life's dominion: an argument about abortion, euthanasia, and individual freedomby ronald...

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Canadian Journal of Philosophy Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom by Ronald Dworkin Review by: Nathan Brett Canadian Journal of Philosophy, Vol. 26, No. 1 (Mar., 1996), pp. 149-164 Published by: Canadian Journal of Philosophy Stable URL: http://www.jstor.org/stable/40231940 . Accessed: 17/06/2014 02:54 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . Canadian Journal of Philosophy is collaborating with JSTOR to digitize, preserve and extend access to Canadian Journal of Philosophy. http://www.jstor.org This content downloaded from 188.72.127.119 on Tue, 17 Jun 2014 02:54:51 AM All use subject to JSTOR Terms and Conditions

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Page 1: Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedomby Ronald Dworkin

Canadian Journal of Philosophy

Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom by RonaldDworkinReview by: Nathan BrettCanadian Journal of Philosophy, Vol. 26, No. 1 (Mar., 1996), pp. 149-164Published by: Canadian Journal of PhilosophyStable URL: http://www.jstor.org/stable/40231940 .

Accessed: 17/06/2014 02:54

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

Canadian Journal of Philosophy is collaborating with JSTOR to digitize, preserve and extend access toCanadian Journal of Philosophy.

http://www.jstor.org

This content downloaded from 188.72.127.119 on Tue, 17 Jun 2014 02:54:51 AMAll use subject to JSTOR Terms and Conditions

Page 2: Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedomby Ronald Dworkin

CANADIAN JOURNAL OF PHILOSOPHY 149 Volume 26, Number 1, March 1996, pp. 149-164

Critical Notice

RONALD DWORKIN, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom. New York: Random House 1994.

Pp. xiii + 271.

Taking Rights Too Seriously In many ways Life's Dominion is a remarkable book. First of all, one of its central theses seems an arresting departure from what we might expect Ronald Dworkin to defend: that for decades we have taken rights too seriously in discussions of abortion.1 Dworkin even argues that we must understand this problem in terms which are essentially religious, though we are not to understand this in the conventional way. A main argument of the book is that great debates over abortion and euthanasia turn, not on questions about rights, but on conflicting views of the 'sanctity' of human life, the belief that human life has intrinsic worth.

My main task here is to assess this central thesis. Though I think that

Life's Dominion does contain some profound insights, I am not persuaded that the answer which Dworkin himself has given to the questions of the

permissibility of abortion - the liberal answer with which, incidentally, I agree - is really founded upon a sanctity of life view. I will argue that he leans rather more heavily than he supposes on the standard liberal

1 This, of course, is not an accurate way to put it. Fetal rights have been taken too

seriously. Dworkin's view is that hardly anyone really believes that a fetus is a

person with rights. Moreover, the question of whether the fetus is a legal person does not present a hard case. Even prior to Roe vs Wade this question was open and shut: the fetus is not a legal person.

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150 Nathan Brett

reasons for denying a right to life to the fetus. But, before focusing on that question I will do my best to give a plausible and sympathetic account of the central idea of the book.

I The Standard View of the Abortion Debate

As in Law's Empire, Dworkin is working with themes related to integrity, and attempting to produce a reflective equilibrium. In some chapters of Life's Dominion he is looking for a principled way of knitting together the case law which relates to the problems of abortion (Ch. 4-6) and eutha- nasia (part of Ch. 7). But he is not just concerned with a principled integration of legal decisions. He is using this same integrity-seeking model of reflective equilibrium as a way of dealing with the moral questions. And, particularly in his discussions of euthanasia, he is con- cerned with integrity in the lives of persons, as a dominant aspect of the way in which individuals give meaning to their lives and find a basis for choices connected with their deaths. The two chapters on euthanasia (especially the problem in relation to Alzheimer's disease) deserve close

study, but I shall follow Dworkin in emphasizing the problem of abor- tion.

Dworkin begins the discussion of abortion by noting the impasse which exists, at least on the surface of this disagreement. Conservatives claim that from its biological beginning, the fetus is a person with rights. Thus, abortion is a form of homicide. The typical liberal denies that the developing fetus is yet a person; the unborn do not have interests or rights which must be carefully protected or weighed against the real interests and rights of the pregnant woman. The imposition of con- straints on abortion, therefore, is an illegitimate and very dramatic interference with the autonomy of the woman. Between these two views there is no room for a principled compromise (for achieving integrity in integrating them). Hence the debate goes on and on, without the slightest hope of compromise or reasonable resolution.3 Or so it seems.

2 Six of the eight chapters of Life's Dominion are about abortion and two concern euthanasia.

3 Of course, an anti-abortionist might regard restrictions which forbid some abortions as better than no law at all (some lives would be saved). Likewise, a liberal might deem less restrictive abortion laws a partial victory, though she sees no basis other than a political one for accepting any of these restrictions. The decisions we must live with (as to the law) are dependent on which side holds the greatest political power, on which way the supreme court has most recently been stacked.

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Page 4: Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedomby Ronald Dworkin

Critical Notice of Ronald Dworkin Life's Dominion 151

II A Point of Agreement

The reality (Dworkin argues) is in fact quite different. Apart from a few hot-heads using the rhetoric of rights to make moves in a political contest, liberals and conservatives actually live shoulder to shoulder in a way that gives the lie to this official version of the debate. What do we need to assume in order to understand the real difference between these parties? In fact, Dworkin contends, there is broad and central agreement between them. The conservative and liberal agree that where (biologi- cally) human life exists - whether it is a developing fetus, a newborn child, an adult person, or a human being who has lost the capacity for consciousness - this life has value. Ending such a (biologically human) life is never a trivial matter. Dworkin characterizes the assumption in play here as the belief that human life has intrinsic value. This is also what we are talking about when we speak of the 'sanctity' of human life.

We believe that it is intrinsically regrettable when human life, once begun, ends

prematurely.... a premature death is bad in itself, even when it is not bad for any particular person. (68-9)

It is this assumption which explains the way in which the typical liberal and conservative positions4 operate in the abortion debate. The liberal position is not an unqualified endorsement of a right to abortion - as anyone who has discussed abortion with undergraduate classes can attest. Generally speaking, the right to abortion is qualified by a demand for good reasons. The woman need not give these reasons to someone who has the authority to assess them, but if she is to act responsibly such reasons had better exist. That the pregnancy resulted from rape, that the woman will be unable to provide adequate care, that the developing fetus is defective - these are the sorts of reasons which can be drawn upon to provide a basis for ending the development of the fetus. That one doesn't want to cancel a ski trip, that one prefers not to use (other) birth control methods, etc. - these sorts or bases tend to be rejected even by defenders of a liberal view. Moreover, when conservatives raise questions about 'easy' abortions provided 'on demand/ the reply that

they get from liberals and feminists is not 'It's her body and she can do what she wants.' Rather, the reply is that such frivolous abortions do not

4 The position under discussion is not a well developed philosophical theory, but the

ordinary liberal man's or woman's. Its central feature is that there should not be laws which prohibit abortion. For our purposes, 'the conservative' position advo- cates legal control of abortion.

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exist. Women do not have abortions without having reasons which - in the context of their own lives at least - really are important. On Dworkin's view, it is the liberal's belief that the life of the fetus has some intrinsic value that explains what's going on here, explains these qualms about 'irresponsible abortions,' and the defensive denial that such abor- tions occur.

On the other side is the conservative who must respond to hard cases in which the woman's life is threatened by a pregnancy or the pregnancy is the result of a sexual assault. A few theorists are prepared to say that, even in these cases, abortion should be prohibited. But generally conser- vatives are troubled enough by such cases that they are prepared to make exceptions - under such circumstances abortion would not be wrong and should be lawful. We could (and often do) treat this as simply showing the inconsistency of the typical conservative position. (Surely, for instance, it would be arbitrary to deny a right to life to a fully human being simply because s/he was a product of unconsenting sex.) What Dworkin finds in this response is a reason for thinking that the conser- vative is not really serious about the right to life. Rather, the conservative, like the liberal, really believes that the developing life has intrinsic importance. The value of this life is of such importance that it would be wrong to bring its development to an end without a very important reason for doing so. But the dislocations involved in imposing childbirth and parenthood on a person who has been forced into intercourse are (even for the typical conservative) considerations of that magnitude. Like the liberal, then, the conservative (typically) finds a point beyond which s/he will not go, in supporting the continuance of a developing human fetus. Thus, the assumption that human life has 'intrinsic value' does not mean - for either the conservative or the liberal - that it has an absolute or overriding value which can trump all other considera- tions. But what, more precisely, does it mean?

Ill The Sanctity of Human Life

Dworkin says

Almost everyone shares, explicitly or implicitly, the idea that human life has objective, intrinsic value that is quite independent of its personal value for anyone.... [Disagreement about the right interpretation of this shared idea is the actual nerve of the great debate about abortion. (67)

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Critical Notice of Ronald Dworkin Life's Dominion 153

To begin to understand this use of 'intrinsic value' we must see what it contrasts with.

1) Obviously, it contrasts with the instrumentally valuable, conceived in the ordinary way - that which has value because of its usefulness, its 'capacity to get something else that we want.' Money and calisthenics are valued instrumentally, of course. But so, too, are human beings -

they make things happen which are important to us. It should be equally obvious, however, that considered only along this dimension, the lives of persons can have negative value. They can be or become unproduc- tive; and meeting their needs can be expensive. This judgment can be made from the viewpoint of an individual (e.g., one who shoulders the

expense of a dependent). But it can also be made from a social perspec- tive: the over-all utility of a person's life can take on a negative value. But it would be odd (and most would say wrong) to think of human

beings only in terms of their instrumental value, as 'mere means,' to use the Kantian expression.

2) Dworkin distinguishes instrumental value from that which has

'subjective value,' what has value 'for someone' (71). This is 'whatever

happens to be desired by a person/ scotch whiskey or skiing, for exam-

ple. The 'subjectively valuable' has value only in relation to the desires which persons (or other sentient beings) happen to have.5 What is

subjectively valuable can, of course, differ from one person to another. That skiing is of value to me does not entail that it is to others. Again, we can apply this to persons: we like some persons and want them around, dislike others and wish they would go away.6 We can turn this sort of

judgment on our own lives as well. If I like my own life and desire that it continue, then my life has the type of subjective value that Dworkin terms 'personal value.' We can generalize from this: Most human lives have personal value (in this stipulative sense) because those who live them (emphatically) want them and want them to continue. Unfortu-

nately, there can also be human lives which lack personal value. At some

point in the progress of her disease, the life of Sue Rodriguez ceased to have personal value because she ceased to want it to continue. Prior to the point at which sentience begins, the life of a fetus cannot have

5 More clarification is needed, of course, to cover the sorts of mistakes we can make about our interests, the possibility of wanting something which we would actually find dreadful, and so on. But I will ignore these problems here.

6 Perhaps judgments of this sort are really just a type of instrumental judgment. I do not want to get distracted by that issue either.

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personal value, since it will not have the consciousness necessary for desires.7

3) Now, Dworkin remarks, many philosophers (following Hume) would end the list at this point: nothing can have value unless it serves someone's interests - in the sense that someone wants it or it enables someone to get what they want.8 But, as the above quotations indicate, Dworkin does not believe that we can capture all that we want to say within these categories. Much of what we do and say implies that some things are 'intrinsically' valuable, that some things have value transcend- ing their instrumental or subjective utility. Dworkin explains:

The idea that some events or objects are valuable in and of themselves - that we honor them not because they serve our desires and interests but for their own sakes - is also a familiar part of our experience. Much of what we think about knowledge, experience, art and nature, for example, presupposes that in different ways these are valuable in themselves and not just for their utility or for the pleasure or satisfaction they bring us. (69-70)

What do we get when we apply this to human beings? Let me provide a thought experiment:

Suppose that P becomes so depressed that he looses the desire to live. He wants to die. Other people, too, find only negative value in P's life; perhaps this is one of the reasons for P's depression. P does not light up their lives; on the contrary he darkens them. He is, besides, a big drain on their resources, their time and money. Does P's life have any value? If someone judged that it didn't, would he have made a mistake? If P disposed of himself would anything of (positive) value be lost?

Dworkin answers these sorts of questions for us. At least if we are typical in our thinking about human life we would have to say 'yes' to them all. The fact that no one cares about this person (including the person himself) does not entail that this life is without value. Someone should

7 It may well be that sentience, while necessary for a desire to continue living, is not sufficient. A fairly sophisticated intellectual development providing a concept of self might be a condition of a life having personal value. See Michael Tooley, 'A Defense of Abortion and Infanticide/ reprinted in J. Narveson, Moral Issues (Toronto: Oxford 1983) at 215. 1 return to this in Section VI below.

8 Hume need not actually restrict the account to the wants desire, interests, etc., of persons (as Annette Baier has reminded us). Any sentient creature's desires (aver- sions) and needs can be sources of value in a Humean world. But, this is a modification that Dworkin would accept. At various points he speaks of the protection of non-human creatures as a legitimate use of law.

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Critical Notice of Ronald Dworkin Life's Dominion 155

care. Human beings merit our respect whether or not we like them; it is a mistake to assume that they can be discarded like old clothes which, having lost their appeal, are now just de trop. This idea that human life has intrinsic value not parasitic upon its instrumental, subjective or personal value, is the belief in the sanctity of human life. We could (using other terms drawn from religious discourse) say that human life is 'sacred' or 'inviolable' and mean roughly the same thing.9

IV The Intrinsic Value of Fetal Life

Returning to the abortion controversy, we can now apply these value categories. Neither the liberal nor the conservative, of course, considers the problem to revolve centrally around the instrumental value of fetal life, though some points of importance can be captured in these terms. If we accept that there is no fetal person involved, then such questions as whether a family can afford another child - questions within the instrumental domain of value - are among the questions which may be relevant. Similar points can be made about the subjective value of the developing human life. For a person who wants another child (other things being equal) will also value its prenatal stages and want its development to continue. Obviously the opposing attitude also exists: a person may dread the prospect of a child, or of this child (so fathered, or with these defects, or female rather than male...). When we speak of 'unwanted pregnancies/ it is this subjective value (together with instru- mental considerations) that are in play.

Is the question of 'personal value' relevant here? If we take fetal life to be the early sentient life of a person, then of course it would be highly relevant in several ways. 1) We might credit the fetus with a 'will to live/ e.g., a dominating desire to continue its life. 2) Short of this, we might credit the sentient fetus with other desires (for warmth, thumb sucking, muffled rock music, etc.) and on that basis suppose that we should protect its life as a necessary condition of these sources of subjective value. 3) Again, we might look to the potential satisfactions of post-natal continuations of this sentient life, as part of what gives personal value to the developing fetus. The second and third of these considerations we would routinely deem relevant when thinking about new-born infants,

9 That these terms are drawn from religious discourse is no embarrassment for

Dworkin, for it is part of his argument that principles based on interpretations of the intrinsic value, sanctity, or sacredness of human life are not a proper basis for law.

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though we could not plausibly credit the new-born with a conception of self adequate to support a conscious desire to continue life. Surely these same considerations are relevant in relation to the sentient fetus, if we are prepared to endorse fetal sentience. But are we prepared to endorse this?

On Dworkin's view, even the (typical) conservative rejects the view that sentient life exists from the moment of conception. Most would defer to the scientific evidence that there is no physiological basis for con- sciousness until at least the beginning of the third trimester.10 Since nearly all abortions take place prior to this, let's confine our attention here to the pre-sentient fetus.11 Without a life that can have subjective or personal value there is no basis for the claim that the fetus is a being with interests or rights.12 It may be that there are others whose interests and rights will be affected by the fate of the fetus (the pregnant woman, etc.) and who should be protected. But, Dworkin contends, without a life which could have 'personal value' talk of 'personhood' or a right to life is just idle. However, the crux of the debate over abortion does not lie here. Rather, the real disagreement lies in the interpretation of the intrinsic value of fetal life.

V The Source of Disagreement

Clearly, the disagreement between conservative and liberal requires new

explanation. Dworkin's explanation involves articulating two different dimensions of the belief that human life has intrinsic value. They com-

plement and to some extent compete with each other in both liberal and conservative interpretations.

1) On the one hand, there is respect for the natural development of the human being. From the time of its first individuation, there exists an

entity which, given normal conditions, will yield a highly complex being capable of conscious and self-conscious existence. This process is prop-

10 It may be useful to remind the reader that we are talking about the beliefs of typical conservatives, not the authors of 'right to life' pamphlets.

1 1 I will return to the problem of drawing the line in Section VI.

12 There are, of course, excellent reasons for protecting from harm (e.g., from alcohol or traffic accidents) a being which will become sentient and self-conscious. This

gives us some basis for speaking of 'fetal rights/ But it is reasonable (though too much to argue here) to treat these (as courts have treated legal rights) as conditional

upon the emergence of conscious existence.

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erly regarded with awe; and the interruption of this process is deemed a kind of desecration, an 'insult' to that which one should care about. For those whose value systems are founded on (or, more accurately, inte- grated with) theological beliefs it will be plausible to think of this being as having God-given life and to think of meddling with the development of this life as a kind of insult to its Creator. But theological beliefs are not a necessary condition of this value. Many people (especially in recent decades) have adopted a similar attitude toward nature's creative proc- esses, though they reject as childishly anthropomorphic the idea of a person-like Creator. It is Dworkin's view that all of us (or nearly all) place some value on the developing fetus, which, through natural processes (and under normal conditions) will become a person.

Consider a parallel. It would have been a shame if something had interfered with the process through which creatures evolved into human beings and persons. If aliens had traveled to earth and interfered with evolution to ensure that the human species didn't evolve, there would have been a loss - despite the fact that there would be no one whose interests were harmed or whose rights were violated. An analogous interference with a being that will develop into a person yields an

analogous loss. This belief - that one should respect that which natural

development will turn into a person - is central to the 'intrinsic value' which the conservative invests in the life of the fetus. But the liberal view also embeds this value: it is this that accounts for the belief that good reasons are needed for abortions, even where they are 'early.'

2) The other major basis for the intrinsic value which Dworkin identi- fies is the 'human investment' in, as opposed to the natural potential of, this life. Such 'investments' take several forms, but the central one is the individual's own creative input. Individuals (usually) do something with their lives; they develop plans and projects, goals, and expectations. All of these can be frustrated in various ways; but death, and especially a premature death, is one possibility that most of us fear as an over-

whelming source of loss in relation to these projects and goals which give meaning to our lives.

When we look at human life from this viewpoint we are prone to make some distinctions in the degree to which death is deemed a tragic loss (84-9). Along this measure, the tragedy of death is at a maximum for the

young and energetic adult, whose projects and interests hold maximum

promise, and whose death will mean their collapse or 'frustration.' At one extreme from this central case is the older person who is well satisfied with her accomplishments and now faces growing expectations of pain and incapacitation. The death of this older person is not as tragic as the premature death of the young adult. At the other end of life's continuum is the young child whose goals and projects are still undeter- mined. The death of this child will not be deemed as great a tragedy as

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the death of the person who has already invested heavily in his or her own life.13 But this sense in which life can have intrinsic value can have no application to creatures who are not yet sentient beings.14

This latter (human investment) model of thinking about life's value is what dominates in the thinking of liberals. The pre-sentient human being does, of course, have human potential (which we've seen the liberal also recognizes). But it lacks the human self-investment that would make the loss of this potential a tragic loss. And its human potential is not suffi- cient (as interests and rights would be) to outweigh good reasons which a woman has to end her pregnancy. It is certainly not sufficient as a basis for requiring her to put her own adult life in grave jeopardy. It is also not sufficient to require that she dramatically alter those plans and projects which give significance to her life. But to bring to an end the potential human life embodied in the developing fetus/or trivial reasons, is to place too little value on the first dimension of the intrinsic value of life. The liberal will say in the end, though, that it should be up to the individual woman to decide whether her reasons for an abortion are good enough. This, too, is connected with the greater importance that the liberal places on the 'human investment' in life. For there is a great deal of this in the life of the woman, and none at all for the developing, pre-sentient child. But the most important reason that a liberal has for respecting the choice of the woman is that the question of the importance of human life is not a question about rights or justice. These speculative bases of the intrinsic value of human life are decisions about 'the good.' They belong in the domain of individual conscience and are matters of religious or quasi-religious belief protected from the coercive reach of the state.15

A conservative position on the abortion question leans more heavily on the value of nature's potential in relation to human life. It does not, however, turn this into an absolute or totally ignore the aspect of 'human investment' central to the liberal's position. For, as we have seen, it is only in light of this aspect that the conservative makes exceptions to the

13 Dworkin is not saying, of course, that these persons differ with respect to their right to life; they are equal in that respect.

14 Again, qualification is needed. The loss of a developing fetal life can be a highly significant loss, relative to the aspirations of its parents. But, by the same token, the

prospect of the birth of a child can constitute a loss relative to those aspirations.

15 Actually, it's not that the liberal state is barred from protecting that which is

collectively taken to have intrinsic value. It can do this in many ways - by funding the arts and protecting a cultural heritage, for example. But the legitimate (liberal) state cannot do this in a way that abridges the fundamental rights of its citizens.

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prohibition on abortion. The spectacular intrusion into the life of a woman caused by a pregnancy which has its source in rape is a case in which the woman's investment in her own life overwhelms the dimen- sion of intrinsic value connected with nature's potential to yield (from the developing fetus) another human person. Here, the (reasonable) conservative will leave the choice to the woman, who need not suffer the further intrusion of an unwanted child, in order to respect the sanctity of life. But the conservative will not turn the whole matter over to her. Most reasons for an abortion would pay insufficient respect to human life's potential (and its intrinsic value) for the state to give them its respect.

VI When Do Rights Begin?

In reading Life's Dominion I am reminded of the US and Canadian supreme court decisions on abortion in which giving a negative answer to the question of whether the fetus is a person, is equated with not giving any answer to the question. Roe vs Wade and Morgentaler both take a

negative stand on the question 'Is the fetus a person with a right to life?' But in each case the judges also say that they are not answering the

question of when human life begins.16 There is no legal doubt in either Canada or the USA, however, that a child is a legal person with a

protected right to life from the time of its birth. And there is every reason to suppose that the reasoning (and the conclusions) of Roe and Morgen- taler are completely inconsistent with the supposition that the fetus is a full legal person prior to birth. Similarly, Dworkin has tried to shift the moral debate away from the question 'Should the fetus be treated as a full person with rights?' toward the questions of intrinsic value which we have just considered. But his discussions of the sanctity of life (and its interpretation) are not relevant to these debates without a defensible, negative answer to rights question.

Dworkin does briefly take up the question 'Does a fetus have interests that should be protected by rights, including the right to life?' (22) Reasons are given for a negative answer. The fetus, at least during the

16 See Roe vs Wade (1973) 410 US 113, 35 L. Ed. 2nd 147, 93 S. Ct. 705. Excerpts reprinted in J. Feinberg, The Problem of Abortion (Belmont, CA: Wadsworth 1973) contain this

passage at 184: 'We need not resolve the difficult question of when life begins/ In

Morgentaler (1988) 62 C.R., the point was put in this form: it is not necessary for the court 'to decide whether the foetus is included in the meaning of the word "every- one" in Section 7, so as to have a right to life/

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first six months of a pregnancy, does not have interests, and so should not be protected by a right to life. This is because lacking consciousness (or sentience) it lacks any capacity for personal value, and thus lacks the interests which rights protect.17 So we may conclude that Dworkin really supposes that this standard problem of abortion must in fact be dealt with. But this means that he has misdescribed the situation. For he has assumed, and briefly defended, a position on the rights issue that he has also written off. It was on this very issue that conservatives and liberals could never reach a principled agreement.

Perhaps Dworkin would reply that this misconceives his argument. He does give en passant his own answer to the 'right to life' question. But he spends very little time on it because it is not at the center of the real disagreement over abortion. What we found (under his description) was a broad base of agreement on this question. We did not discover conser- vatives behaving as if their opponents were really child killers; and we did not find liberals acting as if abortion was something we should stop taking seriously. So it's not that we should stop asking the 'right to life' question because it is unanswerable, but because we've already, tacitly, come to agree upon a negative answer: the fetus does not have interests which should be protected by a right to life.

But I think this is too quick - and the passages that carry this weight too slight - for several reasons. The law may be clear that the right to life begins at birth. But Dworkin leaves us without a basis for thinking that there is a principled basis for this decision. The physiological evi- dence that he cites leads to the conclusion that there may be rudimentary forms of consciousness in the seventh and eight months of fetal devel- opment. If consciousness is a sufficient condition of the existence of a right to life, then, of course, it would be wrong to wait until birth to attribute this right. And this would mean that most of the old problems about abortion have renewed forms even within the world of Life's Dominion. It will not do, for example, to suppose that the question of late developing fetal rights can be left to the judgment of individuals, whose theories of life (or the good) will provide solutions which are insulated from the coercive interference of the liberal state. If the sentient fetus has interests, and if these are sufficient to warrant the protection of an underlying right to life, then this can no more be left to individual

17 Of course (Dworkin can continue) the matter is not quite this simple because there are injuries which may be harms for the conscious being which will result if the fetus is allowed to develop. That sort of problem is also addressed in the book. See 113.

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conscience, than can the question of whether rights belong to women or Blacks. This is a question, not of good, but of rights and justice.

One problem is that Dworkin has really only addressed the question of whether the capacity for sentience is a necessary condition of the existence of interests and rights. We need to consider whether it is also sufficient. Dworkin seems to have assumed that it is not; for he does consider briefly the possibility of justifying laws which are aimed at the protection of other forms of animal life (149, 154, 169); and he surely assumes some of these to be forms of conscious life. In such passages he argues that, while the lives of other animals (and animal species) do have intrinsic value, they do not have rights to their lives which can compete with the rights of human creatures. So he assumes that possess- ing sentience and interests is not sufficient for the possession of a right to life.

But this seems to set Dworkin up for agreement with the conclusion of Michael Tooley that young infants, too, do not possess a right to life. If that is true, however, one of the overriding arguments of the text will unravel: for it is one of Dworkin's primary aims to show that the Roe decision is morally defensible. And this is a decision which draws a sharp division between those who have been born (persons with rights to their lives) and prenatal life (without such rights). Another dominant aim of the work would also be defeated by the rejection of an infant

right to life. For he is out to give the best interpretation that can be

generated of (our) public morality (and its divides) with respect to the issues of abortion and euthanasia. And it is clearly not in touch with that morality (or its legal reflection) to take from infants their assumed right to life.

Nonetheless, Tooley's conclusion may be more defensible than public morality on this issue, and Dworkin can even argue that, on this point, a change of belief is the best way to gain integrity. But the trouble here is deeper than this concession acknowledges. For now the old problems would only have been displaced to the period of months or years after the birth of an infant. Here again we would have the difficulty of determining 'when life begins/ or to put it in the way that Dworkin recommends, when does a developing human being have interests that should be protected by a right to life? Dworkin must answer this ques- tion in order to complete his theory. But no matter what stage relative to birth that Dworkin selects, it will be problematic. If he locates the right to life at the point where sentience has its beginning, in the months immediately prior to birth, then he reopens most of the standard prob- lems of abortion that revolve around persons and rights. If he chooses instead birth as the point of demarcation (which seems unlikely, since he characterizes birth primarily as a change of 'location' on 170), then

again he will be embroiled in that very dispute. And finally, if he adopts

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the more radical solution, attributing the right to life only after the development of (say) reflective interests in the child, then he has only made the standard problem of abortion reappear as a problem about infanticide and (non-voluntary) euthanasia. None of these options would show that parties to the debate over abortion have been impor- tantly mistaken about what is at stake.

Another critical point is worth brief consideration here. Dworkin does not take time (in this work) to defend the central commitment of liberal- ism itself, the commitment to a state which will not (at serious expense to anyone's equal rights) base policies on 'the good,' on decisions about what makes anything worth doing or life worth living. In this domain, the individual is to be protected by the state. But, of course, the conser- vative advocates of abortion laws are opponents of liberalism on this point too. So even supposing that he is right about the broad and important agreement between liberals and conservatives as to the intrin- sic value of human life, Dworkin has not described the conditions for moral agreement over abortion laws. On this point Dworkin shifts to legal arguments, to constitutional protections (chiefly of freedom of religion) which liberal states have already embedded in their constitu- tions. But we cannot expect the (typical) conservative opponent of abortion to accept this aspect of liberalism. He will, more likely, fight for a state which upholds his conception of the good.

VII Intrinsic Value?

No doubt the most troublesome aspect of Life's Dominion (for philosophi- cal readers) is Dworkin's reliance on the category of intrinsic value.18 Here, as elsewhere in Dworkin's work, a fairly familiar part of the philosophical vocabulary is being given a meaning that is slightly differ- ent (a nineteen and one-half degree tangent) from the one(s) to which we are accustomed. Who, for example, will not balk at a classification which puts flags onto the list of the intrinsically valuable, a theory which allows

18 Here is a partial list of items which Dworkin uses to exemplify the intrinsically valuable: knowledge; experience; nature; art; the horned owl (species); a primitive culture; cats of Ancient Egypt; a flag; a painting by Michelangelo; a person; a developing fetus.

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such things to gain intrinsic value l>y association/19 What, if anything, is the principled basis of this classification?

In Dworkin's account something's having intrinsic value does not mean that it has some (e.g., non-natural) value property. Intrinsic value (in Dworkin's sense) does not exist apart from sentient creatures. With- out consciousness there is no knowledge, no art, no culture, and certainly no national symbols (or transfers by association). But when something is intrinsically valued, the value attributed to or invested in it must 'transcend' purely subjective sources. We suppose that art and life are esteemed because they are valuable, not valuable because they are esteemed. The line of thought here has parallels in Plato's Euthyphro: even gods can't confer value on things or actions simply by loving them. And, of course, if this reasoning is sound, it has application to ourselves. Our preferences alone can't make things good - unless it is a totally arbitrary matter as to what is good.

One might also think of the 'naturalistic fallacy' in this connection. In our ordinary views we are not simple naturalists. From the proposition that 'X is desired' it does not follow that it has value; nor from its value does it follow that it would satisfy any existing desires. There is no quick way to get from desires (or preferences) to what is desirable (or valuable). Thus our ordinary ways of reasoning about values commits us to a class of values which are 'objective' (67) not in the sense that they assume value properties which exist independently of sentient beings, but in the sense that we (individually and collectively) can be mistaken20 in our view of or (respect for) something's worth. If others are indifferent to

skiing or scotch (after some experience with them) it is not because they have made a mistake or are being unreasonable. But, complete indiffer- ence to another human being, to the human investment that has gone into the construction of a culture (perhaps manifest in my treatment of a flag), or to the fate of the Sistine chapel seems to us to be quite different. Here one can be mistaken and indifference is unreasonable.

But does Dworkin himself assert that the above items are of intrinsic value? Is he a realist about the good? He is agnostic on these questions. The model that he employs is a thoroughly coherentist one and nearly

19 Flags have gained their intrinsic value through 'conventional association [my em-

phasis] with the life of the nation ... the respect [people] believe they owe their

country is transferred to the flag' (74).

20 Of course, on any plausible view one can be mistaken about what is instrumentally valuable; what is under discussion here is mistakes about ends, not means.

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everything he says in this text concerns the value ascriptions which people typically make. One will search in vain through Life's Dominion for any insights into the metaphysics or meta-ethics which underpin this account. Dworkin is attempting to present a coherent account of what might be called 'folk morality/ attempting to give an account of the morality of his society (and of Western societies more generally).21 In Life's Dominion Dworkin is interested in defending a certain set of moral decisions about the law. The values of people in this society are an important part of that defense; the theories (and meta-theories) of phi- losophers are only indirectly relevant.22 For many of us this will render the account highly unsatisfying.

Life's Dominion should not be condemned or ignored, however. Though it does not succeed in displacing the 'rights' and 'persons' aspects of the problem of abortion, it does succeed in uncovering an array of complex value assumptions which contribute to our disagree- ments - and agreements - about abortion. I do not think he is mistaken in supposing that we generally attribute to human life a value that cannot be reduced to the instrumental, subjective, or personal value which these lives take on. But whether the ascription of 'intrinsic value' to a pre-sen- tient human is more than superstition or bias for members of our species is a question that remains to be considered.23

Received: July, 1995 NATHAN BRETT Dalhousie University

Halifax, NS Canada B3H3J5

21 Dworkin would not use the expression 'folk morality/ however, because of its skeptical overtone. He does briefly address the question of external skepticism (207-8) as he did at length in Law's Empire. His view of such skepticism is itself pragmatically skeptical: the (external) skeptic will never succeed in making any difference to what people value, what they decide to do about abortion laws, for example.

22 The Tanner Lectures provide some further insight into Dworkin's thinking about these matters. There is a correlation between the objects of intrinsic value and the concept of 'critical interest' of persons. See "The Foundations of Liberalism/ The Tanner Lectures on Human Values, XL (Salt Lake City: Utah University Press 1990) Part V 'Philosophical Ethics/ at 42.

23 An earlier draft of this Notice was presented at a meeting of the Canadian Section of the International Association for Law and Social Philosophy (IVR). I would like to thank members of that association, and especially Sheldon Wein, for helpful comments.

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