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Tuesday, December 06, 2005
"Presumably even proto-people"
I will take up the question Rick lays down below in his post about Kazuo Ishiguro's Never Let Me Go. (For what it is worth, I too loved the book.)
Anyway, Rick asks:
Do others think that Rosen is a bit too hasty in assuming that the argument applies to "proto-persons"? I mean, should we expect Rosen's intended audience -- those unmoved by the "raving Bible-thumpers" -- to react by thinking, "ah, of course, neither 'proto-people' nor real people may be used as means for others' ends"?
The answer is that yes, of course Rosen is too hasty. Rosen announces that the Kantian people-can't-be-used-instrumentally argument applies "presumably even (to) proto-people". But why should this be so? Because they contain the word "people" in their name? Now you could have all sorts of theories about why we should or shouldn't grant the rights of "people" to fetuses, comatose people or those in vegetative states, the criminally insane, to dolphins, or intelligent computers, or hypothetical alien races or semi-human cloned species. But your answers to these questions do not follow obviously from the special treatment of people. How could they?
The question has to be whether or not Ishiguro's clones have the characteristics-- whatever they may be-- that we think cause people to be endowed with rights. Or utilitarian moral weight. Or whatever it is that we are endowed with. Now this moral characteristic could be the ability to feel pain, or the ability to paint portraits, or the ability to worship God, or the ability to juggle. But obviously there's a missing step here.
Posted by Will Baude on December 6, 2005 at 12:45 AM in Rick Garnett | Permalink
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Comments
True that a capacities approach isn’t the only way to think about characteristics. Still, the broader point is to what extent law’s content is driven by its metaphors. Maybe it shouldn’t be the case, as Will suggests, that the mere invocation of a legal fiction such as “proto-person” should substitute for analysis of which entities should bear which rights. However, in practice it seems to me that law’s metaphors often obscure that analysis. The animals example makes this point—categorizing animals as chattels rather than something else permits us to sweep aside hard questions about how they should be treated by reducing the question to the simplified notion that things have no rights under the law. This effect isn’t total—there are animal cruelty statutes and some jurisdictions have attempted to alter animals’ status by categorizing them as companions rather than chattels. Still, these categories tend to do a lot of work. See, e.g., Rabideau v. City of Racine, 627 N.W.2d 795 (Wis. 2004) (holding that killing a pet dog could not give rise to an NIED claim but only a property loss claim).
I don’t disagree with the post—it seems right to me that law’s content should drive its metaphors rather than the other way around—but as a descriptive matter I think these metaphors have a lot of leverage.
Posted by: Dave | Dec 6, 2005 11:47:34 AM
If I may, I actually think the legal example of animals and corporations reinforces my broader point. "Person" is the legal name we give to the conclusion that a given entity gets rights. Now how we make that conclusion is unclear. It needn't be based on "capacities", it could be based on any sort of characteristic that corporations and humans have but fetuses and cats don't. Or we could continue to contest what the relevant characteristics are, and we do.
Posted by: Will Baude | Dec 6, 2005 10:22:26 AM
I like Will's point, but I'm not sure it accurately describes the law (though perhaps it should). The metaphor "person" has long had leverage in the law, despite the conceptual appeal of the capacities approach. Corporations are often treated as persons in contexts that have little to do with their capacities, but rather where it's convenient to extend them that status for practical reasons. By contrast, animals can suffer physical pain as much as a human but their status as chattels rather than persons means that prohibitions against torture haven't been applied to even the cruelest forms of farming (though this may be changing at the margins).
Posted by: Dave | Dec 6, 2005 10:18:00 AM
It has been only 150 years since the abolition of race-based chattel slavery. (Is that about seven generations?) Did our ancestors consider Africans proto-people? I believe that as our society evolves so will our moral standards and our descendants will find, if not a perfect answer, at least a satisfactory answer to the question.
Posted by: nk | Dec 6, 2005 9:19:48 AM
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