REGAN ON THE SORTS OF BEINGS THAT CAN HAVE RIGHTS Robert Elliot Monash University

According to Joel Feinberg’ neither plants nor mere things can have rights. This seems plausible but Tom Regan’ has criticised the arguments Feinberg offers in support of his view. Since Feinberg’s claim has considerable intuitive appeal it is worth seeing if it can be defended against Regan’s criticisms. Regan identifies two principles which Feinberg appeals to in deciding what sorts of beings can have rights: these are the interest principle (IP) and the goodness principle (GP). Feinberg offers a number of statements or partial statements of both. What is central to each is captured in the following.

I P : The sorts of beings who can have rights are precisely those who have (or can have) interests. (Feinberg, p. 51)

GP: A right-holder must be capable of being a beneficiary in his own person and a person without interests is a being that is incapable of being harmed or benefitted, having no good of its own. (Feinberg, p. 51)

As Regan observes there is an important connection between IP and GP: specifically Feinberg commits himself to the view that a necessary condition of a being’s having a good or sake of its own is that it have interests. Hence GP should not pick out as the sorts of beings who can have rights beings not picked out by IP. Regan argues that GP does pick out beings not picked out by IP and therefore that Feinberg’s position is inconsistent. If Regan is correct then Feinberg can either give up IP and argue for GP or give up GP and argue for IP. (Of course he may also give up both.) If the former then, so Regan claims, plants and mere things are included among the kinds of beings who can have rights. If the latter, then Feinberg is committed to allegedly unacceptable consequences. I think it is possible however, to retain both IP and GP. It is possible to offer an account of IP which avoids the consequences which Regan believes unacceptable and it is also possible to show that GP does not include plants and mere things as the sorts of beings who can have rights.

What then does Feinberg say concerning interests? According to Regan, Feinberg’s account of interests is flawed. Regan comments that IP and GP ‘depend on an understanding of interests which Feinberg has failed to illuminate to a satisfactory extent’ (Regan, p. 486) and suggests two possible readings of ‘interest’ which he explains as follows.

Robert Elliot is presently a tutor in the Philosophy Department at Monash University, and he is working on a Ph. D. on environmenral ethics. He received his B. A . from the Clniversiry of New South Wales and his M . A . from La Trobe University.

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interest1:X is in A’s interests, X is conducive to A’s well-being.

interest2:A is interested in X. A likes or desires or is aiming at X.

Regan claims that when Feinberg speaks of interests he is speaking of interestz. If this is correct then Regan rightly objects that IP will rule out as possible bearers of rights ‘beings concerning whom it would be grotesque to say that “they cannot be benefitted”’ (Regan, p. 487). However this objection does not apply to IP if it is formulated in terms of interest,. This suggests a way of maintaining that plants and mere things cannot possess rights. If some necessary condition for a being’s having interestsl is not satisfied by plants and mere things then the revised IP will deliver the desired results. What then is required if a being is to have interestsl? One thing that immediately suggests itself is that such a being must at least possess sentience, must be capable of subjective experience. Whether Feinberg would accept this weakened position is beside the point. What is to the point is that the sentience criterion rules out plants and mere things as the sorts of beings who can possess rights and avoids the counter-examples that Regan uses to discredit the interest2 reading of IP.

Regan has an argument against the sentience requirement. He argues that anything which has an inherent good of its own can be benefitted or harmed, and that anything which can be benefitted or harmed has interestsl. (Regan, pp. 490-1) And further that since plants and mere things have inherent goods of their own it follows that they can have interestsl. This argument against the sentience criterion and the revised IP can be defeated if it can be shown that the sentience criterion applies in the context of GP: if it can be shown that a necessary condition.for a being’s having an inherent good of its own is that it possesses sentience. This is precisely what must be argued if the inconsistency charge is to be denied.

Feinberg does at one point discuss the claim that plants have a good of their own. He notes that we do in fact speak of certain things being good or bad for plants but urges that we not take this way of speaking seriously. It is worth discussing this claim. Feinberg says:

Plants are never plausibly understood to be the direct intended beneficiaries of rules designed to ‘protect’ them. We wish to keep redwood groves in existence for the sake of human beings who can enjoy their serene beauty, and for the sake of human beings yet unborn. Trees are not the sorts of things who can have their ‘own sakes’, despite the fact that they have biological propensities. Having no conscious wants or goals of their own trees cannot know satisfaction or frustration, pleasure or pain. (Feinberg, p. 53)

(Regan, pp. 486-7)

Regan’s response is to claim that Feinberg has begged the question in assuming that the only possible kind of inherent good has to do with the integrated satisfaction of desires. Regan insists that just because plants cannot have an inherent good of that kind it does not follow that they can have no inherent good at all. What Regan must do is offer some

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account of the kind of inherent good he thinks they do have. In the absence of such an account it seems reasonable to hold that the sentience requirement is a necessary condition for both possessing interests and having an inherent good.

Regan takes the example of a car, and argues that a car is the kind of thing which has an inherent good of its own, and which therefore, according to GP, has rights. Regan discusses several arguments against his view. His replies to two of them offer something like an account of the kind of inherent good he takes mere things to have. He says:

Nor will it do to argue that cars cannot have a good of their own because what characteristics are good-making in cars depend on what our interests are. For a car has those characteristics it has, including those which are good-making, quite independently of our taking an interest in them. Cars do not become, say, comfortable or economical by becoming the objects of our interests. They are (or are not) comfortable or economical whether or not we have an interest in them, and whether or not we have an interest in their being comfortable or economical. Of course, manufacturers may try to make cars that are comfortable, etc. But this is only to say that they may try to make good ones, and there is nothing inconsistent in supposing that a thing is made, on the one hand, and, on the other, that it can have a good of its own. (Regan, p. 493)

Nothing Regan says here succeeds in showing that a car has an inherent good of its own. To say that a car is comfortable is to say that if a person sits in it then he will feel comfortable. Certainly cars are comfortable insofar as they are of a certain design and shape, but to say a car is comfortable is to say more than simply that it is just of a certain design and shape. When we say that a car is a good car because it is comfortable we are saying it is instrumentally good: we are saying that it is of the shape and design which, if we were to sit in it, would meet our interest in comfort. If we had never used the car and knew that we never would use it, we might still count it as a good car but again it would be good in only an instrumental sense. To say that a car is good in this sense is to make a counterfactual claim: that the car is such that if, contrary to fact, people had certain interests then it would serve those interests. There seems no other way of making sense of the claim. While it is true that the car has those properties which are good-making independently of our interests, they only become good-making once we come to have those interests. Similar points can be made about economy.

Regan does have more to say which might clarify his position:

Suppose that my Datsun is a better car than Randy’s Volvo. And suppose the time comes when neither I nor Randy nor any other human being has an interest in cars. It would still remain true, other things being equal, that my car is a better car than Randy’s. All that would have changed is the frequency with which we make use of our good (or not so good) cars and the value we attach to having one. What would not have changed is the relative goodness of the cars qua cars. (Regan, p. 492)

One thing that is puzzling is Regan’s use of the expression ‘goodness of the cars, qua cars’. It is hard to understand how this can refer to any morally relevant goodness. It cannot just be that Regan’s Datsun is a better car than Randy’s Volvo in that it better fills the requirements we

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have of cars or that it better fits our picture of the ideal car. There may be aesthetic value in the cars which does not change with the owner’s change of interests. But if this kind of good is morally relevant it is because it is instrumentally good. That a car does not have an inherent good in any morally relevant sense can be shown by considering a thought-experiment suggested by other of Regan’s remarks.

Sense can be given to the idea that the goodness of a car is an inherent good, one that it can have independently of our happening to value it because of the interests we take in it. If we were to transport a good car from our world to a world inhabited by beings who did not have the interests we have, it would not cease to be a good car, though it would cease to be valued as one. (Regan, p. 493)

Again there is a vagueness about the term ‘good’. However if we assume that Regan is talking about an inherent good of the morally relevant kind his claim is just false. If the car did have an inherent good of its own then the inherent good (or intrinsic value) of the world to which it is transported would increase. But it does not. All that happens is that this world loses an object and the other world gains an extra one. Of course the car is one of which the kind of counterfactuals mentioned earlier are true; but that does not mean it has an inherent good of its own, only that it might have or come to have instrumental value. Whether the car is well-looked after or allowed to deteriorate in its new world is of no consequence to anyone, least of all the car. There is no increase or decrease in the intrinsic value of the world containing it.

Part of the trouble with Regan’s claim that the car has an inherent good of its own is that he has failed to distinguish between ‘being a good X’ and ‘X having a good of its own’. It does not follow that because Randy’s car is a good car it has an inherent good of its own. The distinction is brought out in the following example. A horse might be well fed and well trained. Feeding the horse contributes to its inherent good whereas training it makes it a good horse. In the case of a car however nothing corresponds to the inherent good: whatever is done to the car may make it a good car but does not contribute to its good.

The case of plants, says Regan, is ‘at once the same and different. It is different because plants are not. . . the products of human contrivance’. (Regan, p. 494) It is because plants have biological propensities that it is prima facie plausible to speak of them as having interests. For instance we may say that it is in a plant’s interests that it be well watered and nourished. If a plant is not sufficiently watered and nourished it will die, wilt, or lose its leaves. Because it is a living thing there is a temptation to see similarities between what happens when a plant is insufficiently nourished and what happens when an animal, or even a human, is insufficiently nourished. There is however an important difference. The plant, being non-sentient, experiences nothing as a consequence, the animal does. The distinction between a thing being good and its having a good of its own is important here as it was in the case of mere things. Take a gardenia which is insufficiently nourished. It may not, because it

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is insufficiently nourished, be a good gardenia but there is no sense in which this matters to the gardenia. If the gardenia were to wilt or to die that is something which might matter to us; we might regret the loss of an instrumental good. But it would in no se’nse matter to the gardenia. Because this is so it is completely implausible to suggest, as Regan does, that plants have inherent goods of their own.

Since neither plants nor cars (mere things) can in any way have a good of their own they are not included by GP among the sorts of beings that can have rights. Since what makes it false that they have goods of their own is their lack of sentience, it seems that the revised reading of IP is vindicated. Feinberg’s intuitively plausible claim is thus saved.3

NOTES

’ Feinberg, J. “The Rights of Animals and Unborn Generations,” in W. Blackstone

Regan, T. “Feinberg On What Sorts of Beings Can Have Rights,” in The Sourhern

’ 1 am grateful to Peter Singer and C. L. Ten for their comments on an earlier version of

(ed.), Philosophy und Environmental Crisis, University of Georgia Press, 1974.

Journul of Philosophy, Winter, 1976.

this paper.

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