the slight-

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est. Would not the citizens revolt if they found that their government was wasting its money on such frippery? Would it not be deeply insulting for a government to force us even to think ‘seriously’ before destroying a baby simply because the infant in question had an arcane kind of importance that was an importance to no one? It would be sheer metaphysical cheek. That Professor Dworkin can reach his desired conclusion by way of this short cut escapes him because, as we have already noted (at the end of Chapter 2.8 above, pp. 126–7), he tends to take as examples of what has intrinsic value items that people are already apt to find aesthetically delightful or which tend to fascinate in other ways: Siberian tigers, interesting cultures, paintings, buildings of historical importance, or the sort of bric-a-brac thought worth preserving in museums (this is especially clear at LD, p. 149). We are inclined to say that these things are humanly important even if they are not important to everyone alike. I can recognise that a building is of historical importance to mankind even if (as I might vaguely say) it is of no importance to me personally.138 But let us confine ourselves to the ‘intrinsic value of human life’, supposing such a thing exists. Perhaps we would want to say something special about this, at least when the agent’s own life is concerned. To be sure, intrinsic value in general might be something we could not intelligibly be concerned to preserve or promote. And this even when it is ‘human life’ which might possibly have this value, generally speaking. But in the case of our own lives, we might think differently. Isn’t it of importance to each of us that our own lives might turn out to have this value? Isn’t the possibility rather exciting? Indeed, as we saw at the end of the previous chapter, someone who asks whether human life has any intrinsic value is, according to Dworkin at any rate, asking whether life has any meaning or point (LD, p. 156). One might be unsure whether he is entitled to say this – but then, it is his concept so let us go along with the thought. If someone’s life has a meaning or point that sounds, at last, something that may possibly be of interest to him, indeed must be of interest to him. And it would surely be of interest to anyone who loved him. However, when asking whether human life has a point or a meaning, Dworkin seems anxious to deprive the question of what exiguous sense it has, effectively undercutting our concern. We are not allowed to answer, apparently, that the point of life is to achieve happiness, or freedom, or to realise some wonderful possibility. For the question at issue is ‘why any of 138 This impersonal language should be quite unpuzzling. See Philippa Foot on human goods in ‘Moral Dilemmas Revisited’, reprinted in her Moral Dilemmas, p. 184. The Dead Sea Scrolls may be humanly important. But is the continued existence of a human being, one more of us among so many, humanly important in this way? No one would say so if they were not merely wanting to impress their colleagues with a show of puckered brows.

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this matters’ (LD, p. 156). It looks as if Dworkin is going to be in some difficulty over this. For it is hard to see what answer would be sufficient. Wouldn’t the devastating question: ‘and why does that matter?’, reiterated in the face of every answer, always undermine our efforts? Professor Dworkin writes (LD, p. 156): Religions try to answer the deeper existential question by connecting individual human lives to some impersonal value. They declare that all human lives . . . have intrinsic importance because they benefit from some source of value beyond subjective human experience: the love of a creator or redeemer, for example; or nature, believed to impart normative importance to everything it creates . . . Can one not go on to ask why it is important to be somehow connected to something so arcane? One could hardly not ask such a question. Why does the normative importance imparted by nature matter? This sort of ‘importance’ is surely very peculiar. If an unhappy friend wanted to know the point of living could one seriously reply ‘Cheer up old boy, things aren’t so bad. Nature has somehow attached a normative importance to you!’ One would be taken for a philosopher and locked up on the instant. Of course it is nice to be loved. That is not in question. We are asking about what Dworkin says is ‘deeper’: why any of this matters. The trouble is: this depth seems to have nothing at the bottom of it. And it is not just that our fretting can be endlessly repeated: Why? Why? Why? . . . As Dworkin insists ‘the value of human life transcends its value for the creature whose life it is’ (LD, pp. 155–6). Or indeed for anyone else, for cosmic mattering is not mattering to. Here we need to remember his question: ‘How can it be important that a life continue unless that life is important for or to someone?’ – a question he thinks he can answer (LD, p. 69). Since it is merely objective and impersonal it is hard to see how it could give a meaning to anyone’s life. At best it would give a meaning to those, if there are such, who could be endlessly flattered or charmed or amused or fulfi lled by the thought that they are liberally endowed with abstract mattering or are intimately attached to normative importance-in-itself. Professor Dworkin, it seems fair to conjecture, only became entangled with these particular thoughts about intrinsic value and the meaning of life in order to be able to reinforce his idea that the issue over abortion is at bottom ‘religious’ in some suitably broad sense, and so legally off limits. Perhaps it is significant that all but one of these recent remarks about value comes not from the chapter in which value is discussed in general terms, but from the later chapter on the constitutional issue in the United States. It is suggested in Life’s Dominion, as we have noted, that we ought never to ‘insult’ intrinsic value. We ought never to ‘demean’ it (LD, p. 78). Or that

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we ought to be reluctant to do such things, or should not do so too often, or whatever. He never suggests that we should be careful not to wave at it or think twice before posting a letter to it. Insulting, though almost equally odd in this context, suggests something we should not be up to. In ordinary circumstances, the assertion that one has acted insultingly is naturally taken to be a complaint. But when we find that it is only galactic worth that has been offended, why shouldn’t we relax? ‘Oh, that!’ Perhaps it is high time it was taken down a peg or two, demeaned a little. Once again, as in Chapter 2.7, we might be struck by the thought that intrinsic value is like a substitute for God, dreamt up by atheists whose life is beginning to seem rather thin. One wonders whether it could be petitioned and propitiated. In sum, intrinsic value, like Locke’s material substance which underlies the properties of things but which has no properties of its own, turns out to be a something we know not what. All we know of this will o’ the wisp is that it is not necessarily – and I should argue, not possibly – of any importance to anyone. The upshot of all this? That the intrinsically valuable cannot in fact be valued. To be sure, one must be careful not to denounce as nonsense what is merely difficult to understand. It is important not to be hasty or crass. There are philosophical difficulties in our understanding of the simplest things, even elementary arithmetic. ‘Absolute clarity is the privilege of fools and fanatics. The rest of us must do the best we can . . .’139 One must go the extra mile. But I think, in this case, that the mile is almost up.

2.12 The intrinsically valuable as what it would be ‘wasteful’ to destroy The next three chapters are decidedly parochial. They are addressed to those with an interest, not just in the idea that people and paintings have this curious property called intrinsic value, but in what Ronald Dworkin in particular has had to say in his brave attempt to make the idea intelligible. Those who have, very understandably, already given up the struggle are encouraged to pass directly to Chapter 2.15. Professor Dworkin tries to give us some insight into the concepts of value and the sacred by talking in terms of waste. This is a recurrent theme. In particular he claims that ‘any abortion involves a waste of human life and is therefore, in itself, a bad thing to happen, a shame’ (LD, p. 84; see also pp. 56, 58, 72, 74, 79, 213). This topic calls for discussion. For it looks as if we have the answer here to the question raised in the last chapter. We can show at last how it can be intelligible to be concerned to preserve items of 139 Ronald Dworkin’s ‘Objectivity and Truth’, Philosophy and Public Affairs, 1996, p. 135.

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intrinsic value. Waste not, want not! The hope clearly is that if we can understand what is meant by impersonal or abstract wastage and the cosmic shame attendant upon it we shall at last be able to understand the elusive notions of intrinsic value, or its special case sacredness.140 Might we then at least be helped to understand the notion of intrinsic value, and why we should care about it, by appealing to the notion of waste? Unfortunately this notion of waste is once again an etherealised notion. It is waste-in-itself so to speak. It is something obscure brought in to explain something obscure. The fact that we object to waste in everyday life does not seem to take us beyond the kinds of value that Professor Dworkin would find instrumental. Oil and time are useful and neither comes in unlimited supply. We can regret having wasted our oil or our time. We can regret the waste of living human tissue embodied in a kidney when the kidney, carefully packed in ice, perishes on its way to the operating theatre. When we get away from these everyday examples the notion of waste becomes itself rather unclear, and hence rather unsuitable for explaining the meaning of anything. If something is not useful, interesting or attractive how can there be waste if it perishes? Dworkin talks about wasting intrinsic value – wasting the intrinsic value of a human life (LD, p. 60) He also, at the same place, talks about wasting the inviolability of a life. (‘Abortion wastes the intrinsic value – the sanctity, the inviolability – of a human life . . .’) One can understand someone saying sadly ‘I wasted my life.’ One knows roughly what to expect him to say. But ‘I wasted the intrinsic value of my life’? Or ‘I wasted Smith’s inviolability’? We seem to be involved with a circle of would-be concepts, none of which is satisfactory. People sometimes say that nature is ‘wasteful’. So many pollen grains are produced for every grain that does its business. Do we understand this? Is this supposed waste a matter for regret? For good reason or bad, many people dislike the idea of a creative God, and would like to undermine this possibility. Could they say in triumph that this extravagant waste of pollen

140 Not everyone who is prepared to talk in these strange terms would agree that an understanding of abstract wastage would be sufficient for us to grasp the notion of intrinsic value. Frances Kamm, for example, thinks that it is an intelligible supposition that ‘once something exists, its coming to an end is a shame’ – whether the thing is intrinsically valuable or not, unless indeed it happens to be ‘intrinsically evil’ (Kamm, ‘Abortion and the Value of Life’, p. 179). Suppose we have in mind a dead twig or a straw. We could discuss the question whether it would be a shame for the items to perish, and know what we were talking about. It would not of course have to be a big shame. This suggests that for some philosophers at least considerations of abstract waste and the cosmic sadness in the face of it are insufficient to explain what they have in mind by intrinsic value. Something would have intrinsic value only if its destruction was abstractly wasteful in a special sense, and we would be left wondering what this sense might be.

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grains shows, a million times over, that there could be no truly excellent Creator of the world? A million proofs of God’s non-existence, one per grain? Professor Dworkin himself becomes involved in the theology of this matter. Thinking about this matter as a fairly, if insecurely, secular person, and as someone quite ignorant of theological controversy, I have not been able to avoid doubts about Dworkin’s theology of waste. He thinks, for example, that Catholics object to abortion as a fierce waste of a divine gift. In his own words, it is a ‘fierce and rarely justified waste of the divine gift of human life’ (LD, p. 48). Here I think Dworkin has not tried hard enough. How can he tell people that their real opinions cannot be anything that fails to square with other things they believe – as he is so fond of doing in Life’s Dominion – and accept this? Catholics, in my experience, do not eat all the blackberries they can find. However, when blackberries go uneaten there is a waste of a divine gift, if you want to call it that. What can be more miraculous, in the Hollywood sense, than a blackberry – all that DNA, just think of it! And what potential! Or are we to suppose that there is a waste of the Divine Effort involved in creating blackberries or babies? ‘I’ve spent all day making that, and now look what you’ve done!’ How could one waste, fiercely or gently, the creative endeavours of an almighty being to whom nothing is hard? Leibniz indeed, meditating on the providence of God, concluded that there could not be waste in the world (Monadology, section 69). But is Leibniz’s thought really intelligible? Dworkin sometimes seems to be telling us how we ought to think (we should recognise this value . . .) but sometimes seems simply to be explaining how we do tend to think (we in fact see things this way . . .). He says ‘we regret the waste of a creative investment . . . because of the special badness of great effort frustrated’ (LD, p. 79). As an account of what people in fact believe about the killing of babies this simply cannot be right. People who believe in God nearly always think it is bad to kill a baby; they are on the whole especially inclined to think such a thing, and to suppose it very bad. However, they believe that God made no effort at all in the creating of it. As an account of their thoughts therefore this is a non-starter. The error is quite remarkable, for the passage quoted comes at the end of a paragraph on divine creativity. There seems to be a deep misunderstanding here of the morality of homicide. Dworkin suggests that those who believe in God and object to abortion think or tend to think that ‘each human foetus is a distinct instance of his most sublime achievement’ (LD, pp. 91–2). Perhaps we ought to add ‘to date’. Heaven only knows what he might achieve if he keeps on practising. But do these people really think that man is the most splendid thing yet made? Man might indeed be a rational being, but perhaps the humblest among such? What about the angels and archangels, the six-winged seraphims and the cherubims? It might be thought exclusively ‘medieval’ and

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therefore absurd to believe in such things. But not at all. John Locke, for example (Essay Concerning Human Understanding, Book III, Chapter VI, section 12), quite unmedieval and pretty hostile to Catholics (as his writing on toleration shows), argues that we have reason to believe in a hierarchy of spirits between man and God, man indeed having a markedly lowly place in the scheme of things.141 In this he was simply being unsurprising and orthodox. The remark in Aristotle’s Nicomachean Ethics (1141a) that ‘man is not the best thing in the world’ must surely have contributed to this tradition. It might perhaps be claimed, Aristotle goes on to say, that ‘man is the best of the animals’. Still, ‘there are other things much more divine in their nature even than man, e.g., most conspicuously, the bodies of which the heavens are framed’. Aristotle is in effect questioning the thought that the proper study of mankind is man. No, these people who object to abortion would surely be maintaining something quite down to earth: that a foetus is just another human being, to be accorded that minimal respect which is everyone’s due: a respect which rules out being killed when unwanted or in the way, being sold in the market place, being used for dangerous experiments, etc. There would be no need for talk of God’s sublime achievements. (Is the thought that Man is the very best kind of thing that God could make an Enlightenment idea? One thinks perhaps of Haydn’s Creation.) Professor Dworkin’s theology seems awry in another way. We are told that religious people oppose abortion because it ‘insults and frustrates God’s creative power’ (LD, p. 45). No quotations are given from writers who actually say such a thing. And as an interpretation of what they do say, it is not very sympathetic. For what is it to insult a power? And how does one set about frustrating such awesome might? We should also note a curious passage where Dworkin speculates that it might be all right to ‘insult’ God’s creative power just a little. The argument here concerns abortion after rape. If ‘rape is itself a brutal violation of God’s law and will’, as so many people think, ‘abortion may well seem less insulting to God’s creative power when the life it ends itself began in such an insult’ (LD, p. 95). Well, even a lesser insult to God’s creative power would seem somewhat foolhardy if you ask me. In any case, I should have thought that the Divine Investment would be just the same, and that the offspring in question would be equally a ‘triumph of . . . divine creation’ (LD, p. 83), whatever the occasion for its exercise. Or does Dworkin think that God would have been forced to create

141 There is useful material here in Arthur O. Lovejoy’s book The Great Chain of Being, Cambridge, Mass.: Harvard University Press, 1936. See, for example, the opinion of Kant, quoted on p. 193 (Kant thought we ranked about middle). See also Professor Lovejoy’s comments on the way people had resisted the Copernican theory, on the ground that the geocentric view had at least given man his correct, i.e., lowly, status: the status suggested by being at the mere earthy, lowly, uncelestial, centre of things (p. 102).

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in these circumstances, as helpless as Aladdin’s slave of the lamp, and might now be regretting it? That one would, so to speak, be helping God to put things right after this unhappy episode of compulsory enterprise, restoring the status quo with an abortion which he could not quite have managed on his own? We should not, while we are about it, forget that there are other ways of conceiving a baby which are considered wrongful. Would it be not so very bad to insult the creative power of God, and waste his heavenly investments, if one killed a child conceived out of wedlock and hence (we may assume) in a manner contrary to the divine will? Christians in my experience say that people are valuable because God (so unaccountably) loves them. Perhaps they will add that God is the good shepherd, mankind being the most wayward and weakest of all the intelligent beings in his care and most in need of attention. To be sure, it is difficult to understand anything said of God, as theologians would no doubt want to remind us, but these Christians need not compound their difficulties by talking about intrinsic value. People matter to God, they say. God values them. This involves no unexplained and odd notion of value. And the Christian can have a reason to love people because God, his benefactor and creator, has so loved them first.142 The Christian does not have to add, darkly, that they have Abstract Worth. Part of this story must be common to Jews and Muslims. Jews were not to believe that they were a chosen people because they were, independently of being chosen, anything special. On the contrary, they were ‘stiff necked’ (Exodus, XXXII, 9, XXXIII, 5; Deuteronomy, IX, 6). We should note that this perspective has no evolutionary analogue. Even Dworkin is hardly going to pretend that Evolution has invested so much for so many years because it loves each one of us, and that we, who love Evolution, have reason to love others for its sake. Perhaps God’s love comes in in another way. A Christian will say that people were made to enjoy God’s company for ever, and that of course if true would give a remarkable dimension to human life. The thought, one might say, ought to be visible in the very faces of those who believe it. With this conviction we would doubtless continue to say what we would otherwise say, but now with a transformed emphasis. It is especially important to Smith what happens to Smith. It is especially important to anyone who loves Smith what happens to Smith. That being admitted, would we want to say, in addition, that Smith is a valuable entity? As I said, this emphasis on waste seems to show a deep misunderstanding of the morality of homicide. Killing people is hardly to be described as wasting people. We would hardly want to say this even if we were to add that sometimes we would be infringing their rights too. It is indeed an

142 I am not of course saying that this is true, only that Christians characteristically assert it. Philosophers prefer to say these days that God, if there is a God, could not really love anyone who has ever suffered from a toothache, etc.

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intelligible reason for regretting the untimely death of a schoolchild that various endeavours in preparation for adulthood will now come to nothing. Still, the efforts of parents and teachers are not naturally thought of as having made the child more valuable. And how about abortion in particular? For all his writing on the subject it is hard to believe that Professor Dworkin has managed to understand the objection brought by so many to this practice. It is quite preposterous to bring in this notion of waste (‘If people did not think it transcendentally important that human lives not be wasted by abortion . . .’, and so on: LD, p. 167; also pp. 48, 84 as quoted above). Dworkin ought to have noticed the enormously different reaction people have to abortion and to miscarriage. This difference in reaction is not in the least surprising. There seems to be a momentous difference. In terms of waste, they are both such ‘a shame’ – as of course is idleness which wastes so many a life. It is putting the knife in, it is poisoning, it is putting out to die, etc. that causes such offence, not this fancy thought that Nature has once again laboured in vain, an activity upon which Nature has been engaged, according to official sources, for hundreds of millions of years and on the grandest scale. If we were to be depressed by cosmic waste, geologists would commit suicide. Someone liable to miscarry would, from the Dworkin perspective, have a moral reason not to become pregnant, for to become pregnant would run the risk of the accidental destruction of an inviolable object, causing grievous loss to the universe. Dworkin would not allow her the excuse that she was trying ever so hard to create such value, for he argues, as we have seen, that the value involved is not of the more-the-merrier kind. ‘We do not value human life in that way’ (LD, p. 73), he says. There is no obligation to make these valuable objects. Here we seem to have an argument against choice just when choice – the choice to seek to become pregnant even when one is apt to miscarry – would seem at its most innocent.

2.13 The intrinsically valuable as generated by ‘investment’, some useful results Perhaps we have so far failed to make sense of the abstract notion of waste, and the notion of sanctity or inviolability associated with it, because we have not yet sufficiently examined a crucial element of the account, namely that sacredness arises from investment. It is this investment which is not to be wasted. If we can understand this notion of investment and its role perhaps all will be well.143 143 It is noteworthy that Judith Jarvis Thomson who thinks that there is such a thing as intrinsic value (while admitting that ‘it is unfortunately not easy to say exactly what it is’) can contrast this notion with the idea of the value of an item arising from its causal origin (what she calls ‘product value’) of which

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Now the idea that this kind of intrinsic value arises from investment does indeed help us in some degree to get a grip on the would-be concept. It helps us in at least four ways. They will make up the topic of this chapter. First, it tells us, for example, that there cannot be negative intrinsic value of this kind, there cannot be unsanctity. One might at first have supposed that certain items – child molesters, smelly dank pools, astrological beliefs, stale loaves of bread, earthquakes, dreadful puns, etc. – were intrinsically bad. That they may be – on some accounts of intrinsic value, at least. But they certainly cannot have negative investment-sacredness. For there cannot be investment less than no investment. And the absence of investment is simply the absence of intrinsic value, not a negative degree of it. So we seem to have made some sort of gain.144 Second, it suggests that the intrinsic value of a thing (painting, species, person, etc.) can vary over time as investment proceeds. Now this is not a trivial result. It seems to represent progress. For if we revert once again to G. E. Moore, the grandfather of the idea of intrinsic value, we will find him in radical disagreement. For him it was a peculiarity of the intrinsic value of an item that it could not go up and down like a yo-yo. Moore, normally so cautious, was very confident here, as his italics suggest. Something could not become intrinsically better or worse. It is impossible for what is strictly one and the same thing to possess that kind of value [intrinsic value] at one time . . . and not to possess it at another; and equally impossible for it to possess it in one degree at one time . . . and to possess it in a different degree at another . . .145 investment is surely a species (The Realm of Rights, pp. 131–2). The phrase ‘product value’ is also adopted by Dworkin in a work published in the same year. Curiously, Thomson’s ‘product value’ is just what Dworkin’s product value is contrasted with. See footnote 182, p. 155, below. 144 Since there can be sanctity by-association – where the object is not said to have intrinsic value (Chapter 2.4 above) – there would presumably be the possibility of negative sanctity brought about in an analogous way. Hitler’s shaving mug might have it, for example. Eric Rakowski suggests that someone permanently comatose would be counted of negative intrinsic value (‘Ronald Dworkin, Reverence for Life, and the Limits of State Power’, p. 61.) It is hard to say what would have happened to all the investment value on such a case, but then there are many mysteries in such matters. That said, what a grey thought this would be. After all, most if not all of us go through irreversible unconsciousness before we die, if only for a short while. It is bad enough being mortal and subject to pain. To have to put up with a period of negativity as well! 145 G. E. Moore, ‘The Conception of Intrinsic Value’, Philosophical Studies, London: Routledge, 1922, pp. 260–1, italics in text. The full quotation reads: ‘It is impossible for what is strictly one and the same thing to possess that kind of value

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A human being from childhood to old age, for example, would naturally be taken as ‘one and the same thing’. It could not, therefore, on this view, become of more intrinsic value, say from toddler to teens, on the ground of ‘investment’. Perhaps we now know better. Third, the investment account suggests that different human beings will have different value. Once again, this is an important finding, for it is often denied. Very many people are completely convinced of the equal intrinsic value of every human being. A better human being would not for them count as a more valuable one.146 And the thought that education invested in someone would make him of greater abstract worth would seem ludicrous if not offensive. Indeed Tom Regan, a leading philosopher among those who write about animals, would go further. He argues that every animal has the same value – a value which he calls ‘inherent’. Every animal has the same inherent value, at least insofar as it has value at all. If an imbecile has the same value as Einstein, then how, he suggests, can we deny this same value to a mouse or a fly? How indeed. ‘All who have inherent value have it equally, whether they be human animals or not.’147 There is even a hint that Professor Dworkin himself thinks that every human being, at least, is of equal intrinsic value. At least, one should not say of some lives that they are of less intrinsic importance than others, that it is less important ‘how they go’ (LD, p. 237). We are all, he says, of equal worth. Here one needs to consult Ronald Dworkin’s article ‘Why Liberals Should Care About Equality’. In Professor Dworkin’s view, liberalism is founded on a doctrine about equal value. ‘Government . . . must impose no sacrifice or constraint on any citizen in virtue of an argument that the citizen could [intrinsic value] at one time, or in one set of circumstances, and not to possess it at another; and equally impossible for it to possess it in one degree at one time, or in one set of circumstances, and to possess it in a different degree at another, or in a different set.’ 146 Shelly Kagan curiously dissents. ‘Acting morally’, he speculates, might be sufficient to ‘enhance our value’. If this were so it would be important to us, he says, because ‘we have a deep interest in being valuable beings’ (The Limits of Morality, Oxford: Clarendon Press, 1989, p. 402). This suggests to me that we should continually be making promises which are easy to keep. Just think how valuable we would become, with all those moral air-miles to our credit! Of course, if ‘acting morally’ simply meant acting in permissible ways – walking, talking, eating breakfast – we could put on value at an enormous rate without the hassle. (We have of course seen reason to doubt whether we have ‘a deep interest in being valuable beings’: see Chapter 2.11.) 147 Tom Regan, ‘The Case for Animal Rights’, in Peter Singer, ed., In Defence of Animals, Oxford: Blackwell, 1985, p. 23. Professor Regan adds in a way most instructive for our discussion: ‘Whether [inherent value] belongs to others – to rocks and rivers, trees and glaciers, for example, we do not know and may never know.’ What would one need to investigate in order to have a chance of fi nding out?

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not accept without abandoning his sense of equal worth.’148 He talks of these citizens later as ‘people with a lively sense of their equal worth, and pride in their own convictions . . .’,149 and of arguments which ‘can be offered to people who take pride in their equal worth and in the value of their own convictions’.150 He asks ‘in what circumstances someone with the proper sense of his own independence and equal worth can take pride in a community as being his community . . .’.151 Though the italics in these passages are added by me, the emphasis brought about by this repetition in the space of a short article is Professor Dworkin’s. It is clearly thought to be of pivotal importance. I don’t suppose that Dworkin would want to say that this sense of equal worth, upon which so much depends, could be an egalitarian illusion. Now surely this worth must be something which Dworkin would call intrinsic. It cannot be one’s worth on the job market, etc., which no one could imagine to be equal from man to man. And yet if the account of the intrinsic value of human beings in Life’s Dominion is correct, this sense of equal worth would be not only illusory but obviously so. So inequality of investment-engendered value seems to create a problem. Dworkin seems pretty insistent that it is no worse of us to kill a young ‘person-with rights’, brim full of investment we might suppose, than it is to kill an old one who has taken a return on the investment incorporated in him. ‘The murder of a depressive handicapped octogenarian misanthrope is as heinous, and must be punished as seriously, as the murder of anyone younger and healthier or more valuable to others. Any other view would strike us as monstrous’ (LD, p. 85). No one will be surprised to find that he takes this for granted. But it is not easy to see that he is entitled to do so. Let us simplify the point to be made by confining ourselves to the difference in age, forgetting the old man’s depressions and the young man’s usefulness. We are not to be less upset by the murder of the octogenarian, even though, having had a return over many years on the investment incorporated in him, he is presumably of less value. This might seem paradoxical. The solution might be to adopt our conclusion from Chapter 2.11, that the intrinsic value of something is of little or no practical interest. But it might be more congenial to postulate a wholly new kind of value, one that we can all have equally. Fourth, there would seem to be an interesting result concerning twins. One would be rather fortunately placed in terms of moral power if one were

148 Ronald Dworkin, ‘Why Liberals Should Care About Equality’, reprinted in A Matter of Principle, Cambridge, Mass.: Harvard University Press, 1985, p. 205, italics added. (The original printing in New York Review of Books, 3 February 1983, is entitled ‘Why Liberals Should Believe in Equality’.) 149 Ibid., p. 208, italics added. 150 Ibid., p. 210, italics added. 151 Ibid., p. 211, italics added.

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pregnant with identical twins. For just the same investment would have gone into the production of two as otherwise would have been required for one, thus halving the value. One would therefore need rather little reason for getting rid of one of them should the need arise. And we can say more. It would be better to kill one of a pair of such twins later in life than to kill a singleton. The right to life of an identical twin would be of equal weight to that of any singleton of course, but the twin would almost always be of less value, perhaps in some notable degree. This consequence might seem plausible, given the investment story, but it is somewhat troublesome for Life’s Dominion. For it affects the thesis that it is not only Dworkin who believes this story about value, but so many other people too, that it is one of ‘our’ deepest convictions. However, there can hardly be anyone who would go along with this very obvious implication of it. Someone might indeed ask, on the basis of this evidence, whether the investment doctrine has more than one adherent.

2.14 Problems with the investment idea We have seen how the notion of investment helps us in some ways to understand the related notion of intrinsic value. But this evidently does not take us far. We need to look into this notion of investment more closely. Investment is of course a concept from the world of banks and businesses. But needless to say we understand a broader notion of investment which is not monetary. It would be crass to object to such an extended use. Men and women are said to invest their time and their energy – in cultivating a garden, for example. Some people might prefer to possess a mechanical rather than a electrical watch, even though the latter is cheaper and more accurate. In so doing they perhaps think of the human ingenuity and care which went into the making of the springs and cog wheels. Investment in this broad sense has indeed an effect on our attitude to death. Sometimes, when we are saddened by a death, we think of the future: what the dead person will miss out on. But sometimes we think of the past: what the individual in question, or his parents, or his teachers, have ‘invested’, years of hard work, a preparation for ‘life in earnest’.152 Or we might have in mind God’s investment, what was put into creating people. Professor Dworkin talks of ‘personal investment’ in such cases. (It is contrasted with natural investment, of which more shortly.) Some idea of personal investment of this kind is pretty intelligible, provided at least that 152 This is, I assume, an innocuous use of Professor Dworkin’s phrase, which is otherwise quite sinister, (see LD, pp. 3, 26, 97, 99, 179.) Also from this sinister box is the phrase ‘proper beginning’ as used by Helga Kuhse and Peter Singer in Should the Baby Live?, p. v: ‘it is one thing to say, before a life has properly begun, that such a life should not be lived; it is quite different to say that, once a life is being lived, we need not do our best to improve it’.

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one is not expected to say that investment makes the item more valuable. Unfortunately, we are being asked to say just that. In what way is personal investment reasonably thought to be productive of some kind of value? We may think it is a waste when an older child who has had the benefit of a number of years’ education is run over, but hardly on the ground that such a child is ‘more valuable’ than his younger brother in the kindergarten, or that the life of the older child is somehow worth more. The very idea might seem curiously offensive.153 The sacredness of human beings derived from God’s creative investment would, I presume, have to be distinguished from what Professor Dworkin would call sacredness by association or designation. A religious Dworkin would expect human beings to be sacred in both ways at once. A ‘strongly orthodox’ religious view of abortion is characterised by Dworkin as follows: ‘abortion is always morally wrong because the deliberate destruction of something created as sacred by God can never be redeemed by any human benefit’ (LD, p. 92). Here the significant words are: ‘as sacred’. They are plainly vital. Leave them out and we are left with a condemnation of the eating of blackberries. Here human beings would have to be sacred by divine designation. God would not have designated blackberries as sacred. (But, of course, they would be expected to have investmentsacredness even so.) Let us look a little more closely at this notion of personal investment generally. At first sight Professor Dworkin would seem to subscribe to an odd version of the labour theory of value; not indeed to the view that all value is created by labour, but to the view that everything worked on is worth something as a result. Planning involves work. Accordingly, ‘planned’ foetuses will have had the good fortune to have had more invested in them (LD, p. 83), and therefore will have more value – how much more is hard to say, and no doubt we are not supposed to ask. All one can say is that if one wants to have the option of disposing of a life without too heavy a demand by way of an excuse one clearly should do as little planning as possible. (Of course, it is comical to regard what we nowadays call a planned pregnancy as an event for which much planning was involved. At least in the majority of cases, what takes the planning is not getting pregnant. Family planning is unfamily planning.) Professor Dworkin even treats sympathetically the Lockean thought that the labourer somehow mixes himself with the item worked upon. On this view, abortion becomes ‘a kind of self

153 One might wonder whether the increase in intrinsic value is cumulative. In the broad sense with which we are concerned, investment can be put into the investors themselves. An individual in the womb owes his existence to the investments not only of his parents, but also to the investment put into his parents by their parents, and so on. Would this make homicide in the twenty-first century a more serious offence than it was in the twelfth?

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destruction, a woman destroying something into which she has mixed herself’ (LD, p. 56). He does not notice that after several abortions there might be very little of the woman left. Even if a woman has a right to choose, a mere 32 percent of a woman might be ineligible for rights and quite incapable of choice. This personal investment theory of value seems, insofar as it can be understood at all, to be plainly wrong. If I laboriously write some bad, unfruitful thoughts on a couple of sheets of paper I will not have added any value to the paper, I will have subtracted it. I will certainly not feel any regret in destroying or ‘recycling’ these pages; I will not pretend that they have acquired some mysterious quality of goodness as a result of my efforts.154 Enormous ingenuity has been invested in the manufacture of computer chips, but they are thrown away without a second thought when much cheaper and better ones become available. No one would think of treating the remains with reverence. As to the work put in by those who conceive children, I refer the reader to Locke’s salty remarks in his first Treatise of Government, Sections 52–4. Of course Locke had never heard of IVF. But does anyone suppose that a baby is somehow the more valuable in itself because of all the labour and expense of the IVF clinic? It is possible to think that personal investment underwrites not the value of the growing child but its claim upon us under justice. But this is hardly an improvement. Fred Feldman writes: We can say that a day-old foetus has not yet had any opportunity to make a very big investment in its life. It has not yet exerted any efforts, undertaken any training, undergone any pains, or even endured any boredom in anticipation of later returns on investment. So far, it has done just about nothing with its life. In virtue of its minuscule investment, it deserves relatively little. On the other hand, an eight-month-old foetus probably has made a much greater investment. She has endured the boredom of a long, claustrophobic, underwater captivity. She has exerted energy and other resources to the tasks involved in growth and development. Though she has made a substantial investment, she has not yet had the opportunity to enjoy the benefits of her prenatal labours. In the light of the fact that she has made a significant commitment to her future life, it is reasonable to maintain that she is fully deserving of the opportunity to enjoy that life. To abort her now would perpetrate a huge injustice upon her.155 154 As Robert Nozick reminds us, labouring on something may make it if anything less valuable, for example, ‘spraying pink enamel paint on a piece of driftwood you have found’ (Anarchy, State and Utopia, p. 175). 155 ‘Foetus’ is of course being used non-standardly to include embryos (Confrontations with the Reaper: A Philosophical Study of the Nature and Value of Death, New

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This absurdly suggests that it is not quite so bad, so unjust, to kill lazy babies. But to return to Professor Dworkin. He considers that there is another kind of investment: not just the personal investment which we have been considering, but also natural investment. Don’t we . . . feel that nature has a special normative power? Our instinct is to say ‘if it just happened with human beings deciding nothing, isn’t that better?’156 This natural investment must go on throughout the living world, often in what appear to us humble ways. A slice of bread with a few spots of mould on it would have had less invested in it than one which was mouldy all over. Of course, we need not confi ne ourselves to the living world. Think once again of the pebbles on the beach, rounded by the endless action of the waves. Natural investment is an altogether more problematic notion. ‘After implantation, as foetal growth continues, the natural investment that would be wasted in an abortion grows steadily larger and more significant’ (LD, p. 89). We had difficulties with the idea that personal investment increases value. We will if anything have a greater difficulty with a similar claim about natural investment. A woman paying visits to an ante-natal clinic will be told all sorts of things about her baby. But its current worth, in part based upon the wonders of cell division or the diligence of circulating blood corpuscles? If she is not given an update about its worth, is this to be explained by saying that doctors are not yet competent to handle such a question? A baby elephant takes a longer time to develop. And it grows larger. Should we then say that it is more valuable than a human baby? Frances Kamm presents an instructive problem about the supposed

York: Oxford University Press, 1992, p. 203). Professor Feldman goes on to explain, of course, that this little uterine girl has not gone in for growing, exercising, enduring and the rest, with the thought that all this will pay off. But no matter: the investment has been made, and this establishes a claim to a return. We should note some striking differences from what we are told in Life’s Dominion. There seems no suggestion here of a notion of ‘intrinsic value’, nor of the idea, popular in so-called liberal circles, not to say essential to peace of mind, that an unborn individual somehow cannot be wronged. The talk rather is of desert and injustice. The relevant investments are all made by the developing child to whom a return is due. The injustice might indeed be ‘huge’ as we saw. We should observe that the mere matter of birth is not considered relevant. If it is wrong to kill a born and an unborn child, this is so, in Professor Feldman’s view, ‘for precisely the same reason’ (p. 207). 156 Ronald Dworkin, ‘Tyranny at the Two Edges of Life’, p. 16.

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natural investment in a growing child. Imagine that for some reason a baby would not develop without an abnormal amount of natural investment, so that it would reach the normal twelve-week foetal stage after about two years. Would we regard it as more valuable than a normal – larger – foetus of, say, 18 weeks? She thinks not, even though more had been invested. The more developed foetus would be worth more.157 And who is to say who is right? Natural investment, like that which is personal, will affect our attitude to accidental death, at least if the present story is to be believed. This idea is hard to take seriously. We are to be somewhat sadder when an older child is run over in the street, not only because its educational efforts would largely come to naught, a matter of personal investment, but also on account of the processes involved in growth. All that metabolism! All that mitosis! The amputation of a teenager’s foot would be worse than the amputation of a toddler’s foot because of the added value of additional protoplasmic goings-on. Surely we cannot be asked to believe that? Indeed, one wonders how the operations of natural investment could be of interest to anyone. We are perhaps intrigued to see the bristle-cone pines in California, having been told that they are the oldest living thing. But we would have very little interest in travelling to visit an otherwise unremarkable kind of tree ranked somewhat lower in longevity, at number 28, say, even though the investment would still be counted awe-ispiring particularly if there is a stand of such trees and we are allowed to add up what has been invested to make some grand total of natural endeavour. What is so special, we might say, about coming 28th? Dworkin tries, in a somewhat rhapsodical passage, to make a show of taking this idea of natural investment seriously. He talks darkly about a ‘the pulse in the mud that is [thought to be] more profound than any other source of life’s value’(LD, p. 92). One imagines someone putting the case: ‘You cannot possibly kill your offspring! Don’t you see, there was once this pulse in the mud, and . . .’ It would sound quite mad. To be sure, Dworkin might admit as much, at least sotto voce. For we must remember that he is here attributing fancies to be attributed in the main to those with whom he disagrees. The problem of taking seriously a concept of natural investment is compounded if we are supposed to understand the idea of a return on the investment made. A stock example of something sacred in Professor Dworkin’s book is an animal species. What would be a return on this investment? And who would be owed it? Nature? Evolution? God? The species itself? Does the species get a return of a kind by lasting one day more? Would the item or entity owed a return thereby have rights, as the language of owing suggests? It is possible, I suppose, that the question ‘to whom or to what is the return due?’, which we might expect to arise in regard to investment, 157 Frances Kamm, ‘Abortion and the Value of Life’, p. 181.

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is not appropriate when investment-created intrinsic value is under discussion. The world of the intrinsic can be expected to have unique and unexpected characteristics.158 Thoughts about ‘a return on the investment’ – no matter who or what gets it – prompts a question. It seems part of the story that it is not so bad to destroy something on which there has been a return. Return somehow reduces value. Or better perhaps, reduces the cosmic shame of value loss.159 Perhaps indeed, if there has been ‘sufficient’ return we can destroy the item without a qualm. But if this is to be translated into the language of sanctity we have an odd result. Some women are delighted to be pregnant, particularly when they feel their baby moving about – and I expect that people will want to say that this is a return on the investment. But no one is going to say that the sacredness of this baby is somewhat diminished seeing that a return has already been taken. (Is the sacredness of a painting diminished each time it is instructively seen?) When assessing how much this particular foetus is worth by the end of such and such a week in pregnancy we face the problem of making an approximate composite value out of the value produced by different sources of investment – another headache for the hard-pressed abortion counsellor of Chapter 2.9. Do we have to know (at least very roughly) how much investment has gone on? Consider, for example, divine investment. It is, says Jeff McMahan comically, ‘difficult to measure’.160 But perhaps measurement is not at issue. ‘We can best understand some of our serious disagreements about abortion . . . as reflecting deep differences about the relative moral importance of the natural and human contributions to the inviolability of individual human lives’ (LD, p. 91). But do we so much as understand what is meant by ‘the moral importance of a contribution’? The adjective ‘moral’ when prefi xed to a description so often serves to make that description less clear in sense. Our trouble here is this: we are given not so much as a hint as to how an answer might be obtained if we were very patient and had the time, resources, research assistants, libraries, etc., 158 The question whether the return on an ‘investment’ put in by one agent (say, nature) can justly be appropriated by another agent (say, you or I), is well discussed by John Tomassi in ‘Liberalism, Sanctity and the Prohibition of Abortion’, Journal of Philosophy, 1997; see especially his section 3, ‘The Investment Connection’. Professor Tomassi points out that no one seems upset merely by the thought that a species of tree becomes extinct naturally. One could say: ‘Nature gave, and nature has taken away. . . .’ However, if nature gave and lumberjacks have taken away, we (if we are inclined to go along with these conceits at all) will think this untoward. 159 Should we have included among the ‘findings’ in the previous chapter that cosmically investment-generated value can only increase, never decrease? The world, we would have to suppose, continues to get ever more precious. 160 Jeff McMahan, The Ethics of Killing, p. 335.

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to work on the question, or even how we would recognise the answer if we came across it accidentally. Are the different kinds of ‘contribution’ even commensurable? They might after all have ‘moral importance’ in quite different ways. We are in a fi x. We have seen in this chapter how difficult it is to make sense of this investment theory of value. We must not finish however without noting that Dworkin does not himself adhere unswervingly to this account, whether the investment be personal or natural. At the very least, investment of either kind would not be considered sufficient. People may have laboured long to ‘create’, as they say, a motor car, but it seems open to question, according to the story, whether the result is cosmically cherished (LD, p. 80). Similarly, coal deposits, even though Nature has worked to produce them for very many years, are not perhaps sacrosanct (LD, p. 80). The bread we might say does not become more precious the mouldier it gets, despite the natural investment. Again, artificially produced species represent an investment of human effort, ‘but we do not think that these artificially produced species are intrinsically valuable in the way naturally produced species are’ (LD, p. 79). Perhaps this is because we do not admire the process of creation involved, or think it important. That may sound odd, but I am going by the following remark about paintings: ‘We protect even a painting we do not much like, just as we try to preserve cultures we do not especially admire, because they embody processes of human creation we consider important and admirable’ (LD, p. 75, italics added). This surely creates a serious problem for investment-theory. For what does it mean to say, in such a context, that a process of creation is important? Indeed, what makes a process of investment to be of ‘intrinsic importance’ (LD, p. 84), for that seems to be what we are looking for. Intrinsic importance seems to be a new kind of intrinsic value, not dependent on investment. We need to understand it for the investment theory of value to get off the ground. Suppose we are right, and that mere investment is not sufficient to create intrinsic value. Let us add that the investment must be intrinsically important and admirable, and waive any questions about what this condition amounts to. The story is still in difficulties for this reason – a reason we touched on at the end of Chapter 2.8 (pp. 106–7). Certain animal species are valuable (according to the doctrine we are considering) because of the way nature has laboured to evolve them. The process however, whatever it may be, is surely more or less the same for all species. If important and admirable in the one case, important and admirable in the other. Yet some species apparently lack intrinsic value altogether! (‘we consider only some species of animals as sacred: few people care when even a benign species of insect comes to an end . . .’: LD, p. 80). Remember too the remark about ‘valuable’ cultures quoted at the end of that chapter: ‘we think it a shame when any distinctive form of human culture, especially a complex and interesting one, dies

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or languishes’ (LD, p. 72, italics added). Professor Dworkin summarises: ‘In different ways we are selective about which products of which kinds of creative or natural processes we treat as inviolable. As we would expect, our selections are shaped by, and reflect our needs’ (LD, p. 80). This is surely a great giveaway. Given a vacuum of meaning perfectly mundane notions of value sooner or later leak their way in. We pretend that mere usefulness or attractiveness to human beings is not at issue – this is intrinsic value after all! – but eventually appeal to these notions a few pages on. It is possible that Dworkin has had a guilty twang about this point. For he tries what looks like a response. He points out that people want to preserve animals which they know they are very unlikely to encounter (LD, p. 75). So it cannot be the joy they themselves would have in seeing these animals that is at issue. These animals cannot be valuable to them in this straightforward way. Again, he says, in a similar spirit, that we want to preserve paintings that we do not ourselves find marvellous (LD, p. 80). But in neither case do we think that these animals and paintings are never going to be of the slightest use or pleasure to anyone, that they are simply GOOD. On the contrary, we can talk of them as a valuable human resource in a perfectly straightforward and ‘unintrinsic’ way, as something of value to people, if not to the speaker. Earlier (p. 96), I contrasted what people might say about the value of nests and rabbit holes. The example is useful here. In both cases, a good deal of investment has been put in. None of us, I presume, knows whether more has been invested in the average nest compares with the average rabbit hole. How indeed could one find out? But if an answer must be given, people will find more ‘value’ in the nest. Nests, after all, are pleasing objects.

2.15 Despite the difficulties raised in earlier chapters, why is the value story still so attractive? It must be obvious, quite independently of our spelling the matter out in these chapters, that the way philosophers talk about intrinsic value is often unclear and problematic. How then can it have seemed attractive to some of them to characterise abortion as the sacrifice, possibly for some fine purpose, of something oddly valuable? A reason, though the least interesting, would be this: that the value story enables one to promote abortion-freedom with the appearance of quasireligious endorsement. With its aid, Ronald Dworkin for example is able to take refuge in the realm of the vaguely ecclesiastical. Thus in his article in The Times, he can allude to ‘our deeper, essentially religious or philosophical, convictions’. In this way an intellectually unsatisfactory notion of value turns out to be psychologically satisfactory: it seems tailor-made for those – and how many there are – who want to have their way in regard to the killing of the innocent while retaining the appearance of sensitivity and seriousness.

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We mentioned at the end of Chapter 2.5 Frances Kamm’s conjecture that Professor Dworkin uses the language of sacredness and inviolability for tactical reasons – as something to mollify his opponents. Perhaps a high-risk strategy? Alan Ryan, commenting in The Times the day after Dworkin’s article appeared, was troubled that all this talk of the value of life might prove dangerous, as it would play into the hands of homicide-conservatives. (This thought that ‘one cannot be too careful’ keeps coming back.) But it is stock in trade among the better sort of homicide-liberal that we should have bouts of grieving over lost value. Tragic choice is something astringent, like Tio Pepe. One has to have a certain sophistication to appreciate it. We can expect plenty of hand-wringing and brow-furrowing. Wringers and furrowers will assure us that an abortion involves ‘a serious moral cost’ (LD, p. 33).161 All this anxiety about running up the moral overdraft is plainly useful in the attempt to win over waverers to the abortion cause – at least in a transitional period. The thought that one’s doctrine is somehow religious also deals with any doubts one might be having as to its meaning. In matters religious, one thinks, comprehension is not to be expected.162 I do not, however, want to make much of this matter of tactics and anxiety. It is too evident to warrant much attention. There is another, more instructive, reason for reaching for the notion of intrinsic value in connection with abortion. It would seem that the notion is already needed elsewhere. In particular, it might be supposed that only a recognition of intrinsic value could account for our attitudes towards the conservation of wilderness and biodiversity. What would the world be, once bereft Of wet and of wildness? Let them be left, O let them be left, wildness and wet; Long live the weeds and the wilderness yet.163 161 What on earth is a moral cost supposed to be? Is it equal to the value of what is destroyed? If two people conspire together to kill a valuable baby, can they divide the moral cost between them? If an abortionist is at it all week, can he claim a moral discount? 162 For myself I would want to say that nonsense should not be given a religious passport. To be sure, if it is sensible for someone to believe in divine revelation (which must certainly be the case for many, for what it is good to believe so often depends upon what one is taught) then indeed he might naturally think himself obliged to treat as meaningful something that does not appear to be so. But even here there is nothing particularly ‘religious’ about this predicament – most people are in this position in regard to the things that physicists tell them, that space is curved, etc. And children, even quite big children, have to believe their parents before they well understand what it is they believe. However, the mere use of the adjective ‘religious’ as a cover is simply something to be exposed. 163 Gerard Manley Hopkins, ‘Inversnaid’.

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But we should ask ourselves whether thoughts of intrinsic value are indeed necessary for this purpose. As we have seen, Professor Dworkin likens our duty, such as it is, to refrain from abortion, to our responsibility to preserve endangered species. And he says that we cannot throw out the notion of intrinsic value as a nonsense because many of our ‘most profound convictions presuppose it’ (LD, p. 25). One of these convictions is that nature is valuable in itself (LD, p. 69). But if, with Hopkins, we speak up for the weeds and the wilderness, must we also find a place for that less attractive conceptual weed; intrinsic value? Why should we not think simply of man’s needs, sophisticatedly considered? Someone might protest that this is to be anthropocentric, but why is that a fault? Complaints on this score in popular environmental writings hardly seem intelligible. No doubt the Friends of the Otter are utterly ottercentric. But what of that? A plausible argument for the preservation of species can be mounted, even of species not known to be useful or thought attractive, without attempting to rely somehow on the idea that these species are ‘just good entities’. I offer by way of example a few remarks from The Diversity of Life by Harvard biologist Edward O. Wilson. Professor Wilson is perhaps the world’s best known advocate for the preservation of biodiversity.164 Professor Wilson certainly conveys the message that nature should be respected and not just plundered. Not for him is the thought that what we do not see a use for, or find attractive, we may happily destroy. But neither has he any need to talk about this arcane property of value. We do not, in his book, have to make the painful choice between being crude and being confused. The danger, rather, is that we shall ignorantly destroy what we now have for short term gains, or what appear to be such. Each species, he argues, is to be treated as ‘an irreplaceable resource for humanity, to be preserved for posterity unless the costs are unbearably high’.165 A volume which he co-edited displays a nice epigraph: ‘Biodiversity, the planet’s most valuable resource, is on loan to us from our children.’166 He talks of ‘living genetic libraries’, that we might need to consult in the future. Sometimes the argument is aesthetic: he mentions the threat to life’s ‘most beautiful creations’.167 We are ‘to save and use in perpetuity as much of the earth’s diversity as possible’.168 The emphasis is on use, intelligent use, and on

164 Edward O. Wilson, The Diversity of Life, London: Allen Lane, 1992. 165 Ibid., p. 310. 166 Marjorie L. Reaka-Kudla, Don E. Wilson and Edward O. Wilson, eds, Biodiversity II: Understanding and Protecting Our Biological Resources, Washington, DC: Joseph Henry Press, 1997, p. 6. 167 Wilson, The Diversity of Life, pp. 344, 345. 168 Ibid., p. 312, italics added.

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human need: ‘The government’s moral responsibility in the conservation of biodiversity is similar to that in public health and military defense’ (p. 342).169 The whole argument is summarised thus: Why should we care? What difference does it make if some species are extinguished, if even half of all the species on earth disappear? Let me count the ways. New sources of scientific information will be lost. Vast potential biological wealth will be destroyed. Still undeveloped medicines, crops, pharmaceuticals, timber, fibres, pulp, soil-restoring vegetation, petroleum substitutes, and other products and amenities will never come to light. It is fashionable in some quarters to wave aside the small and obscure, the bugs and weeds, forgetting that an obscure moth from Latin America saved Australia’s pastureland from overgrowth by cactus, that the rosy periwinkle provided the cure for Hodgkin’s disease and childhood lymphocytic leukemia, that the bark of the Pacific yew offers hope for victims of ovarian and breast cancer, that a chemical from the saliva of leeches dissolves blood clots during surgery . . .170 Wilson goes on to say: Humanity evolved within living communities and our bodily functions are finely adjusted to the idiosyncratic environment already created . . . A near infinity of other mother planets can be envisioned, each with its own fauna and flora, all producing physical environments uncongenial to human life. To disregard the diversity of life is to risk catapulting ourselves into an alien environment . . . Humanity coevolved with the rest of life on this particular planet . . . Because scientists have yet to put names on most kinds of organisms, and because they entertain only a vague idea of how ecosystems work, it is reckless to suppose that biodiversity can be diminished indefi nitely without threatening humanity itself.171 But this is not the whole story. There are intangible benefits, Professor Wilson argues, to be gained from an identification with nature: The more closely we identify ourselves with the rest of life, the more quickly we will be able to discover the sources of human sensibility and acquire the knowledge on which an enduring ethic, a sense of preferred direction, can be built . . .172 169 170 171 172

Ibid., Ibid., Ibid., Ibid.,

p. p. p. p.

342. 346–7. 347. 348.

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Signals abound that the loss of life’s diversity endangers not just the body but the spirit.173 I admit that this language is not very clear. But it is not going to get any clearer by mixing in talk of intrinsic value, investment and the pulse in the mud. We are still thinking about man’s needs – man for whom solitude among the rocks and heather is a good. John Stuart Mill expressed this aspect well: Solitude, in the sense of being alone, is essential for any depth of meditation or of character; and solitude in the presence of natural beauty or grandeur, is the cradle of thoughts and aspirations which are not only good for the individual, but which society could ill do without. Nor is there much satisfaction in contemplating a world with nothing left to the spontaneous activity of nature; with every rood of land brought into cultivation which is capable of growing food for human beings; . . . and scarcely a place left where a wild shrub or flower could grow without being eradicated as a weed in the name of improved agriculture.174 Many will still be inclined to think that there is something missing from this account of our environmental concerns.175 They might still want to say that some things – wildernesses, let us say – are simply ‘good entities’. And of course they may say such a thing about people and paintings too. We might yet want to ask what makes this language attractive. The fundamental reason might perhaps be expressed as follows. We may come to suppose that we need a special notion of intrinsic value because we start out from an inadequate, and in a way impoverished, conception of what it is for the care or preservation of something or someone to be valuable to the one who cares. We then invent a kind of value to fill the gap: a kind of importance that is not an importance to anyone but which somehow (we imagine) gives us a reason for caring. Let us look into this. 173 Ibid., p. 351. 174 J. S. Mill, Principles of Political Economy, in The Collected Works of John Stuart Mill, Vol. III, ed. J.M Robson, Toronto: University of Toronto Press, 1965, p. 756. Mill was a keen botanist. He was out on a botanical trip the day before he took to his bed and died. 175 I should say that Professor Wilson is, in one place, prepared to say that ‘wilderness has virtue unto itself and needs no extraneous justification’ (Diversity of life, p. 303). But here, he is only seeking to deny that ‘every ecosystem now be viewed as a factory of useful products’, which Mill too wanted to deny. Wilderness can not only be exploited, it can be appreciated. I should add too that Professor Wilson’s perfectly down to earth account of the value of conservation is not in the least eccentric. We fi nd much the same story, for example, in Biodiversity: The UK Action Plan, London: HMSO, 1994 – see pp. 11–15.

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Consider the objection to the idea of intrinsic value that Professor Dworkin puts to himself on our behalf: ‘How can it be important that a life continue unless that life is important for or to someone? How can a life’s continuing be, as I am suggesting, simply important in and of itself?’ (LD, p. 69). A fair question. In a passage we have already noted he responds: ‘But the idea that some events or objects are valuable in and of themselves – that we honour them not because they serve our desires or interests but for their own sakes – is . . . a familiar part of our experience’ (LD, p. 69). Leaving aside this distracting reference to ‘experience’ which I have already commented on (pp. 86–7) there is clearly something correct buried in this unclear reply. I do not think the response even begins to explain how it can be ‘important’ that an individual continues in being where this is of no importance or advantage to anyone, where no one cares nor needs to care. That mystery remains. But we have this significant reference to what someone ‘honours’ though he does not expect it to serve his desires or interests. It is important to see that this last is indeed something familiar. It is called love or perhaps respect. We seem to be offered a choice: either everything valuable is valuable to individuals because their very existence is expected to be rewarding to these individuals, or there is something ‘simply important in and of itself’ (LD, p. 69). Naturally we reject the fi rst alternative, and then perhaps feel obliged to accept the second. But why should we agree that our choice is restricted in this way? There is another possibility: the possibility that there are things valuable to people, here meaning things they want to see preserved, but which are not considered to be valuable by these people for reasons of personal reward. We are indeed often glad that certain items continue to be around even though their continued existence is not thought to be a benefit to ourselves.176 Or if there is thought to be a benefit, we recognise that our reaction is independent of it. One case would involve sentimental valuing. We might accord sentimental value to the old house we once lived in, let us say. Sentimental valuing of this kind could indeed be shared by an entire nation. Those who value these objects will not necessarily expect the persistence of these items in good condition to bring them a reward. Another case would involve love. We often care that our children flourish for their own sakes. People sometimes care about other people’s children in this way –

176 I am leaving aside that reference to ‘events’ in the passage from Life’s Dominion. People perhaps say, for example, that it is just ‘a good thing’ if a murderer is executed, or perhaps is accidentally killed, taking this to be a brute fact having nothing to do with the importance of the enforcement of laws and of the necessities of human life, even indirectly. But I imagine that Professor Dworkin would himself find this language (though not the tendency to resort to it) unintelligible.

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including, in particular, paediatricians and those who campaign against abortion.177 But does what we have admitted give a sense to the would-be idea of intrinsic value? Let us keep with the case of love. Asked why we want our children to survive and flourish we are surely not going to answer that this ‘serves our desires or interests’. But nor shall we clain that they are Notable Entities Abstractly Considered. We will say straightforwardly, if we bother to answer at all, that we love them, wish them well. We are hardly going to argue that although we do not love them in the slightest, do not in the least wish them well, and have no use for them on the farm . . . etc., still they are Impersonally Precious From the Point of View of Empty Space. A high and abstract notion of value, as a reason for wishing them well, is quite out of place. To be sure, if asked whether one’s children are Important in Themselves, one might prefer to say yes rather than admit that they Did Not Matter In Themselves. We discussed this kind of preference above, in Chapter 2.6 (p. 94), in connection with Wittgenstein’s instructive example: whether a blot of ink on a page ‘fitted exactly into its surroundings’. In either case the question is not really legitimate, despite the regular preference for the answer Yes. Mattering suggests an inducement. But if parents are asked why they want their children to flourish they will not think in terms of an inducement at all – that is to say in the usual case. They might conceivably answer ‘because we love them’, but this just mentions the kind of wanting involved. Love, in this sense, is just that species of caring for which an inducement is not necessary. This is not merely a cosy remark, for one might say something analogous about hatred. If someone were to love his children ‘because they were valuable’ we would expect him to love other people’s children in the same way, for no one can intelligibly suppose these last to be of less value simply on account of being someone else’s. There is no doubt a lingering misapprehension in all this, that if something is considered important by Smith – if, in this way, it is important to Smith – Smith must expect a glow or a thrill or a payoff in connection with it. Love of children is not usually of this kind. Since glows in respect of our children are clearly not of the essence, we invent this notion of Impersonal Mattering. Professor Dworkin writes as if the destruction of a painting would be somehow a shame even if no one could have been around to appreciate it. It is just a bad thing that the painting perishes – not simply a bad thing for 177 In regard to abortion, I simply report this as a fact. I have earlier argued, in Chapter 2.1 (p. 58), that the case against abortion is not founded on a concern for infant welfare, admirable though this last might be. But such a concern – for disabled infants who would otherwise have been aborted for example – is a natural by-product of rational opposition to abortion, an opposition which is based on a concern for a species of justice.

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Smith who might have enjoyed it or found it interesting if he had come across it, or for Robinson who was sentimentally attached to it, or for Jones who was hoping to sell it, etc. To see how odd this is, consider an example. A millionaire’s house burns to the ground. The house was fortunately uninhabited at the time. The story in the newspaper tells us that the fire started in the upper floor, and spread to the basement. But then we fi nd out that this was not so: it started in the basement, with the consequence that the Rembrandt on the upper floor was destroyed later than we had first supposed. Are we to rejoice a little, seeing that A Good Thing Lasted Longer? It is possible that a question of this kind might have been put to Professor Dworkin before his book was published. For there is a footnote which reads rather like an afterthought: ‘I do not mean to take a position on a further . . . issue . . .: whether great paintings would still be valuable if intelligent life were altogether destroyed forever . . . There is no inconsistency in denying that they would have value then, because the value of a painting lies in the kind of experience it makes available, while still insisting that this value is intrinsic because it does not depend on any creatures’ actually wanting that kind of experience’ (LD, p.248).178 This remark however side-steps the difficulty. For of course this stress on the ‘actually’ is out of place. Naturally and unproblematically, all sorts of things, paintings, medicines, a piece of advice, an opportunity, could be valuable in the most ordinary and uncontroversial sense without anyone actually wanting them! We humans are often foolish, uncomprehending, unperceptive or simply ignorant. Perhaps it is better not to restrict our attention to works of art – about which we are rather tolerant of nonsense. Suppose that no one had ever tasted strawberries. Perhaps no one would then want to have the experience of tasting strawberries. Strawberries would still have a certain value, though no one would realise it. They might never be discovered to have this value. Can we then say that the commonplace and comprehensible value of a strawberry is intrinsic because it does not depend on any creature’s actually wanting the experience of eating strawberries? But suppose there were a painting guaranteed never to provide an interesting experience to anyone who might ever see it – that could never be rationally wanted in this way. Would that have intrinsic value because of ‘the kind of experience it makes available’? It would have no beauty, no fascinating or curious appearance, no price at the auction room; could it simply have Worth in its purest manifestation? A painting, a charming waterfall or a magnificent oak, continuing to exist in a world in which intelligent perceptual observers were now forever an impossibility, would provide an example of something intrinsically valuable in its most evident form – a case without distractions, one might say, 178 Compare Thomas Nagel’s remark about the value of Frick Collection in a future lifeless world, quoted above, p. 126.

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a pure sample. In fact, G. E. Moore carefully considered this question in Principia Ethica. He was here disagreeing with Sidgwick. Moore expressed himself quite certain that a beautiful object ought to be brought into existence (in Dworkin’s terminology it would have ‘incremental’ intrinsic value) even if we knew that no one would ever be able to see or enjoy it.179 A beautiful world might forever be unobserved. And the same might be true of an ugly world. Moore invites us to think of these worlds existing ‘quite apart from any possible contemplation by human beings’. ‘Is it irrational’, he asks, ‘to hold that it is better that the beautiful world should exist than the one which is ugly?’180 ‘The beautiful world in itself is better than the ugly.’ Admittedly, the beautiful world without observers might only have intrinsic value to a modest degree, even if it were very beautiful indeed. In a further discussion of this question, later in the book, Moore says that ‘such mere existence of what is beautiful has value, so small as to be negligible in comparison with that which attaches to the consciousness of beauty’.181 Surely, an amusing concession. If someone says that an item is of value, though of value to neither man nor beast, he can hardly respond to our natural suspicion that he is talking nonsense by saying that the value in question is so little. ‘If you please, ma’am. It was such a little one.’ In fact I suspect that Professor Dworkin is committed to the view that a painting would retain investment-sacredness after there had ceased to be any possibility of anyone finding it of interest. For he manifests the common – and surely very odd – opinion that there is something aesthetically special about an original sketch let us say as contrasted with a facsimile of it.182 Let it be the case that the facsimile is visually indistinguishable from the original, perhaps molecule by molecule – and that, in fact, we had no practical 179 G. E. Moore, Principia Ethica, Cambridge: Cambridge University Press, 1903, p. 83. 180 Ibid., p. 84. 181 Ibid., p. 89. 182 Professor Dworkin, ever fond of dichotomies, divides aesthetic value into two: ‘A painting does have an independent value which we might call its product value: this is the power it has to excite aesthetic and other forms of valuable experiences. But this product value is different from a painting’s artistic value, which is the value it has not independently but in virtue of how it was produced; we need the distinction between product and artistic value to explain the different value of an original and a perfect, mechanically produced and undetected fake’ (‘Foundations of Liberal Equality’, in Grethe B. Peterson, ed., The Tanner Lectures on Human Values, Vol. XI, SaltLake City: University of Utah Press, 1990, pp. 63–4, italics in text). Why isn’t investment value transmitted through the mechanical reproductive process? An artist is showing you a facsimile. He says: ‘I put a great deal of work into that angel you see in the corner there.’ Should he have said: ‘I put a great deal of work into another angel just like this one’? But that would in fact give a misleading impression of what he meant to convey.

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means, historical or scientific, of telling which was which. Only one picture, however, would have investment-sacredness, the one which had been worked on by the artist’s hand. Yet since this value would not be detectable by perception, why, if the value is to be retained when the picture persists, would there still have to be perceivers? (The value of a battered old original canvas, which might well look considerably less like what the artist intended than a print of a reconstruction of it in yesterday morning’s crumpled newspaper, is surely a communal kind of sentimental value, a real value needless to say, and one which greatly affects its price at auction.)

2.16 Good things, bad things, and bad logical grammar We have found in the course of a painstaking enquiry that a notion of intrinsic value favoured by certain philosophers is difficult to make sense of. In particular, we have found it impossible to use intelligibly in settling disputes about abortion. It appears to be unilluminating in theory and useless in practice. We are inclined to introduce such a notion, as we have seen, because we start from an over-narrow understanding of what it is for something to be important to someone. However, there would seem to a deeper error underlying our troubles in this matter, an error involving the very concept of good, bad and indifferent. There seems to be something fundamentally out of place in the questions being asked. We need to think about the grammar of goodness. In the chapter above on the abstract notion of waste we cited the following passage from Life’s Dominion: ‘any abortion involves a waste of human life and is therefore, in itself, a bad thing to happen, a shame’ (LD, p. 84). The shame is, of course ‘a cosmic shame’ (LD, p. 13). To see the way these descriptions are grammatically awry we need first to appeal to Frege, then to Aristotle. Goodness is not a property, a characteristic, of things. Nor of course is badness or indifference. Put just like that, these are rather bald assertions, so an explanation is called for. We are not, for example, complaining that goodness is not a single property, suggesting perhaps that it is a family of related ones. The matter is more oblique and interesting. We cannot intelligibly point at something and ask out of the blue ‘Is this good?’ Why is this? Because the answer will depend upon how the this is described. Without the description, explicit or implied, there is no answer, and therefore no proper question. One may be pointing at a good X but a bad Y. A good carpenter but a bad flute player. A good card in this card game, a bad card in that. What is a property (or a family of related properties) is being a good such-and such. This point is sometimes put by saying that things are not simply good or bad, they are good or bad qua this or qua that. ‘Is this good?’ is rather like the question ‘Is this an instance?’ In

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both cases there needs to be a context which supplies what is missing. If asked ‘Is this an instance?’ one would naturally reply ‘An instance of what?’ if the answer were not already obvious. Things are not simply instances. Similarly, ‘Is this good?’ is made clear by the answer to the counter-question ‘Is this a good what?’ This is the sort of point to which we are especially sensitive after Frege. Frege, as philosophers of course will know, did not write about ethics, or more generally about (what might be called) value theory. But he was a pioneer in the study of logical syntax, the kind of syntax in our language revealed by the requirements of logic. (Logic needs an account of sentence structure because it deals with patterns of argument, which of course are made up of the skeletons of sentences, that is to say, sentence structures.) And the issue we are discussing really depends upon this syntax. Although Frege did not discuss the notion of good/bad/indifferent he did, being interested in the philosophy of mathematics, point out something quite similar, namely that number is not a property possessed by this object or that. Being fiveish is not a characteristic of things. One cannot ask ‘Is this five?’ as we can ask ‘Is this green?’ or ‘Is this gold?’, unless we are told what kind of thing we are counting. One and the same thing can be five Xs and one Y, five sides or one pentagon. One might suppose that ‘being one’, or ‘oneishness’ must be a property of every single thing. But Bertrand Russell argues, in a very Fregean passage, that to say, for example, ‘the moon is one’ would simply be bad syntax. It is a syntactical error to say ‘the moon is one’. For what could such an assertion mean? You might just as well say ‘the moon is many,’ since it has many parts.183 Russell continues: To argue ‘the earth has one satellite, namely the moon, therefore the moon is one’ is as bad as arguing ‘The Apostles were twelve; Peter was an apostle; therefore Peter was twelve,’ which would be valid if for ‘twelve’ we substituted ‘white’. 183 This comes from Russell’s account of Plato in his History of Western Philosophy, London: Allen and Unwin, 1946, pp. 178–9. Compare the passage in An Introduction to Mathematical Philosophy: ‘If we make a pseudo-syllogism: “Men exist, Socrates is a man, therefore Socrates exists,” we are talking nonsense . . . The fallacy is clearly analogous to that of the argument: “Men are numerous, Socrates is a man, therefore Socrates is numerous” ’ (London: Allen and Unwin, 1919, p. 164. See also ‘The Philosophy of Logical Atomism’ of 1918, Collected Papers of Bertrand Russell, Vol. 8, ed. John G. Slater, London: Allen and Unwin, 1986, p. 205).

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Let us return to the concept of goodness, and its peculiar syntax. We might say that the phrase ‘. . . is good’ has an implied gap at either end of it, not just at the beginning marked by our ellipsis. Each gap would stand ready to receive a filling of a different category. The sentence skeleton would be: a is a good X where the first letter shows where a proper name is to go, and the second letter a description like flute-player, or toasting fork. (Frege would presumably want to say that we are dealing here with a function of unequal level.)184 So much for the Fregean, that is to say the syntactical, point. We now turn to Aristotle. Granted that we must have a ‘filling’, a description, after the word good, will any old filling suffice? How about ‘pebble’ or ‘point of the compass’? These will not do. Outside some context contrived to give such phrases a sense, do we know what is meant by ‘a good pebble’, ‘a bad point of the compass’? (Or indeed by ‘an indifferent pebble’? – it is admittedly a little less easy to see that this is senseless.) Aristotle gave us a doctrine which makes sense of our misgivings here. The goodness of an X, he said, is related to its ergon, a word translated with a necessary clumsiness as ‘characteristic activity, or function’. There is something that an acrobat does, there is something that a holiday is for, so we can talk about good acrobats and holidays. We might still quarrel about what counts as a good or a bad acrobat, but at least we have something to discuss. Holidays are for a range of things, and ‘good holiday’ will therefore have a range of senses. By contrast, pebbles and points of the compass have no ergon, and this (we conjecture) is why we give no sense to their being good or bad. Invent a context in which there is an ergon and we are at once in business. This insistence that a thing’s goodness must be related to its function or characteristic activity might turn out to be a little overnarrow. The concept of goodness might not be so neatly describable. We can expect developments and analogies. Words, one might say following I. A. Richards, are resourceful. I suspect that we will need to tack on a loosening clause, if I may call it that. That is to say, we will need to talk about ‘function or characteristic activity, or something of the kind . . .’ ‘A good wicket’ is a phrase that cricketers understand, but a wicket does not have an activity. A wicket certainly has a function, but a good wicket is not something that performs its function well, something that any wicket could be expected to do except in a Lewis Carroll world in which a courtier or a flamingo might have to serve. A good wicket is an odd idiom which has to be learned ad hoc: it does not even refer to the gate-like apparatus, but rather to the ground in front 184 Frege recognises the possibility of such functions in his Grundgesetze der Arithmetik, section 22 (Montgomery Furth’s translation. The Basic Laws of Arithmetic, Berkeley: University of California Press, 1964, p. 75).

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of it, and the criteria of goodness derive from the typical, though not necessarily universal, interests the batsmen (but not the bowlers) have in its condition. In fact, some reference to typical interest in a thing might well be added to our interpretation of ergon. ‘A good time to ask the boss for a rise’ is clearly related to the typical interest people have in asking. (Compare ‘a good year’ as used by wine drinkers, ‘a good seat’ in the theatre; how about ‘good news’, ‘good weather’?) Function and typical interest are clearly related notions. If this appeal to function, characteristic activity, typical interest, etc. is correct, we see at once why we have had such difficulties with the idea of intrinsic value. For we have been trying to operate with an idea of good and bad states of affairs, or things to happen, or entities, where these phrases are introduced in a very abstract contextless way. A state of affairs, or a happening or an entity, naturally, has no ergon. In fact, the syntactical, Fregean, point would lose its interest if, for the ‘X’ in ‘a good X’ we were allowed to substitute ‘thing’, or ‘event’ or ‘thingamajig’ or ‘what’s it’. Professor Dworkin, as we have seen at the beginning of this chapter, actually uses the phrase an ‘in itself, bad thing to happen’ in describing abortion. Of course, in everyday contexts we can use the phrase ‘bad thing to happen’ – meaning a misfortune, or a setback to some plan. But, as the phrase ‘in itself’ (or again the word ‘cosmic’) is meant to show, Professor Dworkin’s usages are carefully cut adrift from these sense-bestowing chains and anchors.185 Naturally, I do not invoke these philosophical authorities in order to foreclose discussion. We should note however that neither Aristotle nor Frege were making up doctrines in order to undermine talk of intrinsic value. What we have taken from them has seemed good sense on its own terms. Someone who still wanted to say that there was such a thing as intrinsic goodness would not give up the quest. He would perhaps go in for an ‘exclusionary’ or negative definition (see above, p. 85). He would say that intrinsic value is a form of value which is not instrumental and is not goodness-of-a-kind. This in fact is what W. D. Ross gives us. Goodness, in its most fundamental meaning, the meaning to which I have tried to draw attention by eliminating the ‘good of its kind’ and ‘instrumentally good’, is intrinsic.186 185 Compare Peter Geach: ‘We cannot ask whether e.g. Caesar’s death was a good or bad thing to happen; there are various titles under which it may be called good or bad. One might very well say e.g. that a violent death was a bad thing to happen to a living organism but a good thing to happen to a man who claimed divine worship, and this would again leave it open whether doing Caesar to death was a good or bad thing to do for Brutus and the rest’ (‘The Moral Law and the Law of God’, in God and the Soul, London: Routledge, 1969, p. 120, italics in text). 186 W. D. Ross, The Right and The Good, Oxford: Clarendon Press, 1930, p. 116. What entitles him to call this meaning ‘fundamental’?

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Of course, to this manoeuvre there is no knock-down reply. If one cannot beat ’em, join ’em. One might introduce an even more exciting concept: Transcendental goodness. Transcendental goodness is goodness which is not instrumental, not of-a-kind and not intrinsic. And of course we should not forget Further goodness. Further goodness is goodness which is not instrumental, not of-a-kind, not intrinsic and not transcendental. Our contention in this chapter renders obscure Kant’s famous pronouncement with which his Groundwork begins: that the only thing which is good without qualification is a good will. Or rather it would render it obscure if it were not already so. The discomfort in one’s understanding is a consequence of the fact that good ‘without qualification’ suggests being good without being a good such and such – which is, as we have argued, a muddled thought. Kant does not seem to mean that a good will is a good, a benefit. Of course we can intelligibly talk of ‘good without qualification’. Why isn’t this excellent pair of scissors a good pair without qualification? No doubt there are special-purpose scissors, and we might then say of such a pair that it is a good pair ‘with qualification’ – meaning, let us say, that it is a good pair of tonking scissors. A good pair of scissors is not, however, said to be good ‘but only with qualification’ if all we have in mind is that something untoward can be done with them, gouging out an eye let us say. The question whether this good pair of scissors is ‘good in all circumstances’ is ill formed, unless we mean ‘useful in all circumstances’. No pair of scissors is useful in all circumstances, for often we do not need scissors at all. That goodness (badness, indifference) is ‘not a property’ in the way we have explained is a thought which, in one form or another, has gradually been making its way in the world. We find it in Peter Geach’s ‘Good and Evil’ of 1956.187 We find it in Philippa Foot’s ‘Morality, Action, and Outcome’ of 1985.188 We find it most recently in Judith Jarvis Thomson’s ‘The Right and the Good’ of 1997,189 and ‘The Legacy of Principia’ of 2003,190 and in her book Goodness and Advice, published with several critical commentaries.191 It is still easy, however, to miss the point. Professor Thomson in her 187 First published in Analysis. Reprinted in Philippa Foot, Theories of Ethics, Oxford: Oxford University Press, 1967. 188 In Ted Honderich, ed., Objectivity and Value. See also ‘Utilitarianism and the Virtues’, Mind, 1985. 189 Journal of Philosophy, 1997. 190 Southern Journal of Philosophy, 2003. The idea is still around that even if ordinary goodness (as we might call it) is not a property – meaning that an item is not just good, but is good qua this or that – there is another kind of goodness, intrinsic goodness – which is a property. See, for example, Walter SinnottArmstrong’s reply, ‘For Goodness’ Sake’, to Judith Jarvis Thomson’s paper, in the same issue. 191 Goodness and Advice, Princeton: Princeton University Press, 2001.

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book says, quite understandably, that we cannot make sense of the question whether St Francis was better than this bit of chocolate.192 This naturally encourages her commentator Martha Nussbaum to talk of ‘incommensurable goods’.193 St Francis is good, we perhaps want to say, and so is this bit of chocolate, but their goodness belongs to different realms. However, the mysteries of incommensurability simply serve to obscure the logic of the situation, as I think Judith Thomson well realises.194 If we have in mind ‘good child pacifier’, let us say, St Francis and the chocolate turn out to be comparable. No doubt the chocolate would win out. St Francis was better with the birds. It is hard to get these matters quite right and there may well be blemishes in what I have said. But I think that we have done enough to show how very problematical it would be to assert (suppose or deny) of an animal species or a child that it is just a good thing in itself that it exists. If this is fairly describable as nonsensical, we can reach a conclusion of a curiously Dworkinesque kind. For Dworkin is fond of arguing that many people do not really believe what they sincerely say they believe. He is fond of arguing for example that those who oppose abortion cannot really believe that abortion is murder, though this is what they persist in saying. They do not really believe this, he argues, because of what else they claim to believe. For example they (or at least some of them) are prepared to countenance abortion when the woman is pregnant as a result of rape. I think this line of argument is founded on a faulty understanding of inconsistency and its relation to belief, though being a side issue I have not argued this matter out in this book. But the thought that people can sometime fail to believe what they say they believe is sound enough, as can be seen in regard to Dworkonian intrinsic value. This is because it is not possible, so to speak, to believe what does not make sense. If ‘XYZ’ is a form of words which does not make sense, or has not been given a sense, then ‘XYZ’ is not something (does not represent something) which could possibly be true or false. Hence we cannot suppose, assert or deny that Smith believes that XYZ. Thus let the sequence of words be ‘up down if’. The sentence, or rather would-be sentence Smith is of the opinion that up down if is itself nonsensical, having a nonsensical part. Hence there is nothing to suppose, assert etc. No one can believe that up down if – we might say, just to get the point across, though improperly of course since that utterance too is plainly nonsensical and must hence be taken with a pinch of salt. 192 Ibid., pp. 18–19. 193 Ibid., p. 110. 194 See her nice remarks in reply, ibid., pp. 156–7.

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It is certainly possible to believe that something is the case without understanding well what one believes. That is a very usual situation. And it is important in philosophy to recognise this fact. Fides quaerens intellectum. If this understanding is very limited indeed we might prefer to say, not that Smith believes that p, but to express ourselves long windedly, saying that Smith believes that the form of words ‘p’, as understood by others, is the expression of a truth. But if the form of words is indeed a mere rigmarole masquerading as a sentence with a sense, we cannot use this form of words to characterise the content of a person’s belief. If someone, even a philosopher, perhaps especially a philosopher, thinks that this form of words expresses one of his beliefs, he is mistaken. There is simply no such thing as a belief of this kind. To be sure, we have not in all these pages shown or proved that talk of intrinsic value, as it is introduced into these discussions, is a mere rigmarole. Right from the outset we have been careful not to make such a strong claim. After all we have said, it is always open to someone to claim that intrinsic value is an immensely subtle notion, and that our study of it is just beginning. ‘Maybe in a thousand years . . .’ We have only brought up difficulties, and intrinsic value, it will be replied, just is a difficult topic. Or again, it is open so someone to argue that there is a heaven, where intrinsic value, manifested more clearly in God than in any endangered species, work of art, or neonate, will finally become comprehensible to any of us lucky enough to go there.

Part 3: Rights and Interests

3.1 On the importance of being able to say that the very young cannot have rights 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. If we really knew that all that could be said against abortion turned upon this supposed intrinsic value, a big assumption of course, then nothing would stand in the way of a guiltless and easygoing attitude to it, an attitude which Professor Dworkin and others should straightaway adopt, if they could bring themselves to do so. And we could say the same about infanticide, of course. Our argument on this point has been entirely pro-choice. No one likes to undergo surgical procedures. But if some method of abortion was invented which felt delicious to live through and posed no risk to the woman’s health, then – under the big assumption just mentioned – who could object to abortion for entertainment or enjoyment? However, it is very reasonable to suppose that our convictions, such as they are, about the killing of human offspring must rest on other grounds. We would naturally be inclined, of course, to invoke a right to life – a notion which, needless to say, would itself invite further academic investigation. No one will be surprised to hear talk of the right to life in this context. Those opposed 163

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to abortion are sometimes collectively identified as the right-to-life movement. It is Dworkin’s central contention – as we saw when we were setting out our agenda at the end of Part One – that although a foetus or unborn child certainly has a value, and could even be worth more than all the paintings in the National Gallery taken together, it does not, because it cannot, have a right to life. One could not have a responsibility towards such an individual.1 In fact, just as we all had to live for a while with no clothes on, we started out on life entirely without a moral right to it. This sounds like a truly remarkable thesis (the caution needed only because one might not be sure what it amounted to). However, this kind of view about the right to life is not at all uncommon in recent bioethics, as we shall see. It is not just one man’s aberration. It is based on thoughts about what it is to have a good which have gained a certain currency. This no-rights thesis is indeed remarkable in anyone who is not prepared, like Bentham, to reject the notion of a moral right altogether. But it should be taken especial note of if it is put forward by someone of the standing of Ronald Dworkin. His world-wide reputation, after all, owes much to his claim that we should take rights seriously. Someone might argue that an individual can only intelligibly be said to have entitlements if he can stand on his own feet and put in a claim. But this is not at issue here. In Dworkin’s – surely reasonable – opinion, the individual needs neither to be able to put in a claim at present, nor to have been able at some previous time to do so. He says (though not in Life’s Dominion) that ‘if there is a rational argument why an infant or a mentally defective person should have at least some of the rights others have . . . then why is it important whether the infant or the mental defective can in fact make that argument for himself?’2 A hint at the form such an ‘argument’ might take is here given: ‘for example, the argument that he or she can feel

1 I gather this from Professor Dworkin’s comments on Carol Gilligan’s abortion decision study (see pp. 42–3 above: ‘All of Gilligan’s subjects talked and wondered about responsibility. They sometimes talked of responsibility to the child, but they meant the future hypothetical child, not the existing embryo – they meant that it would be wrong to have a child one could not care for properly.’ LD, p. 59, italics added). Ronald Dworkin offers no evidence as to what was really ‘meant’; but that is incidental. He would appear to be seeking support for his view of the matter: that any sensible person would recognise that a pregnant woman could not intelligibly be said to have any responsibility towards the child she carries (save possibly not to cause it pain). Of course, if responsible to is to mean answerable to no one could have a responsibility to the baby to avoid hurting it, for no one can be called to account by a baby. (See also p. 293, below.) 2 The passage quoted comes from fn 3 in ‘What Liberalism Isn’t’, New York Review of Books, 20 January 1983, p. 49, italics omitted. Ronald Dworkin in this article is criticising the ‘bizarre’ view of Bruce Ackerman who, in his Social Justice and the Liberal State (New Haven: Yale University Press, 1980), had said that the possession

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pain’. This suggests that the mere capacity to feel pain might be enough to give rise to such a thing as an infant’s right not to be hurt (‘unnecessarily’ or whatever). An ability to say ‘don’t’ would not be necessary. However, a foetal individual, even if it can feel pain, cannot, it is alleged, have a right to life. We cannot do it a wrong by killing it, any more than one could do a wrong to a painting by cutting it up. The reason offered for this important conclusion is that such an individual has no interests, no good of its own, or at least no particular interests which would be a precondition of the possession of such a right. Much of what we have to say in subsequent chapters will naturally focus on this contention. If this contention is true it will have a significant consequence. ‘People who believe that abortion is murder, that it violates the most fundamental rights and interests of unborn children’ (LD, p. 9), that it is ‘wrong in principle . . . just as killing an adult is normally wrong because it violates the adult’s right not to be killed’ (LD, p. 11) will turn out, mercifully, to be mistaken. The interest of this claim for Dworkin personally, as a writer in jurisprudence, might indeed be more legal than moral. He has recently said: ‘My discussion of interests and rights is not directed to the moral permissibility of abortion, but to the legality of making early abortion a crime.’3 But of course, he cannot want to say that a demonstration that some human individual entirely lacked a right to life would have no bearing at all on the permissibility of killing him. Dworkin’s claims about interests and rights, if correct, would evidently show that what might be thought the standard argument for impermissibility, continually voiced by those opposed to abortion, fails. This would be of rights was contingent on the ability to enter into a certain kind of dialogue with others, a dialogue in which one claims equal standing. I note, however, in Professor Ackerman’s book that those who are able to join in the dialogue can ‘vote to extend the protective cloak of citizenship’ to others who are not able (p. 79). So we must after all be able to understand what it is for an infant to have a right. One cannot accord something to Smith unless it makes sense to say that Smith possesses it. It is not unusual for writers to say that one cannot have rights unless one can put in claims. Richard Flathman, a well known professor of political science at Johns Hopkins, says, for example: ‘To have a right is to be in a position to choose to exercise that right or not, to waive it if one wishes, to hold others to their obligations respecting it, or to release them from those obligations . . . The foetus is capable of none of these (if it is capable of any) actions’. (‘The Theory of Rights and the Practice of Abortion’, in his Toward a Liberalism, Ithaca: Cornell University Press, 1989, p. 191). So foetuses, born babies ‘and the youngish child’ do not have rights (p. 195). We return to a consideration of this interesting matter in the Part Five. (We might note, incidentally, that like Dworkin, Flathman has doubts whether a foetus has interests. Such items, he says, can be ‘valuable’ though.) 3 ‘Replies to Endicott, Kamm and Altman’, Journal of Ethics, 2001, p. 266. The ‘early’ in this remark must have to do with Roe v. Wade, where an abortion at 20 weeks would still count as early.

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no small matter. The second chapter of Life’s Dominion is actually entitled ‘The Morality of Abortion’ (my italics) and makes constant reference to the no-rights thesis. Although a foetus on this account cannot have a right to life, once it is born and has survived for a while, perhaps for a year or two,4 it will after a while acquire this right. It seems to be suggested that it is always more serious to violate this shiny new right than to commit the worst of valuecrimes – that it is always worse to murder, even where the net preservation of value is enormous, than simply to destroy an exceptionally valuable rightless individual without any compensating saving of value elsewhere. However, I am not sure how this would be argued, and I may have misread Professor Dworkin here.5 Certainly, we are all inclined to see violations of the right to life as a matter of special gravity in every case. There may be lightweight rights, but this is nowhere thought to be one of them. It is easy to appreciate how a modern liberal champion of equality and rights would prefer to say that abortion is quite often a very great wrong, cosmically speaking – a disaster, a misfortune, a tragedy, an upset, like the burning of the ancient library at Alexandria6 – than to say that it is a grievous wrong to someone, but happily to someone who does not count as much as you or I. In this matter everyone counts alike. That in some way everyone is owed ‘equal concern and respect’ is an idea to which Dworkin has devoted his life. There could not be a little right to life for little people and a big one for big people. This conviction about equality in relation to the right to life is indeed something remarkable. It needs to be correctly described. It is not of course the belief that every murder is equally bad, for any bad action can be exacerbated in all sorts of ways. We should think rather of the claim that in every murder there is, as it were, a core element of equal outrage. This 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.) 5 We are told that it is possible to think that insulting value by killing is as bad as infringing the right to life One may object to abortion ‘just as strenuously’ in either case. (LD, p. 12) We are also told that ‘the debate [about intrinsic value] is even more important to most people than an argument about whether the foetus is a person would be, for it goes deeper – into different conceptions of the value and point of human life and of the meaning and character of human death’ (LD, p. 67). But this might just be the claim that these people suppose the theoretical issues connected with value to be deeper, not that they think it especially bad to insult value by killing. 6 Assuming there was such an event – the history seems very confused.

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represents a belief very broadly shared. Indeed, we more or less take it for granted. People would think it a mark of civilisation. If someone’s ‘theory’ of the ethics of homicide threatens to endorse inequality in this matter, equality will be dragged in by hook or by crook. When all else fails, stipulation will be called upon.7 Eric Rakowski claims that ‘few people’ would suppose that the right to life of a foetus is as strong as that of an adult.8 I wholly disagree. It seems characteristic of those who recognise both such rights – and there are very many such – to believe in equality: we find them saying, in effect, a man’s a man for a’ that. No one who says (what is often at least the unvarnished truth, sometimes ridiculed but only, I think, in bad faith) that abortion is baby-killing would say it with the suggestion ‘So you see, it’s not so bad then’, that it is only baby-killing, thank goodness. Commenting on Eric Rakowski’s paper, Dworkin gives a very unfriendly response to the suggestion that the right to life, assuming that it could exist before birth, might be considered ‘weaker’ at that time than in later life. He says that there would be a difficulty even in understanding what was being claimed. 9 The philosopher who first discovered that at any time one cares to mention there are always a large number of human beings who cannot be said to have rights, or who cannot be genuinely harmed, or to whom we cannot have a responsibility, would have to count as one of the greatest benefactors of mankind. And if one were not the fi rst to establish it, one would still deserve the world’s thanks simply for promulgating it in a vivid and confident manner. The existence of the rights of others is one of the principal barriers to freedom. Rights can often be a bar to what we may do in a kindly spirit, even indeed in the defence of rights. And as we think of the right to life as particularly grave and binding, it is especially beneficial to limit its scope. A vast number of people will then be liberated. I shall accordingly refer to the idea that certain human beings cannot be said to have a right to life as The Useful Claim. The urgency of the issue is brought home when we see how increasingly our laws are expected to work within a framework of declared ‘human rights’. The various declarations seem especially threatening to freedom in regard to the matters with which we are concerned, particularly when one 7 Jeff McMahan for example manages to stipulate equality for all (except of course for those deemed ‘non-persons’). See his article ‘Killing and Equality’, Utilitas, 1995, p. 15. See also Don Marquis’s suggestion that we should ‘adopt a convention that all murders are equally wrong’ (‘An Argument that Abortion is Wrong’, in Hugh LaFollette, ed., Ethics in Practice, Oxford: Blackwell, 1997, p. 100, italics added). 8 Ronald Dworkin, ‘Reverence for Life, and the Limits of State Power’, Utilitas, 2001, p. 44. 9 Justine Burley, ed., Ronald Dworkin and His Critics, Oxford: Blackwell, 2004, p. 375.

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considers the way it is insisted over and over that everyone is protected, no matter how humble or handicapped. People who nowadays take a great pride in the thought that we have at long last, after centuries of ‘medieval’ barbarism, discovered the universality of human rights, and who perhaps contribute to heavy legal volumes on the same, have to face a discomfort. The right to life will naturally be written up high: ‘Everyone has . . .’. Yet a few pages further on, perhaps in suitably small print, it will quietly be admitted that this ‘everyone’ does not mean everyone. And however small the print, someone, someday is bound to notice. What is urgently needed then is a rationale, and this is just what Dworkin, alongside other prominent philosophical benefactors, has supplied us with. As we said, rights (to say nothing of other people generally) are a threat to freedom. Dworkin is therefore correct to be cautious in the attribution of rights. Reckless attribution should not be thought of as a kind of generosity. It can even result in injustice. People can be short-changed as a result of the incorrect attribution of rights to other claimants. This is clear in matters of distributive justice where there is an issue of fair shares. Everyone recognises, whether or not they could vaguely be called ‘egalitarian’ in outlook, that equal division is sometimes a requirement of justice. Where this is so, the rights of the recipients can all be adversely affected – one might say diluted – by the admission of spurious claimants. If therefore resources are given to save the life of a baby, born or unborn, under the erroneous impression that it has entitlements, that it is entitled to a share, then the share of resources available to everyone else (in the family, in the community, in the country, in the world – whatever is thought the significant unit) is improperly diminished. To bring the matter home, consider the idea, convincing it would seem to some if not wholly convincing to the present writer, that the children of a family are each due an equal share of (what might well be called) family resources. Professor Dworkin himself appears to take this view. In an interview given to a magazine, G. A. Cohen, Chichele Professor of Social and Political Theory at Oxford, is discussing the claims of equality in general. After saying that it was clearly desirable to move towards equality of resources seeing that the less well off – perhaps the poor – would become better off, he continues: The harder point to defend is that equality is good in itself. Here I would borrow some ideas of Ronald Dworkin, although I do not know how much I have added to them. His response to the argument that equality only matters as a means to make the worst off better off and has no other value is this: Imagine that you are a parent of, say, four children, and you have resources to distribute among them: it is simply wrong to distribute them unequally. You are not going to distribute what you have to distribute to them unequally, even if, were they unequally treated, the

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one at the bottom would be better off than he would be if they were all equally treated. You are going to treat them equally because you believe it is appropriate: it is the right relationship between you and them that they be treated equally.10 The children, one might say, are owed their share. In the present context, of course, we would have to say the children with rights, since according to The Useful Claim we are to imagine that there could be children without any. Now if a child without rights were given family resources merely to save its life or preserve its health – during or after a difficult birth let us say – perhaps under the false impression that it had an entitlement, all the other children in the family would have reason to complain. To be sure, these other children might choose to be generous with what is their due. They might offer to give their troubled sibling a handout. But we could hardly presume on their generosity, especially when we know the way children commonly are. Without this informed consent they would all be wronged – and who is there who wants to wrong his own children? And in any case consent might be impossible to obtain as they might be too young to weigh the matter up. Admittedly, in real life there might be mitigating complications. The survival of the new sibling might produce a certain benefit to the other children, and the measure of injustice might accordingly have to be subject to a certain discount. Or so someone might argue. Furthermore, some of the resources expended on saving the new child’s life might have come out of the parent’s own pocket-money. But the basic point remains: we could not justly cut into an individual’s share of resources to favour individuals whose claim to these resources is spurious in that they have no rights at all. It is indeed curious from the point of view of distributive justice that we allow people wantonly to introduce new right-holders if all it would take to prevent such a thing would be an abortion or infanticide which infringes no rights. People always forget this when they allow themselves to drool over a new baby. Introducing new claimants will presumably devalue the rights of everyone else in the universe, at least according to a widespread assumption about justice in distribution. (This should perhaps have been every normal adult in the universe, but the general idea is clear enough.) It would be easy to eliminate potential claimants before they became embarrassingly endowed with the right not to be eliminated. One thinks particularly here of disabled individuals who, try as they might, could be expected to consume more than they produce, ‘useless mouths’ or resource sinks. By contrast, individuals destined to be productive could eventually compensate those who initially lose out. 10 The Philosophers’ Magazine, Winter 1997. Also at .

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Admirers of Mill’s defence of liberty will perhaps remember how anxious he was about parents who might take it upon themselves to introduce newly generated competitors. He saw the possibility of a ‘serious offence’ in this regard, an offence indeed against very many people. ‘In a country either overpopulated, or threatened with being so, to produce children, beyond a very small number, with the effect of reducing the reward of labour by their competition, is a serious offence against all who live by the remuneration of their labour’.11 True enough this is not put across as an issue of shares. For if the members of some group are already entitled to a share of some aggregate, amounting to such-and-such a sum, to introduce a new competitor who will diminish the slice due to these members will be to wrong them whether or not ‘overpopulation’ is threatened, and whether or not the number of new competitors is small. But perhaps this still involves considerations of distributive justice in a broader sense. From our perspective in this chapter however our interest would naturally focus on what counts as ‘having produced’ a competitor, that is to say, an individual with rights. What is it ‘to bring a child into the rights-world’? Might one not have a duty to intervene before the individual in question acquires the solemn right against the interruption of his existence? Might not laws be passed which seek to enforce this duty? (Mill himself immediately after the passage just quoted expresses his approval of laws aimed at restricting child production.) What now about The Useful Claim itself: the claim that human individuals cannot be said to have a right to life at an early stage in their lives? What about the notion, for example, that an unwanted girl in India, her sex revealed by ultrasound, could not intelligibly be said to have the protection afforded by the right to life unless she was lucky enough to be born and then grow a bit? We would want to scrutinise an argument to this effect, mainly because it seems on the face of it implausible; but in part too because we might uneasily feel – without wishing to be overly moralistic about it all – that a convenient doctrine which appears to deny to some the basic rights which others enjoy should be examined with especial care. Haven’t we been here before in the history of thought? – that is to say, in the business of denying that certain human individuals can be regarded as coming under the protection of justice? It is perhaps worth remembering that a philosopher as eminent as David Hume managed to argue that women, being weak, would not count among the individuals thus protected were it not for their ‘insinuations, address, and charms’.12

11 ‘On Liberty’ in J. M. Robson, ed., Essays on Politics and Society, Collected Works of John Stuart Mill, Vol. XVIII, p. 304. 12 An Enquiry Concerning the Principles of Morals, Section III, Part I. Commenting about beings wholly within our power, Hume suggested that ‘we should not,

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In the chapters to come we will consider how Professor Dworkin defends The Useful Claim. This claim is, as I said, central. It is central not because Dworkin devotes much space to it. He has in fact rather little to say, no doubt because he considers that the point at issue can be demonstrated swiftly and devastatingly, or because he thinks that other competent philosophers have already done the job for him: it is certainly an idea which is going the philosophical rounds as we will shortly see. The point is a critical one since if it were to fail – if, that is to say, a foetus could have a right to life after all – the awkward presumption that abortions, at least after the earliest weeks, are murder, and aggravated murder at that like the killing of a (friendless) toddler, would reassert itself. The obstacle to a perfectly natural belief would have been removed. And it would be absurd to talk about equality of concern and respect – to return to that hallowed phrase – if it did not apply here, for it would be a very minimal kind of equality which merely insisted on including everyone under this shield, the shield which provides the most elementary protection of all, protection from being disposed of. We have reached a decisive moment. It is only because a foetus, however ‘sacred’ its life may be, cannot have a right to life that the hard-line opponents of abortion must be misguided in what they say or appear to say. If a foetus could have a right to life it would have it, and Dworkin would be proud to count himself a hard-liner on this issue – as he must surely take a hard line already about the killing of unwanted toddlers, let us say for medical research. Minimal decency would require no less. He would actually believe what those who are pro-life say that they believe, and, mindful of the need to be consistent, would firmly deny that it is permissible to kill dependent human individuals in testing cases, where for example the pregnancy had resulted from rape. (Help in such cases would have to be made available in other ways.) Professor Dworkin is well aware that the moment is decisive. He is quite blunt and forthright in this matter. He is eager to concede that if a foetus can truly be called ‘a helpless unborn child with rights and interests of its own’ then ‘permitting abortion is permitting murder, and having an abortion is worse than abandoning an inconvenient infant to die’ (LD, pp. 9–10).13 To believe that abortion is murder is to believe that abortion

properly speaking, lie under any restraint of justice with regard to them’. About women in particular he says that although ‘the males have, in all countries, bodily force sufficient to maintain’ a ‘severe tyranny’ over them, ‘such are the insinuations, address, and charms of their fair companions, that women are commonly able to break the confederacy, and share with the other sex in all the rights and privileges of society’. (See also p. 320 below.) 13 Most such abandonings would surely themselves be murder. On the question of permitting, we do of course have to permit murder – in the sense that it would

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‘violates the most fundamental rights and interests of unborn children’ (LD, p. 9). Professor Dworkin’s stress on ‘helplessness’ here presumably indicates that the murder in question would, in his view, be of a peculiarly despicable kind. Such a murder he would characterise as ‘the cruelest possible violation of the rights of an unborn child’.14 To speak up for choice and toleration he says, would be like inviting people ‘to make up their own minds about rape’ (LD, p. 10). In his article in the New York Times he says: ‘people who think that abortion violates a foetus’s right to life can no more compromise than decent people can compromise over genocide’.15 All this is unsurprising, but for him to say such things, and so forcefully, is surely to his credit. Since we have so often had to be critical, this is a positive point we should stress. In regard to the treatment of babies, born and unborn, Dworkin is here standing on the very brink of an awesome conviction.16 Of course it is not in general true that if someone could conceivably have a right he actually has it. Rights which arise from property, promising, authority, etc., afford an enormous number of counter-examples. But the right to life would not be thought to be contingent in this way. It would nowadays be called a human right. And one natural way of taking this phrase would be: a right which one only has to be human to have. That is what people believe about the right to life. It might be called a universal right. But of course it is always assumed that it would make sense to say in the particular case that the individual in question had such a right. That is why I talked just now about the ‘removal of an obstacle to a natural belief’. If we reject this contention that a foetus cannot intelligibly be said to have a right to life, someone might still want to argue, as a backup, that it in fact lacks such a right, despite this talk of universal human rights. Moral philosophy is versatile, and it is usually possible, for those well trained in it, to circumvent what they would rather not have to face. That, one might

be absurd to devote more than a certain amount of public resources to murder prevention when there are streets to sweep etc. We might even have to permit certain murders as a matter of law, for pragmatic reasons (see note 38 in Part One). 14 From the new Preface to the Vintage edition of Life’s Dominion (1994), p. x. Professor Dworkin is trying here to present a sympathetic description of the view which is overturned, mercifully, by his account of the concept of interests and rights. The context suggests that this is what one would have to say but for this account. 15 ‘Life is Sacred. That’s the Easy Part’, New York Times Magazine, 16 May 1993. 16 I am here going along with the spirit of the remark about ‘compromise’. It would not, I am assuming, represent a compromise over genocide to say that there are some things which one would not do even to prevent it. As we saw (p. 63), Professor Dworkin himself thinks that we need an absolute teaching against torture, for example. He would accordingly say that one ought not to torture prisoners even to prevent genocide. I do not think he would want us to regard this as ‘a compromise over genocide’.

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suppose, is the practical point of ‘practical ethics’. ‘Where there’s a will there’s a way’ is surely its motto. In regard to our present topic, people will say to themselves: there must be some bit of philosophy – some cunning bit of analysis, some principle which will enable us to take a stand on a point of principle – which permits us to inject this poison, or cut off these limbs! If the reason is not forthcoming here, perhaps it will be forthcoming there . . . And there is another fall-back position. Suppose that a foetus or neonate has a right to life. What of that? it might be asked. It is only the conservative liberal, it might be argued, who has a rooted objection to violating the right to life, let us say in the interests of others. The conviction – once taken for granted – that it would be unthinkable for a doctor to kill someone even where this is deemed necessary to save several other people, is beginning to seem just one more remnant of the tattered old ethic of the sanctity of life. Once this conviction – or should we say prejudice? – is rejected, others of the kind will surely be rejected too. Why would killing only be justified by the prospect of saving lives? Why not for human good generally? Why not in the interest of the environment? There is nothing in utilitarianism, deontology, or virtue ethics, or the ‘four principles’ invoked in contemporary medical ethics, which would rule out such developments. If necessary, people will talk about the cruel dilemmas thrown up by fate, and the moral impossibility of keeping one’s hands clean – in this particular case, of keeping the blood off them.17 So the suggestion that a foetus or neonate really has a right to life would not embarrass a liberal liberal. Still there are no signs in his book that Ronald Dworkin conceives such an escape route. He is a conservative liberal to the core. We have seen how he dismisses the very suggestion that a child might have a junior right to life, a right lite, something rather less weighty than the senior item enjoyed by grown-ups. And he rejects killing-forsaving. The idea that it is permissible to perform an abortion when necessary to save the mother’s life is held to be ‘inconsistent with any belief that

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). 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?

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a foetus is a person with a right to life’ (LD, p. 32). In short, he has nailed up his colours, and thrown away the hammer. There is a way, however, in which the question at issue in this Part and the next might not be critical at all. And this has nothing to do with junior rights, or with the supposed liberty to infringe the right to life in a good cause. For it could turn out (and here I speak unclearly) that the objection to murder rests, neither on the idea that people are abstractly precious nor on the idea that they have a right to life. Or better perhaps, that the idea that there is a distinction to be made is something of a mistake. There is a possibility of a fruitful development here, and it is a very great, if incidental, merit of Life’s Dominion to have brought the matter up. I shall return to this hint or suggestion in Part Five. But first we must consider in some detail Professor Dworkin’s instructive argument that human individuals in the womb cannot have such a thing as a right to life. As before, we shall take in the views of other writers relevant to this issue, particularly in this case the work of Professor Dworkin’s fellow liberal and legal philosopher Joel Feinberg who has been influential in developing philosophers’ thoughts in this area.

3.2 The futility of current discussions of personhood in connection with our topic Writers on abortion have discussed rather fruitlessly whether or not a foetus is ‘a person’, the thought being that if it is not ‘a person’ it will not have a right to life, a matter briefly touched on in Chapter 1.4 (p. 20). The discussion has been fruitless because those who engage in it prefer to give their own accounts of what the word ‘person’ means; hence there seem to be almost as many definitions as philosophers.18 This chapter is devoted to eliminating this distraction. It is a distraction which Ronald Dworkin largely avoids. So in this chapter we are siding with him. If someone were to ask whether the nineteenth-century laws against abortion represented ‘a belief in the personhood of foetuses’, we simply would not know, without further explanation, what was at issue. And this even if the questioner were to add ‘I mean person in the philosophical 18 Naturally the OED itself gives several definitions. It first suggests ‘individual man, woman or child’ which would be of no help at all. True enough it also gives a ‘philosophical’ sense ‘a self-conscious or rational being’, largely it would seem from the examples given, to allow for God. But this definition is really less comforting than it might appear as it is covertly modal – involving ‘can’. Selfconsciousness and rationality are presumably abilities. One might almost say: when ‘can’ comes on the scene all bets are off. We shall return to consider problems with ‘can’ later in this book. See also Roderick Chisholm’s definition of person quoted in note 70, p. 197: a definition which explicitly involves ‘can’. Those wishing to make out that babies are non-persons should take care to avoid it.

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sense’. Frances Kamm in her account of Life’s Dominion talks as if there were such a thing as the philosophical sense of the word person; this use of the definite article is pretty misleading (Professor Dworkin himself appropriates this definite article, at LD, p. 23, and twice at LD, p. 245). If there has been a canonical definition of ‘person’ in the history of philosophy, it would probably have to be Boethius’s ‘individual substance with a rational nature’. But this would doubtless not be suitable for abortion-liberty purposes. Nor apparently would Kant’s use of this word when he says (his emphasis) ‘The offspring is a person.’19 But perhaps there is such a thing as the concept of personhood as used in the contemporary ethics trade? If there is, and if concepts are thought of as tools, it would be something of an adjustable spanner. Unfortunately it has not always been easy to get the adjustment right. Those who seek to justify abortion continually need to make sure that they are not also permitting other things. The pioneering article which did so much to introduce this notion of personhood to students of practical ethics, Mary Anne Warren’s ‘On the Moral and Legal Status of Abortion’, provides a nice example. She felt obliged to add a ‘postscript’ which begins: ‘Since the publication of this article, many people have written to point out that my argument appears to justify not only abortion, but infanticide as well’, and she proceeds to search for a way out of this embarrassment.20 We should not be surprised to find that personhood-ethics runs into such difficulties. ‘Person’, we are always told, comes down to us from ‘persona’ – a character in a play, or perhaps a mask used by the same. People like to appeal to etymology when it suits them. With this in mind, we could try saying that a child was not (really and truly) a person until it was old enough to pretend to be someone else. This would release us from some hampering moral shackles. One thing seems clear: a person in this range of uses is something we can become and cease to be. I once saw a notice in a shop window: PartTime Person Required, Apply Within. If these philosophers are to be believed, we are all part-time persons. In practice, philosophers seem to have acted as if they had the power to declare certain inconvenient individuals to be non-persons, at least within a certain range. One is reminded of outlawry:

19 Immanuel Kant, The Metaphysics of Morals, trans. Mary Gregor, Cambridge: Cambridge University Press, 1991, p. 98. See also pp. 190–1, below. 20 Mary Anne Warren, ‘On the Moral and Legal Status of Abortion’, The Monist, 1973, and very often reprinted. The postscript was written for the reprint in Richard Wasserstrom’s Today’s Moral Problems, 2nd edn, New York: Macmillan, 1979, and has since appeared with the article. Readers of Life’s Dominion will be interested to hear that in the postscript she compares the destruction of a born child to the ‘wanton’ destruction of works of art, though there is no mention here of intrinsic value.

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‘At one time a human being who had been declared an “outlaw” ceased to be a “person” in the eyes of the law, and killing him was not homicide.’21 Deciding whether to call an individual a person can affect how comfortable we can continue to be with ourselves and our ways. We don’t so much as infer that because an unborn child is not, thank goodness, a person, abortion must be more or less all right. It is, rather, that we need to keep on saying that such individuals are not persons – or perhaps not ‘full’ persons – in order to preserve the freedoms we want. If the law is sometimes prepared to refer to someone unborn as a person, well we just hope that not too many people get to hear of it.22 A writer on the law in relation to children puts the matter thus: However illogical in morals, biology, and law the rule is, any society that wishes to sustain the legality of abortion can do so with an easy conscience only when the unborn are characterised as other than full legal persons.23 Thankfully, it is quite easy to take this precaution. As I have noted, the word ‘person’ has proved very adaptable. Well-regarded workers in this field often consider themselves entitled to invoke – perhaps make up? – what they call moral senses of the word person. Philosophers will no longer be surprised to hear this, but perhaps they ought to be. Joel Feinberg, for example, here following Mary Anne Warren, tells us that there is a sense of the word person – a ‘moral sense’ – in which it means a being which possesses ‘inalienable rights to life, liberty, and the pursuit of happiness’.24 It is very reasonable indeed to say that foetuses, or neonates for that matter, are not ‘persons’ in this particular home-made meaning. The point has been demonstrated by Dworkin himself: for he has famously, and to my mind conclusively, shown that no one has a right to liberty.25 Hence there are no persons in this sense at all.

21 R. M. W. Dias, Jurisprudence, 5th edn, London: Butterworths, 1985, p. 261. 22 Williams on Wills, 5th edn, ed. C. H. Sherrin et al., London: Butterworths, 1980, contains a chapter entitled ‘Persons en ventre sa mere’. In view of the discussion to come we should note the assumption, quite unsurprising of course, that there can be such a thing as ‘the unborn person’s interest’ (p. 582) and that something can be done ‘for the benefit of the unborn person’ (p. 583). 23 K. Norrie, ‘Protecting the Unborn Child from its Drug or Alcohol Abusing Mother’, in Law and Medicine, Oxford: Oxford University Press, 2000. p. 227. 24 ‘Abortion’, in Freedom and Fulfillment, Princeton: Princeton University Press, 1992, p. 39. 25 He argues that we may innocently foreclose the opportunities of others for the lightest of reasons, and that this is incompatible with the idea that they have a right to do what we prevent them from doing. He says instead that people have rights to particular liberties. See ‘What Rights do We Have?’ in Taking Rights Seriously, London: Duckworth, 1977, pp. 266–72.

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Of course there are other possibilities of moral definition. Might we not find that there are two meanings of the word ‘cat’: (1) ‘adult member of the species Felis domesticus’ (what would be called ‘a cat in the biological sense’) and a moral meaning (2) ‘a feline whose tail must not be pulled’? Might the word even turn out to have an immoral meaning, namely ‘a feline whose tail must be pulled at all costs’? One could say, if one liked, that to be a person in a certain moral sense of the word is to have duties, or perhaps some particular duty like the duty not to smoke in a public building. Foetuses are certainly not persons in this sense – and if we introduce similar moral definitions of the phrase human being they are not human beings either. Garrett Hardin once generously suggested that we could define a foetus as a human being or non-human being ‘any way we wish’.26 But why stop there? In this way one could easily show beyond cavil that a foetus is not even alive (in the made-up or ethical understanding of the term, that is to say). There may not be a right to liberty, but there is certainly a right to define to one’s heart’s content. Legal views of personhood offer more variety than most people realise. A spokesperson for Planned Parenthood recently talked of ‘the traditional view of a woman and her foetus as a single legal entity’. She may not have been aware of a similar traditional view about a husband and wife, once considered in law to be a single person.27 In recent times we have heard that an ordinary functioning adult human being can fail to be a person.28 A water ouzel, however, might be counted in. 29 This admirable example of inclusiveness we owe, incidentally, to one of the Justices who brought us

26 Quoted in D. Callahan, Abortion: Law, Choice, and Morality, London: Macmillan, 1970, p. 457. 27 This doctrine, like an analogous doctrine about pregnancy, could have been liberating for women. That might sound paradoxical, but a wife who did not count as a separate person from her husband could not be accused of stealing his property. ‘The wife cannot steal the goods of her husband, for the husband and wife are one person in law’, said Sir Edward Coke (Institutes of the Laws of England, 4th edn, part 3, p. 110, London, 1669). Presumably too, the husband could not steal the wife’s property – but this might have seemed less significant if men had tended to own more than women owned. 28 In Planned Parenthood of Southeastern Pennsylvania v. Casey, Justice Stevens likened the position of a foetus to that of an immigrant into the United States seeking to become a ‘person’ (scare quotes his): ‘The state interest in protecting potential life may be compared to the state interest in protecting those who seek to immigrate into this country. A contemporary example is provided by the Haitians who have risked the perils of the sea in a desperate attempt to become “persons” protected by our laws’ (505 U.S. at 914, fn 3). I talk above of an ordinary functioning adult in case anyone is disposed to consider that impairment can deprive one of personhood. 29 William O Douglas. In his dissenting opinion in the 1972 case, Sierra Club v. Morton, 405 U.S. 727. Justice Douglas, having pointed out that ‘the ordinary

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Roe v. Wade. A writer in the Harvard Law Review suggests, very credibly, that judges in practice select ‘whatever theories of personhood suit whatever outcomes they desire’.30 However, what philosophers have to say can if anything be even more surprising. Thus Roland Pucetti has argued that each of us is really two persons.31 He makes use of the fact that we have two cerebral hemispheres. A person would, so to speak, be half an individual man, woman or child. Daniel Dennett, however, thinks that none of us can be sure that we are even one person.32 Might we be just half a person? Eddy Zemach thinks it would be quite intelligible to suppose that what we commonly regard as father and son are to be counted a single person. 33 Perhaps it is up to us what we count as a person, at least within pretty broad limits? It also seems to be open to question among philosophers whether persons can actually be said to be alive. Animals are alive, including of course human animals. But a person is a completely different sort of entity.34 Practical ethics as we know seeks to apply the insights so painstakingly won by philosophy. So let us set to work in regard to murder. If only persons could commit murder, and we could not know whether anyone actually is a person, we would surely have to acquit any suspect. (Whether a

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corporation is a “person” for the purposes of adjudication’ (at 742) comments ‘so should it be as respects . . .’ There follows a long list, which includes water ouzels. Unattributed article, ‘What We Talk About When We Talk About Persons: The Language of a Legal Fiction’, Harvard Law Review, April 2001 (pp. 1745–68), p. 1759. The word ‘theory’ perhaps raises inappropriately imposing expectations. Ronald Pucetti, ‘Brain Bisection and Personal Identity’, British Journal for the Philosophy of Science, 1973, discussed in Kathleen V. Wilkes, Real People: Personal Identity Without Thought Experiments, Oxford: Clarendon Press, 1988, p. 21, pp. 140–43. The field of personal identity is apt to throw up such strange doctrines. It is possible, he says, that ‘we cannot even tell in our own cases if we are persons’ (‘Conditions of Personhood’, reprinted in Michael F. Goodman, ed., What is a Person?, Clifton, NJ: Humana Press, 1988, p. 164, italics added). Professor Dennett thinks it quite on the cards that the concept of personhood might turn out to be ‘incoherent and obsolete’ (p. 146), which sound to me pretty serious defects, especially in combination. He tries to give an account at least of the necessary conditions of personhood, and it is very evident that individuals who lack what is necessary will include many whom everyone, even ethicists, would recognise as susceptible to murder. Eddy Zemach, ‘Unconscious Minds or Conscious Minds?’, in Peter A. French, Theodore Uehlng, Jr, and Howard K. Wettstein, eds, Midwest Studies in Philosophy X: Studies in the Philosophy of Mind, Minneapolis: University of Minnesota Press, 1986, p. 145. The rather sophisticated possibility that persons are not actually alive is discussed in Eric T. Olson, ‘Material Coincidence and the Indiscernibility Problem’, Philosophical Quarterly, 2001.

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half-person could be found guilty of half a murder would have to be a matter for further research.) Again, if each of us might be two persons we would need to know which one did the deed. This would bother us greatly, since murder would be a far more serious crime than we had thought, at least if every killing counted as the killing of two persons. Perhaps we would console ourselves with the thought that since no person is actually alive, murder must be impossible anyway. Professor Dworkin, to his credit, shows a proper reluctance to become bogged down in such uncertainties. He sets aside the question whether a foetus is ‘a person’ as ‘too ambiguous to be helpful’ (LD, p. 23). Perhaps it would be better to say that it has become too ambiguous to be helpful, or that it has been made too ambiguous. In the Chicago Law Review article he says that the phrase a person is ‘runic’ (FL, p. 85). This is surely a fair comment. And in Life’s Dominion, though he suggests that there is indeed such a thing as the meaning of the word person ‘in the philosophical sense’, he adds that we need not attend to the matter. This certainly comes as a relief. ‘We might believe philosophically that pigs are persons but that human beings have no reason to treat them as we treat one another; or, on the contrary, we might decide that pigs are not persons according to our best understanding of that complex concept but that nevertheless their capacities entitle them to the treatment persons give one another’ (LD, pp. 22–3). Lawyers might, of course, need to decide what a clause which mentions ‘persons’ is supposed to mean – so the word cannot be wholly avoided. Dworkin naturally recognises this (LD, p. 23). Likewise, elevators contain loading notices about ‘persons’ – and we would need to think about the intended sense. Here small children are perhaps not to be counted in. A serious investigation into the notion of personhood ‘in the philosophical sense’ – which I take to be something other than the mere invention of an abortion-ready definition – might indeed result in our classing a foetus as a person. Thus X might be said to be a person ‘if and only if X is an animal falling under the extension of a kind whose typical members perceive, feel, remember, imagine, desire, make projects, move themselves at will, speak, carry out projects, acquire a character as they age, . . .’, and many other such things. This is David Wiggins’s suggestion in his careful study of such matters, Sameness and Substance.35 On this account, he says ‘there is much to be said for counting a foetus as a person and for tracing persons back in the direction of the zygote’.36 Those who have anxieties about abortion at this point are thoughtfully reminded by Professor Wiggins that Judith Jarvis Thomson has long ago managed to justify abortion even on the assumption that foetuses are ‘persons’. Now, and with Life’s Dominion 35 Sameness and Substance, Oxford: Basil Blackwell, 1980, p. 171. 36 Ibid., p. 220.

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available, nervous people could also be reassured by a new permissive argument to be extracted from its pages.37

3.3 We need to ask, not ‘Is NN a “person”?’ but rather ‘Does NN have rights?’ How it is supposed that a foetus has none. We saw at the end of the last chapter that in Professor Dworkin’s view it is not going to matter whether we use this battered, tattered word ‘person’ to characterise a foetus. And surely we must agree. Let it be the case, if you will, that a zygote, or an embryo, or a grown foetus, or a neonate, is to count. Is it ‘a person with rights’? That, for him, is the crucial question. To be sure, that might seem an unhelpful manoeuvre, since the notion of a right is itself none too clear. If the word ‘person’ is to be classed as runic, the phrase ‘person with rights’ might seem runic twice over. But everyone – to date at least – says that any seven-year-old child counts as ‘a person’, whatever definition takes his fancy, and thinks it wrong to kill someone of this description. To say that a foetus is ‘a person with rights’ would be to say that it would be wrong to kill it for just the same sort of reasons. We all assume that there are such reasons even if we are not well able to state them. Dworkin says that he is using the word person in what he chooses to call ‘the practical sense’. ‘The claim that a foetus is a person means only that it has a right to be treated’ in the way we believe creatures ‘like you and me’ should be treated (LD, p. 23). That would have to be understood in a certain way. After all, quite big children do not have some of the rights enjoyed by you and I, but no lawyer or moralist would want to call them non-persons merely on that account. But let us assume that a sympathetic critic can sort this out. The much mangled word person will then drop out of consideration, in favour of a discussion of ‘rights to be treated’ in this way or that. Incidentally, we should note a rather curious remark. He says that such and such an argument (which does not here concern us) makes the assumption ‘that a pregnant woman has no more moral obligation to a foetus she is carrying, even if that foetus is a person with rights and therefore either her son or her daughter, than anyone has to a stranger’ (LD, p. 249, italics added; see also FL, p. 386). It is hard to see why Professor Dworkin would think it necessary to add this ‘and therefore’ unless there was sometimes a problem whether one’s male offspring was one’s son, one’s female offspring one’s daughter – and that one could be reassured on the point by finding out that 37 It is important to note that Professor Thomson’s well known article ‘A Defence of Abortion’ (in Philosophy and Public Affairs) was published in 1971 before it became the fashion to invent abortion-ready defi nitions of ‘person’. Mary Anne Warren’s article ‘On the Moral and Legal Status of Abortion’ (in The Monist), the ancestor of much person-defi ning activity, came out two years later.

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he or she was old enough to have some weighty rights. Have philosophers perhaps discovered that a woman’s newborn boy is not her son, but hopefully will become such? Would he have to be grown up enough to say ‘Mum’? Might her son someday cease to be her son without changing sex? There has always been a good deal of dehumanising in this debate, but this is a wholly unexpected form of it. As we have seen, a foetus in Professor Dworkin’s view cannot have a right to life. And he wants to say something even stronger. A foetus before the third trimester cannot have any rights at all. This result is shown, he thinks, by modern embryology. How can this be? Well, what embryology has apparently shown is that a foetus, up to this age, has no good of its own. One cannot talk of what is good for it, or of what is harmful. 38 This point is quite crucial, and much of the present Part and all of the next will be devoted to considering it. That this is Dworkin’s opinion comes out rather well in ‘Tyranny at the Two Edges of Life’ where he is considering the odd thought that a woman might get herself pregnant expressly in order to cut up her offspring for spare parts (a possibility we briefly considered on pp. 112–13). No one is harmed by having a foetus destined to be cannibalized if you are struggling to save the life of an existing child in which so much from the cultural self-creation side has been invested.39 To be sure, the message of this passage is not clear as it stands. After all it is a boring truth that no tree is harmed when a forester propagates a tree. And this even when he intends to cut it down at some future date – this further information would not be relevant. Dworkin cannot merely wish to enunciate the corresponding boring truth, that the mere ‘having’ of a

38 Professor Dworkin, in claiming that a caterpillar has no interests in becoming a butterfly, makes his point using the language of good for. In explaining that an assemblage of body parts ready to be made into a human being cannot have interests, he explains this sense of ‘interests’ in terms of harm (LD, p. 16). ‘Having interests’ is discussed as a matter of what is good for people or bad for them, as in the example about the long business trip (p. 19). Someone who has taken on board what has been claimed about rights and interests has then, according to Life’s Dominion, to face the question: ‘Why then should abortion raise any moral issue at all if there is no one whom it harms?’ – the answer of course being: it destroys something ‘valuable’ (LD, p. 34, italics added). 39 New Perspectives Quarterly, p. 18. Even if ‘no one is harmed’, Professor Dworkin still has a misgiving. ‘You are . . . treating a life only as an instrument, not as an end in itself.’ However this seems not to settle the matter, for in the next sentence he writes (in notably delicate language) as if participation in these goings-on might be a privilege: ‘I believe the privilege to have a child to save another ought to be protected’.

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foetus cannot count as a harming. He clearly wants to add that the overall having-and-using procedure does no one any harm. This rather insinuated thought, that the dismembering does no harm, is quite remarkable. The context in no way prepares the ground for it. Dworkin must have realised this, for he appends a remark to reassure us: ‘After all, if the foetus weren’t created for this [cannibalizing] purpose it wouldn’t be created at all.’ We should not be reassured. This argument would appear to show that anything one does to an organism cannot be a harm to it if it was specifically generated for that purpose – let us say, that amputating a child’s healthy leg cannot possibly do it a mischief if it was brought to be as a source of legs. I do not think that Dworkin intends us to take this argument too seriously. For as we learn elsewhere, he has no need of it. In his view, a living foetus is not going to be harmed by being cut up whether or not the bits are put to good use, and whether or not this possibility is envisaged in advance of its existence, etc. We can neither act in its interests or against its interests. No one could represent its interests in a court of law: there would be nothing to represent. We cannot take its interests into consideration. We cannot say ‘the interests of the child must be paramount’, as the much used phrase has it. There are no interests in the case. And Dworkin draws a consequence: he tells us that one cannot have rights if one does not have interests in this sense, that is to say if one cannot be harmed. The broad strategy underlying The Useful Thesis is to show or attempt to show that one could not have had any rights at all at a time at which one was not yet what philosophers call ‘sentient’ (hence, of course, the involvement of embryologists who are thought to know about this sort of thing).40 What is called sentience marks the beginning of ‘a mental life’, and one needs to have or to have had this thing, a mental life, in order to have interests. One needs in turn to have interests in order to have rights. ‘An immature foetus cannot have interests and therefore cannot have an interest in surviving’ (LD, p. 18). The government, he argues (agreeing with the constitutional scholar John Hart Ely), has the power to protect the interests of dogs, but (this time disagreeing with Professor Ely), cannot have the power to protect the interest of foetuses before viability simply because, not being ‘sentient’ they have no interests at that time (LD, pp. 114–15). For the same reason, I suppose, the government could not have the power to protect

40 ‘Sentience’, as used with such confidence in these discussions, could well turn out to be an unsatisfactory and confused concept. Even if we restrict ourselves to pain, the general question of the form ‘Does a foetus of n weeks feel pain?’ is not to my mind clear but difficult to answer, but is rather unclear – and this is why the task of fi nding an answer proves so difficult. We do not need more evidence; we need better understanding. If we achieve a better understanding, we will, I suspect, fi nd ourselves having to put up with a good deal of indeterminacy. We return to this topic later in Chapter 4.2.

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the interests of pre-viable foetal dogs. If there were rights involved, something might have to be done. But as we have just seen, one cannot, on this view, have rights if one does not currently have interests, just as one cannot have a haircut if one does not have hair. ‘Sentience’ is said to be a necessary condition for having interests. But it is not held to be a sufficient condition for having an interest in survival, which is the precondition of having a right to life. A ‘sentient’ foetus might have no interests at all except the interest in not being hurt. Nothing would be bad for it except pain. We are dealing here, we are told, with what is or is not intelligible rather than what is true or false. It is important to be clear about this. The idea ‘that an organism which has never had a mental life can still have interests’ is ‘scarcely comprehensible’ (LD, p. 20); it is ‘scarcely intelligible’ (LD, p. 112). I think, coming clean, he means to say that this is simply unintelligible. This is clear from the new preface written by Dworkin for the Vintage edition of his book (1994). ‘People cannot have the thought,’ he argues, ‘that a foetus has interests of its own . . . because there is no such thought to be had’ (p. xi).41 Similarly there will be no such thing as the thought, even a mistaken thought, that a foetus has rights. Professor Dworkin makes this claim in a note (LD, p. 245), where he objects to those who want merely to ‘assume for purposes of argument’ that a foetus is a person with rights: for what is it, he asks, to assume such a thing? All this makes his opinion on this matter very evident. We could sum up his view as follows. A foetus ‘which has never had a mental life’, being not the sort of thing which can have interests, is not the sort of entity to which rights can be ascribed either, and it is simply a muddle to attempt to do so. And where there is no such thing as a right there is no such thing as a right to life. One might just as well ascribe such a right to a stone or a number. The suggestion that a claim can on closer examination turn out to be senseless rather than false is one with which we have no quarrel. No one in philosophy will expect the distinction to be unproblematic. But we have ourselves made use of this distinction when criticising what Professor 41 Here I have left out the phrase ‘from the moment of conception’. I have done this deliberately as its inclusion unreasonably weakens the boldness of Professor Dworkin’s doctrine. Technically, foetuses do not exist ‘from the moment of conception’. A developing mammal is called a foetus after the embryonic period (at the beginning of the ninth week after fertilisation in humans). The trouble, however, is not so much with the scope of our terminology. People who think that it is intelligible to say that a foetus has interests and rights may not want to say the same thing about a zygote. Someone might think that the fi rst few cell divisions yield something more like a colony of organisms – since each cell if detached is capable of developing into a whole individual. Perhaps there are special difficulties in talking about the interests of such a colony. This preface is written to make the main thesis of the book appear more evident than it really is.

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Dworkin has to tell us about ‘intrinsic value’. Professor Dworkin wants to say about the idea that a foetus has a right to life what we have said about his own idea that a foetus has a value which is not a value to anyone or anything (to Smith, to the economy, etc.). The story, then, is that a foetus is not the sort of thing to which rights can intelligibly be ascribed. It is plainly vital to look into this matter. And this not only because this story has played such a big part in Dworkin’s book. It is getting into other people’s books too – perhaps it is becoming canonical. We find it, with due acknowledgement, for example, in a recent work by Philip Kitcher. His expression is succinct and confident as if the matter was by now settled: A minimal condition for having interests and rights is surely that a being have the capacity for pleasure and pain. Nonsentient things do not have rights. An immediate consequence is that, prior to twenty-six weeks’ gestation (to take a conservative estimate of the time at which the relevant neural connections form), foetuses are not persons whose rights can be violated by abortion.42 Thousands of readers will find this exceptionally helpful.43 Professor Kitcher likes to refer to a foetus as ‘a cluster of cells’, perhaps to bring the point home. It is not so much that it is false to say that an unborn baby has rights. Ascribing rights to something not yet sentient is ‘apparently incoherent.’ And in any case, he adds, it would ‘not fit with many women’s experience of motherhood.’ That rather settles it.44 We have to take this question more seriously than is often the case in philosophy. If what we had to say in this matter lacked practical consequences we might be happy to join in with a ‘proof’ of our own. We would gladly ‘establish’ that embryos, babies, etc., lacked a right to life in our very own way – simply on the basis of our discussions about intrinsic value in Part Two. Our proof would go like this. It would make use of an idea put forward by Joseph Raz, Ronald Dworkin’s fellow Professor of Law at Oxford 42 Philip Kitcher, The Lives to Come, 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’. 43 Though if they are thoughtful they will wonder, as shall we, what is to count as a capacity, and what as a sentient being. They might even consider that God, if he existed, would have a right to be obeyed, even though it is doubtful whether theologians would regard him as ‘sentient’. See also the remarks in Chapter 3.5 below, pp. 195–6. 44 Philip Kitcher, The Lives to Come: ‘Cluster of cells’, p. 200 (twice), p. 227; ‘apparently incoherent’, p. 228; ‘experience of motherhood’, p. 226.

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for many years. Discussing the concept of a right, he says with some confidence that something can only have a right if it is ‘ultimately valuable’. Since he is naturally something of an authority on concepts of this kind, we would more or less take his word for it. Fortunately, we would not even have to ask what ultimate value is, save to note that it is a species of intrinsic value of the kind we have discussed at some length. Now we have painstakingly shown (to put the matter crudely) that there is no such property as intrinsic value. Consequently, no embryo or baby could be said to possess it. And the upshot would be – trusting Professor Raz – a vindication of Professor Dworkin’s thesis. Embryos and babies would lack a right to life.45 No doubt we could prove other startling things, but this would do for now. But are we to kill on the basis of such a consideration? There is an interesting practical asymmetry in regard to abortion. To the extent that prochoice and pro-life rely on the sophistications of philosophy, mistakes are possible in either case. Nothing is more fallible than philosophy. Women who are deprived of the moral liberty to abort as a result of a mistake in doctrine certainly lose a valuable freedom. But they can be supported and given other freedoms. I have indeed argued that women who are unhappy at finding themselves pregnant should be able to call upon our help in any case. By contrast, babies who are deprived of their lives by a mistaken doctrine cannot be compensated. They lose all. It is possible that Professors Dworkin and Kitcher would here take comfort from the thought that sophisticated philosophising would not be required to establish their case, that the matter is plain to the unprejudiced eye. We shall consider this possibility in the next chapter.

3.4 An initial difficulty. How is it that so many of those wishing to defend abortion still think that a foetus has rights? We appear to be told by Professors Dworkin and Kitcher that it is quite obviously unintelligible to suppose that a foetus has rights, either at a glance, or at any rate after a moment’s thought. Or at least that it is unintelligible that a foetus has, say, a right to a reasonable degree of care or a right not to be killed – the sort of thing under discussion here. (I say this in case it

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. (This appendix may also be found in Lloyd Steffin, ed., Abortion: A Reader, Cleveland, Ohio: Pilgrim Press, 1996.)

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is admitted that a foetus, when ‘sentient’, has a right not to be hurt.) But this claim about obviousness runs into a very evident difficulty, and it is a small step towards the light to see that this is so. Many thoughtful people with their attention focused on the topic regularly seem to suppose that there are these rights. Of course, this might be explained away. Such people, we might suppose, are ‘pro-life’ and must be unhinged by their hostility to baby-killing – or what they (often very reasonably) take to be such – and would say more or less anything calculated to put people off. This particular explanation however is wholly insufficient. For even quite ‘liberal’ writers, including those who are paid to use their brains about these matters, and who would be advantaged by noticing what Professor Dworkin says is obvious, suppose that there are foetal rights. I have gathered together some examples. We have already seen (pp. 142–3) how Fred Feldman, a philosopher who, like Professor Dworkin, mentions the ‘investment’ which occurs during pregnancy, takes it for granted that there are foetal rights – talking about desert, and what is owed in justice. And consider the following artless passage from John Mackie, a philosopher quite as committed to ‘choice’ as is Ronald Dworkin. Mackie is thinking about the case where the pregnant woman simply does not want the baby. Rejecting the idea that abortion is murder from conception on, he writes It would be more reasonable to think of the right or claim to life as growing gradually in strength, but as still being very slight immediately after conception. Then we might conclude that [this] ground for abortion is valid early in pregnancy – the mother’s right to the control of her own body then outweighs the child’s right to life – but not late in pregnancy.46 John Mackie had clearly thought a good deal about the concept of rights, and had indeed written about Professor Dworkin’s earlier views on the topic – and yet here he is expressing himself in a way which ought quite plainly to be unintelligible, at least if Professors Dworkin and Kitcher are to be believed. Laurence Tribe, eminent Harvard expert on the US Constitution and firm supporter of so-called abortion rights, speculates about a future in which a woman would be able to pass her foetus into the care of an artificial womb. He wonders whether in such circumstances a liberty to abort ‘would have to yield to the claim to life of all but the most undeveloped foetus’.47 In the context it is clearly a serious possibility for him. He thus takes it for granted that a foetus is the sort of being which can have such a claim on us (even 46 Ethics: Inventing Right and Wrong, Harmondsworth: Penguin, 1977, p. 198. 47 Abortion: The Clash of Absolutes, New York: Norton, 1990, p. 225.

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the most undeveloped one, though in this case, he supposes, the claim would be of less weight). Alan Gewirth is a much discussed moral philosopher, author of a book called Human Rights, and another called The Community of Rights, and of a large number of articles with ‘rights’ in their titles. Rights, one might say, is his chosen topic. However, he has no difficulty with the idea of foetal rights. ‘A six-month foetus’, he says quite effortlessly, ‘has the right to wellbeing to a greater degree than does a three-month foetus.’48 He is no prolifer. He seems from this discussion to support the abortion status quo, though ‘much depends on the nature of the confl ict between the foetus’s rights and those of the mother’. Indeed, he repeats that old slur, long popular among the less thinking advocates of choice, and which we have already encountered (pp. 56–7), that ‘too often’ those who are concerned for the foetal right to life ‘show marked indifference’ to the child’s other rights after it is born, such as its right to ‘adequate nutrition’. (Of course he gives no references. It is not customary to do so when making this charge.) Ian Kennedy, Professor of Medical Law and Ethics at the University of London, is senior author of a standard textbook of English medical law. He is far from being sympathetic to those who object to abortion, arguing that doctors employed in the British health service should not be allowed to refuse to provide ‘the service’ on the grounds of conscience. Nevertheless, when he raises the question whether a foetus is ‘a relevant other with rights’, the answer is to him, quite plainly, yes. ‘We may call them weak rights if you will . . . We may also recognise that they are rights which grow stronger as the foetus develops . . .’ And so on.49 Again, Judith Jarvis Thomson is an author who has published so much on the concept of a right. In her paper ‘A Defence of Abortion’ she raises the question of what we would have to say about abortion on the assumption that an embryo or foetus had a right to life. How could it have been worth it when she could so easily have shown that the supposition made no sense? Would one not have expected her at least to point out that she was drawing consequences from a plainly unintelligible premise (assuming we can understand what this feat amounts to)? In fact in her article ‘Abor48 Reason and Morality, Chicago: University of Chicago Press, 1978, pp. 143, 144. 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).

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tion’, published 24 years later, she comments on Professor Dworkin’s present suggestion. The thought that even a zygote has a right to life, she says, makes perfectly good sense. And not only does it make sense, it is not too silly to be discussed. ‘We have to take the idea seriously.’50 John Rawls does not say anything about foetuses. Nevertheless, admirers of A Theory of Justice would find it natural to suppose that there were foetal rights. In section 77, John Rawls is discussing ‘basic rights’, among which we may assume that the right to life would be included. This would come under what he calls ‘equal justice’ possessed by all those with ‘moral personality’. ‘Equal justice is owed to those who have the capacity to take part in and to act in accordance with [this, that or the other].’ He then adds: One should observe that moral personality is here defined as a potentiality which is ordinarily realized in due course . . . A being which has this capacity, whether or not it is yet developed, is to receive the full protection of the principles of justice.51 Perhaps Professor Rawls was able to write in this artless way because at the time his book was published (1971) the abortion debate among philosophers had hardly got going. No one would have had anxieties over the phrase ‘full protection’. No one would have accused him of letting the side down. Kristin Luker’s Abortion and the Politics of Motherhood is very well known and is often quoted. Writing about nineteenth-century doctors, she says that ‘like most Americans of the present day’ they believed that ‘embryos had rights’.52 According to Eric Rakowski, the German constitutional court’s abortion decision in 1993 ‘was expressly premised on the right of a foetus to live after implantation.’ Lawmakers were to allow (first trimester) abortion only as a life preserving measure.53 Feminist writers quite naturally suppose that female babies eliminated after amniocentesis in India have rights which are infringed in the process. Charlotte Bunch, the head of the Center for Women’s Global Leadership at Rutgers, seems to be of this opinion. In her article ‘Women’s Rights as Human Rights’, she says that ‘sex discrimination kills women daily . . . a deadly denial of women’s rights to

50 ‘Abortion’, Boston Review, 1995, p. 4, available on the internet, <www.bostonreview. mit.edu/BR.20.3/thomson>, page references to printout. 51 John Rawls, A Theory of Justice, Oxford: Clarendon Press, 1972 (US edn 1971), pp. 505, 509. 52 Abortion and the Politics of Motherhood, Berkeley: University of California Press, 1984, pp. 34–5. In Professor Luker’s view, they believed that these rights ‘were subordinate to the life of the mother’. 53 Eric Rakowski, ‘Ronald Dworkin, Reverence for Life, and the Limits of State Power’, Utilitas, 2001, p. 56, italics in text.

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life and liberty on a large scale throughout the world’. One of her three examples of this deadly denial reads: ‘Before birth: Amniocentesis is used for sex-selection, leading to the abortion of more female foetuses at rates as high as 90 per cent in Bombay . . .’ Isn’t this a telling example for her purposes? I do not think that Professor Bunch would take kindly to being told that all this carnage simply represented a sad loss of abstractly valuable entities, and that this was truly a shame.54 The UN Convention on the Rights of the Child defines a child as any human being below a certain age (Part 1, Article 1), no doubt wisely avoiding the question whether a human zygote or a blastocyst is a human being about which there must have been disagreement. It then says boldly, this definition in hand, that ‘every child has an inherent right to life’ (Article 6). To be sure, this provision would naturally be thought to be restricted to cases where the possession of such a right is intelligible. A dead child could not be said to have such a right, but no one would think of writing in a clause to make this clear. However, it is noteworthy that when the Convention was ratified by the UK it was done with a precautionary exclusion: that the convention would apply to individuals ‘only following a live birth’ (Instrument of Ratification, clause 1).55 This unlovely precaution would have been quite unnecessary if a right to life, like a right to vote, was something which, on the face of it, could not meaningfully be attributed to an unborn human being. None of this would come as a surprise to Ronald Dworkin. It is one of the key thoughts in Life’s Dominion that pretty well everybody has been mistaken in their view of what the abortion debate is fundamentally about. ‘The conventional view’, we are told, is that everything turns on whether ‘a foetus has interests and rights’ (LD, p. 27). Yet is it not curious that the conventional view, shared by millions, is naturally stated in a way that is patently unintelligible? And that it is stated in this way by so many academics, writing independently, and who have an interest in seeing things as Professor Dworkin does? I am not of course quoting from these writers as authorities about what is the case. I merely wish at this stage to create a presumption (and not necessarily a very strong presumption) that the claims they make are intelligible, and that we need to proceed with caution. Might not the notion of a right be somewhat complex, a mid-term foetus being capable of having one kind of right but not the other? Wouldn’t things be bound to turn out like that? How curious that this possibility is not explored. 54 Human Rights Quarterly, Vol. 12, 1990, first quotation p. 489 second quotation p. 488. This article is reprinted in Obrad Savic, ed., The Politics of Human Rights, London: Verso, 1999. 55 The Convention and the Instrument are both conveniently reprinted in Judith E. Timms, Children’s Representation, London: Sweet and Maxwell, 1995, pp. 61–78.

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Warren Quinn, in his much-admired article ‘Abortion: Identity and Loss’,56 argued that a foetus, like a neonate, cannot have what he calls ‘rights of respect’ – but this is only because such a right, in his terminology, depends upon what it claims or can be presumed to claim. Claiming, for Quinn, is something quite sophisticated, obviously beyond an infant – it is not just disliking, for as Warren Quinn points out, one can dislike what someone is doing without exercising one’s right not to have it done. One has the ability to claim, it would seem, only when one is sophisticated enough to consider claiming and yet refuse to do so. Nevertheless both foetus and neonate will have rights. Even an ‘early foetus’ (that is, an embryo) arguably has rights.57 It will have ‘rights of humanity’, and there is no suggestion that such rights are somehow less important than those which come under the other label. ‘Rights of humanity’ are retained as one grows up, but there may be a certain amount of exchange: ‘As a young person becomes an adult and more responsible for his own successes and misfortunes he tends, I suspect, to exchange some protection under the morality of humanity for protection of his developing authority under the morality of respect’.58 I am not here endorsing any of this. But it is worth noting that rights could come in different kinds, rather in this way. Indeed, we might have to consider the right to life as coming under ‘humanity’ (and this would in turn suggest that this terminology is misleading). I mentioned earlier (p. 175) how Kant baldly states that human offspring are persons, as if the matter hardly needed arguing. We might usefully record here how he also regarded offspring as the possessors of rights, a matter I have never seen alluded to in philosophical writing on abortion. He does not suggest that these offspring acquire rights only after they have grown a bit, and are making choices, nor does he so much as mention a right not to be inflicted with pain. Kant argues that ‘from procreation’ on, the community formed by the married couple have ‘a duty to preserve and care for its offspring: that such offspring have rights: that is, children, as persons, have by their procreation an original innate (not acquired) right to the care of their parents until they are able to look after themselves, and that they have this right directly on the basis of principle (lege), that is, without any special act being required to establish this right’. Offspring are ‘endowed with freedom’, and Kant clearly finds it puzzling how a free being could be produced – it cannot be, he says, by some ‘physical operation’. Kant goes on to argue that parents ‘cannot destroy their child as if he were something they had made (since a being endowed with freedom cannot be 56 Philosophy and Public Affairs, 1984, reprinted in the collection of Warren Quinn’s papers, Morality and Action, ed. Philippa Foot, Cambridge: Cambridge University Press, 1993 (references to this reprint). 57 Ibid., p. 51. 58 Ibid., p. 47.

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a product of this kind) or as if he were their property, nor can they even abandon him to chance’. The child is not just ‘a worldly being’ but a ‘citizen of the world’.59 Perhaps Dworkin would reply that Kant had failed adequately to grasp the notion of a right. Yet even he himself seems to suggest that we can understand what it would mean to say that a foetus had rights. Indeed, he says that ‘there is no difficulty in understanding what is meant’. For such rights, he says, might be bestowed on it. Thus he supposes that we can consider what the consequences would be if we were to ‘assign a foetus the rights persons normally have’ (LD, p. 245, n. 30). He is thinking here of the rights (older) children and adults ‘undeniably’ possess (LD, p. 23). These, we may assume, must include the right to life. Think too of what we might say about neonates. It would seem from what we have just said that Professor Dworkin would want to insist both that neonates cannot intelligibly be said to have a right to life, but that this right can be bestowed upon them, when it might then be taken very seriously indeed – one could face a life sentence, or worse, for violating this right. For instance, newborns can correctly be called ‘constitutional persons’ – it being taken for granted that any constitutional person has a right to life. One is certainly inclined to protest at this point: where there is no such thing as possessing there is no such thing as giving.60 It might be thought that one could treat a foetus as if it had a right. But if it is unintelligible to say that X has characteristic C, can we understand what it is to treat X as if it had characteristic C? If a tree cannot intelligibly be said to have a right to vote can we playfully regard a tree as having such a right? What would we do? Give it a name, and enter the name on a voter’s register? Tie a ballot paper to its branches? Is a listed building being treated ‘as if it had rights’, for example, rights not to be altered in certain ways? Let us suppose that it is possible for someone to be treated as if he had a right, even if on some test the (would-be) assertion that he had such a right would count as unintelligible. Mightn’t this admission rather cut the ground from under this talk of intelligibility? If it is a requirement of morality to treat Smith exactly as if he had a right to life, shouldn’t we say that he has a right to life and have done with it – even if he has been comatose from 59 Immanuel Kant, The Metaphysics of Morals, trans. Mary Gregor, Cambridge: Cambridge University Press, 1991, pp. 98–9, italics in text. 60 In this connection it is curious to find that H. J. McCloskey, who is well known for denying that animals can intelligibly be said to have moral rights, thinks that they could well have legal rights. Some of those, he says, who wish to maintain that animals possess moral rights ‘seem on closer scrutiny really to wish simply to argue that animals ought to be accorded legal rights, legal rights to life, freedom from avoidable suffering, and the like’. I take the ‘simply’ here to indicate that this latter notion is relatively unproblematic. See ‘Moral Rights and Animals’, Inquiry, 1979, pp. 25–6.

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birth, and hence (according to the argument in Life’s Dominion) without the alleged necessary conditions for having a right to life?

3.5 Exploring the connections between interests and rights The story we have been told, then, is this: that a foetus cannot have rights because it does not have interests. This ‘because’ is certainly not clear. Let us explore in this chapter what connections there might be between having interests and having rights. Professor Dworkin likes to press the point – so necessary to his strategy – that there is this connection by continually mentioning interests when he refers to rights. I thought it worth performing a rough survey, with no claim I should add, to scholarly accuracy. A quick check on the references to rights in the first chapter of Life’s Dominion revealed ‘rights and interests’ ‘interests and rights’ ‘interests or rights’ ‘rights or interests’

ten times five times once four times

I counted six other occasions in which the notions are explicitly linked.61 Reference to rights not explicitly linked to interests are very few. There are a couple of mentions of ‘a right to life’ in reports of what others have said, perhaps in answers to questionnaires, etc. There is a mention of rights in connection with the Constitution. There is a reference to the right to be treated as a person, and a brief discussion of the right to life of pigs. And that seems to be it. We appear to be subject to a variety of conditioning. After the words rights and interests have been paired sufficiently often, the association is to be as fi rmly established as fish with chips, or Gilbert with Sullivan. The bell rings, one duly salivates. I do not recollect anywhere where the idea that rights depend upon interests is actually argued for, nor does Dworkin suggest where we might find an argument to this effect. To be sure, what is already obvious does not need to be demonstrated – and perhaps, being obvious, cannot be demonstrated – but since both the concept of a right and the concept of having interests are difficult to be clear about, an argument might have been useful. Might there not be a looser connection than the one he needs for his ‘liberal’ strategy?62 61 They are: ‘most basic interests and most precious rights’ (p. 10), ‘interests and therefore rights’ (p. 11), ‘interests that should be protected by rights’ (p. 23), ‘interests and rights that protect these interests’ (p. 24), a remark about the interests and rights of unfertilised ova (p. 16), and a further remark about the right of a foetus not to be killed, linked in the next sentence with the responsibility of government to protect people’s interests, ‘particularly the interests of those who cannot protect themselves’ (p. 14). 62 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

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The absence of argument in Life’s Dominion is all the more surprising when we reflect that in Professor Dworkin’s earlier books there is little concern to link interests and rights in the Pavlovian manner I have described. Indeed, in his article ‘Do We Have a Right to Pornography?’, which includes a section on the nature of a right, he seems to reject the idea that our rights need rest on our interests. He mentions a ‘general fundamental-interests theory of rights’, a view of rights as serving to ‘protect enduring and important interests fi xed by human nature and fundamental to human development’ – as ‘a familiar theory of what rights are and what they are for’. This might seem at first sight to be the very view which is simply assumed in Life’s Dominion. But in the article about pornography he wishes to reject this view as ‘inadequate’. He has to reject this view, for he argues that people have a right to pornography, although he admits that ‘it seems implausible that any important human interests are damaged by denying dirty books or films’.63 Perhaps Dworkin would now explain that one has to have some interests or other, even if one’s rights are not always in the business of protecting them. Or perhaps he merely wants to say that although rights protect interests, they do not always protect important interests. Someone might say that argument is hardly needed. They would maintain that the word ‘interest’ is simply a general word denoting a right of any kind, so that, trivially, something which lacked interests would lack rights. Black’s Law Dictionary begins its entry on ‘Interest’: The most general term that can be employed to denote a right, claim, title or legal share in something. But this cannot be the sense under discussion here – even though at one point Dworkin allows himself to talk about ‘violating’ interests (LD, p. 9). ‘In Smith’s interests’ does not mean ‘In Smith’s rights, claims and titles’ or anything like it.

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.

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Bonnie Steinbock suggests that the dependency can very quickly be established: Interests are the content of rights: without interests, there would be nothing for rights to protect.64 It is difficult to assess such a telegraphic remark without doing the conceptual work. Prima facie, we can talk about what a right protects without mentioning interests. The right to life protects lives. And what is the content of a right? Smith has a right to smoke cigarettes (the law allows it for those over 18 and Smith is 20 years old) certainly does not entail that Smith has an interest in smoking cigarettes or again that it would be in Smith’s interests to smoke. Again, people have a right to vote, irrespective of whether they take any interest in voting, or whether it is in their interest to vote. In fact, many people with this right notoriously fail to vote because they believe, perhaps reasonably, that their vote will make no difference. And even if it were to make a difference, it might not be in their interest to vote, for they might have an incurable propensity to vote for the party which will do them down. No doubt many think this to be true of working-class conservatives. So any link there might be between rights and interests appears not to be straightforward. The matter needs arguing out. It is quite possible for a philosopher with a special concern to explore the concept to give an account of what it is to have a right without bringing in the concept of interests at all. Judith Jarvis Thomson gives the following ‘rough’ characterisation of a right: What, after all, is it to have a right? Very roughly, for a person, say Alfred . . . to have a right that we refrain from doing something is for the following to be the case: the fact that we would improve the world by doing it does not of itself justify our doing it . . . In particular, what it is merely bad to destroy we may destroy just in the name of bringing about something better; what has a right not to be destroyed we may not destroy just in the name of bringing about something better.65 64 Life Before Birth: The Moral and Legal Status of Embryos and Foetuses, New York: Oxford University Press, 1992, p. 10. 65 Thomson, ‘Abortion’, p. 4. Professor Thomson gives a two-part account – fi rst 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).

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This, as we can see, and as Professor Thomson herself notes, is not unlike what Professor Dworkin says about rights, namely that a right acts likes a trump card which can be used by someone, or perhaps by another on his behalf, in order to block an otherwise desirable course of action.66 Frances Kamm has argued that in certain instances there might be no connection between the existence of a right and the interests of anyone: ‘Could some rights be justified completely independently of serving any being’s interests, let alone the interests of the rightholder?’, she asks. And she suggests that ‘persons might have a right to treatment as equals . . . without our duty to them being based on their interests. Rather, I would say, this right is based on their nature as persons not necessarily related to any aspect of their well-being.’ These remarks sound rather speculative, but they certainly suggest a need for caution: that if it turned out that, in some sense, a foetus could be said to have no interests, it would not be safe to conclude that it had no rights, and in particular that it had no right to life.67 The relation between rights and interests might be expected in any case to be somewhat anomalous in regard to foetuses and infants. Something special might have to be said. A right to vote – like other rights to act in certain ways – can only be attributed to a developed human being. It would not follow that a right to life – a protective right, we might call it – is similarly circumscribed. Another protective right would be a right to care. No one would be tempted to say that only someone sufficiently developed to act and to choose has the right to care at the hands of his parents, say. If anything, development cancels the right. Think too of what people might have to say about God – clearly another special case. Theology is sometimes instructive even for those without religious beliefs – as indeed are stories of alien life-forms in which no one believes. God is universally thought of as a being who has authority. But what is authority? It is a right, a right to require obedience. But does God, as envisaged by those who believe in him, have interests? That seems to be very problematic. God is said to be unchanging. So he cannot be changed for the worse. Nothing that might happen would harm him. He cannot be 66 See the articles ‘Do We Have a Right to Pornography?’, and ‘Rights as Trumps’ cited in note 63, this Part. 67 Frances Kamm, ‘Rights’, The Oxford Handbook of Jurisprudence and Philosophy of Law, Oxford: Oxford University Press, 2002, p. 485. 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?

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unfortunate. He is not vulnerable. And no one is in a position to benefit him. Here it would seem one has a pure case of a right which is not dependent upon interests, even indirectly. Of course our concepts are always under strain when applied far from their natural home in human affairs. There still might be a connection of some kind between our rights as human beings and our interests. But if so, what could it be? We might be inclined here to insist that any being (God perhaps excepted) which has rights, must so to speak, have some interests or other. We do not of course mean that the individual must take an interest in something, for a very depressed person to whom ‘nothing matters’ naturally has a right to vote, etc. But at least, something or other must be in his interests. The being must have a good of his own. We must be able to benefit it. And this, no doubt is what Professor Dworkin wants (and needs) to say. So we must ask whether every human being indeed has a good of his own. But before we turn to consider this important question, we should consider the suggestion that what we have just agreed – that a being with rights must have a good of his own – still too strong, that it needs weakening with a ‘can’. The claim here would be that it is possible for a being to have rights if it is merely able to have interests. Now I am not saying that this view is either correct or even very clear. Indeed I think this view is rather odd. But the matter ought to be explored as it is in circulation. Joel Feinberg, in his often quoted paper ‘The Rights of Animals and Unborn Generations’, offers us, after a certain amount of discussion, a ‘crucial principle.’ Being in his mind ‘crucial’ we can imagine that it was something well mulled over. The principle reads: The sorts of beings who can have rights are precisely those who have (or can have) interests.68 The ‘precisely,’ meaning if and only if, might be thought controversial here, insofar as it is not clear that non-human animals can be said to have rights, though we quite naturally suppose they have interests.69 But this aside, what Joel Feinberg has to say might appear acceptable – because of this talk of ‘sorts’ and the introduction of the modal element, the ‘can’. Despite the 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. 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). 69 Elizabeth Anscombe, for example, takes it for granted that only persons can have rights. ‘On the Source of the Authority of the State’, in Ethics, Religion and Politics,

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impression given by the word ‘precisely’ these elements make the claim pretty indeterminate.70 Feinberg does indeed do something to reduce this indeterminacy. He explains that a human being does not need to have interests now in order to have rights now, and in particular these rights can include a ‘right to live’. Once again he stresses capacity. We say of a newborn infant that he has a right now to live and grow into his adulthood, even though he lacks the conceptual equipment at this very moment to have this or any other desire. A new infant . . . lacks the traits necessary for the possession of interests, but he has the capacity to acquire those traits, and his inherited potentialities are moving quickly toward actualization even as we watch him. . . . Rights can belong to beings in virtue of their merely potential interests.71 Elsewhere, when Professor Feinberg discusses whether drowning babies have a right to be pulled out of the water, it does not occur to him to argue that being merely babies, supposedly without interests, or without the appropriate kind of interests, the question of their having such a right could not arise. Nor is it suggested that the possession of rights turns here upon the mere fact that these babies were born. It is perhaps significant, though, that he is not here discussing abortion when other views might prevail.72 To be sure, the notion of ‘potential interests’ is somewhat unclear – if we are not simply thinking of potential hobbies or fascinations, let us say. We are concerned in this discussion with the thought (naturally disturbing to those who think that abortion services should be available) that babies are susceptible to harm, and have a good of their own. Can we understand the Collected Philosophical Papers, Vol. 3, Oxford: Blackwell, 1981, p. 138. Of course, she would not have said that human foetuses were somehow non-persons. 70 The weakening use of ‘can’ may be part of one’s favoured defi nition of ‘person’ too, as in R. M. Chisholm’s definition – according to which a person is anything that can come to be rational and conscious (‘Coming into Being and Passing Away: Can the Metaphysician Help?’, in S. F. Spicker and H. Tristram Engelhardt Jr, eds, Philosophical Medical Ethics: Its Nature and Significance, Dordrecht: Reidel, 1977, p. 181). 71 The passage before the last break is on p. 178. The last sentence is from the appendix to the article where it occurs in the context: ‘Having conceded that . . .’, p. 183, italics added. 72 ‘The Moral and Legal Responsibility of the Bad Samaritan’, Freedom and Fulfillment, Princeton: Princeton University Press, 1992, pp. 182–6. Professor Feinberg is not always of the same opinion, and he does not help us by letting us know about a change of mind. When he is explicitly seeking to justify abortion he seems to forget this talk of rights going along with ‘potential’ interests. In his article ‘Abortion’, first published in 1979, but reprinted in 1992 (Freedom and Fulfillment, references to this reprint), he is describing what it takes to have what

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suggestion that baby X, if he survives, will come to have a good, but has no good now? To be sure, we can say that something is potentially in Smith’s interests. It is potentially in his interests to be given a certain medicine, for he might become ill and need it. Could Smith have nothing but potential interests? Can it be true of a foetus or a neonate that it has no (actual) interests, that is to say no (real) good of its own, so that it cannot be harmed? Or is this a preposterous story put about in support of a monstrous wrong by those who ought to know better? In the next sequence of chapters we will take up this question in a systematic way.

3.6 Were we once too young to be harmed? We must now take on a large task. We must examine the (perhaps rather surprising) contention that certain human beings – sufficiently young ones, but perhaps older ones too who have severe disabilities – simply have no interests at all, that they have no good or their own, no welfare. The rest of Part Three is a preliminary to the main discussion: it is largely devoted to the gathering of opinions or assumptions, directly on this matter or on matters relevant to it. Some of the time I will be setting opinion against opinion. And if anything, I have erred on the side of abundance. The substance of the issue will be taken up in Part Four. The initial gathering-in of opinions was the practice of Aristotle, and still has its usefulness. I have pretty well confined myself to the opinions of philosophers and academic lawyers whose writings will be thought careful, sober, or scholarly. The very capacity to be harmed or helped at all, it is said, presupposes a certain degree of development. According to this view, it is not possible to do anything to a human individual while he is still at the foetal stage which is genuinely against his interests. (We leave aside here an interest in not being hurt where this is possible.) Some people will say this sort of thing about a neonate as well. One cannot, it would be said, harm a baby, born or unborn. Nor indeed can one benefit a baby. A baby does not have a good

he calls ‘moral personhood’. Of these ‘moral persons’ he says: ‘Only because of their sense of self, their life plans, their value hierarchies . . . can they be ascribed fundamental rights’ (p. 52). Accordingly, even born babies do not have a right to life (p. 53, the ‘criterion of personhood’ which entails this conclusion is fi nally adopted on p. 57). In fact, the infant does not possess all the characteristics of moral personhood ‘until the second year of childhood’ (p. 52). So either Professor Feinberg takes a different view in different essays about the rights to life of babies, or (which seems to me less likely) the right to life does not count as ‘fundamental’ in his ideolect. It does not follow in his view that one can do what one likes with a baby. Warm feelings for them have ‘social utility’ (p. 53). And one should certainly not dispose of their bodies in a way which is ‘unhygienic and shocking to trash collectors’ (p. 53). Even in this essay, however, Professor Feinberg thinks that babies can have a certain right, despite their lack of plans for life, etc. We shall return to this matter shortly.

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of its own. So starving, cutting or poisoning, etc., only appear to be harms, feeding only appears a benefit. This is plainly a matter worthy of our attention quite apart from ethics. The concepts involved are of the kind we would like to be clearer about in any case. They involve the notions of harm and benefit in relation to mammals generally. In this chapter we will establish that a claim of this sort is frequently made – and made indeed by people who (one might think) really ought to know better. I do not know of any claims to this effect before the early seventies. People who think that philosophers merely repeat the insights and mistakes of their philosophical ancestors must here think again. However, the general idea is now rather popular in the ethics community, perhaps because we now realise that it is empowering. If it did not exist it would have to be invented. Yet it is nevertheless something quite extraordinary and calls for careful documentation. We should not lose our sense of wonder that such a thing can be thought. How could one set about writing a textbook of foetal medicine if one had no concept of benefit or harm to deploy? Or imagine someone saying in real life: ‘It was a spectacular collision, and both cars were a write-off. But amazingly, no one was harmed. True enough, one baby lost a leg and another was killed. And an expensive camera was ruined. No doubt there will be insurance complications . . .’ Herewith some annotated samples or exhibits. First of all, Sissela Bok. She is wondering what can be said about a certain whatever-it-is growing in the womb, and she discovers that she suffers from a certain philosophical aphasia. Might such a being be harmed? She answers: ‘I fi nd that I cannot use words like “deprive”, “deny”, “take away” and “harm” . . . These words require, if not a person conscious of his loss, at least someone who at a prior time has developed enough to be or to have been conscious thereof.’73 The context helps to make this ‘at least’ clear, for she contrasts abortion killing with the killing of an adult in his sleep, someone who would not, we are to presume, feel deprived, but who might at some earlier time (for all we know) have thought of his impending demise as a disaster or a pity. Ideas of this kind circulate even about newborn babies. This is only to be expected, for a newborn baby is not, and will never have been, conscious of the loss people suffer on being killed. Helga Kuhse, for example, tells us:

73 ‘What is to Count as a Human Being?’, in Michael F. Goodman, ed., What is a Person?, Clifton, NJ: Humana, 1988, p. 222. Like so many, Sissela Bok likes to make makes life easy for herself by talking about a clump of cells, but it is clear that her criterion would take in born children, and quite old ones at that if they suffered from severe mental defects (perhaps remediable). Sissela Bok is something of a pioneer, for her remarks were fi rst published back in 1974 (in Robert L. Perkins, ed., Abortion: Pro and Con, Cambridge, Mass.: Schenkman Publishing Co.).

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Strictly speaking, we cannot even say that continued life is in a newborn infant’s interests.74 Eric Rakowski makes the following brief remark about infants, as if the matter is by now rather old hat: Because the . . . infant killed cannot properly be said to suffer harm if its life is shortened, causing its death painlessly cannot be reprehensible, in my opinion, so long as others are not thereby aggrieved’.75 Though briefly stated, this is a much-needed thesis. For Professor Rakowski’s book bears the proud but dangerous title Equal Justice, and one can see how important it could be to be able to exclude certain individuals from the scope of that equality. It could be important in order to preserve one’s standing among a circle of colleagues, for example. The thesis is not, however, without its paradoxical side. After a successful birth the good news is spread about: mother and baby both doing well. On this new view of harm, however, this folksy remark would be deeply problematic in sense, at least in its second half. Frances Kamm discusses the fate of human embryos. ‘An embryo is not the sort of entity that can be harmed by the loss of its future’, she tells us, adding, with perhaps significant vagueness, that ‘This has something to do with its not being (and never having been) capable of consciousness or sentience.’76 She goes on to point out, of course, that this consideration is not confined to those very young individuals which would be called embryos in an embryology textbook. John Harris says that a living creature that is not ‘a person’ cannot be harmed by being ‘painlessly killed’. And according to his stipulation, ‘a 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? 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’. 76 Frances Kamm, ‘Embryonic Stem Cell Research: A Moral Defense’, Boston Review, 2002, italics added (quoted from <www.bostonreview.net/NR27.5/kamm.html>, pp. 6, 7). Frances Kamm, rather like Dworkin though with certain differences,

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person is a creature which is capable of valuing its own existence’ – the sense of ‘capable’ here requiring the actual possession of the necessary concepts. Why can one not harm an individual who is not yet a ‘person’ by killing him? The reason is that the harm you do to an individual in taking his life ‘is the harm of depriving someone of something they can value’ – in the sense of ‘can value’ just explained. Thus ‘a newborn infant’ cannot be harmed in this way. The confident handling of the concept of harm shown in this passage is quite remarkable.77 Barbara Smoker tells us that a newborn baby ‘has no real stake in life’, and contrasts it with ‘a real little person’: Whereas a newborn baby has a very limited awareness, no idea of any future, and no real stake in life, an older child has become a real little person, with personal relationships, a sense of his or her own identity, and an idea of purpose – the very things that give human beings human rights and status.78 Writers might not say outright that one cannot harm or benefit a baby. But they might say things which seem to have surprising consequences in this direction. Thus in a book which seeks to defi ne ‘futile treatment’, we may read that although ‘medicine is capable of an enormous range of effects . . . these effects are of no [medical] benefit to the patient unless the patient is capable of appreciating them’.79 What is needed here is something much more hedged. ‘These effects are of no medical benefit to the patient unless either the patient is capable of appreciating them or they increase the chances that the patient will someday appreciate them’ would be better. It would make sense of the many treatments reasonably given to babies which go beyond making them comfortable. Turn now to Bonnie Steinbock. She expresses her view – or should I say discovery? – exceptionally clearly.

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. 77 All quoted passages from John Harris, ‘Euthanasia and the Value of Life’, in John Keown, ed., Euthanasia Examined, Cambridge: Cambridge University Press, p. 9, italics omitted. On p. 10, the modal element in the account of harm appears to have been dropped. The talk here is of depriving someone of what he actually wants. 78 Barbara Smoker, ‘On Advocating Infant Euthanasia’, Free Enquiry, Vol. 24, No. 1, reproduced at <www.secularhumanism.org/library/fi/smoker_24_1>. 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 ‘If a patient lacks the capacity to appreciate the benefit of a treatment . . . that treatment should be regarded as

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A foetus which cannot experience anything can neither suffer from being killed, nor is it deprived of anything it values or wants. Precisely when foetuses become sentient is a matter of some debate, but it is likely this does not occur until some time in the second trimester, and perhaps later. Until they have the capacity to experience, to feel pain and pleasure, it does not matter to an embryo or foetus what is done to it. For this reason I maintain that embryos and early foetuses have no interests at all, and so no interest in continued existence. Without an interest in continued existence, they cannot be harmed by being killed.80 One is struck by the boldness of all this. I have italicised the crucial phrase. What is it for something to ‘matter to’ someone? It might mean that that person cares about it. ‘It matters to Smith what happens to the elm tree’ = ‘Smith cares what happens to the elm tree.’ But is this restricted sense the one we need when thinking about the concept of human interests? Surely not.81 As so often in these discussions, one is driven to say: if people were thinking of killing someone on the strength of an argument of this kind we would certainly want to scrutinise it somewhat. Do people, I wonder, ever take this sort of philosophy seriously? ‘Dr Steinbock showed me that I could do no harm, so I took out the syringe and . . .’ ‘Dr Harris taught me so clearly why it was bad to kill, and thankfully . . .’, ‘Dr Rakowski explained so carefully that killing a baby (painlessly) could not be reprehensible, and that is all I did.’ We find a dramatic thesis of this general kind in L. W. Sumner’s wellknown book Abortion and Moral Theory. The onset of one’s first period of consciousness is held not only to be a necessary condition for having a good, it is said to be a sufficient condition for a rich array of vital interests. According to this story, one crosses a most important threshold in one’s life at the time one can first feel pain (if one is poked, for instance). Before that time,

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. 80 ‘Maternal-Foetal Confl ict: Pregnant Drug Addicts’, in David R. Bromham, et al., eds, Ethics in Reproductive Medicine, London: Springer, 1992, p. 50, italics added. 81 Compare Steinbock, talking about ‘the moral point of view’: ‘The focus on interests requires us to consider the being itself – what is important to it – rather than what makes it valuable or significant to others.’ (Life Before Birth, p. 9). That sounds well. However, if ‘important TO it’ is understood by contrast with ‘important FOR it’, that is, for its good, then presumably ‘the moral point of view’ cannot be exclusively taken up with the former. People’s obligations to care for children in particular cannot simply take into account what the children fi nd important.

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the future awaiting a human foetus is not relevant to its moral status; that status is based on what it has already achieved . . . But once it is capable of being harmed, the future awaiting a human foetus is highly relevant to the extent to which it can be harmed. Before the threshold there is (in the deontically relevant sense) no creature to harm and no right to life to be violated. After the threshold there is such a creature, and its normal future is a rich full life. To lose that life is to sustain an enormous loss.82 I call this a dramatic thesis because the change seems not only to be momentous but miraculous. How could the onset of sensitivity to a pin prick suddenly make the loss of one’s future so significant when up to that moment it did not matter in the least? Shouldn’t there be some celebration in the family? Sentience day? The glorious arrival of rights? 83 Or are we to suppose that a wholly new kind of being springs into existence along with the first twinge – or rather, along with the first moment in which a twinge would have been felt if there had been the appropriate cause – the new being, unlike the earlier one, being susceptible to loss? In a later book, The Moral Foundation of Rights, Professor Sumner acknowledges our difficulty, but he argues, in a way which we should note, that if we take into account such things as women’s needs we shall perhaps be justified, as a matter of policy, in adopting the sentience criterion (p. 208). Perhaps this is what is meant by ‘deontic relevance’? I said just now that we should take note of this – but I should immediately have added: in a place where it is safe to fall off one’s stool. If we are working 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 fi nd 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.) 83 Or should the partying be postponed until the child is approaching two, when, on the McCullough-Chervenak criterion, ‘independent moral status’ arrives? See note 5, this Part.

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out whether an individual of a certain kind is the sort of thing which has interests, or can intelligibly be said to be harmed, we should surely stick to the topic in hand, pursue the truth, and not manipulate our doctrine to suit our (possibly virtuous) ends. It is extraordinary to be taking into account the thought that many of us might need to destroy such an individual, or want to help others do so, and would not like to feel too badly about it. A member of the public, visiting the strange planet on which these discussions take place, might ask, eyebrows raised: ‘Is gerrymandering of this kind usual among you philosophers of life and death?’84 This gallery of comments could be extended.85 Each decade, we can confidently expect, will produce its crop of like utterances. But one specimen we cannot leave out of our exhibition. It is of course that provided by Professor Dworkin himself, which we have already encountered. In fact he is very definite: ‘a foetus has no interests before the third trimester’ (FL, p. 90, also LD, pp. 114–15). This is the time at which allegedly a foetus is first able to feel pain. Dworkin is of course very willing to allow that a foetus which can feel pain has an interest in not being hurt. This is, however, a small concession. The phrase ‘before the third trimester’ is in fact a ghastly sweetener. It is hard to see how any other outcome or contingency could be against its interests up to birth and beyond. In particular, Professor Dworkin has a special claim about an interest in continuing to live, obviously of importance for our topic. This, we must note, requires a different and more complex set of capacities: to enjoy or fail to enjoy, to form affections and emotions, to hope and expect, to suffer disap-

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. 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

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pointment and frustration. Since a creature can be killed painlessly, even after it has the capacity to feel pain, it is these more complex capacities, not the capacity to feel pain, that ground a creature’s interests in continuing to live. (LD, pp. 17–18) That is rather a rich list of capacities. Our author clearly has high standards. Even born infants might not have what it takes. One is continually struck by how little Dworkin has to say about them.86 According to this surprisingly common view, then, we have to accept that there was a time early in each of our lives when it would not have been against our interests if someone were to have killed us. It would no more have been against our interests to be killed than it would have been against the interests of a puddle to have evaporated. In fact, we could not even have been harmed, any more than a puddle could be harmed. In particular, we are told, abortion harms no one. This is so remarkable a contention it should

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

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really be printed in red.87 I possess an X-ray photograph of myself in utero, my mother humbly adopting the role of foetal container. We are now, of course, rather more reluctant to X-ray one another. But on the view we are considering, the question ‘Is it against this baby’s interests to be X-rayed?’ could not have arisen. My mother could not have been bothered by it. Quite frankly, no one would have understood what was being asked. (Philosophers will perhaps like us to insist on comical convolutions: ‘Is there going to be an individual in the future, A, sharing identity over time with this individual here, B, such that A’s interests will suffer a setback then, on account of what we do now to interest-bereft B?’. This of course presumes the intelligibility of the idea that a creature of a kind which has a good can lack this characteristic at some time and only acquire it later, a matter for our consideration in due course (see Chapter 4.8). The idea that a foetus cannot be harmed can now be taken by philosophers as too obvious even to be mentioned. I once heard a philosopher explaining Mill’s ‘harm principle’ clearly and vividly to a large audience of beginning medical students. The relevant part of this explanation went along these lines: ‘Mill thinks that it is only permissible for you to interfere with the freedom of others where what they propose to do will harm third parties. It is not sufficient that you have moral objections. Thus you might have a moral objection to abortion – and that of course is your right – but according to Mill’s criterion it would be wrong for you seek to prevent people having abortions.’ The lecturer then passed efficiently onto other aspects of the harm principle. Naturally it was not claimed openly and explicitly that abortion did no harm to the foetus: that might have seemed very odd to students just taking their first steps in medical ethics. No doubt they would encounter this startling claim later, in a more advanced ethics class. We can expect that this sort of thing will continue to be said for as long as people feel the need. The need is and will remain pressing, for the one phrase we still remember from the older medical ethics, and which haunts even those who are not professionally in charge of the sick and vulnerable, is: above all, do no harm. We might be anxious in particular about harms for which the victim cannot later be compensated (perhaps we remember 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 fi rst 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 fi rst 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. 87 In explaining the need to bring in the so-called intrinsic value of what is destroyed, Professor Dworkin asks: ‘Why should abortion raise any moral issue at all if there is no one whom it harms’ (LD, p. 34)?

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here an objection to capital punishment along these lines). We might also return to the repeated public demand that ‘the interests of the child must be regarded as paramount’ – language which does not presuppose that ‘being a child’ is a stage which comes after babyhood. Fortunately, we who are troubled by this ancient demand can find in our new philosophy an instant relief. Those whom we wish to destroy we must first render insignificant. In discussing the truth of the matter, rather than the usefulness of being able to say this or that, we need to preserve our sense of wonder. It is so often astonishing what intellectuals will say, but if what is astonishing is said sufficiently often we no longer open our eyes wider and catch our breath. Isn’t it just extraordinary that people will say that a baby has no good, that no one could represent its welfare, this being non-existent? MacDuff, on hearing, that his wife and all his children had been murdered (‘Did you say all?’), asks in pity and in anger ‘Did heaven look on, and would not take their part?’ Our new philosophers would be able to reply: ‘It may be some comfort for you to know that the youngest among them at least would have had no part to be taken’. Here we can expect a certain familiar response. All our authors (we could imagine them taking out a full page ad in the New York Times) might combine to say: ‘Naturally, we didn’t mean that sort of harm’ What they meant, it would then emerge, was harm in such and such a restricted, technical or philosophical sense, and they would claim that any sensitive and suitably educated reader would have recognised this at once. And at a stroke all our pages would be rendered worthless. However, a move of this kind – assuming it could be made – would very likely have a price. The attempt to establish that a human individual cannot be harmed while sufficiently young is not just art for art’s sake – it is not simply a selfless contribution to pure philosophical biology. On the contrary, it has a purpose. And the achievement of this purpose might well presuppose that it is common or garden harm that we are talking about. Let us assume that this is what we are talking about. Our good sense should prompt us to ask: what is to be tested by what?88 As a simple model of what I have in mind, consider a naive exchange between a trainee philosopher, who has diligently learned the new doctrines, and a bemused outsider: You cannot harm a baby by chopping it up while it is asleep. How come?!? Well, harm consists in causing pain and disappointment . . .

88 Wittgenstein’s question, On Certainty, para. 125, ed. G. E. M. Anscombe and G. H. von Wright, Oxford: Blackwell, 1969.

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But why shouldn’t the argument go the other way? The bemused outsider might naturally reply: You harm a baby by chopping it up (even while it is asleep). So you see: harm cannot just consist in hurting or disappointing. In this second case, what we know, or seem to know, about harming in real life leads to a better explicit understanding of the concept of harm. Perhaps, indeed, we might be prompted to distinguish hurt and disappointment from harm entirely: we do after all say ‘This may hurt you but it won’t harm you.’89 Of course, in science, physics say, all manner of extraordinary things turn out to be true. But here we should perhaps be seeing things this second way. From this perspective, what Sissela Bok, Eric Rakowski, Ronald Dworkin and the rest, have done for us, in effect if not in intention, is to bring out the poverty of our conceptual understanding. And we have a further reason to see what they have done in this light. For the concepts of harm and of interests are so easy to mishandle, especially when theorising. In the next chapter we will look at some evidence of the waywardness of theory in this regard.

3.7 What can have interests? A Babel of voices There is a curious disagreement among philosophers in regard to the topic of interests considered quite generally, and away from the abortion controversy. The writers whose views we gathered together in the last chapter express themselves with astonishing certainty. Babies cannot be harmed, and that’s that. When however we raise the general question: what things have interests, have a good of their own, we find an equally astonishing diversity. Those who seek to understand these matters seem, as a group, unable to handle this concept with assurance. This chapter will serve to illustrate this point. Some philosophers can be especially liberal in the attributing of interests. Consider the much read book on environmental problems, A Morally Deep World, by Lawrence E. Johnson, a book not too far removed from the thought-world of Professor Dworkin, with its concern for ‘intrinsic value’.90 89 In The Morality of Freedom, pp. 413–14, Joseph Raz talks of ‘the forward-looking aspect’ of harm, and mentions diminishing the individual’s prospects, affecting adversely his possibilities, or making him worse off in a way which affects his future well-being. It would hardly be worth mentioning these platitudinous characterisations if there were not those tempted to deny that very young humans can be harmed. 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

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A species can have interests, according to this book, and it is a matter we need to take note of: ‘Apart from both the question whether the snail darter, for instance, is of benefit to humans, and the question of whether individual snail darters have morally relevant interests, there is the matter of the interests of the snail darter species itself to be considered. I believe that those interests are morally significant . . .’91 Professor Johnson also thinks it possible that ‘wildernesses and ecosystems also have morally considerable interests’.92 Indeed, he asserts that they have these interests, alongside individual algae and fungi, and their respective species.93 And we read: ‘Once we recognise that species, ecosystems and the biosphere as a whole all have morally significant interests . . .’, etc.94 Why stop there? Why not take in the whole world? And sure enough, some people want to go global, and would probably go galactic if the question was put to them. Thus the Statement of the Board for Social Responsibility of the General Synod of the Church of England on Stewardship proclaims ‘Stewardship implies . . . a recognition that the world we manage has an interest in its own survival and well-being independent of its value to us.’95 However, we find other thinkers who are as oddly restrictive as Lawrence Johnson and the Board for Social Responsibility are oddly liberal. A number of philosophers have been prepared to argue for example that brute beasts do not have interests. ‘We decline to speak of the interests of animals, and speak rather of their welfare’, says H. J. McCloskey. John Passmore is cautiously minded to agree: ‘It is not . . . clear to me in what sense animals have interests.’ R. G. Frey is altogether bolder: the suggestion that animals have interests is (in that good old philosopher’s phrase) ‘simply false’.96

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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.) Ibid., p. 162. Ibid. Ibid., p. 163. Ibid., p. 257. 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). I owe this reference to R. G. Frey, Interests and Rights, Oxford: Clarendon Press, 1980, p. 54. H. J. McCloskey, ‘Rights’, Philosophical Quarterly 1965, p. 126; John Passmore, Man’s Responsibility for Nature, 2nd edn, London: Duckworth, 1980, p. 116; 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

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I think that Professor Dworkin would judge that there must be something odd going on here, as so often in philosophy, since it would seem obviously against an animal’s interests to lose a limb, or to be hurt without compensating gain, etc. We think that it is in a stray puppy’s best interests to be sent to a good home. One might possibly have doubts about lower animals, invertebrates, say. Even here, we fi nd that Judith Jarvis Thomson, whose readiness to defend abortion is so well known, and whose cause might be aided by being able to say that babies cannot be harmed, etc., finds it quite natural to talk about the interests of bees or ants. Thus she wonders whether what is in the interests of a particular bee simply coincides with what is good for the hive. She has doubts about this, as well she might, mentioning that it hardly appears to be in the interests of a queen bee to be killed when her presence is no longer for the hively best.97 Are we sure, in our reflective moments, that ordinary adult human beings have interests? One might think that the question is unpromising. But philosophy is full of surprises. There must, I am sure, be those who think that the individuals or entities who, strictly speaking, have interests and a good are not people at all but brains, and not only brains but fully developed brains. Even this might be a little loose, for it would doubtless be parts of these brains which could be said to have a good of their own. One could hardly include the cerebellum. I have not yet come across anyone brave enough to come out and say this openly, but it would seem to mark the next advance in our subject. After all, there are those, apparently worth taking seriously, who think that ‘persons’ are strictly speaking brains,98 and perhaps it is ‘persons’ who are the bearers of interests worthy of the name. 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.) 97 The Realm of Rights, Cambridge, Mass.: Harvard University Press, 1990, p. 219. Kathleen Wilkes takes it for granted that wasps have interests. ‘Wasps have and manifest – whether they know it or not – an interest in survival’ (Real People, p. 60). 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

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The thought that human beings even when grown up do not really have interests might arise in another way. Professor Dworkin offers us some curious reflections about the human soul. In a rather odd footnote, he suggests that a Catholic who claims that a foetus has a soul must assume that the foetus in question is conscious, or rather that a human soul is a form of consciousness (FL, p. 387), forgetting that whatever a human soul is, people – Descartes apart99 – never seem to suppose that would cease to exist when a patient who possesses it loses consciousness under an anaesthetic. Professor Dworkin admits that a foetus with a soul, ‘a special form of consciousness’, would have an interest in continuing to live. However, he adds in parenthesis that ‘more accurately’ it would be this soul, this form of consciousness itself, which has this interest. It is this particular thought which intrigues. The point is surely of quite general application. If we are giving 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. 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). 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 externalbrained 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 confi rm in my own case. (‘The Self’, Journal of Consciousness Studies, 1997, <www.imprint.co.uk/strawson.html>, p. 3.) 99 ‘I believe that the soul is always thinking for the same reason as I believe that light is always shining, even though there are not always eyes looking at it, and that heat is always warm though no one is being warmed by it, and that body, or extended substance always has extension, and in general that whatever constitutes the nature of a thing always belongs to it as long as it exists. So it would be easier for me to believe that the soul ceased to exist at the times when it is supposed to cease to think than to conceive that it could exist without thought.’ If we come to believe that we have lived through a period of not having thoughts,

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a careful and accurate account of Professor Dworkin’s views, we ought to say that mere people – mere animals of the species Homo sapiens – cannot be said to have interests, however grown up they are. It is their souls or minds or their intermittently existing consciousnesses which have them. An animal of course is not a form of consciousness. Unlike a form of consciousness, it can be fed, weighed or killed. Perhaps the one kind of thing which really and truly has interests is neither a human being, nor a brain, nor a soul, but rather what philosophers refer to as a self ? Isn’t that where our thoughts are tending? This, however, might give rise to a spectacularly radical consequence: namely that nothing whatever has interests. For it seems quite likely that this ‘self’, the item which has interests if anything does, is a will-o-the-wisp. This is worth spelling out. On the very face of it, ‘the self’ sounds like a mere philosopher’s fancy, an inhabitant of an arcane zoo which also houses its close relatives, the Me, the I and the Ego. (Not forgetting, in other cages, the It, the Him, the Her, and of course the Other.) Hume failed to detect a self on introspecting for it; Kant thought of the self as unknowable; William James conjectured that the self consisted of feelings in the throat. Bradley’s view of the self was particularly instructive. He declared that ‘we never know what we mean when we talk of it.’ That would surely have led him to consider more profitable topics. But not a bit of it. He persisted. A man’s self, he surmised, might include his wife – perhaps, we might add, his dog or his mobile phone, who knows? After a chapter devoted to this sort of thing, Bradley confessed: ‘self has turned out to mean so many things, to mean them so ambiguously, and to be so wavering in its applications, that we do not feel encouraged’. But never one to give up easily, he then set forth on another chapter. ‘We shall find,’ he at last concluded, ‘that the self has no power to defend its own reality from mortal objections.’ Little wonder then that when Wittgenstein took up the quest he more or less denied that there was such a thing at all (Tractatus, 5.5421, 5.631). That (somewhat roughly put) seems to be the view from the history of philosophy. One is forcefully reminded of The Hunting of the Snark.100 says Descartes, this is just because we have forgotten having them (Letter to Gibieuf, 19 January 1642). The human soul, says Descartes, is always thinking ‘even in its mother’s womb’, though to be sure, it does not at that time ‘meditate on metaphysics’. One wonders how he knew, seeing how forgetful we must be (Letter to Hyperaspistes, August 1641, in Descartes Philosophical Letters, trans. Anthony Kenny, Oxford: Clarendon Press, 1970, pp. 125 and 111). 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 ‘I’; 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

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Even supposing that there are such things as selves, we might fi nd that they cannot be said to have interests. Robert Nozick, for example, conjectured that ‘the self’ might turn out to be ‘a system of principles.’101 He confessed himself somewhat unsure. Of one thing we can be sure, however: that we can hardly attribute interests to a set of principles. It might seem harsh to conclude that we simply do not know what we are talking about, that talk of selves has always been a muddle and nothing more. Let us imagine that we understood enough to be able to say that anything which truly had interests would have to be a self, but that (in all likelihood) there were no such things. Should we immediately conclude that nothing whatever had interests, with alarming consequences for public morals? That would be too hasty. Descriptions can be true of the nonexistent. Non-beings can, for example, be thought about, feared and propitiated. Why, then, could they not have interests? That non-beings could have interests was indeed seriously proposed by R. M. Hare. He was famous for his insistence that merely ‘possible people’ not only had interests, but important ones at that. This is perhaps the main message of his collection of papers Essays on Bioethics, where he says in the preface that it might surprise some – presumably actual – people.102 And can we not make sense of this? Isn’t it in the interests of really unhappy possible people never to be actualised. It would be better for them to be unthings for ever. That these human unthings have interests would clearly be a serious matter for ethics, for just think how many of them there are! It is nice to know that one can do them all a good turn, and so easily too. If animals have interests, we would naturally suppose that ‘possible animals’

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. 101 Robert Nozick, The Nature of Rationality, Princeton: Princeton University Press, 1993, p. 13. 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).

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had interests too, for one would not want to be discriminatory. Perhaps even ‘possible selves’. Professor Dworkin on the other hand, though he does not mention Professor Hare by name, must think this whole idea to be grossly over-inclusive. In his view, merely possible people, and we may be sure possible animals and possible selves too, cannot intelligibly be said to be the bearers of interests (LD, p. 77). Do abstract entities have interests? Alan White, discussing what it is that is capable of having interests, is quite relaxed about the matter. He simply appeals to English idiom. The range of intelligible fillings for ‘X’ in the phrase ‘in the interests of X’ is very large. Professor White mentions: ‘efficiency’, ‘peace’, ‘prosperity’, ‘the truth’, ‘one’s business’.103 And one must surely not forget one’s digestion. A man will take pills in the interest of his digestion. In this chapter we have surveyed a remarkable range of views and possibilities. It is not a question of disagreements at the margin. One has the impression of great uncertainty among the learned about the very concept of ‘interests’ – and of other related notions: harm, benefit, capacity, consciousness: for of course a concept lives and has its being in a network of other concepts. Perhaps there might be more than one concept of interests? Or the whole matter might just be very dark to us. H. J. McCloskey warns us: ‘The concept of interests which is so important here is an obscure and an elusive one.’104 It is obscure at least when we seek to theorise about it. Perhaps we have to decide what sort of things can have interests by determining what it is congenial for us to think in this modern age. Joel Feinberg, for example, writes: . . . it seems to follow that the apparent welfare interests of animals are not true interests at all, that animals have no good or welfare of their own, and can neither be benefited or harmed. Two centuries ago, that conclusion might have been congenial to most people. Today it seems a reduction of otherwise plausible premises to absurdity.105 Both the historical claim, and the claim about ‘today’ are surely doubtful. It is quite extraordinary to suppose that ‘most people’ used to think that animals cannot really be harmed. And the thought that animals have no interests is to be found among contemporary philosophers as we have seen. 103 Rights, p. 79. Alan White was the sort of philosopher who would be prepared to argue that a book can have deserts – on the mere ground that we are prepared to say that a book deserves to be read (see a passing remark on his p. 88). However, he did not go so far to insist that a house could have rights, even though, as he admits, someone (Trollope in this case) could say of a rather grand house that it had a right to be called a castle! (p. 91). 104 ‘Rights’, p. 126. 105 Harm to Others, New York: Oxford University Press, 1984, p. 58.

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Such doubts aside, however, the general idea that philosophers can be amazingly wayward on this topic of interests, is one for which we have seen ample grounds. It suggests that a philosopher who maintains that it doesn’t even make sense to say that it is in the interests of a baby to continue to live is (once again) having trouble with his concepts.

3.8 Foetal interests in the light of definitions Let us turn to consider what is prima facie the case in regard to foetuses and infants. For this has a bearing on our question: What is tested by what? I want to suggest at this stage that the thought that infants and foetuses, perhaps embryos too, have interests is so very natural. We come across this thought all the time, in the antenatal clinic for example, where there will be a good deal of discussion about what is good for, or necessary for, the developing baby. Sissela Bok, as we remember, found herself unable to use the notion of ‘harm’. This represents an impressive level of academic refinement. A booklet Pregnancy, distributed in my local cities of Bradford and Leeds, and now in its fifth edition, says to the pregnant and presumably non-academic reader: ‘Of course, there are now two of you to look after.’ This of course will have been said in a friendly spirit to pregnant women for time out of mind. It presupposes that there is an unequivocal notion of ‘looking after’ in play. No one would say to someone who had just opened a bank account for the first time: ‘Don’t forget, there are now two of you to look after, yourself and your account!’ The booklet also says: ‘Remember, your child has no say in the matter. He or she is relying on you to do the right thing.’ That would be a very obscure remark if the child could not be harmed. Cigarette advertisers in England were, for years, required to include in large unmissable letters a ‘Government health warning’; and one such warning, often reissued and read by millions, reads ‘Smoking while pregnant harms your baby’. People outside this group of recent philosophers, so conveniently wise, seem to understand this simple thought perfectly well. To this last, someone might reply that what is written up on a mere poster might do no more than reflect an uneducated confusion of mind. That this is not the case comes out when we think of the way ‘having interests’, ‘being in N’s interests’, and so on, tend to be defined in formal or academic contexts where abortion is not under discussion. Defi nitions here will often take a contextual form, giving the sense of stock phrases containing the word ‘interests’ rather than the word on its own. It would not be sensible to seek first to define ‘interest’ and then have to explain how N could ‘have’ such a thing, and then again, how something or other could be ‘in’ it. Let us look at a few of these definitions. The definitions which follow are simply bits of compressed conceptual analysis, and as such may be faulty. In philosophy, hitting someone with

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the dictionary is little better than waving the Bible. But our definitions are at least a preliminary guide. We can usefully see how they bear on our topic. Bentham, for example, says: A thing is said to promote the interest, or to be for the interest, of an individual, when it tends to add to the sum total of its pleasures or, what comes to the same thing, to diminish the sum total of its pains’.106 This is naturally a forward-looking conception. An individual in the womb, even if incapable of present pains and pleasures, would obviously have interests, for it is a creature existing in time and it makes sense to say that we are doing something now to promote its pleasures and diminish its pains. So much of what we do to promote an individual’s pleasure – Christmas shopping, let us say – is not a matter of giving pleasure at the time we are doing it. One way of promoting someone’s pleasures is to protect them from being killed when too young to have enjoyments. The account of ‘interests’ in The Oxford English Dictionary is broader and therefore perhaps more satisfactory: it mentions, quite unsurprisingly, ‘good, benefit, profit, advantage’. ‘In the interest(s) of’ is said to mean ‘on the side of what is beneficial or advantageous to’.107 If an individual has interests while yet a baby according to Bentham’s criterion, it will obviously have interests on this one. The Oxford Dictionary of Philosophy108 includes a heading ‘interests’: ‘Those things that a person needs or that are conducive to his or her flourishing or success.’ That seems about right (though it is clearly restricted to human interests). Professor Dworkin would have us believe that nothing could have been ‘conducive to one’s flourishing’ when one was a foetus. Or so we should have to interpret him. But then, as we saw, he also says that once a life has begun, it is so important that it flourishes! (LD, p. 74). ‘Abstractly’ important no doubt, if we can make sense of that, but important none the less. In fact, there is an equality in the matter: it is just as important that the unwanted baby flourishes as it is that anyone else does. This follows

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. 107 So Joel Feinberg is more or less following the dictionary when he says ‘Interests are distinguishable components of a person’s good or well being’ (Freedom and Fulfillment, p. 4). 108 The Oxford Dictionary of Philosophy, ed. Simon Blackburn, Oxford: Oxford University Press, 1994.

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from what he announces as a ‘fundamental principle,’ called ‘the principle of equal importance’: It is important, from an objective point of view, that human lives be successful rather than wasted, and this is equally important, from that objective point of view, for each human life.109 Elsewhere Dworkin talks about the ‘fundamental principle’, that ‘the fate of every living human being is equally important’.110 I am not saying that it is clear what these pronouncements mean. One would have to understand the notion of abstract importance. But that is not relevant here. Dworkin does not claim that ‘life has not begun’ at these early stages with which we are concerned. There will obviously be medical procedures conducive to the flourishing of this or that foetal individual, abortion not being one of them. In the light of this, it would be a kind of pretence to claim not to understand what it is for something to be in a foetus’s interests. The definition in Professor Blackburn’s Dictionary mentions needs, and surely a foetus has needs. That there is a connection between interests and needs is also pointed out by John Rawls, ‘An interest is thought to be any need, want, or liking for some good, of any type’,111 and David Wiggins. ‘If a person needs x, then he has an interest in x’s being or becoming available to him.’112 David Braybrooke begins his article on ‘Interests’ in Becker and Becker’s Encyclopedia of Ethics with a definition, once again in terms of needs: A person’s interest might be defined as at bottom – bedrock – what meets basic or vital needs . . .113 On this understanding, it would appear to be a plain truth, hardly worth stating, that any foetus would have a rich array of important interests. It would have interest in proper care and attention, etc. largely, but not 109 Sovereign Virtue, Cambridge, Mass.: Harvard University Press, 2000, p. 5. The cover of the book singles this matter out. It proclaims a ‘fundamental humanist principle’, that ‘it is of equal objective importance that all human lives flourish’. 110 ‘I said that, in my view, the human rights commonly recognized in Western democracies rest on two fundamental principles: fi rst, that the fate of every living human being is equally important . . .’ (‘Taking Rights Seriously in Beijing’, New York Review of Books, 26 September 2002, p. 65 (pp. 64–7)). 111 ‘Outline of a Decision Procedure for Ethics’, in Collected Papers, Cambridge, Mass.: Harvard University Press, 1999, p. 13. 112 Needs, Values, Truth, Oxford: Blackwell, 1987, p. 17. 113 Lawrence C. Becker and Charlotte B. Becker, Encyclopedia of Ethics, 2nd edn, New York: Routledge, 2001.

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entirely, catered for without anyone having to take action. To be sure, Professors Wiggins and Braybrooke use the word ‘person’, but there is nothing to show that this word is not being used in its ordinary, undoctored, ‘man, woman or child’ sense. And we would naturally say the same thing about needs and interests of rabbits, dogs etc. Joel Feinberg gives the following account of an ‘interest’: The Restatement of the Law of Torts gives one sense of the term ‘interest’ when it defines it as ‘anything which is the object of human desire,’ but . . . a person is often said to ‘have an interest’ in something he does not presently desire. A dose of medicine may be ‘in a man’s interest’ even when he is struggling and kicking to avoid it. In this sense, an object of an interest is ‘what is truly good for a person whether he desires it or not.’114 Naturally, as Professor Feinberg immediately goes on to claim: ‘Even interest defined in this second way may be indirectly but necessarily related to desires.’ Let it be so. Both the ‘may be’ and the ‘indirectly’ conspire enormously to weaken the force of what is claimed. Someone might well talk of what a foetus would want to happen to it if it could both understand the situation and knew what it is necessary to know. ‘What this human individual would want if only it had the understanding which came with maturity’ is a phrase we can understand. We might talk this way when vaccinating a baby girl for German measles. It is important that we are thinking here of a human being, or at least an animal. If for ‘this human individual’ we were to write ‘this meadow’ or ‘this sunny day’ we would be left with a phrase impossible to make any sense of. Derek Parfit presents us with what he calls theories of self-interest; so what we are offered, in effect, is a clutch of would-be definitions. These theories aim to provide answers to the question ‘What makes someone’s life go best?’ There are, he tells us, three kinds of theory: On Hedonistic Theories, what would be best for someone is what would make his life happiest. On Desire-Fulfilment Theories, what would be best for someone is what, throughout his life, would best fulfil his desires. On Objective List Theories, certain things are good or bad for us, whether or not we want to have the good things, or to avoid the bad things.115

114 Joel Feinberg, Social Philosophy, Englewood Cliffs, NJ: Prentice Hall, 1973, p. 26. The citation is to Restatement of the Law of Torts, St Paul: American Law Institute, 1939, p. 1. 115 Reasons and Persons, p. 493, italics omitted.

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Derek Parfit himself rather favours a composite of these views. But we need not discuss this further matter. What is striking about these theories is that they all permit us to speak, as a matter of course, of the interests of a foetus or neonate just as we would in the case of an older child. We can think of these human individuals having happiness in their lives, of having a life of fulfilled desires, or of living a life which contains the objectively ‘good things’ and none of the bad. Love means having a concern for such matters. One can thus love one’s unborn child. If through disease or defect or misfortune something blocked the path to these goods, we know what it would mean to remove the obstacle even if we were unable to do so. Removing the obstacle would be as much a good to the baby in the womb as to the toddler in the nursery. It is exceedingly curious that such a thing could be doubted. Lastly, let us look at what appears to be a kind of definition in Dworkin himself. In his recent book Sovereign Virtue he writes: We must ask, in considering whether any new technique should be permitted or regulated or forbidden, about the likely impact of any such decision on individual interests. Who will be better off and who worse off in virtue of any such decision?116 I call this a kind of definition because the second sentence is clearly meant to explain what is meant by ‘impact on interests’. But this account squares ill with Professor Dworkin’s restrictive doctrine on the interests of the unborn. It is very natural indeed to say that an individual is worse off for being aborted, and better off for being given life-saving medical treatment, even though in either case he or she is too immature to understand what is at stake. Or rather it would nearly always be unnatural to say such a thing – it being only too obvious. It would be open to someone to claim that the interests of someone at the foetal stage do not count for much in comparison with those of the pregnant woman, etc., but that is not under discussion here. No doubt it would come up under the heading ‘equality’, or ‘equal respect’. So much for a few definitions or quasi-definitions. I have not suggested that they have much weight on their own.117 Someone might want to insist, at this point, that the definers cannot have intended their definitions to 116 Sovereign Virtue, p. 428. 117 I am not claiming all philosophers would give an account of the language of interests along the above lines. A significant exception might be Peter Singer. But even here one can’t be sure: ‘We typically understand value in terms of interests, typically consisting of conscious states, including states we find pleasurable or displeasurable, and states directed towards some end, such as wants, desires, preferences and the like’ (‘Animals’, in Dale Jamieson, ed., A Companion to Environmental Philosophy, Oxford: Blackwell, 2001, p. 420, italics added.) The

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cover foetal interests! The very idea! The next chapter calls this thought in question.

3.9 Foetal interests apparently recognised by philosophers We must now note that academics and lawyers seem quite able to recognise foetal interests, at least when they are not theorising about interests when some quite possibly dubious doctrine would take over. Such apparent recognition is quite usual. And these writers do not simply refer to an interest, arising later in pregnancy, in not being hurt. It may incidentally be of concern to some to note that the preponderance of these writers are women. I have collected a fairly lengthy set of specimens, in case the matter should be thought doubtful. It can be important to establish a point, even a rather small point, once and for all. The already convinced reader might like to sample my specimens and move to the next chapter. Harvard Professor of Law Mary Ann Glendon, in a book which Professor Dworkin calls ‘influential’ (LD, p. 61) and which, he happily says, confirms ‘the hypothesis I have been defending: that the argument over abortion is not well understood as an argument about whether the foetus is a person’ (LD, p. 62), talks quite artlessly about foetal interests. She says:118 Not only do we [Americans] have less regulation in the interest of the foetus than any other Western nation, but we provide less public support for maternity and child raising. And she argues that European political compromises weigh the competing interests in a way that is apt to be distasteful to pro-life and pro-choice activists alike. Well, Professor Glendon is a Catholic, and perhaps it will be thought that her religion has disturbed the balance of her mind. However, Glanville Williams, who was for many years President of the Abortion Law Reform Association, can hardly be supposed subject to such a disturbance. He mentions, as something quite unproblematic, the interests of a foetus in being born (even if it is not a ‘full’ human being, whatever that may mean): thought that someone’s interests are ‘conscious states’ might suit proponents of the story that abortion does no harm. But it runs into the obvious and fatal difficulty that someone unconscious on the operating table still has a good, a good about which we may hope the surgeons are mindful. Things will still be in his interests, and he will still be interested in things. (There is to be sure an episodic sense of ‘taking an interest in’ which refers to a conscious state, a focusing of the mind on a thing.) 118 Mary Ann Glendon, Abortion and Divorce in Western Law, Cambridge, Mass.: Harvard University Press, 1987, first quotation p. 2, second quotation p. 40.

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Whereas the health grounds recognised in the Act [the Abortion Act, 1967] merely enlarge on the attitude of the judge in Bourne, that the health of full human beings is to be preferred to the interest of the foetus in being born where the two interests conflict, the foetal ground marks a new departure. The foetus is destroyed not necessarily in its own interest (the physician need make no judgment that life would be a burden for it), but in the interest either of the parents or of society at large . . .’119 Glanville Williams, being such a well-known writer in jurisprudence, can be expected to have had a reasonably sophisticated understanding of such a basic concept, one of the tools of his trade. Even Peter Singer, whose views on this matter of rights are not a million miles away from what we find in Life’s Dominion, can say quite casually: ‘we commonly think that it can be in the interest of an infant to be saved from death’.120 Professor Singer is here only reporting what we tend to take for granted. But he himself, I think, must be included in this ‘we’. Thus in an editorial in the journal Bioethics, written with his co-editor Helga Kuhse, he is discussing the supposed link between homosexuality and a gene in the area of the X chromosome called Xq28. The authors wonder what attitude we should take ‘to prenatal diagnosis and abortion of foetuses who are carriers of Xq28’. We cannot argue, they say, that ‘abortion might be in the affected foetus’ best interests’ After all, they claim, ‘most gay people are happy with their sexual identity’.121 This reason would plainly be irrelevant if a foetus diagnosed a carrier in the second trimester simply had no interests at all. How could these two philosophers, modern apostles of infanticide, have failed to notice a point which would seem so congenial to their new Copernican revolution?122 119 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. 120 Practical Ethics, 2nd edn, Cambridge: Cambridge University Press, 1993, p. 97. 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. 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

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Laura Purdy, a keenly pro-choice philosopher, seems to have no difficulty at all with the thought that a foetus has interests. She writes, very clearly and surely intelligibly: Because foetuses are so vulnerable, protecting them requires a comprehensive approach. [She gives a list of precautions] This list demonstrates how entwined foetal interests are with women’s lives and at how many points these interests might diverge . . . [However, people] fail to recognise that women’s rights might sometimes trump considerations about foetal welfare.123 Kathleen Wilkes, who is worried ‘not a little’ that her arguments ‘could be deployed against abortion’, says that The interests of a foetus are, even if predominantly long term and general, no more so than are many of the interests of adults that we are prepared to take seriously.124 Why was she, a philosopher writing a whole book on related matters, not able to settle at least some of her worries by boldly asserting what Professor Dworkin would say is obvious, that a foetus cannot have long-term interests at all? Cora Diamond, said by Hilary Putnam to have ‘one of the best philosophical minds I know’, discusses abortion as a confl ict between those who think that the interests of a foetus are to weigh with us and those who think that these interests can be held of little or no account. Some people ‘believe the interests of the foetus to have some moral weight’. For others, however,’ any attempt to protect the interests of the foetus is seen as a fundamentally illegitimate attempt to interfere, on merely emotional or

Western nations have now done, we have already taken a major step away from the traditional principle of the sanctity of human life.’ This is surely a reasonable assessment (Helga Kuhse and Peter Singer, Should the Baby Live?, Oxford: Oxford University Press, 1985, p. 137). 123 Laura Purdy, ‘Are Pregnant Women Foetal Containers?’, in Reproducing Persons: Issues in Feminist Bioethics, Ithaca: Cornell University Press, 1996, p. 90. 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. 124 Wilkes, Real People, p. 55. For the expression of worry, see her footnote on p. 57.

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religious grounds, in what is a personal decision for the pregnant woman’.125 Susan Sherwin, much-anthologised provider of a ‘feminist perspective’ on our topic, says: ‘Women’s personal deliberations about abortion involve contextually defined considerations that reflect their commitments to the needs and interests of everyone concerned, including themselves, the foetuses they carry, other members of the household, and so forth.’126 Eileen McDonagh, in presenting her ‘self-defence’ justification for abortion, reports without any suggestion of paradox: ‘The view of the foetus as an entity separate from its mother, with its own interests, already is solidly embedded in Supreme Court reasoning about abortion rights.’127 Judges seem quite able to recognise that a foetus can have an interest in continuing to live. When the District of Columbia Court of Appeals reviewed the much noted case of Angela Carder (which involved a court-ordered Caesarean section) the matter was quite taken for granted. We can see this both in the judgment itself and the partial dissent.128 How many people reading these materials can have seen any difficulty? The baby here was at 261/2 weeks’ gestation. No one could possibly suppose that the judgment in the case was in the hands of covert opponents of abortion, seeking to pretend that a foetus had interests. Indeed, the case has been a cause of flag-waving among the abortion-friendly. It has been described as one of the ‘major victories for women in the politics of foetal rights’, which is surely the wave of a flag.129 Note that when the case was first considered, and when it was reviewed, the foetus was appointed a legal representative. It would be odd to appoint a representative if the individual represented was not the sort of thing to which interests could meaningfully be ascribed.

125 Cora Diamond, The Realistic Spirit, Cambridge, Mass.: MIT Press, 1991, p. 343. 126 Susan Sherwin, ‘Abortion through a Feminist Ethics Lens’, Dialogue, 1991, reprinted in Elizabeth Boetzkes and Wilfred J. Waluchow, eds, Readings in Health Care Ethics, Peterborough, Ontario: Westview Press, 2000, p. 284. 127 Eileen L. McDonagh, Breaking the Abortion Deadlock, New York: Oxford University Press, 1996, p. 47, italics added. 128 In Re A. C. 573 A. 2d 1235 (DC. App. 1990). Judge Terry, expressing the view of the court, says of a certain case: ‘evidence showed that performance of the caesarean was in the medical interests of both the mother and the foetus’ (at 1243). Footnote 23 to the judgment remarks about another case: ‘the medical interests of the mother and the foetus were in sharp confl ict, what was good for one [caesarean section] would have been harmful to the other’ (at 1252). Judge Belson, concurring in part and dissenting in part, said that ‘the child’s interest in survival’ was entitled to more weight than was recognised by the majority (at 1254). 129 Cynthia R. Daniels, At Women’s Expense: State Power and the Politics of Foetal Rights, Cambridge, Mass.: Harvard University Press, 1993, p. 145.

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Sometimes a recognition of foetal interests will be indirect. Jeff McMahan, who is so keen to defend abortion, honestly points out a curious feature of the debate on this issue: that it has, we might say, something uncomfortably in common with a debate on the banning of smoking conducted among tobacco industrialists: It is important to notice that the ostensible victims of abortion – foetuses – are not parties to the debate, while of those who are involved in it, the only ones who have a significant personal interest or stake in the outcome are those who would benefit from the practice.130 It would be very strange to write like this if foetuses were simply valuable objects like paintings. It is even possible casually to take for granted that an unborn child has interests in the face of a confident claim that such a child does not. Here is a particularly instructive example. The sociologist Anthony Giddens is giving a friendly account of Ronald Dworkin’s book. He writes: [Nowadays] we have come to place a high value on the sanctity of human life. Each side [in the debate over abortion] agrees with this value, but they interpret it differently, the one emphasising the interests of the child, the other the interests of the mother.131 This, needless to say, is a dramatically mistaken account of Life’s Dominion. As we have seen, if the matter turned upon the interests of the child, Professor Dworkin would take an altogether different line. Permitting abortion would in his view be permitting murder (LD, pp. 9–10) just as those who are pro-life contend. But it is the kind of mistake which concerns us here. Even after reading Professor Dworkin’s book, with its forthright insistence in its first chapter that unborn children have no interests, that the idea that they have an interest in not being poisoned or cut in pieces, etc., in the way any older human being would have is ‘scarcely intelligible’ and that ‘very few people believe it’ (LD, p. 112), a noted academic in a relevant subject, at the time a professor at Cambridge, writing for publication, can still talk as we all do about the interests of infants, born or unborn, and do so while interpreting Life’s Dominion. It is a very natural mistake to make.132

130 Jeff McMahan, The Ethics of Killing: Problems at the Margins of Life, New York: Oxford University Press, 2002, p. viii. 131 Anthony Giddens, Sociology, 3rd edn, Cambridge: Polity Press, 1997, p. 122. 132 I note that this passage is missing from the next (4th) edition of Professor Giddens’s book. Perhaps by this time someone had pointed out this curious error.

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But we have a more telling authority still, Professor Dworkin himself. In earlier writings he too seems to take for granted that a foetus has interests. Consider a remark in A Matter of Principle.133 He asks himself what might be the ‘available justifications for prohibiting abortion in, say, the first trimester’. He says that the question ‘whether unborn infants are people, whose interests may properly be counted by a legislature’ is a ‘deep and undemonstrable issue’, an issue with which the Supreme Court will have to grapple. This seems to suggest that unborn infants uncontroversially have interests – in living a long and healthy life, in preserving their eyesight or whatever – the only question being whether the legislature needs to be concerned with these interests. If it were just obvious that what we have in the womb cannot be said to have interests, if indeed it was simply unintelligible to suggest such a thing, it seems hard to understand what this deep problem could possibly amount to, how there could be anything to take up the time of nine busy justices. Perhaps this was just a moment of thoughtlessness on the part of a hard pressed writer? Perhaps we are straining to read something into his text? Not at all. What we find here seems to have been Dworkin’s settled opinion. For in a subsequent article, ‘Roe in Danger’ (first published in 1989), he shows once again that he takes it as read that a foetus has interests. He tells us that it is ‘of course’ quite legitimate for the individual states to ‘protect the foetus’s interests’ in a great variety of ways (FL, p. 47), pointing out however, as a limitation on such endeavours, that ‘the state can take action that affects it [the foetus], in order to protect or advance its interests, only through its mother . . . by dictating her diet and other personal and intimate behaviour for example’ (FL, p. 49). And what kind of foetal interests, one might ask, are ‘protected or advanced’ by a concerned mother’s care in regard to her diet during pregnancy? Quite a range, one might naturally suppose. We are surely not just thinking here of an interest in not feeling pain. Dworkin says that the question whether a foetus is ‘a person whose rights and interests must be ranked equally important in the scheme of individual rights the Constitution establishes’ is ‘complex and difficult’ (FL, p. 46). The complexity and the difficulty here cannot simply arise over the existence of interests. He takes this as evident. Anyway, he has since acquired a different confidence on the question of foetal interests: there aren’t any, except, in the third trimester not to be subject to pain; and far from being deep and difficult, the answer has turned out to be remarkably easy. That should help the Supreme Court no end. We should not be surprised to fi nd these passages in Professor Dworkin’s earlier writing. For even in Life’s Dominion we find the following remark about the duties of a fiduciary. ‘A fiduciary . . . must act in the best interest of another . . . He acts in that person’s experiential interests [a phrase

133 A Matter of Principle, Cambridge, Mass.: Harvard University Press, 1985, p. 69.

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explained in the text] if his decisions in fact lead to that person’s enjoying his life more’ (LD, p. 259). Here the word ‘person’ might be distracting, knowing what philosophers get up to with it. But the remark clearly holds good if we go by the plain dictionary defi nition of ‘person’ as ‘man, woman or child’. There is a clear sense in which one acts in a child’s interests – at least prima facie – when what one does leads to that individual’s enjoying his life more. And why couldn’t the lead-time be long? And the child be unborn?134 These examples strongly reinforce our idea that it is natural to suppose that a foetus has an interest in its future: that a pregnant woman can give up smoking for the sake of the individual growing inside her, let us say. This would not simply be an interest in not being hurt. Now a natural thought might indeed be mistaken. But it would be a strange mistake for so many to make, especially when it would so often help them put the case for ‘choice’, to go along with what Professor Dworkin claims to be obvious. If a philosopher told us that the baby in the womb in mid-pregnancy had no interests, would we not be inclined to distrust the philosopher? And we might also wonder what he was up to. Philosophers and lawyers like to be cautious. But it is notable that the writers we have quoted in this chapter do not pepper their remarks with possiblys and maybes. One is tempted to say that they are not certain about anything except that a foetus has a good of its own. But I should for completeness report a dissident voice. Carl Wellman, an indefatigable commentator on the concept of a right, becomes involved in a controversy about not foetuses but infants, characterised by him as children between birth and the age of two. The question under discussion will have a familiar ring to it: whether such infants can be said to have any rights. In the course of it, he says that he is ‘willing to grant for the sake of the argument’ that such infants have interests!135 Surely this is rather like granting for the sake of argument that water commonly runs down hill or that many of us probably had parents.136 134 ‘Acting in someone’s interest’ would often be said to turn on the intention rather than to what subsequently happens. In this sense we would have acted in Smith’s interest by putting money into his bank account even if, at the very next moment, he was run over in the street. 135 Carl Wellman, Real Rights, New York: Oxford University Press, 1995, p. 118. 136 This is perhaps the place to append a note about newborn babies. Would the courts recognise that babies have an interest, not just in avoiding pain and discomfort, but in continuing to live? Or is it just obvious to anyone capable of handling these concepts that newborn babies would have to have ‘the more complex set of capacities’ that Professor Dworkin talks about, capacities which they certainly or probably lack? Take the case of the newborn conjoined twins, Jodie and Mary. In this most serious situation, where lives are at stake and precedents are being set, Adrian Whitfield QC, arguing before the Court of

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3.10 Opinions of foetal interests when the outlook is bleak In defending the moral ‘right to choose’ the philosopher of life and death will naturally want to play down the importance of the vulnerable individual’s future. There might seem to be nothing for it, but to claim that a baby is not harmed by being killed. However, when the need vanishes, this thesis tends to vanish too. Someone, for example, who thinks (unlike Professor Dworkin) that Judith Jarvis Thomson has more or less provided a justification of abortion without relying on this thesis is quite unlikely to cling to it. Someone like Jeff McMahan who thinks he has found a way to show that the harm would not in any case be great will see no reason to deny that it exists. There is one way, however, in which anxious thoughts about the individual’s future will prove useful: when this future is expected to be bleak. Here all of a sudden any philosophical perplexity about the interests of a baby which is unable to visualise its future vanish like the mist in the morning.137

Appeal, spoke freely about an infant’s interests in continuing to live. He seems untroubled by philosophical doubt. ‘Mr Whitfield argued that a failure of the court to allow the operation to go ahead would amount to an abnegation of its responsibilities to Jodie. He said the interests of Mary who was in effect incapable of independent life and facing an early death had to be balanced against those of Jodie, who did stand a chance of living if the operation went ahead’ (Guardian, 7 September 2000). In newspaper reports of this and similar life-anddeath cases we constantly hear that learned counsel X is representing the interests of newborn Y and no one finds this odd in the least. Mr Whitfield, it will be noted, was arguing against the view of the Catholic parents of the twins (backed by groups opposed to abortion) who were unwilling to allow one twin to be killed to save the other. It would no doubt have suited his case to be able to say that Mary had no interests. A Wisconsin appeals court recently upheld a lower court decision dismissing a ‘wrongful life’ suit fi led by the parents of a boy born at less than 24 weeks gestation, weighing less than 1.4 pounds. The parents said that they had not given informed consent to the life-saving care given to the baby. The court replied that parents had no right to decide such an issue. In the course of its judgment, the court noted that the law presumed that continued life is ‘in the best interests of a patient’ under most circumstances. Such a remark would be bizarre if it were evident that a baby which as yet has no concept of a future or of misfortune could not intelligibly be said to have an interest in continued life, and one would have expected a competent lawyer for the parents to have pointed this out (United Press International, 30 May 2002). 137 Except perhaps in the case of Professor Dworkin who has the courage of his convictions at this point. (See in particular LD, p. 98.) He concedes that it might seem to be in a certain foetus’s interests to abort it – if, for example, it is destined to a short unhappy life. But of course, since there is nothing which could be in the interests of a foetus, or against its interests for that matter, the appearance here must be delusive.

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The philosopher is perhaps trying hard to relax the old teachings about the sanctity of life, wanting to be able to kill both the old and the young ‘for their own good’, especially the old and the young who do not have much by way of ‘consciousness’. The future, what would happen if one did not interfere, is suddenly very relevant. Let us consider some examples. It is not a new thought that birth might be a misfortune. It will have been familiar to countless readers of the New Testament: ‘But woe unto that man by whom the Son of man is betrayed! it had been good for that man if he had not been born’ (Matthew, XXVI, 24). But the idea is not merely antique. It is indeed quite current. The editor of the Journal of Medical Ethics, Julian Savulescu, for example, thinks it quite possible that some children have what he calls ‘an interest in not being born’. The prospect of ‘a life of constant pain, limitation of movement and sensation, and severe impairment of the ability to interact with other people might be worse than death’. We should observe that Professor Savulescu can say such a thing even though Life’s Dominion is included among his handful of references. He does not seem to have any difficulty with the idea that a baby before birth could have a good.138 Again, Dan W. Brock says about ‘seriously ill newborns’ The infant’s prospects in relatively few cases will be so poor that it is reasonable to hold that continued life is clearly not in its interests.139 And thinking here about the comatose patient, presumably adult, he says about interests: However the complex notion of interests is analysed, a thing’s having interests of its own in some object or state of affairs x is usually tied to a thing’s present or future capacity for sentience and its capacity to care about x.140 The comatose individual might be judged not to have such future capacities. ‘So far as their present or future capacities for any psychological life or conscious experience are concerned, PVS patients are similar to such living things as plants . . .’ Consider too the following reflections on the way death comes as a misfortune: 138 Julian Savulescu, “Is There a ‘Right Not to Be Born’? Reproductive Decision Making, Options and the Right to Information.’ Journal of Medical Ethics, April 2002, p. 65, italics in text. 139 Dan W. Brock, Life and Death, Cambridge: Cambridge University Press, 1993, p. 176. 140 Ibid. This quotation and the next are from p. 364, italics added.

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Death is an evil for the person who dies because it forecloses possibilities for his or her life; because it eliminates the chance of developing abilities and talents; because it frustrates desires, hopes and aspirations; and because it leaves parts of life pointless and whole lives incomplete. Here we have a well-known author, James Rachels,141 who is thinking of ways to justify the humane killing of the old or the diseased. From this perspective one naturally acquires a different view of what it is to be in an individual’s interests. But we should recognise that the death of a foetus too ‘forecloses possibilities for his or her life’, ‘eliminates the chance of developing abilities and talents’, and, insofar as the notion makes sense, leaves a whole life decidedly ‘incomplete’. As I said, one only has to be moved by the thought that one might ‘have to’ kill a baby for its own dear sake and see how readily the baby’s interests are recognised. Joel Feinberg’s work is, as ever, instructive here. At fi rst he seems to fall in with an all too familiar view. He is one of those philosophers prepared to say that ‘a new infant . . . lacks the traits necessary for the possession of interests’ (interests being ‘compounded out of desires and aims’).142 The position seems clear and definite. I suspect that it has been very influential, for many foetal-interest-deniers often appeal to it. (Sometimes to be sure they acknowledge the work of Michael Tooley instead, but he himself claims to be developing Joel Feinberg’s pioneering thoughts on the matter.143 It would seem fair to say the same about Bonnie Steinbock.) Yet when, in a later prize-winning essay, Professor Feinberg is wondering whether an impaired baby’s life ‘is worth living’, the baby’s interests seem to emerge notwithstanding. In his article ‘Wrongful Life’ Professor Feinberg says that a ‘proxy chooser’ has to ‘represent the interests of the incompetent party’ even though the party ‘might not yet have any values, goals, ideals or aspirations . . .’.144 ‘It would be rational . . . for a proxy chooser, any representative of the best interests of an extremely impaired infant, to express on the infant’s behalf, the preference for nonexistence.’ This is surely an advance. To be sure, Professor Feinberg still refers to values and goals, etc. as ‘the stuff of which interests are made’. But as we can see from various 141 James Rachels, The End of Life: Euthanasia and Morality, Oxford: Oxford University Press, 1986, p. 59. 142 ‘The Rights of Animals and Unborn Generations’, first quotation p. 178, second quotation p. 168, italics in text. 143 Michael Tooley, ‘In Defense of Abortion and Infanticide’, reprinted in Michael F. Goodman, ed., What is a Person?, Clifton, NJ: Humana, 1988, pp. 86–9. See note 67, this Part. 144 Joel Feinberg, ‘Wrongful Life and the Counterfactual Element in Harming’, Social Philosophy and Policy, 1986, reprinted in Freedom and Fulfillment, p. 22, references to this reprint. This paper was awarded a prize ‘for the best article in the philosophy of law in the preceding two year period’.

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remarks we have quoted, the relation between interests and this ‘stuff’ is for him oblique, and can involve values and goals which the individual might well come to have, because of the kind of thing it is, but does not have now: it is certainly not the straightforward sine qua non relation which obtains between a suit and the cloth needed to make it. Professors Savulescu, Brock, Rachels and Feinberg – none of them seem detectably pro-life – are surely right to see one is as good as tied up with one’s prospects in this way. Indeed, if we want to be comfortable about the status quo in regard to abortion, or at least as comfortable as it is possible to be, it is quite helpful to be able to say that an embryo or foetus has certain interests after all – particularly an interest in being killed in certain circumstances (if it should be defective in this or that way, or if it would remain ‘unwanted’ if allowed to live, etc.). Writing about abortion John Mackie for example expressed just this kind of concern. ‘That the child should survive’ where there is ‘the likelihood of serious permanent defect’ is not only against the interests of its parents etc., he said, writing about abortion, ‘but it is also against the child’s own interests’.145 In fact, when abortion is over and done with it might help a troubled woman to reflect that the procedure might have been a benefit to her offspring. In the De Puy and Dovitch soothing guide, Exercise Six includes the following advice. ‘Write about why that decision may have been in your best interests. Also write about the way abortion may have been in the best interests of the foetus as well.’ This later bit of the advice seems perfectly intelligible. ‘I was going to make this child’s life such a misery that I thought it better . . .’146

145 John Mackie, Ethics, Inventing Right and Wrong, London: Penguin Books, 1977, p. 198, italics added. 146 Candice De Puy and Dana Dovitch: The Healing Choice: Your Guide to Emotional Recovery after Abortion, New York: Simon and Schuster, 1997, p. 156.

Part 4: Arguing About Interests

4.1 The short way to establish the absence of foetal interests As we have seen in Part Three, philosophers can be extraordinarily divided when it comes to deciding what sort of creature (entity, thing, stage of a thing) has a good of its own. And in particular, when the distinctly peculiar question arises whether anything can be in, or against, the interests of a foetus even those who speak for ‘choice’ have differing views. We shall now leave aside our survey of opinion, and consider directly what the truth might be. We shall be largely concerned, in the next few chapters, with the sceptical arguments about foetal interests presented by Ronald Dworkin and with the similar arguments by Bonnie Steinbock. It would seem fair to take these writers as representative. What is surprising about Professor Dworkin’s scepticism in particular is his assurance. He is even prepared to appeal to the public at large. He says that ‘almost no one thinks’ that an ‘early’ foetus has ‘interests and rights’ (LD, p. 73). By that misleading word ‘early’ I think he must mean up to the beginning of the third trimester or whenever ‘sentience’ is supposed to appear. And it is evident from the context he also wants to speak of interests and rights separately, saying that almost no one supposes developing human individuals at this stage have interests and that almost no one believes that they have rights. He wants to tell us that these individuals lack rights because they lack interests, that almost no one thinks otherwise, and indeed that the matter is somehow in plain view. A foetus has no good of its own. One cannot help thinking that if a proof of God’s existence was thought to turn on the truth of the premise ‘a foetus before it can feel pain has no good of its own’, Dworkin, and those who think like him, would regard this premise as quite obviously untrue. (And if it were not obviously untrue, there would surely be something of a philosophical industry to show that it was untrue nevertheless.1) 1 I do not write this just playfully. Thomas Nagel, who says that he hopes that God does not exist, writes, surely with some justice, that a determination to maintain 231

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This idea that the absence of foetal interests is already somehow compelling to plain good sense is very curious. For, as we have shown above, both plain people and unplain academics can fail to notice it – even in the case of Professor Giddens, when commenting sympathetically on Life’s Dominion where the matter is rather forcefully brought to his attention. Still, Professor Dworkin’s thesis, even if not obviously true, even if apparently untrue, may yet be true. One way in which it is possible to acquire this reassurance is to take what I shall call, for the space of this chapter, the short way with the problem. To understand how there could be such a short way we need to take notice of a complication of idiom in our use of the word ‘interests’. As is now fairly well recognised, the word ‘interests’ turns up in two different kinds of context. We talk about taking an interest in something (or being interested in it). But we also talk about something being in the individual’s interests. It came naturally to us to observe this twofold usage when talking about interests in Chapter 3.5, p. 194. When the question arises whether a foetus ‘can have interests’ it is still advisable to meditate on this very elementary matter, and not take it simply as read. The short way attempts to show that a sufficiently young human individual has no interests – that is to say that nothing could be in its interests – simply because it is not yet interested in anything, or more generally has as yet no concerns or wishes. Alan White marks out this difference rather well in his book Modal Thinking.2 He points out that we praise or blame a man for being interested in so-and-so, but not because such-and-such is in his interests. Political philosophers are prone to overlook this important distinction, he claims, and he cites some contemporary examples. David Braybrooke, when he too draws this distinction, comments that ‘many thinkers, especially economists and political scientists, incline to reduce interest to preferences of some sort’3 There seems to be something in this. A book on justice by the well-known political philosopher James Fishkin contains an instructive index entry: ‘Interests. See Preferences’.4 an intellectually respectable atheism is apt to distort our thinking about mind, evolution, and so on. He talks about ‘a fear of religion which has large and often pernicious consequences for modern intellectual life’. See The Last Word, New York: Oxford University Press, 1997, p. 130. 2 Modal Thinking, Oxford: Blackwell, 1975, pp. 118–20. 3 See the article ‘Interests’ in Lawrence C. Becker and Charlotte B. Becker, Encyclopedia of Ethics, 2nd edn, New York: Routledge, 2001. Since I have earlier been critical of L. W. Sumner I should in fairness report that he writes well here: ‘The notion of interest is dangerously ambiguous: on the one hand my interests are the same as my concerns (what I am interested in), while on the other my interest (or selfinterest) is the same as my welfare.’ The word is ‘a slippery item in our lexicon’. Welfare, Happiness, and Ethics, Oxford: Clarendon Press, 1996, p. 36. 4 James S. Fishkin, The Dialogue of Justice, New Haven: Yale University Press, 1992.

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The two senses of ‘one’s interests’ – bound up with one’s concerns or hobbies or projects on the one hand and one’s good on the other – can be important when talking about the inescapability of certain kinds of obligation. Clearly, a man sometimes ‘has to’ act in a certain way merely in view of a certain concern he has. But he might be able to escape this having to by giving up this concern. It might even be suggested that he could give up any concern, though often with difficulty – and hence escape the corresponding necessity in every case. So the story might run. However, a man cannot be said to give up its being in his interests that such and such be the case – though sometimes he can take steps to alter how things are. It is sometimes in one’s interests to do something just because one retains an interest in doing something else. To learn German, for example, because one has an ambition to study German history. One could give up such an ambition. But if I am wondering whether it is foolish to smoke, I cannot resolve the matter by giving up something. A child, when told that such and such is dangerous might well stamp its foot and say: ‘Very well then, I shall abandon my wish to live to adulthood.’ But this would not do the trick at all. Prudential obligation often has something inescapable about it. If we ask whether some creature ‘has interests’, using the word as a plural noun, we shall perhaps think of ambitions or hobbies. Animals can hardly be said to have interests in this sense. A dog will no doubt like its food, but we are not going to say that it has an interest in food. We will not even say that it is interested in its food – wondering how it is manufactured, or whether it needs a little more salt, say – unless we simply mean that it has an appetite.5 Naturally a foetus or a neonate does not have interests in the sense of ambitions or hobbies. Having financial interests however is logically quite different, for one can have such even though bored by anything to do with money. One does not even have to have the concept of money. A mere foetus can thus have financial interests. If there is a sense of ‘financial interests’ which is a matter of being interested in fi nancial affairs, we might be able to say, with a spurious air of paradox: ‘Smith’s financial interests militate against Smith’s financial interests’. Similarly, we might talk of an unhealthy interest in one’s health. In the sense of ‘hobbies’ we can just about ask how many interests a person has, with due allowance for what is to count as more than one, etc. But in the case of fi nancial interests, the word ‘interests’ seems at least sometimes not to be functioning as a genuine plural at all. ‘Against Smith’s fi nancial interests’ means the same thing as ‘Against Smith’s financial interest.’ And similarly in regard to the idiomatic phrase ‘in the interests of N’, where ‘N’ goes proxy for someone’s 5 ‘Take an interest in’ is used to describe hobbies as in: ‘He takes an interest in gardening’. But it is also used to denote a mere matter of present attentiveness, which might be pretty indeterminately directed. Thus we can say that a dog can take an interest in its surroundings, in squeaky noise coming from the next room, etc.

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name. We are not expected to ask how many of these interests there are. The phrase has to be taken as a whole, as meaning for the benefit of. A pregnant woman can take vitamin pills, thinking them to be for the benefit of her developing child. And of course she need not think of it as being interested in anything. We talk about protecting someone’s interests, and here we must be taking ‘interests’ in this second way, where we are thinking of the individual’s good. If Smith has an interest in stamp collecting we cannot very well protect his concern to collect them but we can, if we choose, protect his interest in there being stamps available to collect – if such indeed is in his interest. (I add this rider because it can be a misfortune to be consumed by time-wasting hobbies.) Clearly, from the mere fact that someone at the foetal stage is incapable of taking an interest in anything we cannot conclude that nothing whatever can be in its interests or against them. This is not just a point about human beings. We could make the same point about foetal rabbits, and so on. It is noteworthy that when Mill gives an account of ‘a man’s interest’ we are left wondering whether he was aware of this simple distinction: A man’s interest consists of whatever he takes an interest in. Everybody has as many different interests as he has feelings; likings or dislikings, either of a selfish or of a better kind.6 A liberal will naturally be tempted to talk about interests in this fashion, for it will then be easier to defend the obviously shaky but appealing idea that each of us is the best judge of his own interests. Naturally, as we all know, our liberal concerns can readily lead us astray. ‘Defect’ is not a nice word. We are reluctant to say that someone is defective. We might be led to suppose that deafness is not a defect if the deaf individual does not mind being deaf – unless perhaps such an individual says it is a defect! Again, our understandable dislike of officious medical interference could prompt us to give an odd ‘subjective’ account of the concept of disease, an account which insists that a disease is something one must be discontented with (so that measles would not count if the victim happened to be in a coma, and plant diseases could not be ‘real’ diseases, etc.) Curiously, although it is usual to think of Mill as more sophisticated than Bentham, Bentham’s

6 This seemed to be a considered opinion, for it occurs both in Thoughts on Parliamentary Reform, and again in a passage quoted from this work in Considerations on Representative Government. See J. S. Mill, Collected Works, Vol. XIX, Essays on Politics and Society, ed. J. M. Robson, Toronto: University of Toronto Press, 1977, pp. 333 and 494, italics in text. We should note that on Mill’s account we will be furthering a man’s interests by giving money to some cause which he favours, say the preservation of the elm tree, even if this does nothing to advance his welfare.

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definition of interests, quoted above (p. 216) preserves something correct which Mill here seems to lose sight of.7 To be sure, someone might choose for some innocent purpose to confi ne the notion of having interests in this narrow way, being quite clear about the distinction we are discussing. But it would be quite another thing to set up this confined account and then claim to have shown that certain human individuals who do not at present have concerns, hobbies, plans or anxieties – Mill’s likings and dislikings – cannot be said to have interests in the other sense, that is to say, cannot be said to have a welfare, or cannot be said to have that kind of welfare which is peculiar to human beings. It might be thought that Professor Dworkin relies on this all too brief manoeuvre. Don Marquis, for example, has suggested that this is so.8 Yet we must be most reluctant to attribute simple-minded mistakes to a writer we consider worth examining. Certainly, he does not explicitly appeal to what it is to be interested in something and say that embryos obviously do not have what it takes. Again, when he says that ‘creatures that can feel pain have an interest in avoiding it, of course’ (LD, p. 16), we can be sure that he does not want us to infer that every creature which can feel pain can be said to be interested in avoiding pain. It would be preposterous to say that a foetus or a neonate who can feel pain hopes that he will not be hurt, or includes keeping clear of pain among his concerns. Such a creature cannot be said to have hopes or concerns at all. It must be said, on the other hand, that the tug of the short way, somewhere in the background of Dworkin’s thoughts, might explain how it could be supposed so very obvious that nothing could be against the interests of a baby in the womb, the very thought being unintelligible. Dworkin himself suggests that we can be influenced by ‘background ideas’ (LD, p. 200). Does Dworkin half-say by implication what he would naturally be reluctant to say up front? There seems some reason to think so. I will now present various considerations which tell in this direction, and thus lend some support to Don Marquis. Since this is a slightly conjectural and parochial matter, a reader might like to proceed straight away to the more systematic discussion in the next chapter. Consider first the remarks about interests in Professor Dworkin’s article

7 L. W. Sumner draws our attention to what he calls the preference account of welfare, which he calls ‘the orthodox view of the nature of welfare, at least in the Anglo-American philosophical world’. He says that it ‘seems in tune with the liberal spirit of the modern age’, offering a flattering picture of ourselves ‘as shapers of our destinies’. See ‘Welfare, Preference, and Rationality’, in Value, Welfare, and Morality’ eds. R. G. Frey and Christopher W. Morris, Cambridge: Cambridge University Press, 1993, p. 77. 8 Don Marquis, ‘Life, Death, and Dworkin’ (review of Life’s Dominion), Philosophy and Social Criticism, 1996.

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‘In Defense of Equality’.9 Here an account of people’s interests ‘most comprehensively construed’ mentions ‘motives’, ‘values’, ‘primitive impulses, like recoiling from pain’, ‘attachments’ and ‘projects’. This is a somewhat miscellaneous list, and one might well be more struck by differences than by similarities: how in particular could Smith’s impulses be, or fail to be, among his interests? However, the topic of interests here seems to encompass what philosophers tend to lump together under the heading desires and – in view of the remark about comprehensiveness – nothing else. So of course a mid-term foetus does not have interests. We should note that the word interests appears here as a genuine plural noun, as of course superficially it is. Thus Dworkin follows up his question: ‘What are people’s interests most comprehensively construed?’ with ‘Can we give any general account of these . . . ?’ (italics added). But in the phrase ‘In Smith’s interests’ – which is about Smith’s good – the use of the plural is insignificant in the way we have explained. Second, we should note a discussion in Life’s Dominion of the interests of those who are irreversibly comatose. Someone’s interests, in this passage, are taken to be the concerns that the individual has – some of which, but not all, are concerns to enjoy certain experiences. Examples: a concern for ‘eating well’, or for ‘walking in the woods in October’ (LD, p. 201), but also, in the second category, ‘the commitment someone makes to a given conception of virtue or achievement’ (LD, p. 206). Interests on this account seem to be desires (‘Most people’s interests are not exhausted by a desire for pleasure and enjoyment, but include, as crucial to their sense of self, a desire to make a success of living, to make something valuable of their own lives’: LD, p. 238, italics added. It does not follow from this that one’s interests are all desires, but that seems to be the drift.) The next bit of evidence calls for some preliminary exposition. There is a passage in Life’s Dominion where Professor Dworkin is distinguishing various kinds of value. There is a kind of value, he argues, called subjective. This is based on desire, rather than what is a benefit to the subject but is not actually wanted, perhaps because it is not known to be a good, as in the case of a certain vitamin before it is discovered. Desire is thus a necessary condition: the vitamin would not have ‘subjective value’. He introduces the notion as follows. ‘Something is subjectively valuable only to people who happen to desire it’ (LD, p. 71, italics omitted). He gives as examples of what is subjectively valuable to him: Scotch whisky, watching football games, and lying in the sun. Again, if someone wants to be alive, his life is said to have (not only intrinsic value but also) subjective value (LD, p. 72). His life might also have subjective value for others: to those, that is

9 ‘Comment on Narveson: In Defense of Equality’, Social Philosophy and Policy, 1983, pp. 25–6.

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to say, who happen to desire that he remains in being – his friends, perhaps his creditors too. It is to bracket off such, I presume, that Professor Dworkin introduces a new sub-species of subjective value, personal value: ‘Let us call the subjective value a life has for the person whose life it is its personal value’ (LD, p. 73, italics in text). People ‘happen to desire’ to go on living, just as some of them like scotch and lying in the sun. The existence of such personal valuing is said to make a crucial difference. ‘It is personal value that a government aims to protect, as fundamentally important, when it recognises and enforces people’s right to life.’ And almost immediately Dworkin talks about ‘personal interests’, a phrase not otherwise explained. It is ‘a personal interest in continuing to live . . . that should be protected by recognising and enforcing a right to life’ (LD, p. 73).10 The argument here seems as follows. If a foetus had interests of the sort assumed by those who campaign against abortion, it would have a personal interest in continuing to live, which means that its life would be of personal value to it, which in turn would mean that it happened to care that its life continued. However, no foetus cares about anything. That is to say, nothing in prospect furrows its brow or makes its heart beat faster. Therefore it has no interests. This seems to be what we have called the short way, disguised by diversions.11 Lastly, we need to think about the idea in Life’s Dominion that one’s interests are ‘sustained by one’s nervous system’. Professor Dworkin says that ‘foetuses do not have rights and interests of their own before their nervous systems are sufficiently developed to sustain such interests . . . ’.12 If having interests is having a good it seems very peculiar to say that the current state 10 Incidentally, it is plainly wrong to say that it is ‘personal value’ (in this sense) that a government aims to protect ‘when it recognises and enforces people’s right to life’. Governments regularly protect toddlers, and would say (if the question arose) that this came under the right to life, perhaps gesturing at some declaration or other. This is where the notion of ‘the right to life’ has its home, one might say. And of course a toddler would be protected in this way without the least regard to our comical academic thoughts as to how it might or might not ‘personally value’ its life. 11 Since I am here finding fault with Professor Dworkin, I will, in fairness, mention one sentence which seems to go against the perfectly natural interpretation we have put upon everything else he says on these pages. Dworkin writes ‘We treat a person’s life as subjectively valuable when we measure its value to him, that is in terms of how much he wants to be alive’ (LD, pp. 72–3, italics in text). So far that bears us out. But the sentence continues: ‘or how much being alive is good for him’. That quite changes things. For it takes us away from actual caring, from the scotch and the lying in the sun. What is good for a human being is distinct from what he cares about or values. Whisky might be ‘subjectively valuable’ to Professor Dworkin. But is education counted as ‘subjectively valuable’ to the boy who would rather be anywhere than at school? 12 Replying to James Q. Wilson, Commonweal, March 1994, p. 2.

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of neural development is a prerequisite. The idea of neural ‘sustaining’ would be difficult to construe. It would be like saying that a car’s susceptibility to damage is ‘sustained by’ an important bit of it, say its engine. If, on the other hand, having interests is having desires or projects, then talk of sustaining by the nervous system is not at all unnatural (though for all that it is not quite unproblematic either). Before finishing this chapter I now must turn briefly to Bonnie Steinbock. Bonnie Steinbock accepts a distinction between what we take an interest in and what is in our interests – and that might seem to remove any suspicion that she might be taking the short way. But that said, she goes on rather in the manner of Joel Feinberg (see above, pp. 229–30) to employ the metaphor of compounding: ‘I consider the welfare of a being to be compounded out of its interests’, where ‘interests’ means its ‘desires, preferences and goals’. She then asks whether it is ‘possible for beings incapable of taking an interest in anything to have a good, welfare, or sake of their own’.13 Now compounding is an unclear metaphor. Is something made out of desires itself a desire? Is it a goal? Would it sometimes be a goal? But perhaps we do not need to ask what compounding amounts to. The thought might simply be this: ‘At any rate, a creature cannot be said to have a good of its own unless it has or has had some projects, however simple!’ That seems either to be a hypothesis, refuted by a mention of trees, or an appeal, after all, to what I have called the short way. However, we should not judge hastily. There might still be a convincing argument to be teased out. We take up this possibility in the next two chapters.

4.2 Troubles about consciousness I am going to assume, despite the above doubts, that neither Ronald Dworkin nor Bonnie Steinbock adopts what I have called the short way. We are more likely to learn something useful if we make out the view under examination to be as well argued as possible. If we are not to take the short way, how would it be argued that foetuses ‘lack interests’? Perhaps there is more than one way. But characteristically the argument will involve two claims.

13 Bonnie Steinbock, ‘Why Most Abortions Are Not Wrong’, in Rem B. Edwards and E. Edwards Bittar, eds, Advances in Bioethics, Vol. 5, Stamford, Conn.: JAI Press, 1999, p. 263. Bonnie Steinbock is answering a criticism put by Don Marquis in the same volume, ‘Why Most Abortions Are Wrong’. Compare Professor Steinbock earlier (Life Before Birth: The Moral and Legal Status of Embryos and Foetuses, New York: Oxford University Press, 1992, p. 12), where she also talks about ‘compounding’. See also L. W. Sumner: ‘It is in virtue of being sentient that creatures have interests, which are compounded either out of their desires or out of the experiences they find agreeable (or both)’ (Abortion and Moral Theory, Princeton: Princeton University Press, 1981, p. 142).

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(1) that an embryo, or a foetus up to 24 weeks or so, is never conscious and, of course, has never been conscious. (2) that nothing has interests, nothing has a good of its own, unless it is sometimes conscious or has been so. We will consider these claims in turn. This chapter will be concerned with the first. The first claim, that these individuals are never conscious at this stage of their lives, might seem quite obviously true, and hardly worth debating. It is rather assumed in these discussions that the first occurrence or manifestation of consciousness would involve consciousness of pain. The thought perhaps is this, that if there were even a trace of consciousness present a jab of pain could be expected to penetrate it, or show up in some form on the inner screen, or whatever. What is called ‘evidence’ is then offered from physiology that the ability to feel pain arises satisfactorily late in pregnancy. We might haggle about the number of weeks involved.14 Estimates of between 22 weeks and 26 weeks are mentioned in Life’s Dominion, for example (LD, p. 17). Perhaps a precocious foetus might manage to be a little bit conscious by 18 weeks? Something pre-pain. A little flickering of the inner light? ‘A mere awareness of being.’15 But such a doubt registered, we might well be inclined to accept this thesis and this timing as at least on the right lines and pass on. Science has spoken and life is short. In this chapter we will resist this inclination. Since we are investigating the possibility that a grave injustice or wrong is being done to unborn children, we must take things slowly, and be rather cautious even in regard to what might seem obvious. Let us then consider in this chapter how much reliance we the public can sensibly place in this matter on the verdicts of physiologists and philosophers of mind. The answer – if I may anticipate the verdict – is rather little. One might almost say none at all. We must realise at the outset that the difficulty in settling whether a foetus of such and such an age is really conscious might well reflect an uncertainty in our understanding – let us say our understanding of psychological concepts – rather than a technical difficulty in the investigation of synapses and neurons. For there is plenty of this conceptual uncertainty. Pretty well every discussion of the topic of consciousness, I am inclined to say, exhibits it. Thus to take just one example: it would seem an un-stated assumption of much academic writing in this area that adult human beings cannot possibly be conscious, strictly speaking. It is, rather, their brains which are conscious from time to time, or better, some part of their brains. In a similar spirit, it could be said no foetus is ever conscious, since no 14 Even about what is meant by n weeks, for embryologists count from fertilization, and doctors from the fi rst day of the woman’s last period. 15 Clifford Grobstein, Science and the Unborn, New York: Basic Books, 1988, p. 56.

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foetus is a part of a brain. There must be something conceptually wrong with this. A part of a brain could no more be conscious than it could ride a bicycle. At best, it could only be said to be conscious in the way we say that our eyes see and our legs walk. There are indeed what might be called common-sense, ‘hospital’ criteria of consciousness. Crudely: if the patient is flat on his back and unresponsive he is unconscious; if, later on, we find him sitting up and eating his breakfast, he is conscious. But even without any help from philosophers, the ‘hospital’ criteria by which we determine unconsciousness at least might seem suspect, even if they are somewhat more sophisticated than the crude account just given. ‘What shows it’s not there?’ Patients who appear by all the usual standards to be totally unconscious in the operating theatre sometimes tell us later that they were conscious all along. Such reports are taken at face value, for surely those who make them ought to know, and they are hardly all likely to be spinning a yarn. Now suppose such a patient was incapable of speech, being either too young or too brain damaged, or again had a particularly bad memory. We might have no way of knowing whether he had been in this unfortunate condition: conscious during the operation though appearing unconscious. And of course, an animal coming out of the anaesthetic is not in a position to inform the vet that it had been conscious the while. Animals, it would seem, might therefore be conscious while showing no signs of it. How do we know, how could we know, that what is ‘inner’ always has ‘outward’ signs? Especially when we do know, apparently, that the usual signs are sometimes not present? The patient appeared unconscious and turned out to have been conscious. Such at any rate might be the story. Clearly there would be no point in trying to investigate symptomless consciousness by examining brains, or indeed anything else. That is simply a trivial truth. A Wittgensteinian might protest that ‘an inner process stands in need of outward criteria’, but as far as I can see, those who study consciousness are no longer much impressed by this once impressive remark. And what are we to say of dreams? It is a natural assumption that any animal which can sleep or can be given an anaesthetic can also dream. For all we know, a mouse’s dream might be a manifestation of ‘isolated consciousness’ unconnected in any way with the rest of the world, something known only from the ‘inside’. Or this might be true of some mouse dreams.16 Of one thing we can be sure: any disagreement on this point could hardly 16 This would be disputed of course by Norman Malcolm, by now, I think, regarded as a somewhat lonely voice. His Wittgenstein-influenced book Dreaming (London: Routledge, 1959), which has a bearing on this matter, is thought by many to be one of the most absurd books ever written. At least I heard it light-heartedly referred to as such in an informal gathering of diverse philosophers, as if general agreement could be assumed.

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be resolved by observation and experiment. We cannot fi rst check whether a mouse has had a dream, and then go on to look for neurological correlates, for example. And consider this. Many people, not all of them simpleminded, think that they can in some way survive their deaths and the subsequent decay of their bodies, and that they will then be conscious – in heaven or wherever. There would then be consciousness unconnected with anything bodily. If this could be the case then, why would consciousness now always have to leave a trace in the nervous system? While these difficulties remain unresolved, we cannot confidently trust a physiologist who tells us that a foetus at 14 weeks is unconscious and has always been so. For how would he validate any possible tests? How are we to know what would count as evidence for the non-existence of foetal or embryonic pain? This is something which, if there is any doubt about it, must be settled prior to the search for evidence. If no one can say, we ought not to be treating physiologists as authorities. Here we can usefully turn to Clifford Grobstein, Ronald Dworkin’s own physiological authority. Professor Grobstein wrote a book to help us solve these problems: Science and the Unborn. The idea mentioned above that the ‘minimal inner experience’, is not pain but rather ‘the mere awareness of being’ is his. Grobstein ponders what the ‘neural substrate’ of this mere awareness might be.17 The quest would seem scientifically unpromising. For how would one know that anyone of any age had ‘the merest awareness of being’ in the first place? That question answered, how would one know that a developing foetus had this mere awareness, so as to investigate whether this or that was its neural substrate? After all, Grobstein himself reminds us ‘that the absence of behavioural signals from a foetus cannot prove that it has no inner experience or psychic individuality’.18 We must surely be quite in the dark about that. Our task seems to be to correlate something we cannot behaviourally detect with something else we know not what. Perhaps we would do better to turn from physiologists to philosophers? Practical ethicists commonly claim to make use of the work of philosophers who are engaged in the more abstract – some might say the more respectable – branches of the subject. However, in their eagerness to reach their desired conclusions one cannot help noticing they are apt to borrow from these philosophers rather selectively. That certainly seems to be the case in 17 Grobstein, Science and the Unborn, New York: Basic Books, 1988, p. 56. We might usefully note that Professor Grobstein seems to have no difficulty with the idea that an embryo or foetus has interests. ‘Once pregnancy is established [by implantation] the intimacy of the association is such that the interest of neither party can be served without significant consequence to the other’ (p. 87). See also p. 111 (foetal interests to be weighed when there is a possibility of operating on them), and p. 121 (‘Here the anticipated community of interest among physician, pregnant woman, foetus, and state seems to fall hopelessly apart.’). 18 Grobstein, p. 34.

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regard to the topic of consciousness. Philosophers who are not particularly involved in ethics seem to be more puzzled about consciousness every year that passes. They tend to say very strange things. David Armstrong, for example, who has worked a great deal on this topic, tells us that we cannot have pains in our hands. The argument offered is brief and seems to dispose of the matter: ‘The sensation of pain can hardly be in the hand, for sensations are in minds and the hand is not part of the mind.’19 This sounds as if it would have curious implications for the ethicist, to say nothing of the anaesthetist. Perhaps this little paradox can be easily cleared up, who knows? But it is a straw in the wind. Significantly for us, there is pretty wide disagreement among philosophical specialists as to what things can be, and are, conscious – and as to what would count as evidence for its existence, or even whether there could be evidence at all. Ethicists seeking to justify abortion, by contrast, tend not to want to know about these radical difficulties. It is more congenial to them to live in the shallows of the subject. Dworkin of course tells us something impressively learned about foetal brains at this stage of his enquiry – as is quite usual in an ethics book of this sort. But philosophers who are specially concerned with consciousness might question the relevance of what we are told. Brain connections of this or that kind might be thought sufficient – though even this might be denied as we shall see. But do we know that they are necessary? Might there perhaps be consciousness inside (attached to, connected with) a wide variety of entities, including many things that have no cortexes or synapses? If so, the simple inference: no synapse, no sensitivity will be quite unsafe. Some philosophers indeed will want to say that consciousness is a pervasive feature of everything in the universe, a feature which only becomes manifest in animals, and only then when the brains of these animals are in a certain condition. Otherwise consciousness will be, as it were, ‘locked-in’. Couldn’t this be true? Couldn’t there be just a bit of consciousness adhering to or associated with every molecule, or every quark? To every lump of rock, to every star? Couldn’t there even be a pain in a hand after all, despite Professor Armstrong’s doubts? We might even be able to say, after all, that people, and not just parts of their brains, are conscious. This view (perhaps family of views) is sufficiently tempting to have acquired a name: it is called pan-psychism. Pan-psychism is not just a what-if fantasy. It has had distinguished devotees in philosophy, and still finds advocates. It seems to them to allow for a more uniform view of nature – or rather, to enable them to avoid an extraordinarily un-uniform view of nature. It is perhaps thought that the theory of evolution in particular supports, in spirit at least, the idea that in nature there are no discontinuities – at any rate, no mystic dis19 David Armstrong, A Materialist Theory of the Mind, 2nd edn., London: Routledge, 1992, p. 182, italics omitted.

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continuities. There is a general wish among sensible academics to be evolutionist in outlook. It’s the modern way to be. Someone, to return to our example, who already accepts that animals might regularly have experiences, say in dreams, without manifesting any observable signs in connection with them, is not in a good position to declare pan-psychism to be an absurdity. It would be said by a panpsychist that everything in the world had an ‘interior’ aspect.20 Teilhard de Chardin, for example, wrote vividly about ‘the within of things’: An irregularity in nature is only the sharp exaggeration, to the point of perceptible disclosure, of a property of things diffused throughout the universe, in a state which precludes our recognition of its presence. . . . It is impossible to deny that deep within ourselves, an ‘interior’ appears at the heart of beings, as it were seen through a rent. This is enough to ensure that, in one degree or another, this ‘interior’ should obtrude itself as existing everywhere in nature from all time. Someone who believed in this uniformity of nature might be inclined to take the matter further. He might suppose that every particle contained a shadowy ambition to continue to exist, or a Will to Be. Otherwise the appearance of Will in the universe would introduce an inexplicable failure of uniformity. Well, this general line of thought might seem somewhat playful. Teilhard de Chardin might be thought an exotic thinker, and as a Jesuit not wholly to be trusted, even though his book came with an enthusiastic ‘Introduction’ by Julian Huxley. But Teilhard de Chardin was able to point out that the teaching found independent support in the work of J. B. S. Haldane. Haldane in turn invoked ‘the scientific point of view’, and if anyone ever knew what that was, it would have to have been someone like him: We do not find obvious evidence of life or mind in so-called inert matter, and we naturally study them most easily where they are most completely manifested; but if the scientific point of view is correct, we shall ultimately find them, at last in rudimentary form, all through the universe.21 20 Teilhard de Chardin, The Phenomenon of Man, trans. Bernard Wall, London: Collins, 1959, p. 56. The phrase ‘the within of things’ forms the title of the chapter. (I owe this reference to Anthony Kenny, The Legacy of Wittgenstein, Oxford: Blackwell, 1984, pp. 109–10.) 21 J. B. S. Haldane, The Inequality of Man, London: Chatto, 1932, p. 113. We should note that Haldane and Huxley were considerable scientists, being largely responsible for ‘the modern synthesis’ which forms the basis of modern evolutionary theory.

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Of course, we cannot test the moon to find out whether it is aware of the pull of gravity. But absence of evidence is not evidence of absence, as they say. Professor Haldane was simply reporting what he took to be a reasonable scientific presumption. Now if this pan-psychism, supported by this ‘scientific point of view’, is merely a possible truth about the world, we could not comfort ourselves with the thought that it would be wildly improbable, for how would that be known? This point seems often to be missed. In the very nature of the case, there could not be any evidence against it. For what would it be to examine a lump of rock for clues to its interior aspect? Now an admission of this possibility-which-is-not-an-improbability would rather cut the ground from under the first of our two claims. We would have to admit that mere embryos might well have consciousness after all. To be sure, pan-psychism might seem an extravagant opinion, but that is perhaps more an incredulous stare than an argument against it. Since the advent of David Lewis and his sophisticated defence of oddity, philosophers have been shy about crying ‘poppycock’ – even though our subject is presumptively riddled with it. Still, let us cheat a little, and simply choose to go along with a more modest, less ‘scientific’, opinion. For there is an alternative which might seem more in tune with our prejudices: what we might call the psychism of complex or large systems. Thomas Nagel concluded his well-known article ‘Panpsychism’ with a striking plea for open-mindedness in this regard: We know so little about how consciousness arises from matter in our own case and that of the animals in which we can identify it that it would be dogmatic to assume that it does not exist in other complex systems, or even in systems the size of a galaxy, as a result of the same basic properties of matter that are responsible for us.22 If even this still seems a bit too tolerant, and we still insist on the incredulous stare, we might cautiously settle for an even more moderate doctrine still: what we might call the psychism of the self-regulatory. On this cautious, parsimonious and narrow view, consciousness would emerge not with mere complexity but with complexity of a special kind: that is to say, wherever there is a degree of self-regulation involved. Mere molecules or complexes of molecules, however complicated, would no longer be thought to carry their little load of the psychic. However, a thermostat, for example, might

22 ‘Panpsychism’, reprinted in Thomas Nagel, Mortal Questions, Cambridge: Cambridge University Press, 1979, p. 195. Note the admission ‘since we know so little’. Come clean, now. Do we know anything at all about it? Do we even have a clear question? Don’t we need a larger slice of humble pie? Compare Colin McGinn: ‘There exists some lawlike process by which matter generates experience, but the nature of this process is completely closed to us’, The Character of Mind, 2nd edn., New York: Oxford University Press, 1996, italics added.

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be conscious in some rudimentary way. This last might seem somewhat hard to credit to a layman who has not had to grapple with these problems. But David J. Chalmers, who appears to be one of the leading philosophical authorities on consciousness, argues specifically that people are unreasonably prejudiced against the idea that a thermostat might be conscious and have experiences. The fact that we cannot imagine what these experiences would be like is, he says, neither here or there. A thermostat’s experiences would have no useful analogue in our own: ‘We will likely be unable sympathetically to imagine these experiences any better than a blind person can imagine sight.’ Admittedly, ‘it will not be very interesting to be a thermostat’, he says. A thermostat, I imagine, might be of a different opinion. Alas, we will never know.23 To be sure, people might wish to be even more restrictive. They might insist, postulate, or assert with a thump on the table – boldly facing down those who say ‘Where is your evidence?’ – that anything conscious must not only be self-regulating but must also be alive. The extremists among them, however, will still not be satisfied. They will add – with another thump on the table – that it must not only be alive – it must also be an animal . . .24 But granted that we are dealing with an animal, they will admit, some consciousness, perhaps pale, fleeting and rudimentary, must exist. Shrimps, for example, might be thought conscious in this way.25 This line of thought suggests a very tentative conclusion. If it is just possible that a thermostat which has no synapses, and is not even alive, is conscious, how about a foetus, so much more complex, and which is not only self-regulating and alive and an animal, indeed an animal with a nervous system, but is actually human? Clearly, there is a good deal of self-regulation in its life. Perhaps our ethicists should be taking this into account. They would, I am sure, be insisting that a living foetus which is to be chopped about be given a drop of anaesthetic ‘just to be on safe side’ – especially when such a precaution would cost so little. The upshot

23 David Chalmers, The Conscious Mind: In Search of a Fundamental Theory, New York: Oxford University Press, 1996, fi rst quotation p. 294, second quotation p. 293. Professor Chalmers is rather sceptical as to consciousness in rocks: ‘I would not quite say that a rock has experiences, or that a rock is conscious, in the way I might loosely say that a thermostat has experiences . . . It might be better to say that a rock contains systems that are conscious: presumably there are many such subsystems, none of whose experiences count canonically as the rock’s.’ Pp. 297–8, italics in original. 24 They wouldn’t just have to thump the table. They might, for example, have been reading Peter Geach’s chapter ‘Could sensuous experiences occur apart from an organism?’ in his Mental Acts, London: Routledge, 1957, pp. 111–17. 25 Donald R. Griffin, a zoologist at Harvard with a special expertise in this area, suggests that mantis shrimps ‘may experience very simple conscious feelings’. Animal Minds, Beyond Cognition to Consciousness, Chicago: University of Chicago Press, 2001, p. 217.

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of all this would seem to be: that if we are seriously concerned to be ‘applied philosophers’ we cannot at all be sure of our first claim, with its talk of ‘sentience’ and ‘twenty four weeks’ and so on, especially if the pretence is that it is supported by scientific evidence. I have been rather falling in line with those philosophers who say, in effect, that there might be ‘rather more consciousness in the world than we commonly assume’. But I would give a false impression were I to suggest that there was a consensus on this point. People who defend abortion up till birth would be entitled to complain. Might there not be much less consciousness than we have supposed? Might not consciousness be rarer than we had envisaged? And might the existence of interests be far more curtailed than ever before imagined? I said above, by way of concession: ‘Brain connections of this or that kind might be thought sufficient, but . . .’. Hesitancy might however be due even in regard to this concession. What I have now to report, though it may allow us to say that a foetus up to 24 weeks has never been conscious – which might seem to be the outcome we have all been waiting for – is not going to give us any confidence that what we say is true. Assistance can be an embarrassment. If the unborn child at 24 weeks lacks consciousness, what else might be found to lack it by academics who ought to know about these things? C. S. Lewis, for example, once suggested that consciousness might be entirely lacking among brute animals. He argued that animals could be sentient without being conscious at all.26 Now to be sure, Lewis would not perhaps be classed as a philosopher. And he was in the process of trying to solve a theological difficulty, when almost anything outrageous might be claimed. (I imagine that that would be said.) But we hardly need to rely on Lewis in this matter. In more recent times Peter Carruthers, who is very much a philosopher, has carefully expounded a somewhat similar idea, and this has been much taken up and discussed. Professor Carruthers does not of course deny that animals can be conscious in the sense of being awake rather than asleep, and that they are sometimes aware of items in the world around them, in that they act appropriately in view of what reaches their eyes and ears, just as C. S. Lewis admitted that animals were sentient. It has become usual in recent philosophy to distinguish between ‘phenomenal’ consciousness, which is surely what we are concerned with, and a kind of consciousness which merely enables an animal to find its way about, without there being an ‘inner aspect’. As Carruthers reminds us, we our26 C. S. Lewis, The Problem of Pain, London: Geoffrey Bles, 1940, pp. 119–21. This possibility, if it is a possibility, rather well illustrates how the word ‘sentient’, used so freely in ethics circles, is a tricky concept. He says that the distinction between ‘sentience’ and ‘consciousness’ has ‘great authority’ but does not give any references. If it is a modern insight that there are different kinds of ‘consciousness’ then Lewis, I suspect, deserves some credit as a pioneer.

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selves sometimes respond in an appropriate way to ‘what our eyes are telling us’ without being conscious that we are doing so. There is reason to believe, according to Carruthers that the ‘experiences’ of animals are all like this. Consciousness perhaps requires more conceptual sophistication than we have tended to assume, a sophistication not available to animals. ‘If consciousness is like the turning on of a light, then it may be that their lives are nothing but darkness’.27 We might, surely, have to say something similar about toddlers. (I originally wrote this last in ignorance of the literature. It seems, as I now learn, to be a matter of debate whether a child up to the age of four is ever really, that is to say ‘phenomenally’, conscious, with Professor Carruthers being prepared to bite the bullet.28) Leaving aside what to say about animals and children, we might turn to the opinion of Peter Unger, one of Professor Dworkin’s colleagues at New York University. Professor Unger, in a close and learned discussion, concludes that a remarkable array of mental activities can go on in the human mind in the absence of consciousness, and that one might indeed be permanently rendered unconscious by a drug and yet ‘have a rich and varied mental life’. For example, a woman might, during many years of unconsciousness, be ‘a caring, active, and greatly loved wife and mother’ while also pursuing a career as ‘a greatly talented, prolific and enormously successful writer’.29 So much for the ‘hospital’ criterion we mentioned: that our postoperative patient, now sitting up and eating his breakfast, must be conscious. This must now be regarded as something a critical and rational person will not presume. And since pain is such an engrossing subject for ethicists, it might be important to realise that individuals can suffer pains and be quite unconscious of them, as David Armstrong appears to have discovered. ‘We can have a sensation of pain, he writes, and be perfectly unaware of having it.’ This is not an eccentric view, among philosophers at least.30 If the possession of consciousness is a precondition of having a good, shouldn’t we be more restrictive in regard to this last than Professor Dworkin has even dreamt of being?

27 Peter Carruthers, The Animals Issue, Cambridge: Cambridge University Press, 1992, p. 171. Professor Carruthers has since written extensively on this topic. 28 Colin Allen, ‘Animal Consciousness’, The Stanford Encyclopedia of Philosophy, 2004, sec. 3.2. 29 Peter Unger, Identity, Consciousness and Value, New York: Oxford University Press, 1990, p. 146. This has naturally set me wondering whether my wife has ever been conscious all the years I have known her, but this remark, reflecting a purely personal worry, has really no place in this book. 30 David Armstrong’s remark comes from A Materialist Theory of the Mind, p. 312. I judge that it is not a particularly eccentric view among present-day philosophers because Peter Carruthers, who agrees with it, admits that some philosophers might have objections. ‘Suffering without subjectivity’, p. 14.

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Some austere philosophers even think that consciousness does not exist. 31 This might be thought an impossible position, at best maintained in Bedlam. However, it appears to be one of the standard modern approaches to consciousness, and it has acquired a name, eliminativism. ‘It says that there literally are no thoughts and sensations and emotions’ – just as there are no witches or ghosts.32 If this could be established it would be a great relief, both scientifically and ethically. Non-psychism, like pan-psychism, appears to provide the desired uniformity of nature. And no one (according to the argument we are considering at least) would have interests for us to be ethically incommoded by. Philosophy evidently lands us in great uncertainty in this area. People will have had doubts about consciousness in embryos, and no one is surprised at that. Yet it might be thought pretty undeniable that we adult human beings at least are (quite often) conscious. But even those who believe in pan-psychism might deny this apparent truism. For they might suppose that this consciousness, which in their view is such a pervasive feature of the universe, attaches to the fundamental particles only: all would be dark save for the quark. The upshot would be that nothing we are familiar with – this cat, that aunt – would be conscious at all, or perhaps would be conscious at all ‘in the strict sense’. Someone might say at this point that consciousness must exist, since he is quite sure that he himself has pains from time to time, and that this simple fact must entail that he, at least, is conscious at those times. But David Armstrong would tell him that such a premise is insecure: he could be mistaken even here. We can think we are in pain when we are not. 33 So this personal testimony seems to be pretty worthless. But cannot we sometimes simply detect that we are conscious straight off, without any possibility of failure? We should not be too confident of this either. G. E. Moore tried to detect his consciousness and failed, and we can be sure, knowing his painstaking nature, that he tried pretty hard:

31 Three such philosophers are mentioned in the article ‘Consciousness’ by Ned Block, in Samuel Guttenplan, ed., A Companion to the Philosophy of Mind, Oxford: Blackwell, 1994. They include Daniel Dennett, one of the best known writers in consciousness studies. Of course, if several philosophers say that consciousness ‘does not exist’ they might each mean something different – for the sense of what is said is not evident on its face. David Chalmers fi nds it necessary to inform his reader that he makes an assumption throughout his book on consciousness: namely that consciousness exists (p. xii). 32 The quotation and the comparison come from Colin McGinn, The Character of Mind, 2nd edn., New York: Oxford University Press, 1996, p. 41. 33 David Armstrong, A Materialist Theory of the Mind, p. 110.

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The moment we try to fi x our attention upon consciousness and to see what, distinctly, it is, it seems to vanish: it seems as if we had before us a mere emptiness.34 As we can see, Moore, with his ‘we’, was prepared to talk for all of us in this matter, not just for himself. His remark suggests that we have not even settled what category consciousness belongs to: an ability or an actuality. If being conscious were an ability one would not of course expect it to appear before one’s mind alongside one’s pains and percepts. Here we must begin to have a certain sympathy with the opinion of Bertrand Russell; perhaps the very notion is such a muddle, he suggested, that we ought to banish it altogether from psychology.35 In his view, unless we could find our way to answering some pretty baffling preliminaries we would not know what we were talking about.36 The passing years since he wrote seem not to have put our doubts to rest. A recent, rather comprehensive, book points up the range and instability of opinion on this topic: ‘Consciousness was taken to be the “starting point of all psychology,” only a few decades before it was condemned as being part and parcel of “superstition and magic”. It was characterised as “the only true reality” as well as “a nonentity with no right place among first principles”.’37 In view of all this uncertainty, someone might well want to call a halt to our discussion at this point: saying that it will be time to discuss whether a foetus – or indeed a toddler – is conscious when we have some idea what it is we are asking. If we are to take up the strange question whether some human individuals might lack a good of their own, the discussion, he might suggest, would have to proceed in some quite different way. As things stand, ‘applied philosophy’ which calls upon our understanding of consciousness

34 G. E. Moore, ‘The Refutation of Idealism’, Philosophical Studies, London: Routledge, 1922, p. 25. 35 ‘So long as consciousness is not analysed to the point of being analysed away, there will remain a mystery in the supposed transaction from neural to mental process. The extrusion of “consciousness” as one of the fundamentals of psychology was largely begun by William James, and has been carried further by his successors, with great profit for the unification of science’ (Review of Psychology of the Normal and Subnormal by Henry Herbert Goddard, Collected Papers of Bertrand Russell, Vol. 15, London: Routledge, 2000, p. 123). 36 Russell asks: ‘Is “consciousness” ultimate and simple, something to be merely accepted and contemplated? Or is it something complex . . .’ etc. ‘Such questions’, he says, ‘are not easy to answer; but until they are answered we cannot profess to know what we mean by saying that we are possessed of “consciousness”.’ The Analysis of Mind, London: Allen and Unwin, 1921, pp. 11–12. 37 Ned Block, Owen Flanegan and Güven Güzeldere, eds, The Nature of Consciousness: Philosophical Debates, Cambridge, Mass.: MIT Press, 1997, preface.

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could only be applied ignorance and confusion. If there is so much disagreement about what consciousness is, and whether it exists, how, if it exists, it comes to be related to the world as described in physics textbooks, whether animals have it, whether it must be ‘phenomenal’, etc., it will be a waste of time to investigate whether ‘it’ is caused by, is dependent on, is associated with, is hidden within, is generated by, occupies, is identical with, or commonly lingers in the vicinity of, this or that bit of protoplasm. We cannot hope to compensate for conceptual uncertainty by an everincreasing neurological sophistication. We might just as well attempt to complete the expansion of π by calculating faster. How easy it is to talk about the ‘soul’ as if it were something dreamt up by unbalanced fundamentalists whom we liberals tolerate with a wink. But scientists and philosophers have their parallel mysteries in this area. It is alarming that a doctor, after a course of ethics, might feel free to kill a baby on the strength of a philosopher’s insecure, perhaps even nonsensical, conclusions about consciousness, findings which are confidently contradicted by other, no doubt equally wayward, philosophers. This is nowadays a perfectly real possibility. Curiously, an analogous boldness would not convince in regard to capital punishment. Suppose someone were to argue: ‘Capital punishment could only be wrong if those condemned to death are conscious beings – otherwise it is hard to see what the fuss would be about. But consciousness does not exist (three learned references). So capital punishment is not wrong.’ This would not be considered seriously. It would be taken for gallows humour.

4.3 Sentience or mind as a precondition for having a good Let us leave aside the almost comical uncertainties philosophers have had with the concept of consciousness, and make a concession, if only for purposes of argument. We shall simply allow the first of the two claims, saying boldly that a foetus below a certain age, perhaps 24 weeks, ‘lacks consciousness’, and we will not enquire how this could be known. We will not for example attempt to argue that since babies up to the age of four are not really conscious, an unborn baby can hardly count as such. Nor shall we suppose, even more extravagantly, that since consciousness somehow ‘does not exist’, no human individual of whatever age is conscious. We won’t argue at all. We will simply wave a hand in the direction of common sense and common opinion. The second claim – that nothing has interests, nothing has a good of its own, unless it is conscious or has been so – is worth discussing in its own right. Let us call it the consciousness condition. It lays down a necessary condition for having a good. One suspects that ‘being conscious or having been so’ will be held a sufficient condition too. But it is the alleged necessary

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condition which I wish to examine here. We will not in the first instance be independently concerned with its truth, but only with how it is argued for by its most eminent advocates, Ronald Dworkin and Bonnie Steinbock. First then, Ronald Dworkin. Dworkin makes his case by offering examples. A work of art has no interests, a baby carrot has no interests, an assemblage of parts that God or Frankenstein is about to make into a human being does not have interests, even if the assemblage has been set to become a human being without further intervention by the designer . . . In the light of this list of examples he suggests that ‘nothing has interests unless it has or has had some form of consciousness’ (FL, p. 91). In the parallel passage in Life’s Dominion this is significally strengthened: ‘it makes no sense to suppose that something has interests . . . unless it has, or has had, some form of consciousness’ (LD, p. 16, italics added). The absence of interests is linked to non-susceptibility to harm. The assemblage of parts for example cannot, he says, be harmed (LD, p. 16). Now there is nothing at all wrong with this kind of argument, that is to say an argument which sets out examples and then comes to a tentative conclusion on the basis of them. It is obviously not put before us as a case of logical entailment. But how convincing is this particular instance?38 We shall here keep with the sober idea that it is the human individual, rather than ‘his consciousness’ which has interests – where, so to speak, there are interests to be had. We saw above, (pp. 211–12) how Professor Dworkin had had an inclination to say that it was something called consciousness which had interests, but we will assume that he was merely thrown off course by the difficulty of handling the idea of a soul. After all, we do not say that smoking is bad for your consciousness, whatever that would mean, but that it is bad for you.39 Naturally we must be careful with an argument which offers a generalisation based upon a list of examples lest we be carried along uncritically to

38 Eric Rakowski, in his review of Life’s Dominion, (‘The Sanctity of Human Life’, Yale Law Journal, 1994, p. 2058, italics in original) says that Professor Dworkin ‘stipulates’ in this matter. ‘Because he stipulates that rights and interests presuppose a conscious subject to whom they belong . . .’, and he talks about a ‘definitional step’. This is not only inaccurate. It pretty well deprives Life’s Dominion of intellectual standing. It becomes a work which offers all the advantages of theft over honest toil, in Russell’s famous phrase. Ronald Dworkin however argues his case. Perhaps Professor Rakowski thinks that the argument offered is so feeble as to amount in practice to a stipulation. And to be sure, stipulating where there should be arguing is not unknown in philosophy. That Professor Dworkin is arguing is perhaps a little more evident in the passage in Freedom’s Law. 39 I suspect that Professor Dworkin quite sensibly had second thoughts here. The idea that it is consciousness itself which strictly speaking has interests is to be found only in the earlier Chicago Law Review article, reprinted in Freedom’s Law. The corresponding passage in Life’s Dominion omits it.

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the chosen destination. We are supposed to conclude that we cannot so much as understand what would be meant by the interests of a second trimester foetus if it is not yet capable of seeing, hearing, feeling pain, wanting, planning, or whatever. (We can favour Dworkin’s case by leaving the list a little indeterminate.) That seems to be a big result. Arguments in favour of a generalisation based on a list run the risk of claiming too much. We need always ask: are we only entitled perhaps to a more modest conclusion? I am assuming, of course, that the broader conclusion which Dworkin hopes to support is not something which we already have some reason to believe, that the list of examples is all we have to go on.40 We could illustrate this insecurity by talking about the ‘has had’ in the consciousness condition. The presence of this clause hints at earlier trouble. We need to do a little philosophical archaeology. Someone must have noticed that this would entail something absurd: that it could not be for the benefit of a patient in a coma to be cured. A weakening clause therefore would have been hastily tacked on to the conclusion in order to avoid the problem. Well and good. But this prompts the question: what else might be needed?41 Once in a sifting humour, it will be hard to be sure that a proposed consciousness condition is weak enough. We might simply want to say, as a conjecture for the moment, that a reference to consciousness must come in somewhere without being very sure how. We might maintain that the connection is ‘indirect’. But this leaves matters open in just the way in which abortion advocates want it closed. We want to know: indirect in what way? We talk for example of a business corporation as having interests – a certain kind of publicity is bad for it. Professor Dworkin must be quite happy with 40 I want here to leave aside the following difficulty. If we do not understand what it would be for a foetus to have interests then presumably we would not understand what it is for a carrot in the grocer’s shop to have interests. So we would not understand the claim that a carrot had no interests – for we cannot make an unintelligible would-be sentence into an intelligible one by writing ‘It is not the case that’ in front of it. And similarly for the rest of Professor Dworkin’s would-be premises. So we end up with no argument at all. This kind of impasse is to be expected in discussions of intelligibility, and I am assuming that we can get around it in some way. Perhaps we might drop all talk of unintelligibility and regard the issue to be simply one of truth and falsehood, saying that it is an obvious truth that a carrot has no interests, etc., and going on to consider whether we might make plausible a similar claim about the unborn child. 41 The tacking on of this back-reference, the ‘or has had’, might raise a doubt in some minds whether satisfaction of the consciousness condition is sufficient for having a good. It seems to imply: once vulnerable, always vulnerable. Some philosophers will surely want to argue that if having a good can ‘come’, it might also ‘go’. This suggestion, if taken up, might have a practical advantage. If the decrepit elderly sometimes cease to have a good of their own this might then enable us, ‘ethically,’ to cannibalise them for spare parts which (we hope) might not be too clapped out to be of use.

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the idea that corporations have interests, for he says that they have rights (LD, p. 113). What is the significant thing a corporation’s got that a baby carrot lacks? If the connection between having interests and consciousness turns out to be somehow indirect we will not yet have a reason to say that a mid-term foetus (assumed never to have had ‘consciousness’) does not have a good: that nothing can be against its interests. In fact, someone might reasonably say that the connection between having interests and the manifestation of these abilities must be indirect because, after all, it is in the interests of a baby to be cared for! After all, doctors in ante-natal clinics all over the world will say, day after day, that this or that is good for the baby. Why doesn’t the argument go this way round? Why isn’t this a proof? As so often, we run into our old problem: what is proved by what? We might wonder how much depends upon the exact wording of the desired conclusion. It is here that a remark by Bonnie Steinbock can help to move the discussion on. It will stop our argument petering out in uncertainty. She says that ‘mindless, non-sentient creatures cannot have interests’.42 This formula seems to capture the spirit of what Dworkin is trying to tell us. I do not think that Dworkin would repudiate this formulation, but naturally I do not particularly wish to attribute it to him. We are interested here in thoughts of this kind, with foetal-interest-denying in general, whether or not this or that individual would put his name to this or that version of the psychological precondition. Professor Steinbock’s condition is put forward in an attempt to justify abortion.43 As we saw above, (p. 202), Professor Steinbock, like Professor Dworkin, is of the reassuring opinion that a foetus has no interests and hence cannot be harmed by being killed. The ‘argument from examples’ could easily be offered in support of the Steinbock formula. ‘Baby carrots are mindless and have no interests, collections of body parts are mindless and have no interests, . . .’ etc. The conjecture would then be that nothing that is mindless has interests. We could then handle the objection that business corporations have interests very neatly by saying that corporations are not in a sense mindless: they make plans, sign contracts, etc. A foetus, however, cannot sign a contract. So far, our reassurance remains. (We could set up a similar argument, replacing ‘mindless’ with ‘non-sentient’, but we would then have to finesse the point about business corporations, for, with the possible exception of the panpsychists, no philosopher has yet supposed them sentient.) Let us place the Steinbock formula in the context of the simple argument for which it is designed, for this will help us organise our thoughts. 42 Steinbock, Life Before Birth, p. 40. 43 Professor Dworkin might want to tell us that his argument about interests (leaving aside all the talk of intrinsic value) is not meant to justify abortion but merely to show that abortion cannot be murder.

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A foetus is mindless and non-sentient, Mindless, non-sentient creatures cannot have interests, So . . . Both premises are worthy of our attention. Let us begin by examining the first, with a determination to by-pass the troubles we had in the previous chapter about ‘consciousness’. Are we right, after all, to assume that a foetus is ‘mindless,’ and ‘non-sentient’? These two concepts are not, of course, as unproblematic as we might wish. So once again we must divide our task. We need to consider mindlessness and nonsentience separately. It is important to maintain this separateness, for the category of ‘the psychological’, if not a thoroughly bad or misleading category, is best seen as very disparate, as Wittgenstein did so much to show. First then, mindlessness. We have been willing to concede, despite the opinion of various philosophers of mind, that a foetus at a sufficiently early stage is not conscious of anything. The question whether such a foetus has a mind is of more interest. Having a human mind and being conscious must be different as anyone can see, for we lapse into unconsciousness every night but we do not cease to be individuals with minds. Perhaps there is a roundabout connection. But we had better not prejudge this issue. Bertrand Russell once concluded, perhaps reasonably: ‘It is therefore natural to suppose that, whatever may be the correct definition of “consciousness”, “consciousness” is not the essence of life or mind.’44 So in asking whether a foetus has a mind I am not proposing that we speculate about ‘consciousness’. I am here raising the question of what we are to take ‘having a mind’ to be. We might well not be able to say off hand: it is surely a topic which calls for philosophical insight. But the following somewhat Aristotelian account, taken from Anthony Kenny’s The Metaphysics of Mind, might be on the right lines: In its primary sense the human mind is the capacity to acquire intellectual abilities. It is a capacity, not an activity: babies have minds even though they do not yet exhibit intellectual activities. It is a second order capacity: an ability to acquire or possess abilities. To know a language is to have an ability: the ability to speak, understand, and perhaps read the 44 Russell, The Analysis of Mind, p. 40. A recent writer on abortion, David Boonin, allows that there is a sense in which thermostats can be said to have desires. (He assures us that we do not have any moral reason to respect their wishes.) Unlike David Chalmers, however, whose view of thermostats we mentioned in the previous chapter, he does not suppose that a thermostat, even if it had desires, would have or enjoy ‘conscious states’. This suggests the possibility of mind without consciousness, a possibility which, in my view, we might have to take seriously on quite other grounds. (A Defense of Abortion, Cambridge: Cambridge University Press, 2003, pp. 80–1.)

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language. To have a mind is to have a capacity one stage further back: the ability to acquire abilities such as the knowledge of a language.45 This account seems both plain and plausible. The stress on capacity will not seem strange to philosophers who have read Gilbert Ryle’s Concept of Mind, and so much subsequent work influenced by it.46 If the account seems unnatural to a modern reader this is because it is non-Cartesian. But we should not worry overmuch about that. The lingering influence of the genius of Descartes seems to have been responsible for so many of our intellectual troubles about mind. The amazing fact that some people are prepared to say that everything is conscious while others will reply that nothing is conscious might well be credited to the muddles of the Cartesian legacy, as can the thought that consciousness might be hidden within a molecule. Philosophy students are taught to criticise Cartesian assumptions in the philosophy of mind from their very first encounters with the subject. No one in the first-year class would say that someone who lost consciousness would cease to exist, or would cease to have a mind, for example. If we are to ‘apply’ philosophy to practical issues it would be as well not to apply manifestly dubious philosophy. Now this Aristotelian account of mind is quite significant in relation to our present topic. For if we go by this account, then a foetus might well be said to have a mind after all. As we saw, Anthony Kenny finds it quite natural to say that babies have minds, and it could hardly matter whether these babies were born or unborn. They have mental capacities. And Kenny would not be a lone voice. ‘In a sense,’ writes Eric Olson, ‘the foetus does have mental capacities, namely the capacity to become conscious and rational.’47 Are we prepared to say that a creature can have mental capacities without having a mind? Having a mind, on this plausible account, might well be thought sufficient for having interests, for having a good. That sounds very reasonable. We simply remove an obstacle to a perfectly natural belief, an obstacle put in place by bad Cartesian philosophy as modified by the subsequent history of thought. We will reject the idea that the presence of mind is like a light in the head. And if we go along with this claim as to what is sufficient, we will reject what we called the consciousness condition, namely the claim that nothing has interests unless it has, or has had, some form of consciousness. I am assuming, of course, that an organism can have this nature without actually being conscious of anything now or at some time in the 45 Anthony Kenny, The Metaphysics of Mind, Oxford: Clarendon Press, 1989, p. 20. 46 The structure of Anthony Kenny’s book was in fact modelled on that of The Concept of Mind, London: Hutchinson, 1949, see pp. vi–vii. 47 Eric T. Olson, The Human Animal, New York: Oxford University Press, 1997, p. 76.

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past, and without having been ready to be conscious of something – a bright light, let us say – if a suitable stimulus had been applied. Let us now take up the description ‘non-sentient’. Why are we inclined to agree that ‘non-sentient creatures cannot have interests’? Only because, I suggest, we can readily interpret it in a way which might appear at first sight to be true. If we say that ‘non-sentient creatures cannot have interests’, we might simply mean that trees and stones, etc. – that is to say, creatures whose nature is to be non-sentient – cannot have interests. That seems indeed how we would take this remark. Bonnie Steinbock herself says that ‘permanently non-sentient, nonconscious beings cannot have interests’.48 And again, a plausible way of taking this ‘permanently’ is in terms of natures. A stone is not the sort of thing which is conscious. And it is not in its nature to become conscious under suitable conditions either. We cannot leave it to develop until it is sufficiently mature to see or hear. Nor can we ‘wake it up’, however clever we are. The concepts of development or awakening have no application at all. Thus understood, what Professor Steinbock says is perhaps on the right lines: it is certainly a step towards adequacy. Let us accept it for now. We might similarly draw this, more modest, conclusion from Dworkin’s list of examples (the baby carrot, the collection of body parts . . .). But if this is as far as we could get, foetal-interests-deniers would not have what they wanted. For they hoped to exclude foetuses in order to be able to dispose of them, though as human beings they have this nature. Thus, whether we are concerned with mindlessness or non-sentience, the desired conclusion is difficult to reach. This should not surprise us. Philosophical arguments are so often insecure. If their conclusions are welcome people will rarely examine these arguments with care, save for the odd PhD student who is supposed to come up with something new. I said that I was simply examining the arguments offered in support of the consciousness condition, not yet being independently concerned with its truth. It is time to change tack. Let us now notice, in a preliminary way, that this condition is not only unsupported by argument, it is quite implausible in its own terms. For the moment I will limit myself to one counterexample. Why could not a living baby be born which is not in any way conscious (by everyday ‘hospital’ criteria). Perhaps it happens. I do not think it is too much of a fantasy to suppose that certain children, carrying the rare gene Q on chromosome K, might be born unconscious and grow for a few years, given the usual care, before gradually ‘awakening’ for the first time to the world around them. They would then – we might suppose – progress more or less as other children do, soon catching up in language and reading. (Our concepts should surely be able to deal with such a case, for it is not so very

48 Steinbock, Life Before Birth, p. 12, italics added.

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far removed from what we fi nd in real life where our concepts are at home.) On the view we are examining, there would be nothing one could do against the interests of such a child in these early years – there would be no such thing as ‘being against its interests’. Hence it could not be against the interests of such a child to kill it. This, we are to understand, would count as obvious. But in truth, what appears obvious in the matter is quite to the contrary: that such a child has interests, a welfare. And this does seem to turn upon what it is to be a child, on its nature. After writing the above, I was curious to find that an example of just this kind is discussed by Bonnie Steinbock, and what she has to say tells us a great deal. She imagines the existence of a (born) baby girl who suffers from a curable consciousness deficiency. This baby has never had any thoughts – and in particular has never had projects, plans, ambitions, concerns, etc. (We might imagine it a pretty grown baby, who would in a normal instance have had projects, etc.) It seems, however, preposterous to deny that it is in the interests of this child to be cured. As Professor Steinbock herself puts it: such a denial ‘seems very counterintuitive’. If this little girl is not treated but is simply allowed to die, she asks, ‘isn’t she harmed, and indeed wronged?’ But it would appear that Steinbock is more anxious to have been right than to be right. What makes it difficult for Steinbock to see what is in front of her nose in this instance, is that her discussion of interests and harm is interleaved with (familiar) remarks about ‘potentiality’ and abortion, which simply distract from the issue. ‘Strictly speaking’ this baby cannot be harmed. ‘She does not have interests of her own.’ However, any moral discomfort we might feel in saying fi rmly that we cannot harm such a baby is readily dispelled by adding that we should treat her as if she could be harmed! It is an unhappy situation for a philosopher to be in. One doggedly maintains a false thesis and then feels bound to make a concession that undermines the point of adhering so faithfully to error.49 It is time to draw together some results. Ronald Dworkin’s argument, starting out with a list of items which do not have a good of their own, does not show that a foetus lacks such a good; it might well be sufficient to be a sentient being – where we have in mind a being with a sentient nature. This, of course, was true of none of the items in the list. And returning to the above two premises based on the Steinbock formula, we can say the following. If we understand the fi rst premise (‘mindless, non-sentient creatures have no interests’) in the only way which gives it a chance of truth, the other premise (‘A foetus is a mindless, non-sentient creature’) would appear to be false. We would not be entitled to conclude that human

49 That examples of ‘late development’ of this kind can be instructive was also noticed by Stephen D. Schwarz in a book published two years before Bonnie Steinbock’s Life Before Birth. See The Moral Question of Abortion, Chicago: Loyola University Press, 1990, p. 90.

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individuals somehow lacked a good of their own while at the foetal stage. On the contrary, we would keep with the natural supposition that unborn babies, miniature developing human beings with human limbs and human organs, which are creatures with a sentient and intelligent nature even when they cannot yet feel the prick of a pin or follow a proof of Pythagoras’s theorem, have interests (have a welfare, have a good, can be harmed, etc.) at a time before this developmental tendency has a chance of being realised. That, after all, is why they are subject to anxious care in ante-natal clinics all over the world.

4.4 A note on natures and capacities We have seen in the previous chapter that the arguments needed to support the much desired conclusion about interests are not to be trusted. And this particularly if we hope to establish a momentous practical conclusion with their aid. It is perhaps useful at this point to consolidate the progress we have made so far with some brief remarks about the idea of ‘having a nature’, and the notion of a capacity. Let us observe to begin with that we are not concerned with ethics in this part of our enquiry. To suggest that whether a being has a good of its own depends upon its nature is not to make a claim within moral philosophy. Nor would it be from within moral philosophy that we determined what these interests are. It would be quite consistent for us to say that what is in the interests of a newborn baby is settled by its being by nature human – and then go on to maintain that we owe it nothing at all. The idea that organisms have a nature might sound distinctly academic, and no doubt it has an academic root in Aristotle. But the idea is quite familiar to us in daily life. Birds grow feathers, platypuses lay eggs, pigs don’t fly. A particular bird does not just happen to grow feathers in the way it just happens to perch on a certain twig or perish in the snow. When we say such things we allow for the possibility that a diseased bird might fail to grow feathers and that a platypus might be too maimed to lay an egg. It even seems conceivable that most birds might be defective in lacking feathers.50 One might almost say: a bird ought to grow them. We say that a diseased bird ‘fails’ to grow feathers. It would simply be a joke to say that a mouse has failed to grow feathers. There is something normative about a nature. (This does not mean that it is up to us to decree whether a bird is

50 In Elizabeth Anscombe’s example, humans are animals with such and such a number of teeth, ‘which is certainly not the average number of teeth men have’ (‘Modern Moral Philosophy’, Collected Philosophical Papers, Vol. 3, Oxford: Blackwell, 1981, p. 38). Clearly too, it is possible for most human beings to lack the proper number of teeth.

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a feathered being, or that we could pass a law to the effect that a platypus is viviparous.) The concept of ‘natures’ is then implicit in our thought. This is also true in regard to the concept of having a good. We saw earlier (p. 196) how Joel Feinberg found it natural to talk about sorts of beings: ‘the sorts of beings who can have rights are precisely those who have (or can have) interests’. Where there is such a thing as a good, things of a different nature have a different kind of good. What would count as flourishing in a rabbit would not count as flourishing in a human being. Indeed what counts as flourishing in this latter case might be decidedly unobvious, though we would no doubt be able to say something.51 The idea that an individual’s interests or good depends on its nature is surely compelling. The concept goes along with the related concepts of harm, health, opportunity, normal development, defect, cure, advantage, etc., all of which involve a reference to the kind of thing the individual is. There might be philosophical difficulties in giving an account of the notion of a nature, but that is true about so many notions, intention, time, number and indeed an individual’s good. As we said, the modified mind-or-consciousness condition which refers to ‘natures’ fits Professor Dworkin’s examples. Such a conclusion would come easily to us. It might even fit the remark in his article in The Times, suggesting that ‘a collection of growing cells just implanted in a womb’ can hardly be said to have ‘interests of its own’.52 A mere collection of cells, whether just implanted or not, does not have a nature. Nor indeed does an assemblage of parts brought together in one place by Frankenstein. We need here to talk about things qua this or qua that. We are apt to think no doubt that a mere collection of cells could not have interests. What on earth would someone mean if he suggested such a thing? But a philosopher like Professor Dworkin is himself a collection of cells after all, though 51 Talk of human ‘flourishing’ in the ethics of our time, now so usual, may owe much to Elizabeth Anscombe’s ‘Modern Moral Philosophy’. But we do well to remember that she presents it as a puzzling notion. Why, she asks, won’t it be the best thing for a man, on some occasions at least, to commit injustice? Surely there must be an answer. But we philosophers, she says, are not at present able to provide it. ‘Philosophically there is a huge gap, at present unfi llable as far as we are concerned, which needs to be filled by an account of human nature, human action, the type of characteristic a virtue is, and above all of human “flourishing”. And it is this last concept that appears the most doubtful. For it is a bit much to swallow that a man in pain and hunger and poor and friendless is flourishing, as Aristotle himself admitted. Further, someone might say that one at least needed to stay alive to flourish’ (Collected Philosophical Papers, Vol. 3, p. 41). Consider also Philippa Foot’s recent remark: ‘The idea of human good is deeply problematic. One may be inclined to think of it as happiness, but much would have to be said before that could be so understood as to be true . . .’ (Natural Goodness, Oxford: Clarendon Press, 2001, p. 43). 52 ‘When Can a Doctor Kill?’, The Times, 27 April 1993.

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presumably not a mere such. No doubt he is also a collection of electrons, protons, quarks, or whatever. One might therefore naturally say: qua collection of cells, or of electrons and protons, the question of his interests does not arise, qua human being it does. The thought that the abortion status quo can be helped along by this talk about ‘mere collections of cells’ appears somewhat dishonest. We saw how Philip Kitcher resorted to some such phrase (p. 184). The well-known abortionist Ruth Barnett charmingly suggested to women that they ‘come at once to a reliable, kind doctor, who can gently remove a few little bloodclots and cells’.53 The pro-life claim, or reminder, that ‘every abortion stops a beating heart’ happens to be true – at least if abortion is what people nearly always have in mind by it: we would not be thinking of ‘the morning after pill’, for example. (I had initially supposed this claim about hearts to be a partisan exaggeration, suitable only for street placards. But hearts in fact develop early.) An organism with a beating heart is surely not what Professor Dworkin and others want to call a collection of cells. Indeed, as we saw (p. 225), the abortion issue is described in A Matter of Principle as a dispute about unborn infants. In talking about interests, a being’s nature, and having a mind, we are bound, of course, to make use of the notion of capacity or ability. I want to stress here how wary we need to be of this notion. Consider various answers to the question: Will he be able to swim? Yes (his injuries will not prevent him learning when old enough to learn). Yes (he has learned, and people do not seem to forget how to). No (he is unconscious and won’t recover in time). No (there will be no water handy). No (he will be too busy). No (he has promised not to). No (it is illegal to swim here). This shows, incidentally, that the phrase ‘potential person’, much used in superficial philosophising about abortion, threatens to be indeterminate in meaning. Not only is the philosophical talk of personhood so very indeterminate in sense as we have noted (perhaps no doubt because notions of personhood will be introduced which themselves involve modal notions). The adjective ‘potential’ makes things worse, contributing its own load of uncertainty. Consider the question: ‘Is Roy a potential US president?’ In different contexts we might answer Yes (Roy is a human being, not a dog as we had first imagined). Yes (seeing that he is an American citizen not naturalised). Yes (seeing that, though a naturalised citizen, it is possible that the law in that regard will be changed). Yes (seeing that he has recovered from a disease we had thought fatal, and will now plainly live until election day). Yes (seeing that he is so popular in the Democratic party and has few credible rivals). Yes (seeing that he has ruled himself out of the running in a way 53 Rickie Solinger, The Abortionist: A Woman Against the Law, Berkeley: University of California Press, 1994, p. 45. This is surely a misleading description even of what would count as an early abortion at the hands of such a ‘provider’.

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which suggests that he certainly will run). Yes (seeing that he has such modest talent as it takes to be president). And so on. ‘Sentient’ – a word we have already picked out as problematic in our discussion of consciousness – is a modal word. It means can feel, or perhaps can perceive. We will not be surprised to fi nd therefore that the phrase ‘sentient being’ exhibits modal indeterminacy. As we have suggested, a particular human being is, in a sense, a sentient being, even when at present unable to feel anything, either because comatose, anaesthetised or insufficiently developed. ‘Is an embryo of five weeks since conception a sentient being?’ is not a determinate question. All one can do, if an answer is required outside a context, is to say ‘It is and it isn’t’ (where this does not indicate that it is a borderline case). R. G. Frey rather makes fun of what seems to him a ‘strange thesis’: ‘Mary Anne Warren’, he says ‘would have us believe that the comatose have a capacity to feel pain which it just happens cannot become operative.’54 But I think we should side with Professor Warren. What she claims makes perfect sense and calls for no furrowed brow. We simply have to be sensitive to the way ‘can’ and ‘capacity’ are modally versatile. In learning a language we develop a nose for this versatility in practice, but this nose does not save us from errors when theorising. A similar example. John Harris is criticising John Finnis: Finnis claims that every ‘living human being has this radical capacity for participating in the manner of a person – intelligently and freely – in human goods’. As stated this is simply false. It was false of Tony Bland after he came to be in a persistent vegetative state. . . . On my account he had, at that point, ceased to be a person because he had ceased permanently to possess that radical capacity which Finnis and I agree is required for personhood.55 Of course, what Professor Harris says is understandable. That philosophers’ definitive put-down ‘simply false!’ is just what one expects to hear. But on second thoughts the dispute is clearly idle, turning on what is to count as a capacity. There is surely a sense, perhaps an interesting sense, in which someone diagnosed as in a ‘persistent’ vegetative state ‘can’ be cured. Incapable is of course a modal word. L. W. Sumner writes: ‘Foetuses are incapable of being duty-bearers, as are rocks and trees and clams’.56 Of 54 R. G. Frey, Interests and Rights, Oxford: Clarendon Press, 1980, p. 34. 55 John Harris, ‘The Philosophical Case against the Philosophical Case against Euthanasia’, in John Keown, ed., Euthanasia Examined, Cambridge: Cambridge University Press, 1995, p. 41. 56 Sumner, Abortion and Moral Theory, p. 29.

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course, we agree at once. But this seems to be because we naturally interpret what is said ‘charitably’ – that is to say, we pick out the sense in which it will come out true as obviously the sense intended. Suppose someone said in another context: ‘Foetuses, unlike rocks and trees and clams, are capable of being duty-bearers.’ Wouldn’t we understand this as true too? In one sense, a daisy is a flowering plant even when it is not a flowering plant. No one will suppose this a deep paradox. Often when we describe a kind of plant as ‘flowering’ we are talking about its nature – something it timelessly has, rather than a characteristic which changes as it develops and puts forth buds. In examining many peculiar philosophical views we shall find ‘modality in their madness’, in Alan White’s memorable phrase.57 Sometimes the modal tricksiness causes us no trouble. A moral philosopher who proclaims (oddly, in my view) ‘that we have a duty to have an equal concern for the interests of all sentient beings’ is not leaving out of account all those individuals who happen to be in oblivion on the operating table. Similarly, a human being is an intelligent agent even when for these reasons unable to think. He is able and not able. We handle this particular modal difference pretty easily. Similarly, Sir Edward Coke in giving his classic definition of murder, talked about the killing of ‘any reasonable creature’ (in rerum natura, under the king’s peace, etc.). This is always understood to include those who are demented. We would not have thought well of a Nazi in the 1930s who was learned enough to make use of this formula as an excuse for the elimination of life unworthy of life. We can also say, with Locke, that a human being is ‘born rational’. Perhaps we are not quite so good at handling modality here. Locke did not, of course, mean that the baby could precociously do sums. On the contrary, he says: ‘We are born free, as we are born rational; not that we have actually the exercise of either: Age that brings one, brings with it the other too.’58 Kant too says ‘every man is born free’. He does not suppose that persons are endowed with freedom only from the time they first can exercise it. ‘Children . . . are at all times free.’59 57 White, Modal Thinking, p. 2. 58 John Locke (Second Treatise, Section 61) has just mentioned ‘that duty, which God and nature hath laid on man, to preserve their off-spring, till they be able to shift for themselves’ (section 60). People who search Locke for abortion-useful definitions of ‘person’ tend not to notice such passages. Locke himself would not have appreciated their attentions. His own views on our present abortion controversy would surely be of a piece with what he has to say about ‘the most shameful action and most unnatural murder, human nature is capable of’ (First Treatise, section 56). 59 Immanuel Kant, The Metaphysics of Morals, trans. Mary Gregor, Cambridge: Cambridge University Press, 1991, p. 101, italics added. We should not think that this

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Advantage is often taken of modal uncertainty in regard to the matters with which we are concerned. Take Professor Sumner’s ‘happiness’ account of ‘having a welfare’. ‘The minimum wherewithal for having a welfare is being a subject who is capable of being satisfied or unsatisfied by the conditions of one’s life.’ This might be true – that is to say, it might have a chance of truth – where ‘capable’ is taken broadly. But it is most implausible when it is taken narrowly.60 Another example. John Harris calls upon Locke in constructing his definition of the word ‘person’. In so doing Professor Harris is conspicuously reliant on modality. A person, he says, is ‘any being which is capable of valuing its own existence’. And modality comes into the account of the way it is wrong to kill a person. ‘The wrongness of killing another person’ is ‘chiefly’ the wrongness of permanently depriving it of ‘whatever makes it possible’ for it to value its own life.61 Of course, Professor Harris is hoping to justify abortion with the aid of these modal theses. But they will only do the trick for him if they are interpreted narrowly, whereas they seem to rely for whatever persuasiveness they have on the fact that they also have a broad interpretation, an interpretation which would make a foetus into what is called a person and abortion into a wronging. For in an obvious sense, a foetus, as a human being, is a ‘person’ on this definition, that is to say, a creature capable of valuing its own existence, unlike a tree. And – at least if there is no after-life – dismembering it ‘permanently deprives’, etc.

attitude to the very young reflected something especially sublime in Kant’s outlook. It is, rather, something quite ordinary. Kant was not what anyone would call an egalitarian. He had views about race, for example, which would everywhere be regarded as racist these days. 60 Sumner, Welfare, Happiness, and Ethics, p. 178, italics added. See also Sumner’s ‘Moderate Views of Abortion’: ‘In order to have a welfare . . . a creature must be a subject who is capable of having . . . a point of view’, (in Rem. B. Edwards, ed., New Essays on Abortion and Bioethics: Advances in Bioethics, Vol. 2, Greenwich, Conn.: JAI Press, 1997, p. 208, italics added). See also this fragment from Bernard Williams: ‘even if we lay aside the difficulties – which are obvious enough – of making sense in the fi rst place of the idea of a thing’s having interests if it cannot have experiences’ (‘Must a Concern for the Environment be Centred on Human Beings?’, in Making Sense of Humanity and Other Philosophical Papers, Cambridge: Cambridge University Press, 1995, p. 237). The sense given to ‘cannot’ here makes all the difference. 61 The Value of Life, London: Routledge, 1985. The defi nition of ‘person’ is on p. 18, and the account of the wrongness of killing is on p. 17, italics added in both cases. An organism which is not a person, as defined, cannot, it is said, be wronged by being killed (though it can be wronged by being hurt) (p. 159). The account of ‘the value of life’ in this book is quite different from the ‘investment’ account which we have discussed. ‘The best reason for thinking a life valuable [is] that the individual concerned is capable of valuing it’ (p. 68). Note once again the indeterminate modal word ‘capable’.

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4.5 Welfare beyond mind and sentience We must now seek a more comprehensive understanding of what it is to have a good. Let us take up some unfinished business from Chapter 4.3. In that chapter I wrote: If we say that ‘non-sentient creatures cannot have interests’ we might simply mean that trees and stones etc. – that is to say creatures whose nature is to be non-sentient – cannot have interests. That seems indeed how we would take this remark . . . Thus understood, what Professor Steinbock says is perhaps on the right lines: it is certainly a step towards adequacy. Let us accept it for now. It is time to have second thoughts. For it would seem that we can understand not only the idea that something can be in the interests of a developing unborn baby, with its sentient and psychological nature as a human being. We can also understand what it is for something to be in the interests of a tree. We would expect environmentalists in particular to take note of the fact that plants have a good.62 The many philosophers who talk about ‘the interests of all sentient beings’ (for which we must, apparently, have an equal concern, etc.) must also recognise this, for what they say seems to suggest that some non-sentient beings have interests too (for which we perhaps do not have to have this concern). The restriction would otherwise be pointless. It is notable that when Professor Dworkin assembles his examples of items which lack interests – work of art, carrots, a collection of bits in Frankenstein’s laboratory – he does not include oak trees. It is useful to dwell on what it is appropriate to say about trees, ferns etc. It brings in a certain perspective.63 We are sometimes concerned for a plant’s own good. ‘It would be useful to dig a drain here, I know, but that would definitely not be in the interests of that oak tree, and I particularly like it.’ ‘If my neighbour cuts down his tree that would be sad. But at least my tree, growing in its shade will be better off.’ Would we think that someone who said such things had a poor grasp of the language? Or was somehow being 62 The environmentalist Paul W. Taylor puts the case for talking about interests in relation to plants rather clearly, saying for example: ‘we can act in a being’s interest . . . without its being interested in what we are doing to it in the sense of wanting or not wanting us to do it’, etc. (‘The Ethics of Respect for Nature’, Environmental Ethics, 1986, reprinted in James Sterba, ed., Morality in Practice, 4th edn, Belmont, Calif.: Wadsworth Publishing Co., 1993, see p. 489. 63 On the general usefulness of considering plant life, Philippa Foot remarked: ‘I once began a lecture by saying that in moral philosophy it’s very important to begin by talking about plants’ (interview in Philosophy Now, May/June 2003). Philippa Foot discusses the good of plants in her article ‘Euthanasia’, in Virtues and Vices, Oxford: Blackwell, 1978, pp. 38–9.

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unserious? Admittedly, there may be times when it does sound a little unserious to talk of the interests of a plant. But this is sufficiently explained by the suggestion of hobbies or concerns which clings to the word, a mere association which it cannot quite shake off. We can talk about what a plant is deprived of. We remember how Sissela Bok said that she could not use the word ‘deprive’ in relation to what perishes in abortion (p. 199). But ‘deprive’ certainly has a natural use here, in relation to botany. A plant can be deprived of light by another plant. Even the youngest thread of an oak tree – with its first two tiny cotyledon leaves – can suffer deprivation of what it needs. Joel Feinberg, in talking about what has a good, includes the condition of having latent tendencies, direction of growth, and natural fulfilments.64 That seems to fit the bill here very well. G. H. von Wright, in The Varieties of Goodness, devoted a section to the topic which may perhaps be seen as pioneering: ‘What kinds or species of thing have a good? What is the range of significance of “X” in the phrase “the good of X”?’65 Fortunately, he is here quite uninvolved with the abortion controversy (it hardly arose in the academic writings of philosophers at that time). In his view, we are concerned with a ‘biological’ notion. We need to know ‘what kind or species of being have a life’. ‘And one could say that it is metaphorical to speak of the good of a being, to the same extent as it is metaphorical to speak of the life of a being. Artifacts, such as cars and watches, have a life and therefore a good only metaphorically. Plants and animals have a life in the primary sense’.66 This seems correct. Some artefacts are indeed somewhat more akin to organisms than others. The engine of a car might be said to be its heart, etc. The engine – or the whole car – might be said to be in healthy condition; by contrast a pair of scissors which cut well will not be thought of as healthy. We should note von Wright’s word ‘primary’. Plants have a life in the primary sense. Why cannot we say the same thing about interests? H. J. McCloskey says (quite unsurprisingly) that plants have interests – ‘Pruning is seen to be contrary to the interests of certain kinds of plants, the application of certain fertilisers to be in their interests, and so on.’ But he goes on to say that they have interests ‘in an extended sense’.67 What is it for a concept 64 Joel Feinberg, ‘The Rights of Animals and Unborn Generations’, reprinted in Rights, Justice, and the Bounds of Liberty, Princeton: Princeton University Press, 1980, p. 165. 65 G. H. von Wright, The Varieties of Goodness, London: Routledge, 1963, pp. 50–1. 66 Ibid., p. 50, italics in text. Philip Devine also claims (naturally enough) that plants have interests, saying of Joel Feinberg who denies this claim that ‘his discussion contains concessions sufficient for his refutation’ (The Ethics of Homicide, Ithaca: Cornell University Press, 1978, p. 21). 67 H. J. McCloskey, ‘Moral Rights and Animals’ Inquiry, 1979, p. 33.

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to be extended? Is a dog only said to be hungry in an extended sense? If children first learn what it is ‘to fall over’ on occasions on which they take a tumble, should we say that trees only fall over in an extended sense? People sometimes talk not only of ‘extended’ meanings but also of meanings which are ‘attenuated’. We might then be inclined to say that a tree has interests in a rather attenuated sense of interests.68 But in the absence of any criterion of attenuation such a suggestion cannot sensibly be discussed. Does a plant need water only in an attenuated sense of ‘need’? Does it grow only in an attenuated sense of ‘grow’? Some children born with damaged or defective brains might be said to have comparatively simple needs. We might want to say that the list of what is in these people’s interests is somehow a bit shorter or thinner. But the meaning of ‘interests’ in connection with them (‘in the interests of this child’) should not be thought itself to be somehow shorter or thinner. Plants, we should note, have a kind of autonomy. That is to say, we understand what it is for a plant to be in good condition independently of its being in a condition good for the purposes of human beings, or suitable for the needs of animals which eat them. What is good for the weeds in the garden is not determined by what people rather generally would like to happen to them. It is hardly surprising that James Griffin, discussing the notion of well-being, naturally says of the concept of ‘interest’ that it ‘can be applied without strain’ to plants. He writes as if the matter hardly needs discussion.69 When Dworkin draws up his list of items which do not have interests, he confidently includes ‘baby carrots’, as we have seen. What we call a carrot is, of course, just a part of a carrot plant, and it would indeed be odd to suggest that a mere part of an organism had interests. A cow would have interests but not its hindquarters. Someone might say that a carrot is not just a bit of a carrot plant, but is an organ. And to be sure, an organ has a good. Its good however is not autonomous, but is related to the good of the organism which has it. Perhaps we will want to say to have interests is not merely to have a good, but to have an autonomous good. Someone might argue that the notion of harm in regard to a tree is ‘secondary’ by claiming that one can only harm a tree if it is someone’s property, or if someone has adopted it and is caring for it, and one is really harming the owner or carer.70 What we have called the ‘autonomy’ of the

68 See Michael Tooley, Abortion and Infanticide, Oxford: Clarendon Press, 1983, p. 117. Again, L. W. Sumner writes: ‘Talk of protecting the interests or welfare of plants . . . seems contrived and strained’ (Abortion and Moral Theory, p. 136, fn 10). But this has to do with our lack of concern for them, save as items of property. Tree huggers would not find such language strained at all. 69 James Griffin, Well-Being, Oxford: Clarendon Press, 1986, p. 37. 70 This appears to be Joel Feinberg’s view (see Harm to Others, New York: Oxford University Press, 1984, p. 32).

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plant’s good tells a different story. The (or at least a) central notion of harm in the human case would seem to be connected with proper functioning – rather than, say, with pain and misery. We say: ‘I know he is upset but it won’t harm him.’ We understand, as something straightforward rather than fancy or oblique, the declaration on the weedkiller packet that the product will harm weeds in the lawn but not the grass. We might even be inclined to say that the notion of harm has its primary home in relation to plants and that it is transferred (to somewhat uncertain effect71) to human beings. That might not be a reasonable view, but it is not wholly far fetched either. After all, the word ‘flourishing’ which is nowadays so very often used in connection with human life – as indeed in Life’s Dominion as we have seen (pp. 216–17) – is a word derived from the life of plants, as, of course, are ‘blossoming’ and ‘blooming’ as applied to people. And as we know, this comparison is at least as old as the King James Bible: ‘The righteous shall flourish like a branch’. We saw that there is a way in which trees have autonomy. Naturally this involves a sense of the word quite unlike what we find in discussions of medical ethics where we are concerned with choice. We are indeed thinking about independence, but this must be taken in the right way. Something can still be said to have autonomy in our sense even when it is in various ways dependent. A gazelle depends on other organisms, plants, say; lions may depend upon gazelles; certain tape worms may depend upon lions, etc. But all have what we are here calling autonomy. And with this notion of autonomy goes a notion of harm or damage which, it is important to note, is unlike the damage which can be done to a chisel when it is used as a screwdriver, or the damage which can be done to a plan when the money runs out. Trees, gazelles, etc. have a good of their own. There is here a sense of bad for which is different from the use of this phrase in connection with the ill-treatment of implements. People are apt to forget that plants have a good. Sometimes a contrast is made as if plants did not exist at all. Peter Singer writes, in a way we will by now find so familiar: The capacity for suffering and enjoying things is a prerequisite for having interests at all, a condition that must be satisfied before we can talk about interests in any meaningful way. It would be nonsense to say that it was

71 The notion of harm as applied to human beings does seem to be comparatively indeterminate. Think of a disagreement whether harm to a man’s reputation is a harm to him. (‘Sticks and stones may break my bones, but words will never harm me.’) Or over the suspiciously sublime thought that some philosophers have entertained that a good man cannot be harmed – inspired by Socrates in the Apology.

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not in the interests of a stone to be kicked along the road by a schoolboy. A stone does not have interests because it cannot suffer.72 How come that we are entitled to this particular ‘because’? Why wouldn’t something more modest do? ‘A stone does not have interests because it is not an organism’, say?73 Peter Railton too writes about stones – again as if the vegetable kingdom did not exist: It seems to me that notions like good and bad have a place in the scheme of things only in virtue of facts about what matters, or could matter, to beings for whom it is possible that something matter. Good and bad would have no place in a universe consisting only of stones, for nothing matters to stones. Introduce some people, and you will have the possibility of value as well. It will matter to people how things go in their rockstrewn world. A being for whom something can matter is a being with a point of view, a subjectivity. In a universe without subjectivity, there is no value either.74 This simply leaves plants out of account. Why is there not ‘value in the world’ whenever a plant is in good condition, or has good roots? Or where something or other can be good for a plant? One might just as well say that a world in which anything is healthy must be a world containing people. After all, a world consisting only of stones would contain nothing healthy or unhealthy. Introduce some people, and you will have the possibility of health as well. If ‘mattering to’ involves ‘caring about,’ as would seem to be the case, then what we are given is simply a philosophical conjecture, of the kind we all make from time to time, which then comes up hard against the plain facts of botany. Whence this chlorophyllophobia? In a later publication, responding to environmentalists, Peter Singer takes up the issue:

72 Peter Singer, Practical Ethics, 2nd edn, Cambridge: Cambridge University Press, 1993, p. 57. 73 Does something have to be an organism to have interests? Some people believe that there are angels. We should not exclude the thought that angels would have a good if they existed. Rebellion against God is represented as having been bad for Satan, a disaster for him. 74 Peter Railton, ‘Facts and Values’, in Facts, Values, and Norms: Essays Toward a Morality of Consequence, Cambridge: Cambridge University Press, 2003, fi rst paragraph, p. 47, second paragraph, p. 56.

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In what sense is it in the interests of a tree to receive water and light, and not equally in the interests of an icicle for the temperature to remain below freezing? But to say that an icicle has an interest in cold weather seems dubious.75 Indeed it does. This last would surely have to be a kind of joke. The notion of proper functioning and development has no place in connection with an icicle, so we cannot use this notion to give a sense to ‘harm’. An icicle cannot be said to flourish or be healthy. And it certainly does not have what we have been calling ‘autonomy’. To be sure, it is natural for us to focus our attention on the notion of human welfare. And something we might call ‘subjectivity’ evidently has a place here, for part of welfare is enjoyment, and people enjoy different things. But this natural focus should only make a philosopher cautious lest he give a skewed account of the concept of welfare in the general case.

4.6 ‘Morally significant interests’ And now for a new twist. A philosopher might have insisted for many pages that nothing could be in the interest of a tree or perhaps a trout. Such things could not truly be said to have a good of their own. But when pressed upon this matter a curious change is apt to come over his account. The tree will be said not to have ‘morally significant’ interests. Or the interests of a mere trout will be said to be of quite a different kind from those we recognise as having ‘moral importance’. This is evidently another matter. Questions of ‘moral importance’ or ‘moral standing’ have been no part of our recent discussion. Philosophers seem often constrained to deny the obvious – for example, that plants have interests – almost as if they fear having to give votes to oaks. Or even rights to lawn mowers. In a review of a book by Robin Attfield, L. W. Sumner writes: There seems no way to extend moral standing to all organisms without also extending it to some inanimate objects. If Attfield wishes to avoid this further expansion of the moral domain, then his best bet is probably to accept the more orthodox interpretation of having a good of one’s own – and therefore also of being harmed or benefited and having an The notion of ‘a point of view’ seems inadequately to be explained in such a passage. A surveillance camera literally has a point of view and cannot be said to have interests. Taken metaphorically, a certain toddler may have no point of view on anything at all, but evidently can be said to have interests. 75 Peter Singer, ‘Animals’, in Dale Jamieson, ed., Companion to Environmental Ethics, Oxford: Blackwell, 2001, p, 420.

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interest (or welfare) – according to which all of these capacities require consciousness (or sentience).76 Even leaving aside this claim about orthodoxy, quite possibly correct, this is a revealing remark, showing very well how philosophical biology becomes contaminated with ethics. But surely, ethics comes in, if at all, after these preliminary matters are settled. One thing at a time. We saw earlier (pp. 202–3) how Professor Sumner makes a certain claim about ‘the threshold of sentience’. Before this threshold, he says ‘there is (in the deontically relevant sense) no creature to be harmed . . .’. And of course he has abortion in mind. This illustrates just the kind of contamination with ethics that we have been at some pains to avoid. Sumner freely admits that ‘much of our welfare vocabulary does apply to all living things with no evident strain’.77 If so, it is better on the whole to say straight out that we do not need to take into account the welfare of babies, trees, convicted murders, disabled human beings totally in our power, etc. (if that is our view), rather than pretend that they do not have, in such and such a sense, a welfare. And it is better to say, honestly, that it is all right to destroy them than to say that they are not (‘morally speaking’) alive or are not truly existent (‘ethically understood’). Someone might think ‘I do not have to have a concern for the welfare of those people, for they live far away in a different continent’. This primitive and unpopular view has, I believe, more going for it than most people realise. That is certainly an embarrassment, but it must be recognised. But we should not try to express this thought by saying that such people have ‘from the moral perspective’ no good, or no good relative to us. Gary Varner, who is rightly happy to say that a plant has interests, is another writer who morally contaminates his biology. In his book In Nature’s Interest? he says: To say that a being has interests is to say that it has a welfare, or good of its own, that matters from the moral point of view.78 Why this last clause? A footnote explains: ‘As I am using the term in this book, an interest is, by definition, morally significant.’ Professor Varner’s stipulation is quite self-defeating. For he wants to make a substantial point – that everything which has interests also possesses ‘moral significance’.79 76 L. W. Sumner, review of Robin Attfield’s The Ethics of Environmental Concern, in Environmental Ethics, 1986, p. 81. 77 Sumner, Welfare, Happiness, and Ethics, p. 74. 78 Gary Varner, In Nature’s Interest?, New York: Oxford University Press, 1998, p. 77, italics added. 79 Earlier (p. 55) we saw three further samples of this particular folly (Nuyen, Flathman, Warren). I think that Ronald Dworkin must be quite free of it.

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He seems to have defined his thesis into truth. True enough, the ‘significance’ might be quite small. There is clearly a concern in the ecoethics community lest the injunction to attend impartially to the interests of every living thing might result in moral overload. Faced with this difficulty, however, all we need to do, it seems, is to lay down some not-to-worry qualifications. ‘Where certain desires of human beings are at odds with the biological interests of non-conscious organisms such as cholla cactus, aspen, navel oranges . . . it does not matter how many of these nonconscious individuals there are.’80 Moral significance can clearly be less significant than one might at first have supposed. All this is more or less to be expected once ‘moral significance’ is allowed on the scene. Michael Tooley is also happy to grant that plants have interests, for example, ‘an interest in getting enough water’. But then, we are almost immediately told about a supposed ‘morally relevant sense’: ‘Interests in the morally relevant sense . . . presuppose desires . . .’, that is to say, present desires or at least past desires temporarily eclipsed. ‘A subject of interests, in the relevant sense of “interest”, must necessarily be a subject of conscious states, including experiences and desires.’81 But what entitles us to talk about ‘the relevant sense of “interest” ’? We can only add the rider ‘in the morally relevant sense’ if there are different senses of this phrase (and indeed, if only one of them is morally relevant). That has first to be established. It will not do to say that what is in the interest of a tree is something other than what is in the interest of a rabbit, etc. That does not show that ‘in the interests of’ has more than one sense. One might just as well argue that ‘double of’ has more than one sense on the ground that the double of two is not the same as the double of three. Since a human foetus has a good of its own, we can protect a foetus for its own sake. Someone now replies, as we have learned to expect, ‘Fair enough, but this is not morally significant.’ Here the difficulty would be to see why this talk of significance is not simply a doctrine on the part of grown-ups who want abortion to be available. It hardly seems to have an independent rationale. This is specially evident when the notion of sentience is introduced as relevant ‘from the moral point of view’, but is then carefully hedged so that the sentient nature of a human being turns out not to be relevant. This is possible because the notion of moral significance is extraordinarily indeterminate. The sense of the word ‘significant’ is pretty difficult to pin down to begin with, and attaching the unclear adjective ‘moral’ to the front of it only makes matters worse. This is so often the effect of such a prefi x as I said (p. 145). We know it is wrong to kill an aunt for her money. We can then infer, if the phrase appeals to us, that aunts are morally significant. We could hardly start from this latter proposition, 80 Varner, In Nature’s Interest?, p. 76 81 Tooley, Abortion and Infanticide, first and second quotation, p. 117, third p. 118.

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and argue that because we know independently that aunts have this splendid property it is wrong to kill them. Talk of moral significance is unlikely to help us when engaged in controversy. Thus, if a wilderness is admitted to have a good, deep ecologists will immediately be setting forth claims of significance. We saw this in Chapter 3.7, where Lawrence Johnson was talking about the good of wildernesses, species and ecosystems, his language constantly invoking ‘moral relevance’ and the ‘morally considerable’. Others will deny these claims, and then where will we be? How could we be sure that the interests of toddlers were morally significant? It might seem obvious that they are. But Jan Narveson for example would disagree, seeing that toddlers (I assume) would not be counted as ‘moral agents’. ‘Prior to becoming moral agents themselves, with interests to be considered in their own right, children . . .’82 Not everyone who chooses to employ the phrase ‘in X’s interests’ in a restricted sense, or what they hope can be taken as such, will hasten to add ‘I mean in the moral sense’ or something of the kind. Indeed, the fact that a restricted sense is in play might only emerge gradually, and could easily be missed by the not-too-critical reader. Bonnie Steinbock’s work is once again instructive. When she eventually reaches the question we were considering in the last chapter – whether a plant has a welfare of its own – she admits that people will indeed be inclined to maintain that this is so. She could hardly say anything else. She even uses the word ‘autonomy’ as we have done, saying plants have a kind of autonomy. But then comes the eye-opening move. ‘However, the expression “a welfare of one’s own” is intended [for what purpose?] to emphasize the stake that conscious, sentient beings have in their own well-being.’83 ‘Morally’, she says, the difference is ‘crucial’. Elsewhere we fi nd her reaching the conclusion she seeks by confining herself to ‘a certain conception of what it is to have interests’.

82 Jan Narveson, ‘Children and Rights’, in his Respecting Persons in Theory and Practice: Essays in Moral and Political Philosophy, Lanham, Md: Rowman and Littlefield, 2002, p. 267, italics added. It is sometimes not clear whether a writer is talking biology or talking morality – is denying the existence of interests, or is denying that certain interests are ‘morally significant’. In discussing what can be said about someone referred to in a book under review as a ‘human vegetable,’ Peter Singer talks of ‘a being that is not even conscious, and thus has no interests at all that need to be protected’ (‘Animal Liberation at 30’, New York Review of Books, 15 May 2003, italics added). This can clearly be taken in two ways: ‘. . . has no interests at all, and hence none which need protecting’ and ‘. . . has no interests at all of the sort which need protecting’ (presumably from some supposed moral point of view). These are quite different falsehoods. 83 Steinbock, Life Before Birth, p. 20.

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The restriction of interests to beings capable of wanting things stems from a certain conception of what it is to have interests, namely that interests are composed out of our desires, concerns and goals.84 So of course plants do not have (what are here called) interests. To be sure, we cannot even know whether this is an adequate notion of interests even in a restricted sense without some account of how ‘capable’ is to be taken, and what ‘composition’ amounts to – as we have seen. Of course, we are not told. Professor Steinbock likes to talk here about ‘having a stake in’ this or that, as we have just seen. She is following the ever influential Feinberg. ‘Interests are, as Joel Feinberg has suggested, those things in which one has a stake.’85 And one can hardly quarrel with that. The OED defines ‘to have a stake in’ as: ‘to have something to gain or lose by the turn of events, to have an interest in’. Naturally, a baby can have much to lose by the turn of events in an abortion-permissive society. Furthermore, there is nothing conceptually impossible in a baby’s owning land, or of being a shareholder in a company – it would merely depend upon the legal conventions of the day. ‘Having a stake in’ is often specifically used in connection with these last. So the mere use of ‘having a stake in’ hardly helps Professor Steinbock to her desired conclusion. It would seem that she might have had a misgiving on this score, for a precautionary clause is now introduced, which I italicise: ‘If we think of interests as stakes in things, and understand what we have a stake in as defined by our concerns . . .’86 Here is another task made exceptionally easy. A page or so later we read: ‘the entity that is killed by abortion is a foetus that has no interests . . .’ which perhaps follows given the tailor-made ‘conception’. But what comes next? ‘and cannot be harmed’.87 Isn’t this merely ‘harm on a certain conception of harm’? Many people will be comforted to be told that this is so. They will not notice the preliminary restricting and tailoring which has gone into producing this apparently unqualified result. We are, of course, particularly concerned about the interests of – the peculiar good which pertains to – human beings, and this is worth singling out for study in case an understanding of this notion will turn out to have this moral significance we hear so much about. In the next chapter we take up an aspect of this good which tends to be overlooked. 84 Bonnie Steinbock, ‘Mother–Foetus Conflict’, in Helga Kuhse and Peter Singer, eds, A Companion to Bioethics, Oxford: Blackwell, 1988, p. 136. 85 Ibid. 86 Ibid., italics added. 87 Ibid, p. 138, italics added.

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4.7 The missing out of missing-out When we are thinking about human good in particular there is something important we tend to miss out of our account, namely missing-out, the deprivation of future goods and joys. I have in mind in particular a loss which goes quite unnoticed. Noticed loss of joys-to-come makes us miserable, and misery is naturally recognised as a misfortune. Chances pass us by unnoticed, and we can be robbed of them by harms done of which we are unaware. If we are alert we can come to recognise the danger we are in, or others can come to recognise it on our behalf, and then warn us or protect us. This avoidance is a vital aspect of human welfare. In discussing this aspect of human good we do not need to be in the least concerned with abortion. And in particular, we need not be claiming that what makes abortion a wronging is that the victim misses-out: that would remain to be discussed. This imposition of loss might simply be seen as exacerbating the wrong done.88 However we shall in the main forget the abortion controversy and restrict ourselves to our local task: the understanding of what it is for a human being to have a good, and the question whether a human being could have lacked a good at a sufficiently early stage of his existence. It is interesting in its own right to see how the idea of missingout is underplayed in our thoughts about human good. It might be thought at the outset that this notion of loss is radically misconceived. One cannot possibly lose one’s future, it might be said, since one can only be said to have lost what one once had. To lose keys is to have had keys. However, it would be argued, one cannot intelligibly be said to have had a future, since the future is what is to come. So one can’t have lost it . . . It is possible that this frivolous objection would distract a philosopher, but hardly someone of good sense. Try telling a hard nosed lawyer that since what is expected lies in the future his client cannot possibly have lost his expectations. We can readily understand the thought that someone once had a certain future in prospect which he has now lost. And we do not mean that he has merely ceased to have a future good – a visit to the theatre, perhaps – by the innocent process of its having come and gone. We need the concept of ‘what was going to happen’ which is quite compatible with the fact that it was not going to happen – because something or someone intervened. This is naturally of importance in the criticism of

88 A well known article, not to my mind wholly satisfactory, which links the wrong done in abortion with the loss caused, is Don Marquis’s ‘Why Abortion is Immoral,’ Journal of Philosophy, 1989, revised version, ‘An Argument that Abortion is Wrong,’ in Hugh LaFollette, ed., Ethics in Practice, Oxford: Blackwell, 1987.

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human conduct. We are regularly praised and blamed for preventing things.89 Philippa Foot in her investigations into the idea of happiness nicely illustrates the notion of missing-out. A doctor is showing us around the asylum grounds, we are to suppose. It is a mild summer’s afternoon. A patient is seen walking on the grass, intent about something, eyes lowered. The doctor says cheerfully: ‘That’s Robinson. Happy all day, just picking up leaves! Been like that for years. Never any trouble.’ Well of course, we do use ‘happy’ like this. But there is still a question: would we really want to say that Robinson is a happy man? Is this true happiness? Now of course we might, in a real life case, have some doubts about the narrative. It would not after all be a very serious remark. And happy all day? No doubt there would be an element of exaggeration. But making such allowances, why are we still reluctant to say: there goes a truly happy man? There is an important suggestion in our notion of happiness of good fortune. In what way then is such a man not truly fortunate? Of course he is vulnerable to a dearth of leaves which might leave him with nothing to collect. But let us assume that leaves will always be in plentiful supply. Even so, there is surely great misfortune in his case. For he is bound to miss out on many good things. To be sure, our patient is better off than he might have been, and in a sufficiently miserable world might be luckier than most. For all that, there is something we could restore to him, if only we had the know-how, something which would be of vital interest to him, something human. He is missing-out.90 Is this opinion somewhat presumptuous? Does it show an unimaginative prejudice against the leaf-picking life? Should we rather say: ‘Who are we, mere non leaf-pickers, to judge?’ Such a remark would evince a false, I might almost say academic, humility. Think what would be said if we tried to plead this in a court of law, when by our careless driving we have made a leaf-picker out of someone, and damages are being sought. Here reality would break in. True enough, his joy and limited ambition might be called ‘authentic’, for his contentment would not have been imposed on him by others for some sinister exploitative purpose. But for all that, he would be maimed.

89 I am here responding to the title of an article by Walter Sinnott-Armstrong, ‘You Can’t Lose What You Ain’t Never Had: A Reply to Marquis on Abortion,’ Philosophical Studies, 1997. I should perhaps note that I am not involved in the present chapter with a supposed ‘moral’ sense of loss, discussed in this article, in which one only misses-out ‘in the morally relevant sense’ when the missing item is something one has a claim to. As I suggested in the last chapter, it is good to avoid ethical contamination. A resourceful and healthy thief who is run over by a bus will miss out on a good deal of enjoyable acquisition. 90 Foot, Natural Goodness, p. 85.

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Missing-out has to do with what we would be glad to have or to know. What can be missed will not simply be various agreeable ‘experiences’, like tickles and tastes. It is good to have children and to know that they are flourishing. One might hope not to miss out on that, where the possibility arises. But neither the having nor the knowing are what philosophers call experiences.91 All the same, agreeable experiences would naturally be included among what might be missing from one’s life. So we can perhaps extend the idea of missing-out to animals, though not of course to plants. We are inclined to talk of a rabbit as capable of missing what it would enjoy. A neglect of this thought might lead us to give an incorrect account of an animal’s welfare. Joel Feinberg, for example, writes: ‘Many of the higher animals at least have appetites, conative urges, and rudimentary purposes, the integrated satisfaction of which constitutes their welfare or good.’92 But surely an animal can be advantaged by being given a pleasure he has no antecedent urge for. We need this notion of ‘missing-out’ if we are to give a good account of at least two related and difficult concepts: rationality in action and harm. A rational individual has to be aware that he might miss-out on good things if he is not careful. To be sure, a certain degree of judgement is called for here: we can be so anxious about missing-out as not to appreciate what we already have. If we cause others to miss-out on good things we harm them, we set them back, we do what is contrary to their interests – so far forth, at least. We do so perhaps trivially, but perhaps sometimes grievously. (The ‘so far forth’ is included because it is sometimes not good for us to have, all-things-considered, what it is generically good for us to have.) A malicious person can do someone a harm in this way even if, to his chagrin, he is unable to rub salt into the wound by telling his victim what he has done. He may have entirely lost contact with his victim. Or the victim may have died. Remarkably, Frances Kamm, who thinks (as we noted p. 200) we cannot harm human individuals by killing them before they first become sentient, admits that they can suffer loss on being killed, but maintains, heroically, that they are not harmed by this loss.93 It will sometimes happen, 91 We talk about ‘experiencing’ a loss, but there need be nothing psychological about this. The word ‘experience’ appears to be specially designed to mislead post-Cartesian philosophers. It is misleading to think of an ‘experienced gardener’ as a gardener who has endured many psychological episodes in a horticultural environment. We should think rather of a gardener who has learned much by his horticultural doings. A loss which is experienced may have as much to do with what philosophers have thought of as experience as the damage experienced by a parcel in the post. We might make similar remarks about ‘suffering’ a loss. 92 Feinberg, ‘The Rights of Animals and Unborn Generations’, p. 166. 93 ‘Embryonic Stem Cell Research: A Moral Defense’, Boston Review, 2002 (quoted from <www.bostonreview.net/NR27.5/kamm.html>, p. 7).

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human variety being as it is, that a man would like to kill such a foetus in order to do it down. Frances Kamm, as his philosophical advisor, would have to tell him: ‘Sorry, it just can’t be done.’ The medieval Christian speculation about ‘limbo’ illustrates very well the idea of missing-out. The fact that this old idea seems to have few supporters among modern Christians is, of course, quite immaterial for our purposes: a student being taught ‘practical ethics’, used to being instructed by fanciful tales of people-seed germinating in carpets or of kittens being transformed into babies, will take the story of limbo in his stride. In the story of limbo it was suggested that babies who died without being baptised would have an eternity of natural happiness, but would never enjoy what they were made for: the vision of God in heaven. Safe in lovely limbo, they would tirelessly be content to lie on the beach, sipping scotch, etc. What good fortune to be happy for ever! But what bad fortune to be forever denied an incomparably greater happiness! This case shows as clearly as anyone could wish that being truly fortunate is not the same as preference satisfaction. That is to say, it is not the same as the complete and continuous satisfaction of every actual preference, without regrets. Someone whose talk easily accommodates the word ‘infinite’ might say that these babies would be infinitely unlucky. They would be unlucky each day for infinitely many days. No more vivid example of missing-out could be imagined. Naturally, these individuals would have no idea of their loss – for one peep at the unattainable, one can only assume, would itself constitute the pains of hell, by comparison with which mere fire and brimstone would be a nothing. Nor would they, of course, as mere infants, have had the slightest idea before they died of what might lie in store. We could imagine a philosopher seeking to persuade someone who believed in limbo that baptism was not at all in a dying baby’s interests – saying, learned book in hand, and as if some elementary point had been missed, that a baby simply has no good of its own. Such a suggestion would surely not convince. As is evident from these examples, it is possible to miss-out on a good without ever having wanted it. The leaf-picker might have been injured after a period of normal adult life, and as a normal adult would have wanted all sorts of future goods which are now closed to him. But this patient would still be missing-out if he had always been disabled in this way, or had been damaged in the cradle or in the womb. It would at any time have been in his interest to be cured. If at any time a nurse had taken a dislike to him and proceeded to destroy with a smile the only medicine capable of curing him, she would have known full well that this was against his interests. And as for rights, why in general couldn’t small children and the mentally disabled have a right – or something akin to a right – against the infliction of loss even where they have always been incapable of understanding what they would be missing and will never find out? Could there

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not be a specially stringent obligation not to take advantage of this incapacity? 94 We can go further. It is even possible to miss-out in regard to a good which the individual was never able so much as to understand as a good – even though he had developed understanding in other ways. Many philosophers have argued, following Locke, that it is impossible for a congenitally blind person to understand colour words, perhaps even the verb to see. This has been thought more or less self-evident, and it is very easy to get people to agree with it. Oh say! What is that thing called light Which I can ne’er enjoy . . . However, none of these philosophers have gone so far (to my knowledge) as to say that an interference with the nervous system of a foetus which caused both the loss of eyesight throughout a long life, together with this (alleged) inability to understand what this loss entails, would not be against the individual’s interests. The individual clearly misses-out. The individual who loses-out will not even have had a generalised wish, the wish not-to-miss-out-on-good-things-beyond-his-comprehension. That involves sophisticated thought, quite impossible to small children. Perhaps after a certain age (six? ‘the age of reason’?) normal human beings will all have this wish. Not that it need ever cross their minds, but they would agree that this is what they want if asked in suitably plain language. But we do not know whether the leaf-picker would comprehend our question, or would ever have comprehended it, and we surely do not need to know in order merely to say that he is missing-out on good things. Ronald Dworkin talks about our ‘highest-order interest’ expressible roughly as follows: ‘It lies in having as good a life as possible, a life that has in it as much of what a life should have’.95 It is surely in the interests of a dog to have ‘as good a life as possible’ even though it would be incapable of having the corresponding thought. Again in a similar spirit we find Dworkin saying: ‘We make assumptions about how long a normal life can reasonably

94 The importance of protecting an individual from loss which it cannot comprehend is stressed by Warren Quinn in his article ‘Abortion: Identity and Loss’ in Philosophy and Public Affairs, 1984, now reprinted in the collection of his papers, Morality and Action, Cambridge: Cambridge University Press, 1994. Quinn talks about ‘the loss of the very thing that for ourselves we hold most important in the world’ (1994, p. 50). 95 Ronald Dworkin, ‘Comment on Narveson: In Defense of Equality,’ Social Philosophy and Policy, 1983, p. 26.

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be expected to be, given appropriate resources of nutrition and medicine, and if someone dies very young by that standard, we count that a tragedy. His life, all else equal, was only partly as good as it might have been.’96 For whom would it be a tragedy? Evidently, for the one who dies. The death may not have been a tragedy for others, and could easily have been a blessing, for other people are so often competitors. Now there is no suggestion here that the individual for whom the death is a tragedy must have had the conceptual equipment to understand what-might-have been. Dworkin is, after all, discussing death in the ‘very young’. It would be quite extraordinary to think of the misfortune that death brings to a three-year-old (perhaps just becoming a ‘person’ – ‘a proper little person’ its mother might proudly say) as entirely bound up with its little plans and thoughts of the morrow.97 Even in later life the interruption of ‘projects’ is quite often trivial. One has had in mind to improve the garden, and has got some way with it. Then one dies, leaving the lawn half cut. We philosophical academics may be somewhat exceptional in this regard – nurturing plans for the writing of articles of indispensable importance to the universe, plans which will come to nothing if the work is interrupted. Death is however a misfortune even for individuals with very modest ambitions. And why need there be any ambitions at all? John Rawls allows, naturally enough, that paternalism in regard to children is often justified. ‘Paternalistic intervention must be justified by the evident failure or absence of reason and will.’ If the child’s rational powers then develop sufficiently, as we would hope, we should expect that he would then retrospectively ‘accept our decision on his behalf and agree with us that we did the best for him’. Now actual endorsement is surely not a requirement of this attractive seeming proposal. We can have ‘done our best’ for a young child even if it nevertheless dies before being able to reassure us in this way. For our purposes here we are not, of course, interested in this particular justification of paternalism, or even whether a justification is needed at all. We are concerned with what is assumed by way of background. It would not have been sensible to speak in this way unless (as it is natural to assume) a human individual can have an interest in flourishing even though ‘reason and will’ have not yet manifested themselves. We do not have to know what the child currently wants or has wanted. Reason and will can be ‘absent’, as Rawls puts it. (Of course, it is 96 Ronald Dworkin, Sovereign Virtue, Cambridge, Mass.: Harvard University Press, p. 262. 97 It seems to me that Joel Feinberg’s somewhat lengthy account of the misfortune of death in his Harm to Others (pp. 79–95) suffers from the shortcoming indicated in this paragraph. Since Professor Feinberg here as elsewhere gives us a great deal of detail, the omission is very curious.

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slightly comical to talk of ‘paternalism’ in relation to a child too young to have a will of its own.) 98 I do not want to say that any of this is very novel. Rather, it is important to see that people have recognised these things. Any novel pronouncement about something so elementary would almost certainly be mistaken. Thus Peter Singer, when writing about animals, easily recognises what we have in mind. To kill an animal which is not ‘capable of having desires for the future’ clearly inflicts a loss.99 One is not surprised to hear him say this. It seems undeniable. Elsewhere for example he says: If a being’s future time would be filled with good experiences, it is in its interest to have these experiences, and this gives rise to a reason not to kill it.100 Thomas Nagel too says in a much-read essay: A man is the subject of good and evil as much because he has . . . possibilities which may or may not be realised, as because of his capacity to suffer and enjoy. He then discusses death in particular. A corpse, he says, is not a suitable object of pity:

98 John Rawls, A Theory of Justice, Oxford: Clarendon Press, 1972, pp. 249–50. We understand what is good for a child without our knowing what it cares about – for we have a notion of (what Professor Rawls calls) ‘primary goods’, mentioned here. If we cannot go by the child’s own wishes ‘we act as we would act for ourselves from the standpoint of the original position’ (p. 249). 99 Animal Liberation, 2nd edn, London: Jonathan Cape, 1990, pp. 228–9. Consider also the use of ‘in part’ and ‘a particular kind’ in the following passage: ‘The interest a being has in continued life . . . will depend in part on whether the being is aware of itself as existing over time, and is capable of forming future-directed desires that give it a particular kind of interest in continuing to live’. (‘Animal Liberation at 30’, New York Review of Books, 15 May 2003, p. 25.) 100 Dale Jamieson, ed., Singer and His Critics, Oxford: Blackwell, 1999, p. 310. Here Peter Singer is reporting the view of his critic Frances Kamm. He adds ‘But that is also a claim that I accept.’ What Professor Singer fi nds difficult to explain he says (Animal Liberation, p. 229) is ‘why the loss to the animal killed is not, from an impartial point of view, made good by the creation of a new animal which will lead an equally pleasant life’. He adds ‘The proposition that the creation of one being would somehow compensate for the death of another does have an air of peculiarity.’ He is right to see a peculiarity in it. After all, who would be compensated? No doubt it would be called cosmic compensation.

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The man, however, is. He has lost his life, and if he had not died, he would have continued to live it, and to possess whatever good there is in living.101 Larry Temkin reminds us, as if we needed reminding: You can harm someone by killing them, because you deprive him of a worthwhile life he would otherwise enjoy.102 In his essay ‘Killing, Letting Die, and the Value of Life’ James Rachels is hoping to justify euthanasia and the use of anencephalic babies as organ banks. No surprises there. To this end he sets about answering the questions ‘Why is it wrong to kill people?’ and ‘Why is ordinary murder wrong?’ He gives a brief response which includes the sentence ‘He [the victim] will never be able to experience the things he would have liked to experience’.103 This answer might not be adequate, but it is very intelligible. Since our overall topic concerns abortion, we should note that we can give exactly this answer about the killing of a foetus. Or indeed of a neonate, where the question is one of infanticide. The individual destroyed will never be able to experience things he would have liked to experience. Rachels is fond of distinguishing between biological life and biographical life. (It is a distinction that Dworkin also thinks significant: LD, pp. 82–3. In this fashion, we would live as many lives as a cat: educational life, reproductive life, sporting life, life on the stage, etc.) One’s killing of a baby would, in these terms, deprive it of a biographical life it would otherwise have lived. I mean in the usual case – assuming, for example, others are not queuing up to kill it. Being deprived of a biographical life sounds a serious setback. It would be most peculiar, even for a philosopher, to insist that it is a great setback to be robbed of nearly all one’s biographical life, but no setback at all to be deprived of the whole of it. Why is it so easy to forget this everyday notion of missingout? No doubt this is due to the primitive thought that the only evil which can befall a man is suffering: pain, anxiety or the pangs of disappointment. Suffering is, as it were, luminously present – moralists cannot fail to notice it. Loss by contrast is like an empty space, and is overlooked. Perhaps these moralists are tempted to think, though it is a most implausible thought, that the only way we can act badly is by causing suffering – that the only virtue is 101 Thomas Nagel, ‘Death’, in Mortal Questions, both quotations from pp. 6–7. The full text reads: ‘. . . as much because he has hopes which may or may not be fulfilled, or possibilities . . .’. We are of course discussing the loss caused to those who do not have hopes. 102 Larry S. Temkin, Inequality, New York: Oxford University Press, 1993, p. 226. 103 James Rachels, Can Ethics Provide Answers?, Lanham, MD: Rowman and Littlefield, 1997, p. 77. See also p. 229, above.

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compassion and the only vice is cruelty. However, we can easily give an over-narrow account even of compassion and cruelty. When Bonnie Steinbock is introducing her account of a child’s good, an account which neglects missing-out, she brings up the question of the good of trees. She thinks it a sufficient response to quote Feinberg to the effect that one cannot be cruel to a tree.104 We should not be reassured. We must not suppose that a midterm foetus only has a good in the way a tree has a good. There is a kind of compassion in the sadness people feel when a friend misses-out, when he ‘suffers’ a loss without suffering, or ‘experiences’ a loss in the nonpsychological sense. One feels for one’s friend if not with him. This compassion might lead them to seek to compensate the victim for the loss in other ways – where this is possible. And just as we can speak of compassion here, so too we can speak of cruelty. There may be a kind of cruelty in toughmindedly causing such a loss. Nor need this cruelty be of little moment. Someone who misses-out might be very much more unfortunate than someone who suffers. Suffering can be slight and of short duration. What is missed might be the very thing which would make one’s life wonderful. The idea that the only evil which can befall a man is suffering is allied to that equally unfortunate idea: that morality is more or less entirely concerned with pain relief. Good-hearted people will talk as if there were just one virtue, ‘humanity’. This romantic conceit fails to account for many a humdrum obligation, like the paying of bills or the keeping of promises. It would actually encourage a doctor to lie to his patients. We saw above (p. 63) how Dworkin, in calling for a ban on torture, gave an unconvincing account of its rationale, speaking of sympathy for suffering as the basis of all the constraints of civilisation. Leaving aside the thought that there is nothing too wicked that might not be called for under this head, why could not some of these constraints be bound up with a certain concern for the vulnerable and in particular a concern for what the vulnerable might miss? That an abortion causes no suffering could hardly be an excuse for it.105

104 Steinbock, Life Before Birth, p. 20. 105 I should add two points. First, I talk here of a certain concern, for it is another, as it were opposite, error in ethics greatly to exaggerate the demands of the duty of care – a matter which I touched on earlier in talking of the avoidance of miscarriage (p. 13). Second, as to the root of morality. The thought that sympathy for suffering is at this very root – perhaps the root of the morality of ‘right and wrong’ – might seem to underlie the insightful account of the moral law given us by Hobbes. For are we not here called upon, insofar as our personal security allows, to avoid ‘the war of all against all’, with its attendant miseries? The miseries of course are real enough. But we forget that life in such uncertainty and war is expected not only to be pretty ‘nasty’ but ‘short’ too, and shortness means loss. Furthermore, we must take into account the Hobbesian description ‘brutish’. A brutish life is not necessarily a life of suffering, but of impoverishment, like the impoverished life of the leaf-picker. Life in the state

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Someone might choose to say that the only evil which can befall a man is either suffering or barriers to innocent choice. This is a richer account of misfortune, for such barriers do not always cause misery or disappointment. But it is still not rich enough. Janet Radcliffe Richards writes: ‘The important things in life are freedom and the prevention of suffering’.106 Quoted out of context it is perhaps not too clear what this amounts to. It could have been a fi reside remark: ‘The important thing in life is the company of good friends – and of course football.’ Or it could have been an academic reminder that barriers to freedom count too, and not just the toothache. But in fact she is making an excluding claim: ‘The only important things in life are . . .’ She is seeking to justify abortion, where the individual to be killed thankfully cannot yet make choices and cannot, or need not, suffer significantly in the killing process. However, abortion apart, even this richer account is easily seen to be an impoverished description of human good by anyone who has ever loved a toddler say and has been concerned to protect it from missing-out. Having realised that the list of ‘the important things in life’ must have more than one item, what assures us that it is safe to stop at two? We should expect the notions of benefit and harm to be complex and imprecise. Does the protection of having insurance benefit us even if we never need to put in a claim? Of course, having the insurance in place may often prevent anxiety. But this will not always be the case. People sometimes take out insurance and entirely forget that they have done so. Sometimes insurance comes automatically along with a transaction and the insured individual never knows about it. He still arguably receives a benefit, without there having been any suppression of anxieties whatsoever. The concept of protection has a place in any account of human welfare. To be subjected to risk is certainly against one’s interests. Here as elsewhere we often fail to realise that what is happening is against our interests, and we may never find out. This indeed is something noted by Ronald Dworkin. He says for example that a bad review of his book would be against his interests even if he were quite unaware of its existence (LD, p. 17). There is

of war, says Hobbes, is a life with ‘no arts, no letters, no society’. It is the avoidance of such a condition which gives point to the constraints of civilisation. 106 Janet Radcliffe Richards, The Sceptical Feminist: A Philosophical Enquiry, London: 1982, p. 215. Dr Richards admits that other people might also suppose other things ‘important’, such as preserving human life, and it is not clear that she thinks that there is any truth in the matter. People just have ‘their principles’. Some people might even think that ‘life is more important than freedom or the absence of suffering’ (p. 217). As we noted at the outset (p. 17) and will bear repeating: It is very misleading to suggest that intelligent opposition to abortion stems from the none-too-intelligible thought that ‘life is important’, or that ‘life is more important than freedom’, etc.

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nothing to suggest that the bad review would only be against his interests on condition that this were later to come to his attention – or again if he were later to feel distress on account of some remoter consequence. We are justified in saying that someone misses-out even though it is often quite indeterminate what is missed. Death is a prime cause of missing-out. However, we might not be able to detail just what the dead individual misses, even in principle. The idea that whatever happens is determined by causes is a hypothesis about the natural world which is evidently not testable. Elizabeth Anscombe relates that when thinking about Christianity as a teenager she was troubled by the doctrine she had found in some book that God knew exactly what someone would have done if he had not died when he did. ‘I found I could not believe this doctrine: it appeared to me that there was not, quite generally, any such thing as what would have happened if what did happen had not happened . . . and certainly there was no such thing as how someone would have spent his life if he had not died as a child.’107 Perhaps this is correct. We know very well that certain goods will be missed by a dead person, but we can only say in rather general terms what he might have enjoyed or appreciated. This indeterminacy does not prevent us making rough comparisons of loss. It is reasonable to suppose in the absence particular information that someone a hundred years old who dies will miss less than a toddler. On the question how great the harm might be in the case of small children, Jeff McMahan has had some words of comfort for the bereaved. He suggests that although the loss suffered by a baby when it dies is in one way ‘very great’ this must somehow be subject to a ‘discount’: ‘Because the foetus or infant would, were it to live, be only remotely psychologically connected with itself in the future, the harm it suffers in being deprived of its future must be steeply discounted for diminished psychological connectedness and absence of desire.’108 As so often in this area, this sort of thing should be subject to heightened scrutiny, for it would obviously suit us to believe it. McMahan is seeking to justify later abortion. This conjecture seems unsubstantiated, as far as it is clear at all. Let us leave aside the ‘steeply’, which would call for an independent justification. (What would stop the discount being quite negligible?) Is someone less unfortunate to lose a good simply on account of not having previously wanted it? It is hard to see that this is so. A friend is sad because he has carelessly missed an opportunity. Would it be any comfort at all to remind him that the possibility of such a benefit had not previously crossed his mind? Indeed what would be meant by saying that although the loss was 107 Elizabeth Anscombe, Collected Philosophical Papers, Vol. 2, p. vii. 108 Jeff McMahan, ‘Killing and Equality’, Utilitas, 1995, p. 3. See also Jeff McMahan, The Ethics of Killing, New York: Oxford University Press, 2002, and the discussion of this book in my ‘Death Sentences,’ Philosophy, forthcoming.

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the same as it would have been had he wanted the good in question, the misfortune of losing-out was less on account of this absence? Further difficulties arise in understanding the notion of ‘psychological connectedness’? Is being absent minded a psychological characteristic? Presumably so. Now this might be a relatively permanent aspect of one’s mental life. One might continually be forgetting one thing after another, one’s specs, one’s hat . . . Now, is this connectedness or disconnectedness? Apart from any difficulty as to what counts as connectedness, should we accept the claim about the disconnectedness discount? The loss caused to a baby if it is killed will depend to some extent, we might suppose, on whether it would have had rich educational opportunities. But education seems enormously to increase psychological disconnectedness. A child goes to school with some thoughts and comes out at the other end with different thoughts. He goes to school speaking one language and comes out speaking three. All this represents a remarkable discontinuity of mind. Should we say: the death of a baby is not so tragic as it used to be, since nowadays we have such rich educational opportunities? Again, suppose we think of an individual, Smith, who has just been at a concert. We say that if Smith had died in infancy, as he very nearly did, he would have missed this splendid occasion and how unfortunate that would have been. Could someone, on hearing this, reply that Smith would not have been as unfortunate as we might at first have supposed, explaining that in the intervening years Smith had learned Welsh and had now forgotten it? Why would this be a relevant consideration at all? Yet it would represent a remarkable twofold alteration in psychological capacity. We saw in Chapter 3.10 how a more realistic account of interests kicks in when the future of the individual is expected to be bleak. It is of considerable interest to see that Jeff McMahan encounters a difficulty in keeping to his not-much-loss thesis when it comes to the killing of animals to save them misery, for of course these animals will presumably count as ‘psychologically disconnected’. Yet people think it important for vets to ‘euthanise’ animals. Modern ethicists like Professor McMahan, though friendly to the killing of babies, will be firmly of this opinion, since it is a regular theme in their writings that the interests of animals have been scandalously neglected. We need not of course discuss whether it is important for vets to act in this way, for the question for us is not one of ethics, but about the concept of having a good. The difficulty is one McMahan unsurprisingly fails to resolve.109 Lastly, in our consideration of the topic of loss, we need to ask ourselves what we are to say about young human individuals who do not have a future, not because we are going to see to it that this is so, but for reasons 109 Jeff McMahan, The Ethics of Killing, pp. 485–92. Professor McMahan concludes ‘The positive justification for animal euthanasia remains elusive.’

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beyond our control. One suggestion might be this: that since, try as we might, we cannot give this individual a future, there is no future for it to miss. We might then suppose that a foetus could not possibly have a good, a characteristically human good, if it was too defective to survive till birth. We might think here of an anencephalic baby which Professor Rachels would invite us to use as an organ bank. No point, we might suppose, in preserving choices in trust for a child which is never going to be in a position to choose – not even, as a leaf-picker, between oak and sycamore. Our thought was natural, but not correct. If we are dealing here with a defective human individual, or indeed a defective kitten, it makes sense to talk of curing the defect – a point hinted at above when discussing the happiness of the leaf-picker. It may be impossible for us to provide a cure, but we readily understand what is meant. Defect and cure are concepts which go together. It would be in the interests of an anencephalic baby to be cured, to be put right. So even in this case, the individual has a good of its own. I am assuming here that what is classed as ‘an anencephalic’ is an individual human animal and not a fragment of one. There can plainly be difficulties as to what we are to count as a human being. What might be called a ‘conjoined twin with three legs’ is surely not to be considered as two human beings, one of them consisting only of a leg. But such difficulties apart, an organism has a good even if we cannot for medical reasons further it. A pebble by contrast would not be shown to have interests if it could be turned by a magic wand into a comfortable and pampered cat. This transformation would not do the pebble a kindness, or cure it of its defects. There is no such thing as a defective pebble. A human skin cell or blood corpuscle is not a defective human being, and even if we could change such a thing into a healthy human the process involved would not be a cure. It would not even be a beneficial change. In one sense the defective human foetus has no future – that is why we were inclined to make our concession. But in another sense it has a future. It has the future peculiar to its nature, a future that its defect bars the path to. It is part of this future that it will grow up and laugh and make plans and become angry and . . . We are thinking of what would normally be expected to happen if not prevented, in this case by the defect.110 A person in what we take to be a permanent vegetative state has interests of the same

110 Kathleen V. Wilkes writes: ‘If a baby or foetus is normal then, at minimum, it is potentially a person’ (Real People: Personal Identity Without Thought Experiments, Oxford: Clarendon Press, 1988, p. 49, italics in text. Leaving aside the well known troubles surrounding the word ‘person’ as introduced by philosophers, would we here need the cautionary ‘if’ and the reference to normality? It would depend upon how the ‘can’ buried in the word potentially is taken. (We should note that Kathleen Wilkes later argues that the problem whether an infant or foetus ‘is now a person’ is ‘not a genuine one’. ‘We can say more or less what we like.’ p. 56)

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kind. He has an interest in returning to health. It would be comical to suppose that we have to ask ‘Did he at some time in the past have a desire to be healthy in the future?’, and that great things depend upon our answer. No doubt, as we said, we can only talk about the individual’s future in a rough and ready way. But we know pretty well much of what is excluded. Becoming an elephant is not part of its future in this sense (even if with our magic wand we were able to turn it into one). We all understand this idea of a future when we are sad to hear that a young person has died of meningitis. We forget it when it suits us to say that a foetus cannot be harmed.

4.8 The interests of organisms and of organism-stages What has interests, what has a good of its own, is a something not a something-stage. It is, let us say, an organism. Sometimes indeed we use a single description both for an organism and for a stage of that organism. ‘Dog’ is perhaps used in this way. There is a sense in which a puppy becomes a dog, and a sense in which a puppy is a dog. But what has interests is a dog in the second sense. A plant has a good of its own. We would however be surprised if someone said: ‘Yes, but does a seedling have a good?’ The contrast would be difficult to construe. When we have to place a child for adoption, we will perhaps say that we are concerned with what is in the best interests of the child. However, we are surely thinking what is good for the human individual which happens at present to be a child. We talk of the interests of the child not of its interests as a child (that indeed might refer to its childish and transitory concerns). These points about who or what it is that has interests might seem too obvious to be worth stating. But it is wise to be cautious in regard to concepts which are of importance to our lives and about which we can so easily go astray. Of course I am taking it for granted that we who have a good of our own are relevant somethings, are organisms, ‘rational animals’, who go through various stages of life, and whose lives extend into the future. However, this assumption has come into question in recent years. There are philosophers – perhaps I should say, sober, careful, academic philosophers – who have doubts as to whether we, or indeed other things we call objects or things, like pebbles, persist into the future at all.111 What we think of as a human

111 See for example, Theodore Sider, ‘All the World’s a Stage’, Australasian Journal of Philosophy, 1996, and Katherine Hawley, How Things Persist, Oxford: Clarendon Press, 2001. For a somewhat similar, though contrasting view, see Galen Strawson, who thinks or conjectures that we are made up of a succession of shortlasting, though not instantaneous, ‘selves’, ‘like pearls on a string’ (‘The Self’, Journal of Consciousness Studies, 1997, <www.imprint.co.uk/strawson.html>, p. 16.) Someone who simply thinks that we are ‘made up of’ stages, and is also prepared to say that what has a good is the whole, will presumably be quite

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being, or a pebble, it will be said, is really a succession of instantaneous stages. Instead of the everyday idea that certain entities, human beings, go through various stages (toddler, teenager etc) the stages themselves, briefer stages of course, would be the objects. The belief, which we have all so uncritically absorbed from our upbringing, that all being well, we will be around tomorrow, can no longer be taken quite seriously, though no doubt we will continue to talk as if it were so. The truth seems to be – and it is surely the truth that we are after – that we, who are here at this instant, will simply be replaced by momentary look-alikes, or better, by a succession of increasingly dissimilar-looking someone or something elses (clearly, our language is not well suited to the expression of how things really are). This doctrine seems to have an important consequence for our discussion in the previous chapter. If each of us is an instantaneous object there can be no question of missing-out on future joys. People who persist long enough to have thoughts on the matter will no doubt find this story ethically attractive, on a popular account of what morality is about at least, for it would make us all into somewhat obsessional altruists. Every breath we take would be solely in the interests of other individuals. Those merely prudent would follow Christ’s advice, and take no thought for the morrow, or even for the next instant, thus relieving them of many anxieties. There might even be a helpful consequence in relation to abortion. Somewhere, at this very moment, some ‘liberal’ scholar will be writing a treatise in applied metaphysics to point this out. For

happy with the thought that what has a good is an organism, not a stage of an organism. The truth about ‘temporal parts’ might be just as it is with anatomical parts: a leg or an eye has a good, if we are to talk this way at all about such things, via the good of the whole organism. It is hard to know what it would make sense to say about a momentary being. Could it be angry, for example? More significant for us, could it have a good? Even if we persist into the future, as our folk-belief has it, could our interests be momentary? Helga Kuhse and Peter Singer are instructively inclined to talk about ‘momentary’ interests. (Helga Kuhse and Peter Singer, ‘Should All Seriously Disabled Infants Live?’ in Peter Singer, Unsanctifying Human Life, Helga Kuhse ed., Oxford: Blackwell, 2002, p. 241 and p. 242. See also Michael Tooley’s Abortion and Infanticide with its remarks about ‘non-momentary interests’.) Kuhse and Singer are thinking of newborn babies and their interest in not being hurt. How could we understand this use of ‘momentary’? Are we to say that it is only in the interest of this baby to avoid pain at the moment at which it is being hurt? Or that on being hurt it suddenly becomes in the interest of this baby not to be hurt? Hardly. Suppose, in order to give this language the best chance of sense, we imagine that the baby has some physiological condition which renders it sensitive to pain only at moment t. Can we say here at least that its interest in not being hurt is something momentary? Even this would seem unnatural. We all have an interest in not being hurt even when fortunately we cannot be hurt, just as we continue to have an interest in not being shot when we are out of gunshot range.

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abortion could not possibly be a case of killing. It would be more akin to contraception, the prevention of future momentary human individuals. That is surely what we would like to hear.112 But since we cannot hope to solve all our philosophical difficulties at once, I am going to stick with our crude folk belief and hope that what we so crudely say can be said better, if necessary, when the truth about continuity is better understood, if it ever is. I shall continue to address the reader rather than a supposed entity called the reader-at-t. We might remember that the metaphysicians themselves tend to forget their breath-catching pronouncements when they turn to ethics. Peter Unger, for example, after carefully explaining in an article why there are no people went on to write a book about our obligations to (what he calls) people in need. One explanation of this could be that he had changed his mind in the interval. But the far more likely explanation is that the metaphysics would always have been adjusted if necessary so as to have no awkward implications.113 So having adopted our folk belief that people exist continuously, let us make something of a new start. In asking whether this or that has interests, in the sense of having a good, people are inclined to offer an assorted list for our consideration: a motor car, a dandelion, a rabbit, a human being, a neonate . . . We are familiar with this sort of thing, Professor Dworkin’s list (above, p. 251) being a case of it. The list we have just given has a notable peculiarity, a peculiarity to be expected in a list of this kind. One item (the last one in our example) looks out of place. A neonate is not yet one more kind of thing. ‘Neonate’ is a stage description of one of the other things on the list. (Or of more than one, if a newborn rabbit is also called a ‘neonate’.) It is distinctly odd to ask pointedly whether something picked out by a stage description has interests. The question ‘Can a foetus have interests?’ is a curious one if asked with this emphasis. For what has interests is, so to speak, a something rather than a stage of a something. If we meditate on this we will have a clearer understanding of the topic we have been investigating: what it is to have a good. 114 Hare claimed, as we saw: ‘embryos do not as such have interests’. This is perfectly true, but not I think in the not-too-clear way he had in mind. 112 And someone will be busy modernizing the marriage service: ‘I, Fitzwilliam Darcy-slice at 12.26, together with all subsequent relevant slices, take thee, Elizabeth Bennett, for my lawful wedded wives . . .’ – which has a charm all of its own. Yet not all the consequences will prove so agreeable. There will clearly be troubles for monotheists. Having just got used to calling God she they will now have to call him they. Professor Sider allows that for everyday statistical purposes we can still count in the conventional fashion, (‘All the World’s a Stage’, p. 448) but I hardly think this would suffice. 113 Peter Unger ‘Why there are no people’, Midwest Studies in Philosophy 1979, and Living High and Letting Die, New York: Oxford University Press, 1996. 114 R. M. Hare, Essays on Bioethics, Oxford: Clarendon Press, 1993, p. 90.

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It is not true in a way which tells anything interesting about embryos in particular. After all, a teenager as such does not have interests. Rather it is the teenager qua human being which has interests. And curious though it may sound, one must say the same thing about a person, if that word is used as a stage description in the way certain philosophers would like to use it. Of course there may be things important for an individual which must happen while at a certain stage. Professor Hare claimed that one cannot now benefit an embryo, let us say by preserving its health so that it will grow up and get married, etc. ‘Embryos cannot now have these benefits . . . they are benefits that the person into whom the embryo would under favourable conditions turn would have. [And] what I have just said could all be said about the foetus or even the neonate.’ And he says: ‘the benefit is not to the embryo. Nor is it to the foetus or even the neonate.’ If one treated the embryo to save its life, the benefit must be said to accrue to a later organism-stage, the grown child or adult. That apparently is what one has to say in such a case. It is indeed ‘a point which appears to have escaped the attention of many who write on this subject’.115 This seems to rely on the notion we considered above: that we do not exist continuously, but are temporal colonies of individuals. Should we say: Surgeons never benefit or harm patients while at work at the operating table, at least where a general anesthetic is administered – that at best they produce benefits to certain subsequent individuals related to these patients by personal identity? People who so oddly say (and for what purpose?) that one cannot literally harm a baby by ill treating it, but only the older child or adult which the baby will, in the natural course of things, become, sometimes seem to be inviting us to think of the older child or adult as a separate entity, described perhaps as ‘the person this baby will turn into’, an innocuous enough description in daily life, but not I think, in this area of philosophical enquiry. They write about the (possible but problematic) interests of a foetus as if ‘foetus’ were not a stage-description of an animal, but described an actual creature as does the word ‘nautilus’.116 A foetus would be a creature with a remarkable and peculiar tendency (though one we hardly need take

115 Ibid., pp. 85, 87, 86. This is rather a collage of quotations, but I think it fairly represents Professor Hare’s thought. 116 This was just an impression at the time I wrote it. But I subsequently found that Helga Kuhse and Peter Singer argue that none of us were ever infants, and that treatment given to a newborn baby to enable it to live is a benefit ‘bestowed on someone else’ (‘Should All Seriously Disabled Infants Live?’, pp. 241–2). To be sure, these remarkable claims are qualified by an ‘in a sense’ and an ‘as it were’, but they seem to show that my impression was not far from the mark. Helga Kuhse and Peter Singer only grudgingly admit that the baby and subsequent adult are the same organism. They say that because of ‘physical continuity’ the baby and the adult ‘may be said to be’ the same organism, which rather leaves

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account of): a tendency to be transformed through various stages into another kind of animal (called a teenager, say). Didn’t they once say: ontogeny recapitulates phylogeny? that in development we each climb the evolutionary tree? The authors of a book on post-abortion counselling report that patients would sometimes describe what they had disposed of as ‘the shrimp’. One can see why.117 In the last chapter we pointed out that the possibility (!) of magical transfomation did not enable us to give a sense to the phrase ‘the good of this pebble’. So perhaps we need here to note Frances Kamm’s curious example of a table which can be changed by magic into a person. She appeals to this example in an attempt to show that an embryo ‘is not capable of being benefited at all, even by turning into a kind of being which can be benefited’: ‘Suppose that a table could, by magic, be made capable of turning into a person. The table is not harmed if it is destroyed instead of being allowed to transform.’118 That such an analogy would be called upon in connection with the destruction of the very young could surely have been predicted as certainly as an eclipse. Someone who thinks that this is an instructive analogy clearly thinks that the fact that human development is the transformation of a single organism is unimportant when we are seeking to understand the notion of benefit. Of course, the transformation involved in human development is very great. A child, reaching what we roughly call the age of reason, is (we might say) remarkably different from a toddler. But no one would say on this account that we cannot harm a human being while at the toddler stage by depriving it of the possibility of reaching the age of reason. No one would suppose it helpful to talk of a table which might ‘reach the age of reason’ with the aid of a magic wand. What counts as the good of a being, what is good for it, depends upon what kind of being we have in mind. Some things need oil, other things do not, some things would be ruined by oil. Made-up philosophical-example

the door open for someone to say something else (p. 241). Again, Brian Barry, commenting on Life’s Dominion, takes for granted that a foetus can be harmed, but maintains that in an abortion nobody is harmed: for then ‘nobody comes into existence’ (Justice as Impartiality, Oxford: Clarendon Press, 1995, p. 90, fn c). This is a very odd view to take, of later abortion at least. But of course, it is such frightfully good news. 117 Candice De Puy and Dana Dovitch: The Healing Choice: Your Guide to Emotional Recovery after Abortion, New York: Simon and Schuster, 1997, p. 16. 118 Kamm, ‘Embryonic Stem Cell Research: A Moral Defense’, italics added. See also ‘Ronald Dworkin’s Views on Abortion and Assisted Suicide’, in Justine Burley, ed., Dworkin and His Critics, Oxford: Blackwell, 2004, p. 220. I think that Professor Kamm’s view of human development is one of total transformation, as if your kichen table had turned into your favourite aunt. She talks, for example, of ‘an entity having the potential to devlop into a better entity’ and how this might contribute to the first entity’s ‘value’. (Do we understand the question: ‘Is an aunt a better entity than a kitchen table?’)

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hybrids will perhaps not have a good of their own. If we allow that a ta-per (that is to say, a table/person) is an entity at all, we cannot sensibly be asked to consider what would be good for it. Odd biological thought in this matter need not take the form of supposing that one kind of organism miraculously changes into another. There is also an analogue of the old belief in spontaneous generation. Thus when Professor Dworkin talks about the reasons why a pregnant woman should not smoke he says that someone ‘may later exist’ who has damaged interests as if there were not this someone in existence already. At other times the organism seems to disappear altogether. He says, abstractly, that ‘interests may later develop’ without mentioning whose (LD, p. 19, compare FL, p. 92). They just appear on the scene apparently, like mushrooms. Naturally, one wonders whether this discrete language is playing an essential role. Since the varieties of plant and animal life are many and surprising, it might, for all one could tell in advance, be rather indeterminate in some cases what counts as a stage description of a certain organism. We are perhaps a bit inclined to think of a caterpillar as a different organism from the subsequent butterfly. This makes it easier for us to agree (with Professor Dworkin) that a caterpillar does not have an interest in the changeover, especially when nothing appears to hang on what we say.119 But there are lots of clear cases. In the human case oocyte does not count as a stage description of a human being, whereas foetus, neonate, toddler and teenager all do. Zygote might be problematic, and morula too, on account of the possibility of twinning, though of course opponents of abortion tend to think that the matter is straightforward and will say confidently that a zygote is a human being, in the sense in which what we would ordinarily call a child (were it not for the abortion controversy) is undoubtedly a human being. We might have to take account of unexpected possibilities. It is surely more or less right to say that the good of an organism is related to the kind of organism it is. But think of this. A traditional Christian might say not only that a man’s soul persists after his death, but also that his soul is not him. This combination of views was in fact held by Aquinas (Commentary on I Corinthians, 15) – and it is discussed by Peter Geach in his article ‘Immortality’.120 Now suppose one’s soul is thought to persist, perhaps for

119 That a butterfly might be regarded as a distinct organism from the earlier caterpillar is taken seriously by Jack Wilson in his Biological Individuality, Cambridge: Cambridge University Press, 1999. ‘The common notion of an organism does not give a clear account of the transition between a caterpillar and a butterfly . . . The butterfly is genetically identical with the caterpillar but it is the result of a distinct developmental process fed by the larval body. I am not sure that the commonsense notion of an individual can give us a clear answer as to whether we have one life or two here’ (pp. 7–8). 120 Peter Geach, God and the Soul, London: Routledge, 1969, pp. 22–4.

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ever, after one dies, but that there is no resurrection of the body. Thoughts of resurrection might appear unmodern and unhygienic. We might then have to say something uncomfortable like this: that being a man, an organism, is just a stage in the existence of some kind-of-thing-without-a-name, and that his good is the good of a thing of this kind. Of course, this obscure possibility would not have to trouble Christians who can sincerely recite the creed: et expecto resurrectionem mortuorum. What has a good, then, is an individual rather than an individual-stage. An analogous question arises about duties. Are they owed to individuals or to individual-stages?121 This can be important when we are thinking of killing the very young. Holly M. Smith is considering our duties not to injure a foetus in a way that will cause it misery when it grows up. Professor Smith argues that ‘strictly speaking’ (her phrase) one does not owe a duty to a foetus not to do what would cause it, once it is born, to suffer. Such a duty would be a duty to the child or adult which the foetus would become. It would not be a duty to the foetus itself, since it is not the foetus but rather the child or adult that would experience the 122 suffering. This kind of contention is pretty familiar in ethics circles.123 Since much is made to hang on the matter, it is important to see how arbitrary and unnatural it is. (Professor Smith talks about ‘future selves’. Insofar as a mother has a duty towards her foetus, such a duty is, she says, ‘on behalf of its future selves’. It suggests once again the sliced-bread conception of identity. This duty might appear pretty stringent if there should happen to be many of these selves in line.) It would be very peculiar to suggest that ‘strictly speaking’ one cannot have a duty not to injure a certain teenager if the inconvenience or pain is only going to manifest itself in middle-age; that one’s duty is to the middleaged person, so that, happily, no one would be wronged at all if, a year later, 121 One can have duties to someone in a (temporary) role, e.g., a child’s duty to obey a carer. Duties to a child, though temporary, are not like this. 122 ‘Foetal-Maternal Confl icts’, in Jules Coleman and Allen Buchanan, eds, In Harm’s Way: Essays in Honour of Joel Feinberg, Cambridge: Cambridge University Press, 1994, p. 327. 123 In regard to the harm possibly done to a foetus by women who smoke during pregnancy, and so on, Bonnie Steinbock says: ‘Strictly speaking … the obligation is not to the foetus per se, but to the future child’ (‘Mother–Foetus Conflict’, p. 138). See also Dworkin’s remark about Carol Gilligan’s subjects: ‘They sometimes talked of responsibility to the child, but they meant the future hypothetical child, not the existing embryo’ (LD, p. 59; also quoted in Chapter 3, note 2). This sort of thing is so often said, it is surprising that a philosopher who resists being drip fed has not by now called it into question.

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the teenager accidentally fell under a train. In a court of law someone might reasonably expect to be compensated now for lost (non-psychological) expectations, that is, future goods that would have put in an appearance in the absence of the injury. It would be absurd to say that only his present sadness could reasonably be compensated right now, and that he had better be able to give evidence to the court of contemporary tearfulness and incapacity to look on the bright side. Our duties to a foetus, neonate, teenager, etc. are naturally thought of as duties to the human being that this foetus, this neonate or this teenager happens to be, though we would naturally not spell this out. Needless to say, the duties might sometimes be specially owed to the human being at a certain time of life on account, let us say, of its vulnerability at that time. But that said, we wrong Smith not a Smith-stage. Obligations are owed to human individuals not to slivers of them. One does not have obligations to a time-slice of a grocer – one has obligations to him. I complain that you hurt me yesterday. I do not generously protest on behalf of Yesterday’s Me that you hurt it. Let us return from duties to our main topic, interests. The thought that we have defended, that what has interests is the organism not a phase of the organism, does not really take us very far. Our question ‘Does a foetus have interests?’ will simply take a different form. We shall be asked: ‘Can a human being have interests while at the foetal stage?’ However, this too is a peculiar thing to ask – for a different reason, a reason we touched on earlier when talking about the idea of an individual which had only ‘potential interests’ (pp. 197–8). For we are clearly not thinking about carings, ambitions or fascinations. How could a human being not have ‘a good’ to begin with but only acquire one later – like he acquires a passport or a hairy chin? How can one ever say of one’s offspring: ‘only later will anything be in its interests’? To be sure, something which is in one’s interests as a teenager – lessons in mathematics, say – will not similarly have been in the individual’s interests when too young to understand them. But the child needs protection in some way or other in order for it to be able, later, to have so much as a chance of profiting from lessons in mathematics. In this way, having interests back-tracks to one’s origin. If it is true to say that one was once an embryo something was in one’s interests then – one would have been vulnerable to bodily harm and destruction. Something can indeed have been in one’s interests before one’s existence. It was a blessing to future generations that Dickens wrote Great Expectations.124 Trivially, this blessing is contingent on subsequent being. After all, a benefit cannot be conferred on a mere figment of the heat oppressed brain. But once one is in being, then we can intelligibly ask ‘Is such and 124 Even injustices can be a future blessing: how many of the benefactors of mankind owe their existence to the rape of an ancestor?

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such a benefit to this individual’? We should distinguish between dependency on existence and dependency on continued existence. Put like that, they sound quite similar. But there is a radical difference. Notional human beings cannot have a real good. Father Christmas has always been and will forever be, beyond harm or benefit. An existent human being always has a real good, but naturally certain things will only turn out to be for its good (money put away for its education, say, or the availability of Great Expectations) if it continues to exist, if that is to say it survives.125 Let us assume that we have to do with real beings. Two questions become intertwined. The first is the question What is injured? and the second is When does the injury happen? I have been suggesting that the subject of injury is the organism, not a stage of it. The second question, involving time, is somewhat indeterminate. Is there always an answer to the question: When did the harm take place? Was I harmed the moment my wallet was stolen? When I noticed later that it was stolen? When even later the shops opened and I could have used the money? When the shops opened and I would have liked to have used the money? When the shops opened and I would have liked to use the money and it would have been prudent for me then to spend it. The dating of harm has an importance in the law of tort where there is a rule about limitations. We think it is harmful to breathe in asbestos particles. But noticeable illness might be years away. Can an employer escape liability on the ground that the harm occurred a long time ago and that it is now too late in law for the plaintiff to sue?126 If we insist on saying that someone is not harmed at the time he has his wallet stolen, then we will have to say that he will not be harmed at all by the theft if he is run over and killed immediately afterwards. But at any rate this would not be what would be meant by a victimless crime, like a failure to display a tax disc on one’s car. We can see this if we reflect on the following. Someone says: ‘The damage was done and that’s that: the past cannot be changed.’ But in a manner of speaking, we can sometimes cancel out the 125 Bare existence is not a property of things, continued existence is: it is what one deprives someone of by killing him. Bare existence is, as it were, a property of a property: that of having instances. 126 A man is sold a house with defective foundations, and wants a remedy. ‘At what point does the plaintiff suffer loss? Is it when he pays more for the house than it is truly worth? Or when the foundations begin to cause cracks in the structure of the house? Is it, alternatively, when he has the house valued by a surveyor, perhaps many years later when he wishes to sell it, only to find that it is worth a fraction of what he assumed? These questions, which are of the utmost importance to all the parties concerned and their insurers, continue to receive an uncertain answer from the courts’. (Simon Deakin, Angus Johnstone, and Basil Markesinis, Markesinis and Deakin’s Tort Law, Fifth edn, Oxford: Clarendon Press, 2003, p. 83.)

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damage done to someone – not by repairing it, or even by compensating for it, but by inflicting greater damage. Suppose a patient is unconscious on the operating table. There are various things we can do which are all against his interests. Yet they are not all independent harms. If we want to do him a harm we can chop off his fingers, or we can chop off his hands, or we can chop off his head. But the large harms ‘swallow up’ the lesser ones. In this way we can chop off his fingers without setting him back – if we propose immediately to chop off his hands or head. ‘He won’t need these’, we can truthfully say. In this way, whether some damage to an individual’s body is against his interests is to some extent up to us.127 Perhaps we then say to ourselves: what is in his interests depends on his future, and it is entirely up to us whether he has a future. This might make us unreasonably suppose that he does not ‘really’ have interests while it is still open for us to act. Of course, we will, by now, be rather cautious of claims that vulnerable individuals do not really have interests.

4.9 How a more adequate view of human good can emerge from what people unguardedly say Truth sometimes tugs at us even though we resist it. It carries us along despite the friction of our official theories. This certainly seems to hold in regard to thoughts about welfare, where we seem to know more than is immediately available to our theory-darkened minds. The work of Ronald Dworkin usefully illustrates this point. In it we find an understanding of human welfare richer than his doctrine would seem to allow for. We talk about what someone wants and has wanted – but also about what it is good for him to have. Professor Dworkin when discussing interests, himself uses the language of ‘good for’ as we have seen. It is not, he claims, ‘better for’ a caterpillar to become a butterfly (LD, p. 16, FL, p. 90).128 And in his Taking Rights Seriously he explains what it is for liberty to be in someone’s interest: liberty is in someone’s interest ‘if he either wants it or it would be good for him to have it’.129 Here, indeed, the idea of good for is what is important. For the reference to what is wanted is incorrect. If someone wants liberty, no doubt in a certain respect, and it would not be good for him to have it, the mere fact that he wants it would not, of course, show that having it would be in his interest.

127 But it might be said that the cutting off of the fi ngers is after all contrary to the child’s interests, on the ground that there can be a slip between cup and lip, however unlikely this might be in the particular case. 128 Earlier we mentioned that Dworkin regards what is in X’s interests as a matter of what is good for X (above, p. 181). 129 Taking Rights Seriously, London: Duckworth, 1978, p. 268, italics added.

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Let us think about the notion of health. In ‘The Foundations of Liberal Equality’,130 in the discussion of interests, Dworkin includes a passage about human well-being. It is said here, and very reasonably, that well-being does not just consist of ‘pleasurable experiences and the satisfaction of aims and desires’. There is also, we are told, a kind of ‘biological’ well-being, which includes being healthy. Someone’s life can go worse when he is sick ‘even though he doesn’t particularly want to be healthy’. Once again, we can say that it is good for someone to be healthy, and a child who says that it does not matter – as children will sometimes say – is just mistaken. How can anyone say all this and not think that something can be good for a foetus, that it can have a well-being, and that health is an important aspect of this? Doctors – even those who support a ‘woman’s right to choose’ (as the sinister phrase has it – compare ‘the factory owner’s right to choose’) and who perform abortions themselves – can happily include unborn babies among their patients, and refer to them as such, as I know at first hand from the vigorous assertion of just such a doctor. Moreover, the standard textbook, Williams Obstetrics, has repeatedly stated, at least since the 14th edition of 1971, that a foetus is rightly regarded as a patient. The 16th edition for example (1980) tells us the foetus has ‘rightfully achieved the status of the second patient, a patient who usually faces much greater risk of serious morbidity and mortality than does the mother’.131 One has to assume that the risk, so concernedly alluded to, does not include the risk of deliberate injury on the part of doctors. But our point here is not a ‘moral’ one: we are not trying to say that a doctor should not set about injuring his patients. If that needed saying it would already be too late to say it. Our point is merely that injury is possible. How could one have been treated as a patient at such a stage if nothing whatsoever could have counted as being for one’s good, or for one’s advantage or for one’s sake? No one in the ante-natal clinic would want to play timegames with our concepts. A doctor who tells a pregnant woman watching

130 Tanner Lectures on Human Values, Vol. 11, ed. Grethe Peterson, Salt Lake City: University of Utah Press, 1990, p. 43. 131 Such remarks in Williams Obstetrics have frequently been noted in the abortion debate. The version above is as quoted by the pro-choice Barbara Katz Rothman (The Tentative Pregnancy, London 1988, p. 29). A different version is quoted, from the preface to the 1980 edition, by the lapsed pro-choicer Bernard Nathanson in the propaganda fi lm The Silent Scream: ‘Happily we have entered an era in which the foetus can be rightfully considered and treated as our second patient. Who would have dreamt – even a few years ago – that we could serve the foetus as a physician.’ The current (21st) edition of Williams Obstetrics, 2001, says: ‘An important direct result of this [obstetrical] research is that the status of the foetus has been elevated to that of a patient who, in large measure, can be given the same meticulous care that obstetricians provide for the pregnant woman’ (p. 130).

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her baby on the ultrasound screen that it would not be in its interests for her to take certain drugs or to smoke would be saying something so straightforward in sense. Imagine the doctor’s surprise if the woman (who had been attending a medical ethics class) were to say, with a puzzled frown: ‘I don’t quite understand. In its interests? Perhaps you are trying to tell me that my smoking now will be against the interests of my child once it is born, and after it has grown up a bit and acquired a certain amount of language?’ No doctor is going to say that he is uncertain whether a frail baby is really a patient with medical needs, giving as his reason that he has no assurance that it will survive long enough to have plans and projects. Thus, despite all that he says, and no doubt feels he has to say, I am inclined to think that Professor Dworkin really believes that a foetus, if not a zygote, has interests, and indeed rights too. We can say this, at least if it is reasonable, as Dworkin conspicuously supposes it to be, to look for someone’s real belief, a belief underlying what they say, but which perhaps goes contrary to it (LD, p. 20). That Professor Dworkin really believes that an unborn child has interests – and indeed rights – comes out again when we consider his remarks about human dignity. Individuals have an interest, he says, indeed a most important interest – perhaps none so important – to be treated with dignity: ‘Indignity is a special kind of harm’ (LD, p. 235). Even prisoners, convicted of the most serious crimes, and deprived in consequence of many rights, retain this right (LD, p. 233). It is even more fundamental, he suggests, than the right to beneficence, which is only a right where resources are available (LD, pp. 233–4). Now does a foetus have this right to be treated with dignity? The fact that the foetus is not able to comprehend that he or she is being treated badly in this particular is quite beside the point. We have the right – says Dworkin firmly, when discussing the position of those who are demented – to be treated with dignity even when we cannot know what is being done to us. And who could disagree? In fact, he adds, one of the worst ways of infringing someone’s right is ‘to make him unconscious of other indignities, for example by sedation or brainwashing’ (LD, p. 235). And surely the right to be treated with dignity does not depend upon the contingency of not having been demented earlier in life? Or on having been at some earlier time un-sedated? How could it? The very thought that one might need to look up the case notes before one could tell that a patient had a dignity to be respected is preposterous. The notion of dignity as used in these discussions is fairly obscure, but it is surely not that obscure. A man, it is suggested, is subject to a special kind of harm by being a slave. And the indignity is ‘ultimate’. ‘Slaves live in the ultimate indignity when their subjection is so complete that they believe it appropriate and do not resent or otherwise suffer any special distress from it’ (LD, p. 235). This would seem to show that a slave’s interests are not to be identified with

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his wishes, past or present, and that what is in his interests is not to be identified with the furthering of his ambitions. Professor Dworkin talks about ‘critical interests’. Critical interests can be unrecognised by the one who has them (LD, p. 201). Dworkin certainly does not confuse what is in one’s interests with what one is interested in, here at any rate. Now likewise, one might suppose, the mere fact that a human being who, through disease or lack of development, has as yet no plans, or hobbies, or convictions about the way his life as a whole should go, cannot deprive him of a right – of the very possibility of a right – to be treated with dignity, a right, for example, not be ‘put down’ like an inconvenient household pet on being thought a danger to the life-plans of someone else, his remains being thrown in the trash bin. The moralist’s phrase ‘death with dignity’ is indeed problematic in sense and its use often harmful,132 but this treatment represents a gross contempt for the human being who is destroyed. In fact, even to say of such an individual that he has no rights or interests is arguably to treat him with disrespect. It is undeniably a most convenient disrespect – like that shown by the slave owner – but that does not excuse it. Such, it would seem, would be Dworkin’s own underlying thoughts on the matter, sympathetically reconstructed. That Professor Dworkin really understands very well how a foetus can have interests, and vital interests at that, is made more evident still if we turn to his article ‘Can a Liberal State Support Art’.133 The problem under discussion: how to justify state subsidy for the arts, seeing that it seems a bit hard to make people pay for what they do not want but which is thought to be in their interests. Note in passing that this problem could not even be set up if to be in one’s interests were simply to be desired. Dworkin’s solution is as follows. As liberals, we aim to avoid paternalism. That is to say, we do not want to make grown-up people do things that we think good for them but that are contrary to their wishes, or even to manipulate their wishes so that they will come to want what we think they ought to want. But subsidy for art, theatre, music, etc., need do neither of these things. It can simply provide opportunity, preserve a rich range of choice, and leave people free. It is better for people to have complexity and depth in the forms of life open to them.134 Professor Dworkin draws an analogy here with preserving a rich language. People would be the poorer if our language were to become impoverished, even if, with the limited concepts of impoverished language they were 132 As I have argued in ‘ “Death with Dignity” ’, Hastings Center Report, 1997. 133 In A Matter of Principle, Cambridge, Mass.: Harvard University Press, 1985. 134 Ibid., p. 229.

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unable to express or understand what it is they were missing. (We are assuming here what is perhaps not true, that a human language can impose such a constraint.) No one can want opportunities who has no idea what these are opportunities of. Nevertheless, it is perfectly sensible to say that they would be worse off were their language to lack opportunities that ours offers. Of course, in saying this, we claim to know what is in their interest, what would make their lives better.135 For some such reason, then, we may rationally subsidise art even if people do not ask us to do so, perhaps because they would not have ‘the capacity to mind, miss or regret’ the lack of what we have to offer.136 We would be providing and preserving an opportunity to those who cannot at present even want it. We would be acting as ‘trustees’ for those who will live after us.137 The notion of interests in play here would surely allow for foetal interests. We can say, using the phrase that Professor Dworkin uses, that we know what would make this unborn child’s life better or worse. We can help it to flourish or we can hinder its flourishing. We can act as a trustee, concerned about its good. Or we can pose a threat to it. We can talk, if we like, about the ‘complexity and depth in the forms of life open to it’, open, that is, if we do not interfere with it to close things off, and we give it the medical attention it needs. The fact that the child is at present unable to understand what is on offer would be irrelevant. It would be absurd to suppose that we could only provide a range of choice for someone who was at the very time in question able to understand enough to make at choice. Nor is there any reason to suppose that he must at some previous time have had such an understanding. John Elster, discussing the idea of ‘best interests’ in a context of custody after divorce, a context which ensures no distraction from the abortion controversy, writes: Instead of being guided by substantive preferences and choices that are imputed to the child, one could be led by the more formal goal of protecting the child’s opportunity and ability to make choices. On this view, a child should be allowed, as far as possible, to reach maturity with a maximum of potentialities and the autonomy needed to choose which of them to develop . . . From this follows the need of the child for physical health . . . 135 Ibid., p. 230, italics added. 136 Ibid., p. 227. 137 Ibid., p. 229.

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Professor Elster calls this a ‘liberal’ criterion. Some people might wish to modify it – but not I think in any way which affects our point here. In any case in regard to abortion, it so often those characterised as ‘liberals’ who need to be convinced.138 We seem inadvertently to have arrived at a curious result: we have acquired a liberal, or pro-choice, account of the morality of abortion, in which these words take on a most unaccustomed sense, where the choice to be protected is the child’s. One is reminded here of the liberal, abortiondefending Professor Feinberg’s talk about ‘the child’s right to an open future’, a right hard to reconcile with the liberty to eliminate this future entirely when it suits us.139 According to this view we would have some responsibility to provide and preserve for developing children an array of interesting and fruitful choices, even if, at present these individuals have no wishes in the matter – and we would certainly not be entitled to cut them off from such opportunities altogether. This last does not, I believe, represent a wholly adequate account of our obligations in regard to abortion, but it is a start.

138 John Elster, Solomonic Judgments, Cambridge: Cambridge University Press, 1989, p. 137. 139 Joel Feinberg, Freedom and Fulfillment, Princeton: Princeton University Press, 1992, Chapter 3.

Part 5: The Idea of a Right to Life

In Part Four we have been engaged in a curious enterprise: we have been stating the obvious. We have elaborately maintained that an organism – a mouse or a man – is the (or a) kind of thing which has a good of its own. It is in regard to organisms, we might say, that the very notion of benefit has its home in our language. We have further argued that organisms have a good essentially: where there is life there is hope, even if sometimes of the thinnest or conceptual kind. An individual has thus a good at any stage of life. It cannot be too young to have a welfare. Even a foetal mouse can be harmed. The concept of harm and of having a good may well be difficult in philosophy, but understanding this minimal claim should be easy. And all this said we have rather assumed, as anyone would, that the welfare of a human being (at least) has ‘moral significance’ – that is to say, insofar as we can attach a clear sense to such a made-up abstraction. One might wonder how intelligent and sober people could deny such truisms. But this is to forget how usual it has been for those of us in philosophy, confined to the academy with nothing better to do, to pass the time in the attempt to establish the outrageous. The plainest and most meticulous of philosophers – those not on the face of it given to verbiage and confusion – have been busy denying the existence of numbers, of time, of the past, of material substance, of homely tables and chairs, of people, of people who last longer than an instant, of non-human organisms such as pigs, of the particles described in physics, of mind, of cause and effect, and (as we have seen) of consciousness. Perhaps they have said, with an indeterminate but impressive caution, that chairs, people, etc, do not exist ‘strictly speaking’. At any moment you care to mention at least one of these remarkable claims is being made in the lecture theatres of the world. Or if they have not denied the existence of these things, these philosophers have said the weirdest things in connection with them. Berkeley for example did not deny the existence of cause and effect, but he was nevertheless prepared to say that fire doesn’t burn – and not on the basis of some unusual bit of physics. And while some philosophers have been busy 302

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proving the absence of pigs, others in the trade have sought to demonstrate the existence of pigs which fly – denizens of other worlds, referred to as ‘possible’ from our perspective but as ‘actual’ from theirs, in which every wonder is to be found. Or if ‘demonstrate’ is too strong a word, let us say: ‘defend, as the best view to take as a matter of good sense’.1 We might not know how seriously to take these startling theses, or indeed how we are so much as to understand them, or what conclusions can be drawn from them. This is not just a problem for academic philosophy. People living in the UK will remember how in 1987 the then Prime Minister Margaret Thatcher said: ‘There is no such thing as society’. For good reason or bad, she was much castigated. But on the face of it, what such a pronouncement amounts to, what its implications might be, whether it is inhumane, etc., is by no means clear. At the very least, one needs to look at the surrounding prose.2 Philosopher John Mackie made himself famous for saying that every moral judgement was false. This could hardly mean what one might expect it to mean, for he spent the rest of his book defending this or that moral judgement. 3 Sometimes the interest of this or that item of oddity will be entirely academic. I do not mean unimportant. I mean: that the question at issue will have little or no connection with the problems of daily life. The fact that we might be driven, as a result of taking careful thought, to say that there are no pigs, or that there are pigs which fly, might indeed be of great intellectual interest, for paradox is a stimulus to discovery. But these

1 Although recent decades have seen a rush of academic astonishments, such has been a feature of our subject from the beginning. Nicholas Denyer reminds us how ‘ancient philosophers can be found to maintain that nothing moves, that planets are gods, that a virtuous man will be happy on the rack, that each human soul has existed from all eternity, and that the way to live a happy life is to live without believing anything, not even that this is the way to live a happy life’. Language, Thought and Falsehood in Ancient Greek Philosophy, London: Routledge, 1991, pp. 3–4. 2 Woman’s Own, October 31, 1987. See footnote 11 below. 3 John Mackie, Ethics: Inventing Right and Wrong, London: Penguin, 1977. Mackie talks here about ‘ordinary’ moral judgements (pp. 35, 48), but presumably extraordinary moral judgements, e.g. that it is obligatory to stand on one’s head, would be counted in too: they too would come out false according to his ‘error’ theory. Needless to say, one of the judgements defended in this book is that abortion is permissible, though this presumably should have been counted false. It is certainly pretty ordinary. There is a general and obvious difficulty in this comprehensive thesis about moral judgement: the negation of a moral judgement is another moral judgement, and the negation of a falsehood is a truth. The best reply would seem to be as follows. ‘A moral judgement’ in this context is to be taken in a narrow sense, to mean a judgement as to what is obligatory. It is these judgements that are all false. Thus every judgement as to what is permissible, being the negation of a judgement of obligation, is true. This would yield the permissibility of abortion straight away and would save ink.

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controversies as to pigs and their wings will hold no interest for the pork butcher or the ornithologist. There may be a practical interest however when we take a broader perspective. The generation of so many paradoxes tells us something about rationality, than which nothing can be more practical. It tells us, for one thing, that we should be hesitant in taking metaphysics as a guide to morals. The idea that dismemberment cannot really be bad for a baby is quite at home in this company. But there is something of special interest here. Generally speaking, philosophical waywardness would hardly ever be expected to produce a personal benefit – except a reputation for learning. No one who has denied the existence of time has supposed that this absolved him from the duty to pay a bill today for services rendered yesterday. In this respect, our present topic is rather exceptional. To be able to say that a human being at the foetal stage cannot have a good of its own, or cannot have a ‘morally significant’ good, has been enormously empowering. Sometimes a philosopher will be less assertive, and merely admit to an unusual agnosticism. Trenton Merricks writes: ‘I don’t know whether there are trees or ants’.4 Eventually, however, he is careful to add an interesting qualification. He says that what he calls ‘false folk beliefs’ – such as, perhaps, the belief that there really are ants – can be ‘nearly as good as true’. This reveals a wholly new horizon. Presumably, a court of law could sentence a man to prison for something he has not done, providing it was nearly as good as true that he did it. Perhaps even, though this is a little more advanced, if the charge was nearly as good as nearly as good as true. Quite generally, the category of ‘nearly as good as true’ must turn out to be of importance in ethics. Suppose a philosopher were to produce yet another proof that abortion (or infanticide, or human sacrifice . . .) is permissible. We can now see that this would by no means settle the issue for us. For it might remain as good as true that these things are impermissible. Moral philosophers have yet to come to terms with this complication. In what follows, I am going to toy with a startling thesis of my own: that there is no such thing as a right to life. I shall argue that it is nearly as good as true.

5.1 Is murder to be thought of as a violation of a right to life? Granted that a human individual – even a foetus or a neonate – can be harmed, and in particular that it can be harmed by being killed, we must move on to consider whether it has rights, and in particular a right to life. It might seem hardly worth taking up this further matter. Surely anyone who can be harmed has rights? But our practice in this book has been to 4 Trenton Merricks, Objects and Persons, Oxford: Clarendon Press, 2001, p. 114–15.

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take things cautiously and patiently. The argument we have been considering that a baby cannot have a right to life because it has no good of its own need not be the only argument for this conclusion. Someone might well claim that for some other reason a human being at the baby stage cannot be said to have a right to life. How might this claim be made out? The argument would perhaps be this: that a certain achievement – a certain conceptual sophistication, let us say – is a prerequisite for having such a right, and that a foetus or a newborn baby (fortunately for our freedom of action) lacks this sophistication. After all, we have agreed that an animal such as a mouse can have a good of its own, and no one could suppose that this very fact endowed it with a right to life. We need to look into this suggestion. More generally, we need to investigate what it is to have a right to life, as this notion emerges in relation to homicide. Or whether indeed we should be talking in terms of such a right at all. One question here leads to another.5 The child old enough to have a right to life, it might be said, must have grown quite a bit and achieved a certain level of understanding. It must have had certain thoughts, thoughts which would be expressed by sentences such as ‘I am looking forward to my birthday’, or ‘I don’t want to die, I want to go on living’, etc. Such thoughts and wishes appear to be simple enough, quite within the reach of any five-year-old. But what about the younger child? Thoughts and wishes of this kind appear to involve a network of pretty abstract concepts. The possession of this network of concepts, we seem entitled to assume, is quite beyond a newborn baby, and even a baby quite a few months old. This assumption would not involve guesswork about the inner life of an infant, thought of as wholly inaccessible to us. Rather we would be supposing, following Wittgenstein, that the understanding of this or that on the part of a human being is a capacity manifested in behaviour in one way or another, and that no non-linguistic activity or reactions would count as a criterion for the possession of a network of concepts: death, loss, the future, tomorrow, a birthday, etc. This is a plausible story, and we will do well to adopt it here at least for purposes of argument since it seems to favour the opinion of our opponents, those who would say that it is all right to kill a baby seeing that it as yet lacks the conceptual equipment that having a right to life allegedly presupposes. The claim, then, would be that one could have a right to life only if one has had certain wishes relating to the future, certain hopes or ambitions 5 I say rather pedantically ‘as this notion arises in relation to homicide’ because claims about ‘the right to life’ tend to spread, or to be spread, so that they eventually turn into claims about a right to the good life – see the analogous remarks about the sanctity of life and the destruction of distinctiveness, Chapter 2.1 above.

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which could then be expressed either by oneself or, in one’s absence, indisposition, inarticulateness, or diffidence, by an agent on one’s behalf. On hearing this claim, the first response of anyone with a critical turn of mind would naturally be to ask: and why should we believe it? Why indeed should we so much as take it seriously? What would entitle us to say that there is this prerequisite? The question urgently arises because the thesis threatens to undermine itself. For it would seem safer, more plausible, to say that since a newborn baby has a right to life, it cannot be the case that having such a right requires, etc. Yet once again, we run into the question: ‘What is to be proved by what?’ After all, our philosophical understanding of rights, and of the right to life in particular, is a very contentious matter, even – or should I say especially? – among those who ought to have such an understanding insofar as anyone has. Might there not be different kinds of right? – we would not expect the concept to be simple. Might not the right to life be an atypical right? (This would not of course mean less important.) That would seem a reasonable response, and I shall eventually argue that we should go along with it. Still, this talk about different kinds of right is as yet far too programmatic, it offers a mere maybe. Let us approach the matter in this way. Let us try to adopt the idea that a baby which lacks a network of those concepts we mentioned cannot be said to have a right to life. What would we then have to admit about baby-killing? Here we find ourselves reconsidering an assumption which we earlier set to one side. At the end of Chapter 3.1 (p. 174) it was suggested that the idea which comes so naturally to us, that the moral objection to murder is founded on a right, a right we call a right to life, might not after all be correct. At the very least, our natural thought might be misleading us. To say that murder is a violation of the right to life might not sound like a bit of theory; it would seem too elementary for that. Indeed, ‘a violation of the right to life’ might be thought to be a definition of murder. However, let us suppose it to be a bit of theory and examine it. It might not be incorrect, but it is certainly, I shall argue, misleading. At the very least: explaining the evil of murder by talking of a right to life might be accounting for something fairly clear in terms of something pretty unclear. This is the topic of the last Part of the book. And here I speak with considerable uncertainty, rather feeling my way. Let us then entertain the following possibility. Let us imagine that a foetus, in mid-pregnancy, say, can be shown somehow not to be capable of having rights – perhaps it would be said not to have rights ‘strictly speaking.’ Mightn’t we still be doing a great wrong, that is to say, committing murder, by chopping it up or poisoning it? Or again, might we be murdering it if it dies in consequence of our murdering or attacking the pregnant woman? What we would do in either case would amount to a great wrong, it might be said, because murder by its very nature is a wrong which turns

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simply on our obligations, obligations here not considered to be dependent on rights. And the thought here would not be that we were wasting parental investment, or throwing away valuable protoplasmic resources, or anything like that, for we could hardly think of murder in such terms. There would simply be an obligation upon us not to ‘kill the innocent’, or whatever. I do not wish to claim that this suggestion is novel. The thought that there might be something amiss with this focus on ‘the right to life’ surfaces from time to time. Michael Tooley, after discussing in the usual way the supposed impossibility of there being a right to life enjoyed by foetuses and the newborn, concedes that ‘the anti-abortionist . . . can abandon his claim that a human foetus has a right to life, but contend that it is nevertheless seriously wrong to kill it’.6 It is significant that Professor Tooley calls this modification ‘slight’. The further slight modification we are now considering is broader: it is that the objection to murder quite generally does not rest on a right to life, or that it is at least misleading to talk of such a foundation. The suggestion we are considering would not be well expressed by saying, boldly, ‘So you see, no one has a right to life.’ This rather assumes that we well understand what a right to life is, and are simply considering the surprising, and no doubt disconcerting, possibility that everyone, but everyone, happens to lack such a thing. (Perhaps voles would be found to have it.) This is not at all our present thought. We shall be wondering, rather, whether the everyday talk about the right to life, so usual among philosophers and polemicists, is, as it were, out of focus, in that what they want to say can better be expressed without the use of language of this kind. ‘No one has a right to life!’ looks like a challenging moral judgement. It might be a judgement which attempts to undermine human pretensions. Or, rather more likely, a judgement reflecting a particularly broad interpretation about what such a right would amount to. (‘A right to life would give anyone a right to be rescued at no matter what cost, and no one has that.’ ‘The existence of a right to life would make it morally impossible to eat cabbages!’7) By contrast we are here trying to understand everyday moral judgements already made. We already admit that it is a special and grave

6 Michael Tooley, ‘In Defense of Abortion and Infanticide’ reprinted in Michael F. Goodman, ed., What is a Person, Clifton, NJ: Humana Press, 1988, p. 100. It would be unfair to Professor Tooley to talk like this of ‘the usual way’ without mentioning that it is ‘usual’ largely on account of his influence. One can trace this influence on Peter Singer, Joel Feinberg and Ronald Dworkin, and then on through to others who have followed in their wake. 7 This last example might seem unserious. But consider Carl Sagan’s claim, already quoted on p. 56: ‘There is no right to life in any society on Earth today . . . We raise farm animals for slaughter; destroy forests . . . All these beasts and vegetables are as alive as we.’

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kind of wrong to kill Robinson, let us say, and are seeking to understand our judgement more deeply.8 In saying that the essence of the objection to murder should not be thought to rest upon a right, even though the murder of an adult is uncontroversially the murder of a rights-holder, we might well be moved by a conviction about human equality. Not a political conviction about equal citizenship. Nor a conviction that human beings are of equal value, which would be hard to make sense of. But rather a commitment to the idea, also somewhat unclear it must be said, that each of us is in certain basic matters owed an equal respect – that human beings are alike inviolable, irrespective of the contingencies of incapacity. The obligation would be of the same character, from infant to centenarian: in each case there is the same ‘handsoff’, and this whether or not the individual, on some philosopher’s criterion, can be said to be a rights-holder. And here, for purposes of the present argument, we can bracket off any human individual that the ethicists of our time have supposed to lack ‘moral status’, for our present point can be made in regard to the rest of humanity. For there will remain fairly tiny children who come under the equal protection. Now this egalitarian result might not be available to us if we persist in talking of the right to life. Or so it could be argued. Frances Kamm suggests, for example, that ‘the usual notion of a right to life’ involves the thought that one has in regard to one’s own life ‘a special sovereignty.’ Let us suppose that this is our notion. On this understanding, the existence of such a right, whatever it would amount to, would not account for the way murder in general is unjust. It would not account for the equality, for everyone would admit that it can be murder to kill someone who has never had such sovereignty or who is at present incapable of saying ‘don’t’.9 The idea that human beings as such are protected in this way, each against each, is commonly to be found among people of very different outlooks, at least in the modern world. This is not much of an argument for it, admittedly, and someone might look around for some underlying error or prevailing and discrediting cause. However, it would not be plausible to dismiss this conviction as a mere illusion brought about by pride, by ‘pride in our species’, if only because so many who are wedded to this equality are always telling us what a corrupt sort of thing our species is. To admit the dignity of every man is to class oneself with the most contemptible guard in the concentration camp. And in any case, to have a pride in one’s species, to have pride simply in being a member of the species one 8 We are not arguing that there could not be, quite straightforwardly, a right to life. If someone had promised Robinson not to kill him, then no doubt Robinson would have a right against the promisee not to be killed. 9 Frances Kamm, ‘Rights’, The Oxford Handbook of Jurisprudence and Philosophy of Law, Oxford: Oxford University Press, 2002, p. 488.

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happens to be a member of, would be an odd, or perhaps better unintelligible, sort of pride – one would have to be an academic even to think of it. The central teaching – or perhaps just a central teaching – about murder can be well expressed in a Kantian way and without, at least explicitly, bringing in the notion of a right. We would say that no one is to be killed as a mere means – even in order to prevent murders. We would not have to accept the rest of the Kantian apparatus to see something specially apt in this formulation. To be treated as disposable is an offence to the dignity we spoke of, the dignity that each individual human being indelibly has. Of course, actions are often bad in more than one way. A murder could even involve the breaking of a promise made to the victim, and in this way violate what is uncontroversially a right. And not every murder is an equal offence to that basic dignity possessed alike by everyone, for it is possible to kill in a way which especially indicates contempt. Furthermore it is possible that some murders indicate no contempt at all.10 If the wrong which is murder were to turn, at bottom, upon obligations rather than upon rights (that is to say, on simple obligations rather than obligations to respect rights) the question whether a baby is sufficiently developed to care about its future might cease to be of interest. Note that the solemn phrases ‘moral status’ and ‘moral personality’ – as used without a qualm by many a philosopher – are unlikely to help us here. One person might think that to have this ‘status’ or ‘personality’ is to have rights and infer that this excludes babies. But someone else might say that the fact that babies are nevertheless protected by obligations shows that they are included. And then where would we be? In suggesting that our teaching about murder might take the form of a duty not resting on a right we would not wish to indulge in that rather tiresome finger-wagging complaint: ‘We hear far too much about our rights these days, and not enough about our duties!’ This complaint rather suggests that an emphasis on rights encourages people to be always demanding 10 In ‘The Dignity of the Human Being’ Elizabeth Anscombe interestingly suggests that some murders would not be a violation of human dignity, for instance ‘angry vengeful killing’: ‘To regard someone as deserving death is very definitely regarding him, not just as a human being but as endued with a dignity belonging to human beings. I am not defending the murderer I am imagining . . . But I am contrasting him with the murderer who is willing to kill someone for gain or other advantage, to kill as getting rid of this human being suits his plans. He is not respecting in his victim the dignity of a human being at all.’ (Human Life, Action and Ethics, Exeter: Imprint Academic, 2005, p. 68, italics in original.) She sees a similar lack of respect in non-voluntary euthanasia, and suggests that some forms of capital punishment too, even if not murder, would nevertheless be a violation of this human dignity – as when one makes of someone a vile spectacle.

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rather than giving.11 Or that this emphasis ‘separates man from man’ – thought of not as a welcome recognition of privacy, but as some sort of social disaster.12 One might well doubt the force of this criticism. Any complaint separates man from man, even the complaint that ‘we hear far too much about our rights these days . . .’, and although people might complain too often, we could hardly protest at complaining as such. And we should note how often people stand up not for their own rights but for the rights of others. So very often those who protest, in the name of human rights, about world hunger and racist persecution are not themselves hungry or persecuted. The author of The Subjection of Women was male. Many people campaign against capital punishment, but few of them are on death row. Of necessity, anyone old enough to say that abortion infringes a basic human right is not under the threat of it. In fact the parroting of ‘responsibilities, not rights!’ might, for all we could tell, be corrupting. It perhaps suggests that we should ‘responsibly’ agonise at the prospect of wrongdoing, thinking of ‘the moral cost’ and all that, but considering it an option. Better the language of rights, in this respect at least.13 But all this is by the by.

11 When Mrs Thatcher was saying, to general consternation, that ‘there is no such thing as society’ part of her surrounding prose read: ‘People have got the entitlements too much in mind, without the obligations. There’s no such thing as entitlement, unless someone has fi rst met an obligation’ (Woman’s Own, October 31, 1987). This – if only it could be taken seriously – is what people should have been disturbed by, despite the fact that it affords yet another argument for abortion, infanticide and liberty (and yet, how curious, Mrs Thatcher immediately went on to talk about the ‘birthright’ of small children). 12 A classic example of this worry is to be found of course in Marx’s review ‘On the Jewish Question’: ‘The so-called rights of man . . . are nothing but the rights of . . . egoistic man, man separated from other men and the community’; ‘The right of man to freedom is not based on the union of man with man, but on the separation of man from man’ (Karl Marx: Selected Writings, ed. David McLellan, Oxford: Oxford University Press, 1977, pp. 52 and 53). This not too clear thought has evidently been an inspiration to the modern ‘communitarian’ movement in political philosophy. I am not saying that the communitarians have nothing important to say in this regard. It is perhaps arguable, for example, that we are becoming too litigious. There used indeed to be a pair of crimes, champerty and maintenance, which involved encouraging people to go to law. We should not be surprised to find that such encouragement was frowned upon. 13 In so saying I distance myself from Elizabeth Mensch and Alan Freeman’s book on the abortion controversy, The Politics of Virtue, (see p. 25 above). These authors, law professors from Buffalo, deplore the language of rights as it appears in this controversy, and hope to steer some sort of middle way. They argue that if we so much as agree to have road transport we are already ‘purveyors of death’, and so . . . They pursue this course with the aid of some suitably obscure theology. Like Life’s Dominion, The Politics of Virtue is an ‘Ain’t it a Shame’ kind of book.

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Our thoughts in this chapter are not moralistic but are conceptual or philosophical. The idea which we wish to question, if only by way of experiment, can seem so banal as to be quite unquestionable. Indeed, it can appear more or less uninformative. Jan Narveson writes: Just what is it about those whom it is wrong to kill that makes it wrong to kill them? It’s useless to reply, ‘They have a right to life,’ for that is what we are asking here – which entities do have such a right, and why?14 For our purposes in this chapter we need to move more slowly. Let us first establish a very elementary point. Whatever we are to say about murder, it is sometimes natural in regard to other matters to talk of a mere obligation by contrast with the obligation to respect a right. Compare the following. The elders of a fledgling community come together and, taught by past experience of quarrel and chaos, set up certain rules. ‘We cannot have people punching one another on the nose!’, ‘People who want to marry one another must be allowed to do so!’, and so on. They have only to get thus far in their rule-making for us to notice a certain contrast. The first rule takes away choice, the second protects it. We don’t have to talk of a right in the first case, we can hardly avoid doing so in the second. In the first case, if we still talk of a right we might want to say, with some conceptual strain, that the right is not waivable. Thus if someone were to announce that, being a sinner, he had resolved not to complain if a person were to jump from behind a tree and punch him on the nose, this being just a fraction of what he deserved, the teaching would still stand: ‘We cannot have people punching one another on the nose.’ This is a curious matter, and we will come back to it. (Boxing would clearly be a different case: no doubt the teaching would not be intended to deal with that. Objection to boxing as a sport, if it arose at all, would come up separately.) I do not wish to cast doubt on the idea that murder is essentially an injustice. After all, punching on the nose would be an injustice. Bad thoughts are creeping into present-day ‘virtue ethics’, thoughts which seek to downgrade justice, or at least which do so in effect. Justice, if is so much as noticed, is set among a host of competing virtues, and some murders might be regarded as ‘uncharitable’ rather than unjust. It might even be suggested that the tug of various virtues, or supposed virtues – seriousmindedness, sensitivity, compassion, etc. – can make the occasional killing of the innocent ‘the least worst option’. All this is entirely mischievous.15 14 Jan Narveson, Moral Matters, 2nd edn, Peterborough, Ontario: Broadview Press, 1999, p. 165. 15 My remark is stimulated by the sinister tendency we fi nd in Rosalind Hursthouse’s well-regarded book on ‘virtue ethics’ to reduce justice to the ranks of

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Nor should we suppose that the characterisation of abortion in particular as unjust would somehow represent ‘legalism’, a boo-word familiar among the thoughtless. Legalism is just what is needed, the legalism of the law which protects the weak. No, justice has a special place, and murder is a central kind of injustice. But still: is murder the infringement of a right? We should not be in the least surprised to fi nd in a community which is so quick to postulate rights to this and that, even a right to abortion, that the objection to murder will be phrased in this way too. But the older teaching about homicide – which comes down to us from a time before our peculiarly modern stress upon rights, with its flag-waving charters and declarations – was not so very different from ours. This fact might suggest that a right to life, insofar as we talk of that, is not after all the fundamental thing. The elementary teaching was, and is: that we are not to stab or poison our neighbours, etc. The commandment says Thou Shalt Not Kill, rather than Thou Shalt Respect the Right to Life. True enough, we cannot make too much out of the mere absence of a word. After all, the commandment Thou Shalt Not Steal does not mention rights either. However, this last pertains to property, and an institution of property is by its nature a matter of rights. Our thought that the older teaching about homicide did not seem to rest on a particular right is not then part of a broader academic doctrine that the very notion of a right was absent from the ancient world, and only came in at the time of Hobbes or Locke, or whenever. This doctrine, which surfaces from time to time, seems not to be true. The concept of a right is part of human life, even if we do not have a word for it. Games, for example, are described in terms of rights – players are said to have an option to do this or that. And the notion of an agreement again involves this notion, as does the notion of authority or of sovereignty. In fact, the mention of sovereignty, as the right to be obeyed, reminds us that the prohibition on

other virtues, as if it must wait its turn. ‘It has become all too common to allow a vague concept of justice and rights to encompass large areas of morality that virtue ethicists believe are better dealt with in terms of other, more concrete, virtues . . . What is wrong with killing, when it is wrong, may not be so much that it is unjust, violating the right to life, but, frequently, that it is callous and contrary to the virtue of charity’ (On Virtue Ethics, Oxford: Oxford University Press, 1999, p. 6). I note that cardinal virtue does not appear in Professor Hursthouse’s index, nor does murder. In Professor Hursthouse’s earlier book, Beginning Lives, we are eventually told that in regard to abortion, as elsewhere, ‘circumstances may make it necessary to do what is, in itself, wrong’ (Oxford: Blackwell, 1987, p. 335). See also what happens to justice in Professor Hursthouse’s ‘Virtue Theory and Abortion’, Philosophy and Public Affairs, 1991, much anthologised. For more on this tendency, see my ‘Modern Virtue Ethics’, in Virtues and Values, T. D. J. Chappell, ed., Oxford: Clarendon Press, 2006.

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murder could often have been seen as resting on a right, if not what we might call a right to life. In the case of the positive law, the murderer might have been seen as infringing the rights of the Crown. Hillel Steiner argues that the rights infringed by criminal activities are not the rights of those who suffer the theft or the maiming, etc., but of the ultimate civil authority.16 If the law conception of morality is thought to presuppose a divine authority, as supposed for example by Hobbes, then murder would infringe the right of God to demand obedience.17 The idea that the beneficiary of a right and the right-holder can be distinct has been familiar to us at least since Hobbes: ‘Damaging and injuring are often disjoined. For if a master has commanded his servant, who has promised to obey him, to pay a sum of money, or carry some present to a third man; the servant, if he do it not, hath indeed damaged this third party, but he injured his master only.’18 People who think that there is a God will not suppose that he is benefited by our obedience. (If babies have rights – to be fed, say – and God has rights – to be obeyed, say – then both the so-called choice theory and benefit theory of rights stand refuted. Babies cannot choose and God cannot be done good to.) It would seem that the division between mere obligations and obligations to respect rights is part of human life and can be made in any society. And the thought we seem to be reaching is this; that the primitive teaching against killing seems prima facie at least to belong in the former category. The interpretation of this teaching in terms of a right is, so to speak, a bit of theory. It might be none the worse for that – but it is a further step.

5.2 Do mere children have rights? It is at this point that we need to notice and discuss an interesting tendency: a tendency among philosophers in recent decades to suppose that claims involving rights are really only at home in the affairs of the adult world. The existence of such a tendency rather reinforces our tentative thought that the wrong that is murder does not rest upon a right to life. For anyone inclined to this adults-only view will, if they recognise that children can

16 Hillel Steiner, An Essay on Rights, Oxford: Blackwell, 1994, pp. 67–73. 17 In the last paragraph of Chapter 15 of Leviathan, Hobbes wrote: ‘These dictates of reason, men used to call