The Same Differences Argument
One of the arguments I'm going to make is that the case for protection should not rely on what you might call the "Same Differences Argument." This argument proceeds from the observation that the same differences that separate humans and animals also separate one human from another. For example, there are just about the same differences between normal humans and chimpanzees as there are between normal humans and impaired elderly people. If the differences among humans don't stop them from having the same basic rights, then how can the same differences between humans and chimpanzees make for a difference in basic rights? (This is usually called the argument from marginal cases, but I hate that "marginal cases" talk, and the "same differences argument" is actually a little broader. It doesn't have to focus on humans and animals "at the margins," though I'll be doing so here.)
I talk about the same differences argument in Animalkind and I've discussed it before here, but I keep on thinking about it. It's certainly worth a lot of thought. On the face of it, our attitudes are inconsistent. We think intra-human differences are immaterial; they're no bar to equality. But then we think intra-species differences are a big deal, and a complete bar to equality. Not only does this seem inconsistent, but it seems like the inconsistency must be due to anti-animal prejudice, or "speciesism."
In fact, I think the SDA is a sleight of hand. The same sort of argument could be used to show things that are ludicrous, which shows there's got to be something wrong with it. Take, for example, the right to vote. Both normal adults and impaired elderly people have the right to vote, despite the differences between them. Elderly Bob might have no idea what the election is about, but still has the right to enter the voting booth. He may fill in the circles at random, but that's his right. So the differences between normal adults and impaired elderly people don't stop them from having the same right to vote. The same differences distinguish normal adults from Chuck the Chimp. He too has no idea what the election is about, and might fill in the circles at random. Surely we will have gone wrong somewhere if we conclude that Chuck has the right to vote. It's not inconsistent, and not speciesist, to say he doesn't.
But why isn't it inconsistent or speciesist? Here's how I think this works. Rights are "multiply realizable." In other words, a right doesn't always have exactly the same basis. The primary basis for the right to vote is a certain set of interests and abilities that are possessed by normal adults. They have a stake in the running of the country, and they have the ability to rationally reflect on who would be the best leaders, which would be the best policies, etc. But that's not the only basis, and Elderly Bob doesn't have his right to vote on that basis. He has his right to vote on the basis that there would be all sorts of negative repercussions if intelligence tests were administered to people as they age. This is because of the way younger people would anticipate the testing, and because of the unreliability of the tests, and the way the system might be abused, etc. So Elderly Bob's right is based on a a very complicated "big" set of facts, not on the abilities that reside in his own head.
Now, what about Chuck the Chimp? He doesn't have a right to vote on the narrow basis that normal adults do, because he lacks the relevant abilities. But he also doesn't have a right to vote on the basis that Elderly Bob does. In short, it takes looking "under the hood" at the multiple bases for rights to see why it makes perfectly good sense for individuals as similar as Chuck the Chimp and Elderly Bob to have different rights. There's nothing speciesist or inconsistent about saying they differ in their rights.
Now, going back to the original argument, which is supposed to establish only the very most basic rights for animals (like a right to life), the same sort of analysis may apply. The very most basic rights of normal adults have a basis in certain abilities--fairly sophisticated ones like being aware of yourself and having a notion of your own "good." But there may be a secondary basis for the same rights that accounts for another group having it--say, babies. There can be a tertiary basis that accounts for yet another group having the right--e.g., the elderly impaired. There can be a whatever-ary basis that accounts for yet another group having the right. If all of that is correct, then between-human differences in abilities may not generate differences of rights, because the alternative bases are present in various humans; while between-species differences in abilities do generate differences, because both the relevant abilities and the alternative bases are absent.
That is a perfectly coherent possibility, and if it's true, we'd be able to assert that animals have no rights without being guilty of inconsistency or speciesism. Obviously, the devil is in the details. You can pretty quickly see the primary and the secondary basis of the right to vote, and how Elderly Bob is enfranchised, but not Chuck the Chimp. There's nothing speciesist or inconsistent going on there. But is the primary basis for the right to life really that sophisticated? And what about the secondary or tertiary (etc.) bases that generate the most basic rights in Elderly Bob and babies (etc.) but not in Chuck the chimp? What are they?
I think they are "big" facts about the whole human community, and how human earlier selves care about their later selves, and about how humans think about and care about friends and family, and about how humans imagine themselves in the each others' shoes, etc. Granted, that's sketchy, but what I find very clear is that rights don't emanate from individual abilities, and just individual abilities. For the "same differences argument" to go through, they would have to. So the argument is no good.
Bottom line: I'm not going to make a rights argument why the great apes should be protected. Stay tuned (in coming weeks) for more on the argument I'm actually making.
12/31 (12:05 pm) -- I made a few changes for clarity soon after posting this.