Tom Regan writes, in his essay Putting People in Their Place that “To single out some individuals as deserving of respectful treatment that is not owed to others is to confer on them a privileged moral status, something that requires making a moral judgment and something for which adducing relevant facts can never substitute” (Defending Animal Rights, 2001:96). As Regan admits, a fact of the matter (for example, that another is a person, is a subject-of-a-life, is sentient, is whatever) cannot be the reason why another deserves moral consideration. Why not? Because, and as David Hume pointed out to us, we can’t derive an “ought” from an “is”. That is, to say that we ought not to harm someone says something about what we value, it says something about ourselves and what matters to us. Before we can know whether we ought not to harm someone, we have to determine what is valuable. Only after we determine what is valuable can we then decide how best to act on that determination. That is where the facts come in, after we have made a moral judgment. How then are we to make such a moral judgment? If it’s not the facts of who or what something is that matters, then what is it? Why must we single out some individuals as deserving respectful treatment? According to Regan it is just in the case that those individuals have equal inherent value.

Now, you may be asking yourself, how do we know that others have equal inherent value? That’s an excellent question. Here’s how Tom Regan answers it in The Case for Animal Rights: “To view certain individuals as having equal inherent value is a *postulate* – that is, a theoretical assumption” (1983:247). That is to say, he argues that we accept an assumption, an assumption for which there can be no proof. He does say that there are good reasons for us to accept his assumption and he explains those reasons in the book. However, it is not the case that every person will accept his explanation, or agree with his reasoning. In fact, there’s an essential problem with this type of argument.

Alan Gewirth points out in his essay The Basis and Contents of Human Rights (as reprinted in The Philosophy of Human Rights) that when we claim that others “have moral rights because they have intrinsic worth or dignity or are ends in themselves or children of God, [it] may be held to reduplicate the doctrine to be justified. Such characterizations are directly or ultimately normative, and if one is doubtful about whether persons have moral rights one will be equally doubtful about the characterizations that were invoked to justify it” (1989:184). That is to say, if one were to base the claim for moral rights on the purported fact that there is something like “equal inherent value” then, because to purport “equal inherent value” is to make a moral claim, it appears that one might simply be repeating oneself. To say that others are due moral consideration because they have equal inherent value is only to say that others are due moral consideration because they are due moral consideration. We may appear to be going round in a circle.

The way that Regan tries to get out of the circle is by appealing to certain criteria for sound moral reasoning that he’s established. He basically says that we have certain intuitions and that his postulate of “equal inherent value” does a better job of grounding a moral theory that is consistent with those intuitions and sound moral reasoning. However, there is no proof that “equal inherent value” actually exists or that anyone has it. It’s a theoretical assumption. To make an analogy using something that’s been in the news of late, the Higgs boson was postulated by physicists to help explain certain observations and predictions. It was assumed that something existed, namely the Higgs boson, that best fit our existing theories. As it happened, experimental research seems to indicate the Higgs boson actually exists (or at least that’s the way some people understand it). Now, if that’s true, then the Higgs boson is no longer a theoretical assumption. If only questions of value were subject to that sort of experimental confirmation. But, sadly no, there is no experiment that could prove that “equal inherent value” is real. “Equal inherent value” will remain a theoretical assumption forever. All that we can hope for is that, by applying the concept, we are able to develop a moral theory that is better than any other moral theory we might develop without the concept. That is, we should only accept the postulate if the reasons for it are very good ones, and if the moral theories that we are able to develop without it are not satisfactory. That’s what Tom Regan thinks he’s done. Let’s assume that he has and connect this back to his theory of rights.

Regan says, “It is because it is wrong routinely to harm strapping teenagers and their middle-aged parents merely so that others will benefit that both parents and their children have rights” (2001:91). What this means is that rights do not pre-exist our normative judgments about why it is wrong to harm or kill someone. Remember, we cannot derive an “ought” from an “is” and therefore, it cannot be the fact that someone has a right that we are wrong to them harm. Rather, on Regan’s view, it is because parents and children must not be harmed – because they have equal inherent value – that they have rights. Rights are the mechanism that we use to protect from harm those who have equal inherent value.

If you don’t accept the theoretical assumption that there is such a thing as “equal inherent value” (for which there is no proof and against which there are very good reasons) then Regan’s argument for rights, of the sort he argues for, will not have any force. Moreover, if you don’t accept such an unprovable theoretical assumption, it is unlikely that any argument of this sort for rights will hold any force.