University of Transnational Business Law

Possible Right Holders

by George Rainbolt


I. Introduction

I do not have the right to eat the bagel in my colleague’s office. My car also lacks the right to eat the bagel. However, while it is possible for me to have the right to eat the bagel (e.g., my colleague might tell me that I could eat it), most people think that it is not possible for my car to have the right to eat the bagel. This suggests that some things are possible right holders and others are not. There has been significant discussion as to whether the following are possible right holders: humans with mental abilities far less than ordinary adult humans (e.g., newborn humans, humans in a persistent vegetative state, insane humans, human fetuses), humans currently lacking any mental abilities (e.g., dead humans, future generations of humans, human zygotes), sentient nonhuman animals, nonsentient nonhuman animals, living nonanimal things (e.g., plants), groups of humans (e.g., corporations, ethnic communities), and groups of nonhuman things (e.g., ecosystems). The issues behind the controversies vary. For example, some hold that a certain kind of mental ability is a necessary condition for being a possible right holder and then a debate occurs regarding precisely what mental ability is required. In other cases (e.g., the dead), the issues include such questions as whether the right and the right holder must exist at the same time. When it comes to groups, part of the debate is over whether collections can have rights. These debates have practical implications for issues from abortion to contract law. For example, if cows are not possible right holders, then no cows are actual right holders and no legal or moral case regarding the treatment of cows can be based on their rights.
II. The Positions

This debate usually follows a form suggested by Joel Feinberg in his “The Rights of Animals and Unborn Generations” (1980, pp. 159-184). One first considers clear cases of possible right holders (e.g., typical adult humans) and clear cases of things that are not possible right holders (e.g., cars). Based on these cases, one develops a tentative criterion of possible right holders that is tested against other unproblematic cases. Finally, the tentative criterion is applied to borderline cases to see if its implications are plausible.

One historically important criterion for being a possible right holder is having a soul. For example, Aquinas held that abortion of an ensouled fetus was murder (1948, Pt 2-2, Q. 64, Art. 8, Reply obj. 2). However, within contemporary Western philosophy the ontological and epistemic presuppositions of this view are generally thought to be untenable. Moreover, political and moral concerns motivate avoiding this criterion in public policy debates.

The view that the abortion of human zygotes and human fetuses violates their rights is often called the “pro-life view.” This name suggests that those who hold this view think that life is the criterion for being a possible right holder. This view might be extended beyond the abortion case if one argued that we should protect the environment not because it is beneficial to current and future humans but because all living things (e.g., trees) have a right to life. One objection to this criterion is that human life seems to require killing plants. In addition, many who oppose abortion eat nonhuman living things (e.g., plants and nonhuman animals) and this suggests that they favor another criterion, being human.

To be useful in the debate on possible right holders, the criterion of being a human needs to be clarified. One might take a biological criteria and hold that a human is a living thing that has the genetic code of the species homo sapiens. On this view, human zygotes and human fetuses are possible right holders and all nonhumans are not. One objection to this view is that it implies that beings from another planet who possess all the cognitive abilities of humans and none of our genetic code are not possible right holders.

The case of cognitively advanced beings from another planet suggests that the criterion for being a possible right holder is some sort of mental or cognitive ability. Most of the philosophical discussion of possible right holders focuses on mental or cognitive criteria. For example, Jeremy Bentham (1996) held that sentience as the criteria for being a possible right holder. Speaking roughly, sentient beings are those that can feel pleasure or pain. On this view, plants are not possible right holders but many animals and cognitively advanced aliens are. Tom Regan (1983) suggests that possible right holders are those things that are the subject of a life. A being is a subject of a life when, in addition to being sentient, it has beliefs, desires, memory, self-consciousness, and a sense of the past and future. Given what we know about mammals, Regan’s view implies that most mammals are possible right holders. If one goes on to claim that these mammals have a right to life, then it would seem that humans have a duty not to kill these mammals in order to eat them.

Following Kant, other philosophers (e.g., Wellman 1995) have argued that rational agency is the correct criterion for being a possible right holder. Speaking roughly, rational agents are beings that can change their behavior in the light of reasons. This high-level cognitive criterion appears to restrict possible right holders to humans, aliens with the cognitive abilities of humans, and perhaps a few other mammals (e.g., chimpanzees and dolphins). This view appears to make more room for the killing and eating of animals. A central objection to both the subject-of-a-life criterion and the rational agency criterion is that both imply that some humans (e.g., humans in a persistent vegetative state) are not possible right holders.

As Mary Anne Warren (1997) has noted, all the criteria discussed above are intrinsic features of things, features that a thing possesses on its own. One might reject all intrinsic features and hold that the appropriate criterion for being a possible right holder is some relational feature, some relationship between one thing and another thing or things. For example, J. Baird Callicott (1989) has argued that whether or not a thing is a possible right holder is determined by the communities of which it is a part. For Callicott, communities can include animals, plants, water, and soil (as well as humans). He argues that communities can be more or less important and the more important a community, the more likely that its members are possible right holders. Derrick Darby (2009) provides another example of a relational account. He argues that a being has a right to do some action or be treated in a certain way only if that being’s doing that action or being treated that way is recognized by the being’s society. On this view, a person who is unrecognized by her society (e.g., is treated by her society as nothing more than a piece of property) does not have any rights. The social recognition view raises the deeper question: What beings it is possible for a society to recognize?

Any criterion will face the issue of those things that do not currently have the criterion but had and/or will have it (e.g., dead and future generations). The living often sign contracts (e.g., life insurance contracts) according to which others have obligations to do things after they have died. Politicians often speak of our obligations to future generations and if we have obligations to them, it seems that they have rights against us. However, the “problem of the subject” suggests that the dead and future generations cannot be right holders because a right and its holder must exist at the same time. When it comes to the rights of future beings, some have considered whether the potential or capacity to have the proposed criterion for being a possible right holder makes a thing a possible right holder. This option will not solve the problem of the subject for the dead. In addition to views about rights, the problem of the subject also involves issues concerning the nature of time and existence. The problem has generated a substantial and highly technical literature. (For a review, see Rainbolt 2006.)

Another issue that any theory of possible right holders must address is the status of groups. Some, let us call them “individualists,” think that only individuals are possible right holders. Others, let us call them “collectivists,” think that some groups are possible right holders. Individualists are either eliminative or noneliminative. Noneliminative individualists think that some claims that a group has a right are true but that all of these claims can be analyzed as complex sets of claims about individual rights. This view is parallel to the view that water exists but can be analyzed as H2O. Eliminative individualists think that the correct analysis of all claims of group rights will contain a reference to something that does not exist and therefore no groups have rights. For example, an eliminative individualist might hold that the correct analysis of group rights refers to a ghostly group substance, that no such substance exists, and therefore there are no group rights. This view is parallel to the view that dragons are large, flying, fire-breathing lizards, there are no such lizards, and therefore there are no dragons.

One central sort of argument for collectivism has focused on the fact that only groups can do certain things. Only a group can play a quartet, secede to form a new state, speak a language, etc. Scholars such as Denise Réaume (in Baker 1994) have presented sophisticated arguments that begin with this sort of fact and reach the conclusion that some claims of group rights cannot be analyzed as complex sets of claims about individual rights.

One central sort of argument for noneliminative individualism can be outlined as follows. Possible right holders are all and only those things that possess feature F. Groups do not possess feature F but some claims of group rights are true, therefore all claims of group rights can be analyzed as complex sets of individual rights. For example, one might hold that possible right holders are all and only those beings that are sentient, that groups are not sentient, that some claims about group rights are true, and therefore all claims about group rights must be analyzable as complex sets of the rights of beings that have interests. (Baker 1994 and Sistare 2000 provide collections of articles on group rights.)

Within the debate on possible right holders, philosophers often distinguish between various sources of the limits on possible right holders. Women are possible right holders but they cannot have the right to have prostate surgery because they do not have prostate glands. This case illustrates that the content of a particular right may place limits on possible holders of that right. This distinction may well have practical importance. For example, one might hold that a possible holder of the right to life must have the concept of the future but a possible holder of the right not to suffer need only be sentient. If one then held that chickens lack the concept of the future but are sentient, this could be the basis of an argument for the view that eating chickens that have not suffered is morally permissible.

One should also distinguish between limits on possible right holders that have their source in the concept of rights and limits that have their source in moral views. For example, at least two routes lead to the view that all and only rational agents are possible right holders. One route is to claim that the very concept of rights implies that only rational agents can have rights. If the choice/will theory of rights is correct, then this conceptual claim seems to be true. (For a discussion of the choice/will theory of rights, see Carl Wellman’s entry “Rights” in this encyclopedia.) Another route would be to hold that the concept of rights does not imply that only rational agents can be right holders but then hold the moral view that only rational agents are valuable in of themselves and therefore only rational agents have rights. (A Kantian might take this second route.)

In other cases, it seems that limits on possible right holders have their source neither in the concept of rights nor in moral views but instead in metaphysics. For example, it seems that a motivation for the view that groups are not possible right holders is a metaphysical worry that the existence of group rights would imply the existence of a metaphysically suspect ghostly group substance.
III. Conclusion

The debate over the extent of possible right holders is one of the most important in contemporary ethics. (See Wellman 2002 for a collection of works on this subject.) In addition to its intrinsic interest, it plays a central part in a wide range of other debates. The cases of abortion and vegetarianism are the examples that most commonly come to mind. But the debate is also a central part of issues as diverse as secession of nations from states, environmental ethics, and our obligations to our deceased parents.
Selected Bibliography

Aquinas, St. Thomas. 1948. Summa Theologica. Westminster, MD: Christian Classics).

Bentham, Jeremy. 1996. Introduction to the Principles of Morals and Legislation, Chapter 17, in J.H. Burns and H.L.A. Hart (eds.), The Collected Works of Jeremy Bentham. Oxford: Oxford University Press.

Baker, Judith, ed. 1994. Group Rights. Toronto: University of Toronto Press.

Callicott, J. Baird. 1989. In Defense of the Land Ethic. Albany, NY: State University of New York Press.

Darby, Derrick. 2009. Rights, Race, and Recognition. New York: Cambridge University Press.

Feinberg, Joel. 1980. Rights, Justice, and the Bounds of Liberty. Princeton: Princeton University Press.

Rainbolt, George. 2006. The Concept of Rights. Dordrecht: Springer.

Regan, Tom. 2004. The Case for Animal Rights. 2nd ed. Berkeley: University of California Press.

Sistare, Christine, Larry May, and Leslie Francis, eds. 2000. Groups and Group Rights. Lawrence: University Press of Kansas.

Warren, Mary Anne. 1997. Moral Status. Oxford: Oxford University Press.

Wellman, Carl. 1995. Real Rights. Oxford: Oxford University Press.

Wellman, Carl, ed. 2002. Possible Bearers of Rights and Duties, volume 3 of Rights and Duties. New York: Routledge.