Moral rights are claims against moral agents by other moral agents, according to Carl Cohen. The contents of claims can vary from repayment of loans to forbidding trespassers on a tract of land. Cohen argues that rights claims can only be levied against moral agents, by moral agents. Moral agency is characterized by the ability to choose to act according to moral rules in an autonomous way. Cohen takes this characterization of moral agency from Kant, who thought that to be a rational (moral) agent is to be self-governing, to act on maxims that one wills for oneself. This conception of moral agency excludes the vast majority of the animal kingdom. It seems like only humans (as far as we currently know) possess moral agency in the way that Cohen suggests. Some may argue that certain apes may possess moral agency because they can communicate through sign language. This is doubtful in the case of Cohen’s criteria which require much more than a rudimentary communication system. Rather, they seem to require a systematic integration into a moral community such that one can be held responsible for breaking moral rules, which rules out apes. So, Cohen’s argument against animal rights goes like this:
P1. Moral rights require moral agency.
P2. Non-human animals lack moral agency.
P3. If non-human animals lack moral agency, and moral rights require moral agency, then non-human animals lack moral rights.
C. Non-human animals lack moral rights (from P1, P2, and P3).
The main challenge to Cohen’s argument will target P1. It is common to believe that human beings qua human beings have rights. Human rights movements think so, and this point of view is codified in the Universal Declaration of Human rights. Cohen attempts to accommodate that intuition by adopting an anti-individualist conception of moral status. Individualist theories of moral status take the properties of individuals as the morally relevant features. So, a view that takes sentience to be sufficient for moral status will assign moral status to all and only individuals that can have experiences such as pleasure and pain. Cohen takes a kind-membership account of moral status to be correct. As long as an individual is a member of a kind whose essence is such that they normally develop into moral agents, that individual has moral rights, regardless of whether that individual is itself or will become a moral agent. This move is meant to accommodate humans who are not moral agents, such as babies. Since babies are members of the kind homo sapiens sapiens, which is such that its members normally develop into moral agents, they are also bearers of moral rights.
Cohen’s anti-individualist account of moral status is open to challenge by counterexample. First, imagine a chimp that undergoes gene therapy so that it can read, write, and communicate with human language. Such a chimp would surely be capable of making rights claims against moral agents and being held responsible for its own actions within the moral arena. So, this chimp would surely be a moral agent, and thus a bearer of moral rights. But since the chimp is not a member of a kind whose members normally develop into moral agents, the chimp would lack moral rights, which is counterintuitive. Now imagine that this gene therapy is given to 49% of the chimp population. They still would lack moral rights since their kind would not normally develop into moral agents. But if we decided to increase it to 80% of the population, then it can be argued that chimps normally develop into moral agents, so they now possess moral rights. But it seems absurd to tie moral status to how many members of a population will develop into moral agents. So the kind-membership account is wrong.
A second problem with anti-individualist accounts of moral status is that they lack the explanatory virtues of individualist accounts. Kind-membership only becomes morally relevant when the kind is morally relevant. But the kind is morally relevant when members of that kind possess morally relevant properties which are sufficient to ground moral status, such as the ability act autonomously. The work is being done by these properties had by individuals. What does kind-membership do in the realm of moral relevance? Why would being a member of a kind be sufficient for moral status when that member would never possess the property that actually seems to confer moral status? The kind-membership account needs to posit a brute moral fact, which is that members of a kind whose members normally become moral rights bearers are moral rights bearers. But if some of the members lack the properties that are relevant to moral agency, which is the concept connecting kind-membership and moral rights, what explains why their kind-membership is sufficient for moral rights? There seems to be an unanswerable question for the kind-membership account, so it requires a brute moral fact. The individualist account does not have this problem because every rights bearer possesses the properties relevant to rights bearing, so there are no individuals lacking said properties but bearing rights nonetheless.
Cohen could reply by granting that the kind-membership account is wrong, but maintaining his argument on individualist terms. Perhaps humans without moral agency are granted honorific moral status by virtue of their social connections with actual moral agents. Cohen’s argument could still be sound even if it entails that babies lack direct moral status. However, now that Cohen is hypothetically operating on an individualist level, he is vulnerable to the argument from marginal cases. Since there are intuitively plausible examples of beings like babies who seem to have rights, and they lack the proposed property that is necessary for rights, either Cohen has to bite the bullet and claim our intuitions are misguided, or he must come up with a more liberal account of moral rights. Unfortunately, if he takes the latter approach, he will end up having to allow many non-human animals into the rights bearer club. If Cohen bites the bullet and says that babies lack rights and only have indirect moral status, then an orphan baby with no social ties has no moral protections, since it lacks even indirect moral status. This seems quite implausible, because skinning the orphan alive appears to be equally as bad as skinning a baby alive with loving parents. The suffering inflicted on the orphan seems to be doing the work in this example. So something like the capacity to experience suffering is a more natural property to ground moral rights, but this property would imply that many animals are also moral rights bearers.