Visiting professor of bioethics explores the basis for fundamental human rights


Is every human being a subject of rights?  Does every human being have full moral status?  Patrick Lee, McAleer Professor of Bioethics and Director of the Institute of Bioethics at the Franciscan University of Steubenville, addressed these questions in a lecture delivered in the Eck Hall of Law on March 26.  The lecture, “Moral Status and the Margins of Human Life,” was sponsored by the Natural Law Institute.

After Gerard Bradley, Professor of Law and Director of the Natural Law Institute, introduced him, Lee began by noting that man encounters two classes of things in the world: those things that are morally permissible to use as mere means, and those that man has a duty to respect.  Lee asked, “By what criterion do we draw the line between those two sorts of beings?  What is the basis in reality for drawing the line between subjects of basic rights, on the one hand, and beings that are not subjects of rights, on the other?”

Lee also sought to address the question of the extension of basic rights: “Are all human beings subjects of fundamental rights?  Do all human beings have full moral status?”

Whether every human being is a subject of rights is a meaningful question, Lee argued, and one that is hotly contested.  Some philosophers argue that “some human beings—for example, unborn human beings, or radically cognitively impaired human beings—do not have the property that grounds or confers full moral status.”

Lee made his disagreement with such philosophers clear from the outset: “I will argue that every human being is a subject of rights.  I will argue that the status-conferring property is having a rational nature, or more explicitly, being a substance with a rational nature, and that every human being is a substance with a rational nature and therefore is a subject of rights.” The remainder of the lecture was devoted to defending these claims.

The criterion for being a subject of rights could be either an accidental characteristic or set of characteristics or a substantial nature.  “Most philosophers agree that the moral status-conferring property must be a capacity of some sort,” Lee explained.  “For there is no actual behavior performed at all times by all subjects of rights—people who are asleep or in reversible comas are subjects of rights and yet do not seem to be engaging in activities of the kind that might be a ground for moral status.”

There are two types of capacities: proximate capacities and radical capacities.  Proximate, or immediately exercisable, capacities “are capacities that one can exercise right now, or at least in the immediate future, perhaps needing an external stimulus.”  Radical capacities, Lee explained, “are ones that it might take some time to exercise, or that might require one to pass through several intermediate steps before one fully actualizes the capacity in question.”

Lee argued that there is decisive reason for supposing that a radical capacity, and not only an immediately exercisable capacity, is the proper ground for being a subject of rights—namely, because the difference between the two types of capacities is merely a difference between stages along a continuum.  “The proximate, or immediately exercisable, capacity for self-consciousness or rational acts is only the development of an underlying potentiality that the human being possesses simply by virtue of the kind of entity it is,” Lee said.  “The capacities for reasoning, deliberating, and making free choices are gradually developed, or brought towards maturation, through gestation, childhood, adolescence, and so on.”

Lee clarified this claim with the following argument: “If A and B differ only in that B has a greater degree of development than A does of the same basic capacity that both A and B possess, and it would be wrong to kill B or treat B as a mere thing, how could it be morally permissible to kill A or treat A as a mere thing?  If they differ only by degree, and B is a subject of rights, how could A fail to be a subject of rights?”

Lee concluded that “there are strong reasons to conclude that we are valuable as subjects of rights in virtue of the fundamental kind of being we are.  The status-conferring property is a substantial nature, rather than an accidental characteristic or set of accidental characteristics.” This conclusion implies that the human being is a subject of rights from the moment that he comes to be until the moment he dies.

What kind of beings are we?  Lee argued that man’s substantial nature is a rational nature—marked by “basic capacities to reason and to shape oneself by one’s deliberate choices.”  This point—that man is an individual substance of a rational nature—is not known by an inference, but by the first, self-evident principles of the natural law and practical reason.

We grasp this point as follows, Lee argued: “In our first deliberating about what to do we apprehend that some objects or activities are worth pursuing for their own sake, and not as mere means toward other conditions … I recognize that the goods worth pursuing are those conditions or activities that are genuinely fulfilling or perfective of me and of others like me.  At the same time I apprehend that I have a responsibility toward these goods as opportunities—a responsibility to do something with my life.”  Following this line of reasoning, Lee concluded: “I apprehend that it would be worthwhile to pursue some of these goods and that I ought to take account of these goods when I act.”

This line of reasoning applies not only to myself but to all who are substantially of the same kind as myself.  “Thus, the responsibility towards goods to be pursued extends to the goods—that is—the being and fulfillment, of all those who can—either now, or potentially—understand these goods as worth pursuing,” Lee said.  “Implicit in my apprehending that some objects are worth pursuing is the apprehension that I am worthwhile and that others who either now actually, or can, apprehend the same view, are also worthwhile.”

Lee summed up his argument at this point: “We are valuable as subjects of rights in virtue of what we are, but what we are are rational animals.  So we are valuable as subjects of rights from the moment we come to be and remain valuable as subjects of rights for as long as we are alive.”

Lee devoted the final portion of his lecture to addressing arguments made by some philosophers—Jeff McMahan and Don Marquis, for example—that some human beings do not have a rational nature and so do not have full moral status.  These arguments typically hold that some groups qualify as human beings but lack the radical capacity for rational acts: bodies that have suffered total brain death, patients in persistent vegetative states (PVS), and severely cognitively impaired human individuals.

In order for an entity to possess full moral status, Lee argued, it “must possess as an intrinsic property, the feature or property that grounds full moral status.”  It follows that “any entity with a radical capacity for rational actions has a rational nature and is a subject of rights.  A human being is essentially a rational animal.  So, if a being does not have a rational nature—does not possess a radical capacity for rational actions—then that being cannot be a human being.”  A human being cannot lose the radical capacity for rational actions without ceasing to be.

Lee concluded by applying this framework to various cases.  Human embryos lack immediately exercisable capacities for deliberate choice and conceptual thought, but “human embryos have within themselves the material resources—the genetic and epigenetic composition and structure—to develop themselves to the stage at which they can perform all of those types of actions.  Therefore human embryos have the radical capacity for sentient and rational actions and so are human beings, and subjects of rights.”

The case of a body that has experienced total brain death or a patient in PVS is more complex.  If a living being “lacks an immediately exercisable capacity for conscious sensation and lacks a radical capacity for that—then that living being is not a sentient being, and so is not a higher animal,” Lee argued.  This means that “bodies that have suffered total brain death have died and even if a totally brain dead body is—in some sense—a single, living individual—that brain dead body is not a human being.”

While bodies that have experienced total brain death are not human beings, the same does not hold for cognitively impaired individuals and patients in PVS.  “Patients in PVS and severely cognitively impaired human beings—that is, human individuals that still have some brain functioning—continue to have—as far as we can reasonably tell—the radical capacity for rational acts and so continue to be subjects of rights.

“Every human being, at all times that he or she exists, has a rational nature and therefore is a subject of basic rights,” Lee concluded.

Tim Bradley is a junior studying economics and theology and residing with the Gentleman of St. Edward’s Hall.  Contact him at