Do trees have rights? Radical conservationists who oppose the logging of redwoods in the American North-West, or the destruction of the tropical rain forests, sometimes claim that they do. The forests, they say, have been here much longer than we have, and have as much right to exist as the rapacious human species that is destroying them. Arguing that trees have rights is their way of insisting that there is something to be said on the trees’ behalf in environmental disputes, quite apart from what we say on behalf of the humans involved (who may or may not have an interest in letting the trees live).
Philosophers are more cautious about rights-talk. Rights, they say, are not to be invoked lightly, and are certainly not to be attributed on every occasion when some entity is deemed worthy of protection. If one wants to speak out on behalf of trees, and if a given tree has no instrumental value – that is, no value to anyone (its utility as shade or scenery, for example, or its contribution to the air we breathe) – one should begin by saying, not that the tree has rights, but that it embodies some intrinsic value.
The concept of intrinsic value is less familiar than that of rights, and is a difficult one to isolate. As far as we know, human beings alone make judgments of intrinsic value, and 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. In Utilitarian ethics, it comes to an end in human well-being and happiness. If we assert that trees have intrinsic value, however, we are saying there are ultimate ends in the world besides humans and their experiences: that it is objectively a bad thing if a tree is killed, not because any person loses anything thereby, but because the universe is a poorer place on that account. Something that was alive and growing is so no longer. Or if we don’t think that about the individual tree, we may think it about a species of tree. Even apart from what we lose (in terms of a natural pharmacopoeia, for example), we may think our world impoverished – made a less rich, a less colourful, a less value-laden place – every time a species becomes extinct.
Intrinsic value takes us this far, but rights convey much more. If some entity has a right to exist, then there is a strong, if not absolute prohibition on destroying it, quite different from the qualms that even radical conservationists must have about defending trees. For like the rest of us, they live in wooden houses, read and write books made of paper, and cut down trees in their gardens purely for aesthetic convenience. They are even willing to bargain with the timber industry, about logging so many trees and no more. These attitudes would be incomprehensible on the assumption that they really believed trees have rights. In any case, that belief is implausible on its own merits. In our culture, rights are reserved for entities which not only have intrinsic value, but which in some sense value themselves: entities that are sentient, that have a point of view, and are in principle capable of asserting the claims that their rights embody. None of this is true of trees. Treating trees as persons may have certain rhetorical advantages for the conservation movement, but on the whole it seems wiser to stick with the language of intrinsic value than to flirt with sylvan rights.
The most striking thesis of Ronald Dworkin’s book is that what I have just said about trees can be said also about foetuses. Though the pro-life movement stridently affirms that foetuses have human rights, Dworkin argues that their position on abortion is more plausibly explained along the lines of my interpretation of the radical conservationist position. What they hold is a belief, not about rights, but about intrinsic value.
I wonder if this is plausible in terms of political sociology. Those who picket abortion clinics seem pretty clear in their own minds that what they are protesting is the deliberate killing of human children who have a right to live. One pro-life activist, Michael Griffin, was recently found guilty of murder because he shot a Florida doctor dead outside an abortion clinic. Though he now claims he was brainwashed, he is reported to have written a letter from jail in which he encouraged other activists to do the same, and said that if his deed prevented even one baby from being torn to pieces by a doctor in its mother’s womb, the shooting would have been worthwhile. That may be crazy; but it certainly sounds like a belief in foetuses’ rights.
Dworkin, I guess, would say (thankfully) that there are very few Michael Griffins. So far as other activists are concerned, he writes: ‘Sometimes people who disagree passionately with one another have no clear grasp of what they are disagreeing about, even when the dispute is violent and profound.’ Pro-life picketers simply cannot believe (what they say they believe) that the foetus is ‘a helpless unborn child with rights and interests of its own from the moment of conception’. Like the defenders of trees who live in wooden houses, their actions and attitudes are inconsistent with this as a view about rights. Many pro-lifers claim, for example, that abortion is permissible in cases of rape or incest. But that cannot possibly be reconciled with the view that foetuses have rights: do children forfeit their rights because of the way they were conceived? In the 1992 Presidential campaign, George Bush and his Vice-President Dan Quayle, both fierce adherents of the pro-life position, each said that he would stand by his own daughter or grand-daughter if she decided to have an abortion. ‘They would hardly do that,’ Dworkin maintains, ‘if they really thought that abortion meant the murder of their grandchildren or great-grandchildren.’
In any case, he argues, the view that a foetus has rights from the moment of conception is too obviously implausible to be taken seriously. To attribute rights to a being is to say something about the importance of protecting its interests. But it makes no sense ‘to suppose that something has interests of its own, unless it has, or has had, some form of consciousness: some mental as well as physical life.’ The embryological evidence shows that a foetus cannot begin to feel pain before the third trimester, let alone experience the other mental states – desiring, hoping, expecting, fearing etc – that interests and rights presuppose. A charitable reading of the pro-life movement, then, requires us to grant them a view somewhat more persuasive than ‘the scarcely comprehensible idea that an organism that has never had a mental life can still have interests’.
What they may plausibly hold, according to Dworkin, is a view about the intrinsic value of human life even in its most undeveloped form. Life, whether in a person or a foetus, is like a work of art: it is something to wonder at and to treasure, for it embodies processes that are stunning in their complexity, creativity and potentiality. Like the loss of a tree or of a species, the destruction of a human life is always a matter for regret, even if this is sometimes the lesser of two evils. It is this value, and the shame of this loss, he argues, that the pro-life faction is attempting to vindicate in its hard-line condemnation of abortion.
What of the other side in the debate? Is pro-choice rhetoric immune from this process of reinterpretation? Just as Dworkin finds very few pro-lifers who really act as though foetuses have rights, he claims to find few defenders of legalisation who think that abortion is a procedure of no consequence, like having a tooth pulled. He quotes feminist jurists like Robin West and Catharine MacKinnon, who deny that abortion is merely the destruction of a nuisance, or that the foetus is an organism with no value of its own. Most regard abortion as a serious issue and think it a pity, a matter for considerable regret, when a foetus is destroyed. So the two sides seem to share a view about the intrinsic value it embodies – at least if that value is described in sufficiently abstract terms. According to Dworkin, however, they disagree on two crucial points.
First, on the matter of value: there is enormous room for disagreement about how the intrinsic worth of a life is to be understood. As something to wonder at, cherish and respect, a human life represents two quite different kinds of creative process: one natural and one conscious. From one point of view, life itself may seem enough of a miracle: an organism growing and flourishing in its vitality, unfolding the immanent promise of its genetic endowment. The loss of any such organism may move us in terms of this natural dimension, quite apart from what its life represents (has represented, could represent) to the person who is living it or to those around him. Dworkin recalls the words of the princes’ murderer in Richard III:
The most replenished sweet work of nature,
That from the prime creation e’er she framed.
At the same time, we cherish the fact that a life is not just a biological example but a new beginning for culture and for individuality, a chance to create unprecedented meaning in the world. We cherish, in other words, the ways in which people confer value on themselves and their own existence, and regard it as a bitter waste when the settled projects, hopes and aspirations of a life come to nothing.
Dworkin believes that our disagreements on abortion are best understood as deep differences about the relative moral importance of these two dimensions in the intrinsic valuation of human lives. Someone who thinks of life itself as a miracle, with an importance transcending anything the life may be to the person who eventually lives it, will regard the destruction of a human organism even at a very early stage as being the loss of almost everything that this intrinsic value comprises. That the life would later have been blighted by handicap, by poverty, or by parental rejection may matter little to someone who takes this stance. (Often, but not always, this respect for life as such is associated with respect for the immanent purposes of a Creator-God.) On the other side are those who focus on what we make of our lives, and who think that, compared with this human investment, the given natural investment is relatively insignificant. They will find the death of a foetus much less a matter for regret than the frustration of hopes and purposes in a developed human life. This in turn will affect their assessment of how to decide between the welfare of the foetus and of the pregnant woman. It may, Dworkin says, ‘be more frustrating of life’s miracle when an adult’s ambitions, talents, training and expectations are wasted because of an unforeseen and unwanted pregnancy than when a foetus dies before any significant investment of that kind has been made.’ This is the first ground for conflict about abortion.
The second thing on which the pro-choice and pro-life factions may disagree is what to do about this first disagreement. Even if they were willing to accept Dworkin’s rewriting of their position, some opponents of abortion might nevertheless stand their ground on the legal issue. They might say that their view is right and that their opponents are wrong about the relative importance of natural and human creativity. Though rights are not at stake, it may still be wicked to destroy life when it is most vulnerable, by attacking it in its most simple and natural manifestation. Abortion, therefore, may still be something we should prohibit and punish if we are to call ourselves a decent society, properly respectful of what intrinsically matters in the world.
Dworkin’s view is that this would amount in effect to the state or the law taking sides in what is essentially a religious disagreement. He argues that beliefs about the intrinsic importance of life are as deep and spiritual as any that we hold, even when they are not connected to explicitly theological ideas. He appeals to the ‘tradition of freedom of conscience in modern pluralistic democracies’, arguing that it is ‘a terrible form of tyranny, destructive of moral responsibility, for the community to impose tenets of spiritual faith or conviction on individuals’. Opponents of abortion believe that the pro-choice faction are making a dreadful mistake about a life’s value when they stress its human rather than natural investment; and maybe they are right. But that is no reason, says Dworkin, to enforce the truth about value ‘with the jackboots of the criminal law’.
This claim that the debate is in essence a religious one must be taken with a grain of salt. Much of Dworkin’s analysis in Life’s Dominion is oriented towards American Constitutional jurisprudence. He believes that the Supreme Court decision in Roe v. Wade (1973) is best defended on the basis of the First Amendment’s guarantee of the free exercise of religion; and he argues that a court which allowed Pete Seeger to claim a religious exemption from the draft in 1965 though his pacifism was ethical, not divinely ordained, is required on grounds of consistency to grant similar freedom and protection to those whose choices about abortion are based on a particular view about value. This argument will be of minimal interest to audiences outside the United States. Indeed, I think that if the First Amendment had not presented this window of Constitutional opportunity, Dworkin could have spared us a lot of discussion in the middle of the book about whether ‘religion’ necessarily implies a belief in God. For his underlying point has nothing at all to do with religion.
Dworkin has long maintained that when members of society disagree about elementary matters of value and about what makes life worth living, the law must maintain a position of scrupulous neutrality. If it violated that neutrality, it would be failing to treat the disputants with equal concern and respect. Now the law cannot maintain neutrality on matters of rights; and so the distinctions we began with become very important in legal and political philosophy. But if the question at stake is purely an issue of value – albeit the deepest and most pervasive such issue there can be – Dworkin’s view is that the government must stand back and allow people to mould their own lives in accordance with their own convictions. His real ground for arguing this is not that the 1791 amendments to the US Constitution say so, but that ‘no life is a good one lived against the grain of conviction, that it does not help someone else’s life but spoils it to force values upon him he cannot accept but can only bow before out of fear or prudence.’
I doubt that many readers will accept Dworkin’s interpretation of the issues in this debate, let alone the solution he proposes. The pro-life side in particular are likely to continue to regard abortion as a matter of rights and personhood; and for reasons I shall explain in a moment, I believe they are right to do so. Yet Dworkin is clearly on to something in his depiction of the human as against the natural investment in the intrinsic value of a life. The strength of his account – quite apart from the characteristic grace and eloquence of its exposition – is apparent as much in his discussion of euthanasia as in the argument about abortion. The book as a whole is devoted to what Dworkin calls ‘the edges of life’. The final two chapters (there are eight altogether) address the question of what respect for life demands in the case of those whose existence has become merely a site for pain, or has outstripped their consciousness or their ability to reason.
In particular, we are asked to consider the case of someone – Dworkin calls her ‘Margo’ – who is living a life of contented dementia in the late stages of Alzheimer’s disease. She does not recognise people, she has no memory, but as far as anyone can tell, ‘she feels good just sitting and humming to herself, rocking back and forth slowly.’ Apprehensive, however, of just such an end, Margo had executed a formal document when she was well, directing that should she develop Alzheimer’s or anything like it, she should be killed painlessly or at least not receive treatment for any other life-threatening disease she might contract. When she drew up this document, Margo was a healthy, vigorous, intelligent woman at the height of her powers – a composer or historian, perhaps. She believed then that the life she had led would be blighted if it were to end in childlike dementia. Now suppose Margo has fallen ill with pneumonia. Should we indulge these earlier wishes and refrain from treating her? Or should we keep her alive as long as possible, respecting the life of her present self such as it is, basking in the sunshine, smiling at anyone who enters her field of vision?
It is hard to avoid the conclusion that the latter choice would be a serious harm to Margo, or at least to the Margo who executed the document. By not letting her die, we allow the story of her life to take on a shape and meaning very different from the one with which she sought to imbue it. Though treating her pneumonia is a way of deferring to her current childlike preference for life, it seems also an affront to her autonomy – which has more to do with people making something of their existence than with the gratification of their immediate wishes.
To some, the most important thing about this discussion will be Dworkin’s eventual resolution: whose will does he favour, Margo’s then or Margo’s now? (In the same way, many have already scoured his discussion of abortion simply to find out whether the bottom line is politically congenial or not. Is he in favour of waiting periods? Do his pro-choice commitments extend to state funding?) For my money, the striking thing about the Margo example is the light cast on the dilemma by Dworkin’s earlier distinction between the natural investment and a person’s own investment in the course of a human life. Those for whom the wonder and sanctity of life have to do with human achievement will likely heed the call of Margo’s autonomy and the earlier expression of her wishes. In light of the abortion discussion, however, we should not be surprised if others think that there is a terrible, primal affront in killing or letting die a person whose natural vitality seems as strong as ever, even in the absence of the capacities we associate with reason, autonomy and creativity.
Having reached this pass, it is tempting to say about Margo what Dworkin has already said about abortion: since people disagree on how to value life, we should refrain from imposing any authoritative view, and defer to each person’s wishes. Margo has already given decisive weight by her will to the humanly creative aspect of life’s value, and society must now defer to that conviction.
This may be too easy. Margo no longer has any decision to make in the matter. It is ‘we’ – her nurses, the law, the community – who face the decision now about treating her pneumonia, and who must therefore decide what weight is to be given to her apparent preference to go on living. Our decision will inevitably reflect how we think life is to be valued. If the intrinsic value of a life were a matter only for the person living it, there would be a pretty good case for respecting Margo’s own estimation of the relative importance of vitality versus human meaning. In all these cases, however, the intrinsic value of each life impacts on the decisions of others, who must face the inescapable task of working out how best to honour it. In the abortion debate, what commanded liberal respect was not the foetus’s view (the view held by the life at stake) but the pregnant woman’s understanding of the value or sanctity of her foetus’s life. Analogously, it is hard to avoid the conclusion that in Margo’s case what ought to command our respect is the view taken by those who are closest to the life at stake so far as practical decision is concerned. That may mean her nurses and her relatives. But – uncomfortably for liberals – it may also mean that we, who have undertaken the project of caring collectively for one another through life, may be unable to avoid collective determinations about the ultimate character of life’s meaning.
I doubt that we can avoid these determinations. The analysis in Life’s Dominion – particularly the argument about abortion – is predicated on a very sharp distinction between treating something as an intrinsic value and treating it as an entity with rights. Dworkin believes this is ‘an absolutely crucial distinction’, marking ‘two very different ideas’, and for most of this review I have gone along with that assumption. In fact, however, he is only half right about the distinction. Certainly, the claim that something has intrinsic value does not by itself imply that the thing is a person with rights. That is the upshot of my earlier discussion of trees, and also what we should say about the intrinsic value of works of art, or species of fish.
But the converse does not hold. Rights, I believe, do imply something about intrinsic value. Some intrinsic values – of a small child’s life, for example, or the life of a pregnant woman – do issue in rights. Others – like the value of a statue or a species – do not. Dworkin does not say nearly enough about what distinguishes the former from the latter, or about what has to be added to a judgment of intrinsic value before it begins to command political and legal protection, not merely ethical respect.
One feature associated with rights is individualisation. We do not transform value-talk into rights-talk unless we are arrested by the significance of each particular embodiment of the value in question, unless we have ceased thinking of the value as simply a quantity to be maximised.
In fact, it is central to Dworkin’s argument that some intrinsic values have just this feature. Great paintings are an example: we treasure those we have, but our doing so does not commit us to thinking that the more of them the better. ‘I do not myself wish that there were more paintings by Tintoretto than there are,’ says Dworkin, ‘but I would nevertheless be appalled by the deliberate destruction of even one of those he did paint.’ Dworkin uses the terms ‘sacred’ and ‘sanctity’ to capture this way in which something might be valuable. (Thus ‘sanctity’ has a special, technical meaning in the book, although its more traditional connotations are helpful to Dworkin in presenting the First Amendment argument.) An intrinsic value is ‘sacred’, in this sense, when we cherish its individual manifestations for what they are, not for their accumulation.
Not all values have this property of sanctity. We value knowledge, for example, in a cumulative way: the more we know the better. But ‘sacred’ does appear to describe the way we value human life. As Dworkin says, ‘it is not important that there be more people. But once a human life has begun, it is very important that it flourish and not be wasted.’
Unfortunately, Life’s Dominion tells us nothing about why certain values have this property and others don’t. In the case of great paintings, it is presumably something about the particularity of each work: the uniqueness of the achievement that it represents and the focused character of aesthetic attention. In transferring that value to human organisms, however, it is hard to resist the impression that we thereby dignify them as right-bearers. For we then value human life, not just instrumentally and not just in the abstract, but sacred instance by sacred instance, individual by individual. What more could Dworkin possibly want to add to this account before concluding that he was attributing rights to human beings?
To this, he might respond that an entity cannot have rights unless it is capable of valuing itself – that is, has a subjective point of view. (Hence the earlier argument about sentience, interests and embryology.) That makes sense: rights are moral claims that one makes most distinctively in one’s own voice on one’s own behalf. Rights are ways in which an entity vindicates its own intrinsic value; and this already distinguishes articulate humans, on the one hand, from trees and species and paintings, on the other. But although we accord this importance to the subjective voicing of rights, it does not follow that people have only the rights that they think they have. A right may be a way in which an entity asserts its own value, but the value that is asserted in this medium may be objective and natural, not something dependent on what the asserter happens to think.
John Locke believed that men were all ‘the Workmanship of one Omnipotent, and infinitely wise Maker ... sent into the World by his order and about his business ... made to last during his, not one anothers Pleasure.’ But Locke’s was a theory of natural rights nonetheless, because of the central place it gave to individuals’ ability to base confident, self-assertive claims on their awareness of this status. The difficulty, then, for Dworkin’s account is this: if adult humans have rights, they have them in virtue of some objective facts about their intrinsic value. Some people think, like Locke, that the facts in question have to do with the primal basis of their existence (e.g. as creatures of God). Others think they have to do with our capacities for autonomy and meaning. Since we cannot avoid collective decisions about rights, we may be required to make a collective decision on the very issue at stake here – the balance between the natural and the human in the value we attribute to a life – on which Dworkin thinks we ought as a society to be neutral.
The position on abortion cannot be saved by saying that the foetus at any rate is incapable of claiming anything about its value. That is certainly true. But if I claim something about my value, I will naturally project that evaluation forward in my life (as Margo did when she made her will) and perhaps I will project it backwards also. If I assert the Lockean claim that what is presently valuable in my life is that I am God’s creation, made in His image, and sent into the world about His business, it will not make sense for me to deny this as a claim about my value as an infant and perhaps also about the value of the foetus I grew out of. And if I think this stuff about divine provenance is true of the value of people generally (not just me), I will be hard put to deny that there are reasons for opposing the killing of any foetus continuous with our reasons for saying that people have a right not to be killed.
In the end, Dworkin can sustain his argument only by insisting that attributions of rights have nothing whatever to do with issues of intrinsic value. That is an intriguing possibility in meta-ethics, but I think it will strike most readers as preposterous. Surely the way we value people and what we think is important in their lives affects our view about the rights they have and about how society should treat them. But if that is granted, we are simply not in a position to say that our controversies about value must be treated as off-limits to our collective decision-making about the law. 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 I have read. But it does not succeed in making the case that its author hoped – that these are controversies to be settled by each of us individually, not ones we have to resolve together.