Rand Puts Rights in Context
by Ari Armstrong, November 15, 2005
As functional adults, our rights (whether they are legally recognized or not) include the following:
The right to life is fundamental, and it entails the right of property. All other rights derive from those two. But life alone is not sufficient to establish rights. Nobody I know thinks an influenza virus or an E. coli bacterium has rights.
Two main competing theories seek to ground rights. One theory holds that an organism's ability to feel pain endows it with rights. I've reviewed some of the arguments against this theory, and here I will mention only that the theory seems to imply that a) doing things to animals that don't involve pain are okay, and b) everything that involves pain is out. Most people of common sense will regard the conclusion that one may not set a mouse trap as a reductio ad absurdum of the position.
The other major theory is that man's rationality endows him with rights. That's the position of Ayn Rand, and the position I believe to be clearly correct. The fact that people have the capacity for rationality means that people can voluntarily associate in a large network marked by a division of labor. Rationality entails sophisticated, conceptual thought. Every right associated with property, speech, or contract necessarily relates to the conceptual faculty.
But obviously not all humans are rational or fully rational in the way that normal adults are. A newborn infant is not remotely rational, and people spend perhaps a fourth of their lives as something other than rational adults. An unfortunate few remain in a constant state of limited rationality. So what is the nature of rights for people who are not fully-rational adults?
The new book, Ayn Rand Answers, which is a compilation of her answers to questions following live presentations (edited by Robert Mayhew), offers some thoughts on such matters. Rand has discussed these matters elsewhere, but here I'll mostly limit the discussion to the text of the new book.
For Rand, the main theoretical problem involves children. She folds the status of severely retarded individuals into her theory on children's rights. The severely retarded, says Rand, do "not [have] the same rights possessed by normal individuals. In effect, they have the right to be protected as perennial children" (4). They have basic rights to be protected, but not the full scope of rights that most adults enjoy. As obvious examples, a severely retarded person might need to be restrained to some extent for his or her safety, and the person might not be able to enter into contracts. While the question deals specifically with severe retardation, I suppose that less severe problems would lead to proportionally greater ability to exercise rights.
Rand answered questions regarding children's rights in 1962 and in 1974. The first question is, "Does the state have a right to interfere with parents who abuse their children?" Rand answers, "Yes, in a case of demonstrable physical abuse, like beating or starvation. This is an issue of protecting individual rights... [T]he government can interfere to protect a child's rights" (3). But, Rand later qualifies, "But these rights [to life, liberty, and the pursuit of happiness] depend on one's reason and knowledge... All human rights depend upon man's nature as a rational being; therefore, a child must wait until he has developed his mind and acquired enough knowledge to be capable of the full independent exercise of his rights... [T]he child can't claim for himself the rights of an adult, because he is not competent to exercise them" (3-4).
As an example of the limited nature of children's rights, Rand says that, while laws should not prevent consenting adults from consuming drugs, the government may properly restrict minors from purchasing drugs (see pages 14 and 15).
Rand gets hung up on a couple of the same issues on which most of us get hung up: euthanasia and abortion. Of course, Rand completely rejects any sort of mystical claims that, for example, killing one's self violates the will of God. So she writes, "In general, there are many reasons why a man should not take his life. There are situations, however, in which suicide is perfectly valid." However, "Euthanasia is more complex, because the life of another person is involved. If a man makes arrangements stating that he does not want to feel unbearable pain, and it can be proved that this was his desire, in principle I'd say it is his right and the doctor's right to perform euthanasia. But it would be difficult to put this into law, because of the safeguards needed to prevent unscrupulous doctors in cahoots with unscrupulous relatives from killing somebody who is not dying and in pain" (16). Rand continues in this ambiguous vein, sympathizing with on-the-level instances of euthanasia, but concluding, "I would not advocate euthanasia as a law."
Rand's position on abortion is clear and perfectly concise, right? Not quite. Rand says, "I'd like to express my indignation at the idea of confusing a living human being with an embryo, which is only some undeveloped cells. (Abortion at the last minute -- when a baby is formed -- is a different issue.) The right to abortion is the right to get rid of some cells in your body, which you can't afford to support if it grows into a child... An 'unborn child,' before it's formed, is not a human, it's not a living entity, it has no rights."
But what does it mean for an embryo to be "formed" into a human? Rand apparently believes a fetus is fully formed at least a minute before birth. What about two minutes? What about two days? And so on. Does Rand here lend support to restrictions on late-term abortions?
Clearly, though, an embryo is not "formed" in the relevant sense during the first few days or even weeks of a pregnancy. It is inappropriate for those who oppose abortion to point to a fetus one minute before birth and use that case as reason to ban abortions one minute after conception. However, Rand's parenthetical comment suggests that the other side must watch for a similar error: those who favor legalized abortion must not point to an embryo one minute after conception and use that case as reason to okay abortions one minute before birth. (I have wrestled with this issue for several years.)
Interestingly, according to Dictionary.com, American Heritage defines "embryo," "in humans, [as] the prefetal product of conception from implantation through the eighth week of development." For what it's worth, my own position is that there's nothing inherently immoral about abortion soon after conception. However, there's something immoral in the irresponsible actions that can lead to unwanted pregnancy, especially in our society where birth control is readily available. Regardless, abortion in the early term should definitely remain legal. In the later terms, I think abortion begins to involve something inherently immoral in most cases. (Abortion is okay whenever the mother's life is at risk, in my view.) Birth is the brightest line that indicates that a fetus has "formed" into a human being. Whether, legally, some line should be drawn prior to birth, and where, is not an issue that I have completely resolved. But I'm in good company. That first minute before birth, as Rand unfortunately does not detail, is a minute with potentially profound theoretical consequences. Also unfortunate is the fact that, if we decide to move the line back a minute before birth, it becomes unclear, and probably inherently arbitrary to a degree, where to draw the line.
The Ayn Rand Lexicon, based on Rand's written works, also indicates that Rand's position on abortion during later terms is ambiguous. On one hand, she writes, "A child cannot acquire any rights until it is born." Yet she also writes, "A piece of protoplasm has no rights -- and no life in the human sense of the term. One may argue about the later stages of a pregnancy, but the essential issue concerns only the first three months."
While this pair of statements indicates Rand's openness to discussing the proper legality of late-term abortions, it also points to her drive to stick to fundamentals. I was unable to find ready statistics, but almost all abortions involve early pregnancies. Late-term abortions often involve serious problems with the health of the fetus, the mother, or both. And many or most of the activists who fight late-term abortions also want to ban early-term abortions on religious grounds. So Rand spends most of her efforts defending abortion in the early weeks, not discussing the stress cases.
For Rand, the central purpose of ethics is to inform people how to live in normal circumstances. Normally, rights involve rational adults. Normally, it's perfectly obvious how to properly respect the limited rights of children. Normally, abortions take place in the early weeks of pregnancy. For Rand, the purpose of ethics is to live successfully. Thus, as a rule, she doesn't spend a lot of time on the marginal or uncommon cases. She tends to avoid rationalism, and she tends to offer ethical views that are, in the most fundamental sense, pro-life.