Alan By Critical Essay Ethical Gewirth Gewirths Rationalism Reply

The dialectically necessary argument renders it dialectically necessary for agents to grant rights to the generic conditions of agency: (1) to all agents (and without more only to agents), (2) under the will conception; (3) that are both positive and negative, (4) that are inalienable, and (5) it requires conflicts between rights to be adjudicated using the ‘criterion of degrees of necessity for action’ (Gewirth 1978, pp. 343–344).

Rights of Agents and Human Rights

The dialectically necessary argument grants the generic rights per se only to agents because they are rights under the will conception. Only if Albert is an agent is he able to release those who have duties correlative to his rights from these duties by the exercise of his will. It is unintelligible to grant a non-agent a right under the will conception. Therefore, Gewirth (1978, pp. 119–125, pp. 140–145) is mistaken when he holds that agents must grant the generic rights per se to partial and potential agents (‘marginal agents’) in proportion to how closely they approach being agents (Beyleveld and Pattinson 2000). Agents must be granted all the generic rights. Non-agents cannot be granted any generic rights per se at all.

However, it does not follow that it is not dialectically necessary for agents to acknowledge duties to protect interests of human beings (biologically identified) who do not display the capacities of agency (human ‘apparent non-agents’; and indeed non-human apparent non-agents). Such duties can arise in two ways.

First, they can arise vicariously from the relationship between the apparent non-agent and an agent being such that to harm or permit harm avoidably to the apparent non-agent is to threaten or violate the generic rights of the agent. Here the duty owed by an agent in relation to an apparent non-agent is not a duty owed directly to the apparent non-agent, but a duty in relation to the apparent non-agent owed directly to some other agent (Beyleveld 2000, pp. 62–64). It is important to appreciate that ‘rights’ required to be recognised by the PGC do not have to be generic rights per se. They merely have to be justified by the need to protect generic rights per se. Nevertheless, the difficulty with justifying ‘human rights’ on this basis is that vicariously justified rights depend on contingent attitudes of agents or relationships between agents and human apparent non-agents and not on the essence of being human.

Second, such duties arise directly from the need to exercise precaution to guard against the possibility of harming what might possibly be an agent. Because agency involves capacities like self-awareness, only Albert can know directly that Albert is an agent; he cannot know directly that Brenda is an agent. All that Albert can know directly is that Brenda behaves as though she is an agent. This proposition does not involve any commitment to the inherent privacy of mental states beyond the incontrovertible fact that agents can only experience their own pains and pleasures and their own feelings. It does not involve the idea that Albert cannot make inferences about the mental states of others and happen to be right. It merely involves that, unless Albert makes various purely speculative and wholly unverifiable metaphysical assumptions, or arbitrarily defines agency in terms of agency-like behaviour, he has no basis to infer from Brenda’s behaviour that Brenda is an agent any more (or less) than he has a basis to infer that an android that behaves like an agent is an agent.14 This cognitive deficiency is part of the very essence of being human. Now, suppose that Albert can treat Brenda like an agent because she behaves like one, but he supposes that Brenda is not an agent, acts accordingly, and (though he cannot know this incontrovertibly) is wrong. He will have done what the PGC absolutely prohibits him to do, which is not to respect the generic rights of an agent when he was able to do so. On the other hand, if Albert supposes that Brenda is an agent, acts accordingly, and is wrong, he will not have done anything that the PGC absolutely prohibits. Therefore, it is dialectically necessary for Albert to treat apparent agents (those whom he can treat as agents) as agents and grant them the generic rights. It follows that, under the dialectically necessary requirement to comply with the PGC, it is dialectically necessary to treat agency-like behaviour as evidence of agency.

It is debatable whether or not there is sufficient behavioural evidence to classify a chimpanzee or a dolphin as an apparent agent. We should probably class these creatures as ‘uncertain apparent non-agents (or agents)’. As for cats or dogs, horses or pigs, there is probably sufficient evidence to conclude that they are not apparent agents, and we should class them as ‘probable apparent non-agents’. As for previously apparent agents now in a persistent vegetative state, or human foetuses, there is enough evidence to conclude that they are not apparent agents. They are ‘certain apparent non-agents’. However, in none of these cases may we conclude that the being is certainly not an agent. There are various speculative possibilities under which any of these beings could be agents. However, insofar as they lack the capacity to behave like agents, it is not possible to treat them as agents. Therefore, because ‘ought’ implies ‘can’, precaution under the dialectical necessity of the PGC does not require any apparent non-agents (which includes rocks and tables, which could also be agents) to be treated as agents (Beyleveld and Pattinson 2010). Nevertheless, the dialectical necessity of the PGC requires agents to guard against mistakenly treating them as non-agents to the extent that it is possible and meaningful for agents to do so. Precisely what this means is beyond the scope of this article. For present purposes, it will suffice to say that it is dialectically necessary for agents, as far as this is possible and meaningful, not to act towards apparent non-agents in ways that would constitute violating their generic rights should they (unknowably) happen to be agents. Hence, for example, Albert has at least a prima facie duty not to cause debilitating pain to a dog, because to do this to an agent against the agent’s will would violate a generic right of the agent. In general, Albert has duties to apparent non-agents in proportion to the degree that they approach being apparent agents, the degree of approach being a function of the degree to which the characteristics and capacities of the apparent non-agent can be related to interests that correspond to the generic interests of agents. Difficult questions arise in relation to the strength (normative force) of these duties when they come into conflict with the rights of (apparent) agents. However, the generic rights of agents themselves vary in strength.15 In principle, these conflicts are to be adjudicated by weighing the PGC-guided precautionary probability that an apparent agent is an agent (=1) multiplied by the strength of the generic right in question against the precautionary probability that an apparent non-agent is an agent (= >0 <1) multiplied by the strength of the conflicting generic right-corresponding interest of the apparent non-agent. While it is difficult to see how this can be operationalised in a wholly objective way, the problems are of kinds that confront all cost-benefit and risk analyses (Beyleveld and Brownsword 2001, pp. 119–134, pp. 255–258).16

For simplicity, I will refer to the generic rights of agents as ‘will-rights’ and to dialectically necessary duties agents owe to apparent non-agents as correlative to ‘interest-rights’. It should be clear that if we distinguish between these two categories, then it is dialectically necessary for agents to consider that being a living human being is sufficient to confer at least some rights to interests corresponding to the generic conditions.

However, if human rights are justified in this way, this conflicts with the UDHR’s claim that all human beings possess all human rights equally. At once it must be said that if the PGC is dialectically necessary and comes into conflict with the Declaration on any point, then so much the worse for the UDHR.

At the same time, it is not wholly clear what the conflict is. For example, while Article 1 UDHR proclaims that all human beings are born free and equal in dignity and rights, it also says that all human beings are endowed with reason and conscience and should act fraternally towards one another. As I have already said, taken literally, this implies that to be a human being is to be an agent, and that human non-agents do not qualify as human beings for the purposes of the UDHR. If so, the conflict is not that the PGC grants rights directly only to agents whereas the UDHR grants them to all human beings, but that the PGC grants rights to all human beings (biologically defined; full will-rights to human apparent agents and some interest rights to human apparent non-agents) whereas the UDHR grants rights only to (apparent) agents.

However, account must be taken of, e.g., the United Nations Declaration on the Rights of Mentally Retarded Persons 1971, according to which mentally retarded persons have ‘to the maximum degree of feasibility, the same rights as other human beings’.

This idea is consistent with the position that the PGC justifies. However, it can be squared with Article 1 UDHR only by revising or radically interpreting this Article to state something like, ‘All human beings viewed in terms of the capacities of the human species are born free and equal in dignity and rights. The human species is endowed with reason and conscience, and all human beings so endowed should act towards one another in a spirit of brotherhood’.

Unless the UDHR really does grant human rights only to human agents, something like this is necessary in any event, because if Article 1 refers to ‘human beings’ as biologically defined both of its statements are empirically false.

The PGC scheme is also compatible with Article 1 of UNESCO’s Universal Declaration on the Human Genome and Human Rights 1997, especially when this is read with the Preamble to the Council of Europe’s Convention on Human Rights and Biomedicine 1998. The UNESCO Declaration states that the human genome ‘underlies… the recognition of’ the inherent dignity of all members of the human family, while the Biomedicine Convention holds that ‘the human being’ must be respected ‘both as an individual and as a member of the human species’.17

This, however, raises another problem, which is that Article 2 UDHR, according to which all human beings have all the UDHR’s rights and freedoms without distinction of any kind, does not square with the PGC scheme (or for that matter the UN’s 1971 Declaration) either. This can only be remedied by reading Article 2 UDHR as saying that all human beings have all the UDHR’s rights and freedoms without distinction of any kind to the extent that they are capable of exercising them.

In fact, this reading is necessary even without trying to square the UDHR with the PGC. This is because the UDHR and other instruments in the international legal system of human rights specify some rights that only agents are capable of exercising. As far as the European Convention on Human Rights is concerned, the Article 9 right to freedom of thought, religion and conscience; the Article 10 right to freedom of expression; and the Article 12 right to marry come immediately to mind. Indeed, there is a further problem with Article 12. The right is granted only to those of an age much higher than that at which most human beings achieve apparent agency. Therefore, the Article 12 right might not be properly classified as a human right. It is beyond the scope of this paper to determine whether or not this is so. However, for there to be any possibility that the Article 12 right is a human right it is necessary to think of human rights as a system of rights belonging to human beings simply by virtue of being human rather than as a set of rights that individually are held equally and without distinction of any kind by all human beings.

Rights under the Will Conception

That the generic rights are rights under the will conception entails that human agents do not have duties to protect or not harm their own generic interests if they do not wish to do so, unless allowing them to harm or not protect themselves endangers at least equally important generic rights or interests of others. It also means that if a human agent gives free and informed consent to non-protection of his or her generic agency interests then this does not constitute interference with the right corresponding to that interest. In short, agents owe no perfect duties to themselves to protect their generic agency interests under the PGC.18 Furthermore, it entails that not to permit an informed agent to engage freely in activities that are harmful to the agent’s generic interests is contrary to the specific dignity of agents, which must reside, at least in part, in their capacity to direct their actions through their own choice. This is because, according to the Preamble of the International Covenant on Civil and Political Rights, the rights of the UDHR ‘derive from the inherent dignity of the human person’. The dignity of human agents must reside in their capacities for action if the PGC is dialectically necessary, because Gewirth’s Argument from the Sufficiency of Agency (crucial to Stage III of the dialectically necessary argument, as we have seen) shows that it is dialectically necessary for agents to hold that it is by virtue of being agents that they have the generic rights.19

This fits a persistent line of thinking of the European Court on Human Rights (the ‘Strasbourg Court’). For example, in Z v Finland20 and M.S. v Sweden,21 the Strasbourg Court held that Article 8(1) of the European Convention on Human Rights22 is engaged if the personal medical data of an individual is used without the explicit consent of that individual. Interference with Article 8(1) occurs unless such use is justified in terms of Article 8(2).23

Then, in Pretty v UK,24 the Strasbourg Court held that Article 8(1) was engaged by Section 2(1) of the UK’s Suicide Act 1961 making it a criminal offence to assist a suicide, thereby preventing Dianne Pretty who was dying with motor neurone disease from being assisted by her husband to commit suicide. Dianne Pretty had also claimed that the UK was in violation of Article 2 of the European Convention, which grants a right to life, because the right to life must include how one chooses to live and this includes how one chooses to die. The Strasbourg Court held that the right to life does not include a right to commit suicide,25 which is correct under the PGC because death is not a generic condition of agency. However, a right to commit suicide does exist as an expression of a right to choose how one lives (as a function of a right to autonomy, i.e., a right to choose how to live one’s life, to which the Strasbourg Court has given full expression under Article 8(1) of the European Convention on Human Rights).26

However, the UK House of Lords, while holding wrongly that Article 8(1) was not engaged, had opined that if it is engaged then there are sufficient reasons under Article 8(2) of the European Convention on Human Rights not to permit Dianne Pretty to exercise this right.27 The Strasbourg Court considered that this was an acceptable judgement under the doctrine of the margin of appreciation that it allows to member states to interpret provisions of the Convention.28 While it is arguable that this was a poor opinion in fact, the form of reasoning is entirely consistent with the will conception of rights.

Positive as Well as Negative Rights

That the generic rights are positive as well as negative follows from the fact that the dialectically necessary argument is driven by an agent’s categorical instrumental need for the generic conditions of agency. To ensure that this need is satisfied it is as necessary for Albert to be assisted in defending his generic conditions of agency when he cannot do so by his own unaided efforts as it is necessary for him not to be deprived of these conditions by others. Hence, the dialectical necessity of the PGC not only requires agents (negatively) not to interfere with the generic conditions of agency of others but (positively) requires them to assist needy agents to secure these conditions when they are able to do so. This requirement is, however, subject to the proviso that positive action to protect Albert’s generic conditions of agency cannot be required of Brenda (assuming it falls to her to provide assistance) if her assistance conflicts with comparable or more important generic conditions of agency of Brenda. For reasons beyond the scope of this article, the discharge of many positive duties falls primarily on states and institutions, as representatives of collectivities of individuals, rather than directly upon individuals (Gewirth 1996. p.59).

As we have seen, agents have a PGC supported right to be assisted to commit suicide under a generic right to freedom of action (autonomy). However, because the exercise of this right is subject to it not conflicting with at least equally important rights of others, agents do not have a duty to assist those wishing to be assisted in committing suicide if they do not wish to do so under their own right to freedom of action. In practice, if not in concept, this entails that there is no positive right to such assistance in this case. Any effective positive right to be assisted to commit suicide needs to be rooted in a substantive right, such as the right not to be subjected to inhuman or degrading treatment or torture, which is recognised by Article 3 of the European Convention on Human Rights. Dianne Pretty had also claimed a right to be assisted to commit suicide under Article 3, on the grounds that she faced the prospect of suffocating to death as her disease progressed, and that to allow this against her will would constitute inhuman and degrading treatment. In PGC terms, I consider that the Strasbourg Court was wrong to deny this claim, which it did by treating the Article 3 right as exclusively negative in this case.29

Inalienability

The dialectical necessity of the generic rights renders them inalienable, because they must be granted to agents simply by virtue of being agents. That they are inalienable does not mean that it is impossible for them not to be recognised. It means that it is categorically impermissible for them not to be recognised. To say that a right exists is not to say that the duties that are correlative to the interest that the right protects are recognised. It is to say that these duties ought to be recognised whether or not they are recognised.

This is compatible with the rights being rights under the will conception. While it is often said that the will conception permits agents to waive (give up) any rights they have, this is loose talk. The generic rights of agents are by definition rights for agents to have their generic agency interests secured in accordance with their will. If Albert permits Brenda to interfere with his generic conditions of agency, he is not waiving his right to non-interference against his will. The interference is in accordance with his will. The interference that he permits is not interference with the right itself but merely with the interest that the right protects. Albert is declining to defend the interest protected by the right, not waiving the right, and the permissibility of this is built into the kind of (inalienable) right that it is.

The Criterion of Degrees of Necessity for Action

Generic conditions of agency do not necessarily have an all or nothing effect on action or successful action. If they did there could be very few generic needs. In fact, something is a generic condition if its absence to some degree diminishes or, if its deprivation continues, will tend to diminish an agent’s ability to act or to act successfully regardless of the agent’s purposes. For this reason, the generic conditions of agency are organised into a hierarchy of importance. Basic generic needs outrank non-subtractive generic needs, which outrank additive generic needs. Within these categories there is also a hierarchy (Gewirth 1978, pp. 62–63). Reference to this hierarchical ordering is use of what Gewirth calls the ‘Criterion of Degrees of Necessity for Action’. Its justification is merely an application of the Principle of Instrumental Reason,30 and the Criterion of Degrees of Necessity for Action is dialectically necessary for the same reason that the Principle of Instrumental Reason is dialectically necessary.

The Criterion of Degrees of Necessity for Action is central to the way in which the PGC views conflicts between rights. Since the rights the PGC grants are rights to the generic conditions of agency, the rights themselves are to be ranked according to the Criterion of Degrees of Necessity for Action (Gewirth 1978, pp. 343–344). No discrimination can be made between the strength of the generic interest protected in an interest right and in a will-right. However, as I have already mentioned, the weight given to the will-right of an apparent agent must be greater than the interest right of an apparent non-agent when the same interest defines the right. Thus, the right to life of a mother will outrank the right to life of her unborn baby (if the two are in conflict), because the precautionary probability of the mother being an agent is 1, whereas that of the unborn baby is <1. Difficulties arise when trying to weigh the rights of an apparent agent against an apparent non-agent when the same generic interest is not in conflict. Amongst other things, this is because this weighing requires a specific value >0<1 to be assigned to the precautionary probability of the apparent non-agent being an agent, for which there is no obvious dialectically necessary answer (Beyleveld and Brownsword 2001, pp. 255–258).

Sientate! - услышал он крик водителя.  - Сядьте. Однако Беккер был слишком ошеломлен, чтобы понять смысл этих слов. - Sientate! - снова крикнул водитель.

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