Personhood, Rights, and Justice

T o Kant, any being who is capable of rational thinking qualifi es as a person, and (according to Kant’s Grounding for the Metaphysics of Morals ) creatures incapable of rational thinking are classifi ed as things. Today, the debate about what constitutes a person is still with us because the question has lost none of its urgency. At the time when Kant lived, human beings were often treated as things, tools, stepping-stones for the needs or convenience of others. That idea was a legitimate part of public policy in many places throughout the world, and the moral statement that a rational being should never be reduced to a mere tool for another’s purpose became part of the worldwide quest for human rights—rights that still have not been universally implemented. That statement is historically important and should not be forgotten, even though many social thinkers today believe that Kant’s fi ght for the recognition that all persons deserve respect must be expanded and that Kant himself didn’t have a concept of universal human rights in mind. In this chapter we discuss issues that refl ect several of the theories already stud- ied and that illustrate how such theories can be applied on a social scale in creating policies regarding the rights and duties of citizens. It is thus important that you have studied Chapters 5 and 6 in particular before you proceed.

What Is a Human Being?

If we focus on the rights of human animals, we have to address the question, What does it mean to be human? Are the criteria physical? Does a being have to look human to be human? How detailed must we get? A traditional answer is “a feather- less biped”—in other words, a creature that walks upright on two legs but is not a bird—but those are hardly suffi cient criteria. Nowadays, if we want to use physical criteria, we include not only physical appearance but also genetic information. But with that type of explanation we’re faced with two problems: (1) Genetically, there are creatures that are 98 percent identical to the human but are obviously not human: chimpanzees; (2) there are individuals born of human parents who may not have all the human physical characteristics—for instance, persons with multiple physical disabilities (not to mention mental disabilities). So is a being born of humans who happens to have some physical aberration—from missing limbs to minor abnormali- ties such as extra toes and fi ngers—human? For most people today, the answer is obviously yes, but this was not always so. A worldwide tradition in pretechnological societies has been to dispose of newborns with physical “handicaps” ranging from missing limbs to unwanted birthmarks, and not all of those disposals can be ex- plained by saying that a tribe isn’t able to feed those who can’t feed themselves. Our

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culture doesn’t follow that practice, but some of us do screen the fetus for severe dis- abilities and perform abortions if we believe that those disabilities will condemn the child to a less than dignifi ed life. This is not a discussion of the pros and cons of abor- tion, any more than it is a discussion of infanticide, but it does point out that a good deal of policymaking in other cultures as well as our own depends on how we defi ne “human being,” including what a human being, and a human life, should be like —a normative concept. In Chapter 13 you’ll fi nd a discussion of the issue of abortion.

The Expansion of the Concept “Human”

There was a time when people distinguished between friend and foe by calling friends humans and foes beasts, devils, or such. At the tribal level of human history, it has always been common to view the tribe across the river as not quite human, even if members of your tribe marry their sons or daughters. (In fact, the usual word that tribes use to designate themselves is their word for “human,” “the people,” or “us.”) In any geographic area there are people who remain dubious about those from the “other side” because their habits are so different that it seems there must be some- thing “strange” about their general humanity. From the time of the ancient Greeks until quite recently, a common assumption has been that men are more “normal” than women. Interestingly enough, that idea has been held not only by many men but also by many women, who took the men’s word for it. (Some still do.) At the nationalistic level, it still is common practice to view foreigners as less than human, not in a physical sense, but, rather, politically and morally in a normative rather than a descriptive sense. And the humanity of a people’s wartime enemies almost always is denied, usually because it becomes easier to kill an enemy, either soldier or civilian, if you believe he or she really is not quite as human as you are. Thus the term human sometimes evolves into an honorary term reserved for those with whom we prefer to share our culture.

Personhood: The Key to Rights

Many social thinkers prefer the term person to human being as a philosophical and political concept, partly to avoid the association with the human physical appear- ance. A person is someone who is capable of psychological and social interaction with others, capable of deciding on a course of action and being held responsible for that action. In other words, a person is considered a moral agent. Being a person implies certain duties and privileges—in other words, it is a normative concept: what a person ought to be and do to be called a person. Personhood implies that one has certain social privileges and duties and that under extreme circumstances these can be revoked. What was a person to the Greeks? to the Romans? to medieval Europeans? To those groups a person was usually a male adult landowner or tribe member. Different societies have excluded some or all of the following people from their concept of a person: slaves, women, children, foreigners, prisoners of war, and criminals. (See Box 7.1 for a discussion of the personhood of people on the fringes of society, such as prostitutes and drug addicts.) Usually the list of exclusion was

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Within two years eleven women disappeared in Cleveland, Ohio, but hardly anyone knew, out- side of their families. In November 2009 a local man, Anthony Sowell, was arrested for their mur- ders; he had served fi fteen years for attempted rape, and had been released in 2005. The wom- en’s bodies were hidden in his attic or buried in shallow graves in his backyard, and the neighbors hadn’t even reported the smells that wafted from his two-story house. It wasn’t the best of neigh- borhoods, and the women themselves lived what some would call marginal lives: they were drug

addicts, and some of them were prostitutes—the preferred type of victim for a serial killer, because they are “invisible” to society, even sometimes to their own families. Many of the women had a long history of disappearing for a while, so some families never even reported them missing, and those reports that were taken were not consid- ered high priority by law enforcement. This is not unusual in itself for a serial killer case, but to that picture should be added the fact that all the women were black (as was their killer). In 2011 Sowell, now dubbed the “Cleveland Strangler,”

Box 7.1 I N V I S I B L E P E O P L E ?

Copyright Spokesman-Review, Spokane

Years into the investigation of the serial murder of prostitutes in Spokane, WA, the Spokane sheriff ’s department appealed to the community for help, putting murder victims’ faces on a billboard reading “Help Us Find Our Killer.” The personalization of each woman may have inspired a change in attitude in the community toward the victims, from expendable outcasts to individuals with a right to live.

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extended to animals, plants, and inanimate objects, but other beings might well have been granted personhood, such as gods and goddesses, totems (ancestor animals), and dead ancestors. Today we in the Western world assume that all humans are persons with inalienable rights (and we also grant personhood to some unlikely entities such as corporations). This is not a recognized truth all over the world, however. “Human traffi cking,” buying and selling human beings (especially young girls) internation- ally in the sex trade, is big business. Serfdom still exists in parts of the world, such as Pakistan. In many nations to this day, women are considered the property of their husbands or fathers. Crimes against children are often not punished as severely as crimes against adults, if at all. And even in this country, the equal rights provisions that we take pride in don’t always work: The sweatshops that are known to provide us with cheap products from elsewhere in the world are sometimes found to operate on American soil. News stories surface from time to time about undocumented immigrants kept in economic bondage by the people who imported them. Any time we hear a news story of people being abused or taken advantage of, resulting in the loss of their well-being or their lives, we are hearing about people whose personhood has been violated—or as Kant would say, they have been treated merely as a means to an end—and in general, our court system is capable of dealing with such offenses. But the lack of respect for other human beings as persons sometimes goes be- yond what the law can address. When discrimination reaches the level of depriving someone of his or her rights, the law can step in, but when it is merely an attitude, we

was convicted on eleven counts of murder and is on Death Row at the time of this writing. Similar scenarios have played out around the country, and even the world: serial killers preying on women and sometimes children who are overlooked by society. Seattle’s “Green River Killer” Gary Ridgway was one of the most prolifi c of them all with at least forty-eight mur- ders on his conscience (for which he revealed, in lengthy interviews, to have very little remorse; he said he didn’t consider his victims as any different from trash). He pled guilty to avoid the death penalty. The “Grim Sleeper” terror- ized and killed black women in Los Angeles over a period of twenty years, and in 2010 a suspect was arrested, Lonnie David Franklin, Jr. And in Spokane, Washington, Robert Yates

pled guilty to nine murders to avoid the death penalty but failed to realize that the deal did not cover the additional two murders he was suspected of having committed in Tacoma. He had to stand trial after all, and he, too, is now on Death Row. Yates’s victims were also “invis- ible” to society—mostly prostitutes and drug addicts—but years before he was captured a radio show in Spokane began speaking up for the women, asking questions such as, “Are these women not human beings with the same rights as the rest of us? Don’t they have fami- lies who mourn them? Don’t they feel pain and anguish in their last moments at the mercy of a murderer? It may be illegal to be a prostitute and to use drugs, but it doesn’t carry a death penalty.”

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encounter an interesting problem: Should we outlaw discrimination as an attitude, or is it part of living in a free country that people may choose their viewpoints with- out being told by the state what to think? There is a fi ne line here. Most of us would like to see an end to racism and sexism, but we may also be reluctant to send people who have expressed racist or sexist views to a retraining facility where their minds will be altered, because we believe not only in freedom of speech but also in freedom of thought. Perhaps this is where Kant’s lesson of treating people as ends in themselves has its most profound application in our modern society: With the recognition of every human being as a person with intrinsic value, much disrespect will—at least in theory—fall by the wayside. And racism and sexism are, of course, not the only forms of discrimination that a person can encounter. Bigotry takes many forms, such as discrimination against the young for their youth as well as the elderly for their age (“ageism”), against the mentally ill or mentally disabled, or the physically disabled (“ableism”), against people of a sexual orientation that differs from one’s own, or who are of a different religion or nationality; discrimination of the educated against the less-educated, of the less-educated against the highly educated, of the wealthy against the indigent, and of the less well-to-do against the wealthy. And even of conservatives against liberals, and of liberals against conservatives. Suspicion and resentment are part of the fabric of human society, and in each case, the emphasis on personhood should remind us all that despite our differences, we ought to recognize the personhood in one another. (From Chapter 4 you’ll remember the philosopher Emmanuel Levinas, who has a special version of this emphasis, and in Chapter 10 you’ll see this theory in detail.) But what about cases where a person has chosen to disregard the personhood of others, to the point of violating their health, their liberty, their property, or their life? Have such people now opened themselves up to being deprived of their own status of personhood? In other words, is a criminal a person?

Who Is a Person?

For many people, the more callous the crime, the less human the criminal. Some- times we even call murderers “animals,” although few nonhuman animals have been known to display the methodical, deliberate preying on one’s own species typical of human career criminals, serial rapists, and serial killers. In our attitudes toward such criminals, much of our view of what counts as human is revealed: We’re not trying to describe their genetic makeup; we’re expressing a moral condemnation of their actions and choices. Calling a criminal an animal is a normative statement, not a descriptive one: He (or she) has not lived up to our expectations of what a person ought to be and do, and so we view him as less than human. But genetically as well as legally, serial killers such as Anthony Sowell and Robert Yates (see Box 7.1) are still persons, and the very fact that we choose to hold them accountable in court is proof of that. However, criminals, even convicted ones, don’t lose all their rights: Their personhood status is not revoked, at least not in our culture. They still have the right not to be tortured, for example, although they may have lost their right to liberty. Below we take a closer look at the concept of rights.

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Children as a group have not until recently been considered “real people.” Until re- cently, child abuse was not considered a felony. In previous times—in fact, as recently as the nineteenth century and, in some places, the twentieth century—the father of the household had the supreme right to treat his family (including his wife) any way he pleased. That might very well include physically punishing all the family members, even unto death. That right, patria potestas, is still in effect in certain societies in the world. The thought of protecting children against abuse, even abuse from their own parents, is actually quite a new idea in Western cultures; even in the recent past, child abuse cases were sometimes covered up or never reported. Current reports reveal that even if we think children are protected in today’s society, the reality is quite different: There are stories of children being removed from foster homes and given back to abu- sive parents who then kill them through abuse or neglect; of parents torturing children to death for wetting their beds or for crying; of children starving to death because their parents or foster parents couldn’t be bothered to feed them; of parents or foster parents who are in need of help themselves for severe drug dependency. The heartbreaking numbers tell us that, for whatever reason, authorities charged with the well-being of these children are not picking up on danger signals. Analysts suspect that the idea that children ought to be with their parents and not in foster care is applied too rigidly, regardless of what is in the child’s best interest, and also that because of the notion, left over from a bygone age, that toddlers are somehow not quite “persons” yet, their misery at the hands of their caregivers doesn’t merit a criminal investigation. What has been more publicized, with more visible results, is the now world-wide scandal involving child abuse by Catholic priests, as well as the 2011 revelations of alleged extensive child abuse by an assistant football coach at Penn State. In the ter- minology of Kant, the children have been used merely as a means to an end. Today the law recognizes not only that children should be protected from abuse but also that children have interests and wishes that they are capable of expressing and that should be heard, such as which parent they wish to stay with after a divorce. We are now at the point where the conscious interests of children (including everything from having enough food, shelter, love, and education to refusing to go to school in order to play video games or watch TV) must be balanced against what conscientious adults deem to be in the children’s best interests, best in spite of them- selves. In other words, we must remember that what children want is not necessarily good for them. The idea that children are minors who have neither the legal rights nor the legal responsibilities of adults is not about to disappear, even when their in- terests are taken into consideration. We tend to forget that when a group is excluded from having rights, it is usually also excluded from having responsibilities. In other words, such a group must be given legal protection so that its members, who are incapable of taking on civil responsibilities, will not be treated unjustly.

Persons and Responsibility

Historically, the idea of children having responsibilities has shifted back and forth. It was only in the twentieth century that we in the Western world agreed not to hold minors responsible for criminal acts. The legendary German fi gure Till Eulenspiegel

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was a mischievous kid who played one too many tricks on decent citizens, and the decent citizens hanged him. The title character of Herman Melville’s Billy Budd faced the same fate. Billy, a young sailor, was falsely accused of wrongdoing by a vicious offi cer. Because Billy had a problem articulating and could not speak up to defend himself, he acted out his frustration by striking the offi cer. Unfortunately, that re- sulted in the offi cer’s death, and the captain, although aware of Billy’s problem, had to follow the law of the sea: mandatory death for anyone who kills an offi cer. In the end, Billy had to submit to the traditional execution method by climbing up the rigging and slipping a noose around his own neck. Today a crime committed by a person under the age of eighteen must reveal an extraordinary amount of callousness and “evil intent” for the court to try the minor as an adult. That is because childhood is considered to be a state of mind and body that doesn’t allow for the logical con- sistency we assume is available, most of the time, to adults; therefore children aren’t held accountable for their actions to the degree that adults are. The United States, however, has seen a shift lately in the attitude toward chil- dren who commit crimes. Although most child psychologists still agree that children below the age of seven or eight don’t know enough about the difference between right and wrong to be held accountable, public demand is now growing for trying older child offenders as adults. What should the court do with a child who kills another child for his sneakers or his jacket? or who takes a gun to school and kills a number of his classmates and teachers before being stopped? In some states, such as Arkansas, children cannot be tried as adults. In other states, it is the severity of the crime that determines whether the youth will be tried as an adult; we have lately seen teenagers being given hefty prison sentences (although the Supreme Court decided in 2005 that a child under eighteen can’t be given the death penalty). In the past, the rights of women have followed a course similar to those of children. Women had very few rights until the late nineteenth century—no right to hold property, no right to vote, no right over their own person. That went hand in hand with the common assumption that women were not capable of moral consis- tency and thus were not responsible. (Mention of women and children in the same breath was no coincidence.) That view often coincided with a male reverence for women and their supposedly higher moral standards, but such reverence was often combined with an assumption that women were idealists with no conception of the sordid dealings and practical demands of the real world. When it applied to women, the practice of holding only those with rights legally responsible was not strictly adhered to. Many, many women were put on criminal trial. Even so, the general idea was that withholding rights from women protected them from the harsh world of reality, whose demands they weren’t capable of answer- ing. (In Chapter 12 you’ll fi nd a more thorough analysis of the history of women’s rights, as well as a discussion of whether there is a specifi c female form of ethic.) A similar kind of argument kept slaves from having rights throughout most slavehold- ing societies—rights were denied to provide “protection” for these people because they were “incapable.” That did not preclude punishing slaves, of course, as anyone who has read Huckleberry Finn knows. In On Liberty (see Chapter 5), John Stuart Mill argues that the right to self-determination should extend universally, provided that

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the individuals in question have been educated properly, in the British sense, so that they know what to do with the self-determination. Until then, they are incapable of making responsible decisions and should be protected—children by their guardians and colonial inhabitants by the British. (Today, an animal rights activist might argue that we see the same pattern repeated with animals: We don’t believe them to be fully developed moral agents, and so we protect them—by withholding rights from them.) An interesting concept evolves from these arguments; namely, that it is pos- sible for someone to be considered a person, but a person with limited rights, duties, and privileges whose rights are assigned to a guardian. We will return to this idea in Chapter 13.

Science and Moral Responsibility: Genetic Engineering, Stem Cell Research, and Cloning

As it stands now, we must agree that our culture has come a long way in recogniz- ing all postnatal humans as persons, at least in principle, although that principle sometimes seems to be overpowered by controversy. But what about the future? Ge- netically engineered children already walk among us, and there will be many more. Your children—and perhaps even you yourself—may be able to look forward to a longer, healthier life span because of genetic engineering. By the time you’re reading this, there may be viable human clones among us too, legally or otherwise. Will these new members of our human family be considered persons, or will they encounter some new form of discrimination? In the Narratives section you’ll fi nd two stories that explore either end of this spectrum of possibilities: The fi lm The Island envi- sions a near future when humans are cloned for spare parts, without regard to their humanity. The fi lm Gattaca suggests a world, right around the corner, where genetic engineering has become mainstream, and it is those who have not been genetically “improved” at the embryo stage who will form the new underclass. Who will really be up, and who will be down, in such a “brave new world”? We can ask ourselves two questions here: Given that a future involving a variety of options for genetic engineering and cloning is already upon us, (1) how should we deal with the scientifi c possibilities opening up for humanity? Should we be phobic about scientifi c developments and encourage bans and limits to scientifi c research? Or, should we encourage all such research under the assumption that somehow it may benefi t us and that science has a right to seek knowledge for the sake of knowl- edge no matter the consequences? Or should we, perhaps, take some position in be- tween? (2) Should scientists themselves exercise some form of moral responsibility, taking into consideration that their results will be used in the future, perhaps to the detriment of humans and animals living in that future? In the next section we take a look at one of the most burning issues today: the question of science and moral responsibility.

Science Is Not Value-Free

In 1968 a book came out in Germany that challenged the traditional scientifi c view that science is value-free, or morally neutral: Knowledge and Interest by the philosopher

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Jürgen Habermas. Scientists had claimed—some still do—that scientifi c research is done for the sake of knowledge itself, not for the social consequences it might bring. As such, scientists’ professional integrity hinges on impeccable research; they have no responsibility to the community for what problems—or even benefi ts—their re- search might lead to in the future. Habermas claimed that science might attempt to be objective but that an element of vested interest is always present. Society will fund only those projects it deems “valuable” for either further scientifi c progress, prestige, or profi t. Political concerns, social biases, and fads within the scientifi c community often infl uence the funding of scientifi c research projects. Researchers often choose projects for similar reasons. Furthermore, the data selection (choosing research ma- terials according to what the researcher fi nds relevant to the project) is infl uenced by the interests of the researcher—whether we like it or not. Habermas’s point is that we may think science is conducted in a value-neutral way, but it is not. In addition, having seen what harm irresponsible scientists can cause to a society, wouldn’t it be appropriate for scientists to conduct their research with a sense of obligation to the future? and for the community to monitor scientifi c research? Habermas himself has taken the issue further in a book from 2003, The Future of Human Nature, and we take a look at his argument at the end of this section. Medical doctors of the past had their own share of moral problems: An army surgeon would have to decide which of the wounded soldiers he should operate on and which ones should be left to die. A nineteenth-century family doctor might have to choose between saving a young mother dying in childbirth and saving the infant being born. But today, technology allows medical procedures that would have been unimaginable a few generations ago. Life can be prolonged artifi cially; pregnancies can be terminated with comparative safety for the woman; genetic engineering can save babies from a life of illness while they are still in the womb; women can give birth after menopause; stem cell research promises to cure diseases; and the Human Genome Project, completed in …