Kevin T. Keith
2005
www.ktkeith.com
www.sufficientscruples.com
 

A great many issues in ethics, particularly in bioethics, hinge on the question "who counts?" – that is, who, or what, qualifies for moral consideration and moral protection, and who or what has no moral interests that must be taken into account.

Is it wrong to use animals for testing pharmaceuticals or cosmetics? That depends in part on whether animals have moral rights or moral "standing." If they are not the kinds of things that have rights, then we cannot violate their rights by treating them in this way, but if they do, then we must accommodate their moral standing in how we treat them. Is it permissible to perform destructive research on human embryos left over from IVF procedures? That depends, among other things, on whether those embryos have moral standing. That is, it depends on whether they have the same kinds of moral interests and moral claims on our regard that fully-developed human beings have, or have some other degree (perhaps zero) of moral interest at risk.

In any case such as these, demonstrating that a given entity has no moral standing is equivalent to demonstrating that it has no moral claims or moral interests it may assert to establish its moral rights or an entitlement to protection against harmful treatment. Whether they have such rights or claims makes a significant difference: it cannot be immoral to treat entities with no moral standing in any given way, precisely because they cannot assert moral claims to protection against that treatment. If they do have moral rights, then we are required to respect those rights, and constrain our treatment of them within moral boundaries.

This does not mean that we are justified in doing just anything we want to entities without moral standing – only that we are not prohibited on moral grounds; some actions may still be unjustifiable on grounds of prudence, etiquette, the law, or for other reasons. (Thus, it may not be immoral to destroy a great painting that one owns, but it would deprive others of enjoying it for no good reason, and thus be a bad thing to do anyway.)[1] Similarly, the fact that an entity has moral standing does not mean, ipso facto, that it cannot be harmed. Moral considerations of other kinds may require that we act against the interests of a moral entity, possibly even to the extent of its death. But, for such treatment of entities with moral standing, we must give moral justification, whereas, for the treatment of entities without moral standing, we need give justification only if there are objections made, and not on moral grounds.

The Moral Standing of Human Beings

Some would claim that the question of moral standing in regard of human beings is easily resolved: all living human beings – and usually only human beings – have moral standing. And in fact, it is common (even among people who take a more nuanced view of the matter) to use the term "human being" to mean "individual who has moral standing."

Others argue that not all (living) biologically-human entities should be regarded as having moral standing. They note that the "interests" – the values, goals, and capacity for benefit or harm – of some human entities such as early embryos, anencephalics, those who have suffered death of the entire neocortex of the brain, and so on, are very attenuated compared to those of normally-functioning adult human beings; because they feel that those moral interests are relevant to the question of moral standing, they conclude that, although some (most) members of the human species obviously do have moral standing, others do not.

Terminology Regarding Moral Standing

At this point, we encounter a difficulty with the language – one that has caused a great deal of trouble. "Human being," obviously, means "a being (entity) that is human" – which would seem to mean any member of the species Homo sapiens.[2] That is a biological identification, a statement about one’s classification according to biological characteristics. But, if we employ the common usage of "human being" to mean "entity with moral standing," we then logically imply that all biologically-human entities have moral standing. This is problematic in two ways: "having moral standing" is a moral identification, a classification according to moral characteristics, so taking that to be equivalent to a classification by biological characteristics ("human being") is logically invalid – a "category mistake." Also, making this identification pre-judges the moral question "who counts?" – it asserts the correctness of the "all biological humans" position against that of the "some and not others" position, on no grounds firmer than that of semantic sloppiness.

It is possible to avoid this equivocation – using "human being" to mean both a biological and a moral category – if we are careful to specify just what we mean when we use it, but this is cumbersome, and the unavoidable implication of the term, whether intended or not, still tends to prejudice discussion in favor of a particular (more conservative) position on moral standing. Even worse, the term is often used in a flatly dishonest, or at least logically untenable, way. You frequently hear arguments to the effect that such-and-so individual, or such-and-so type of biologically-human entity (e.g., embryos, fetuses, the brain-dead, etc.) "is obviously a human being, because they have human parents, and so deserve the same protections as any other human being." This equivocates between the biological categorization implied by "human being" ("born to human parents") and the moral categorization often attached to the same words ("deserves protection"). This would be a laughably obvious logical mistake if it weren’t so common – but this usage is in fact very common, including among educated and influential people who must be assumed to realize the fallacy in their own words. This mistake is made any time the question of biological categorization is introduced into a debate over moral status itself. Common examples include the scientific-sounding discussions of DNA and taxonomic species-membership that sometimes arise in debates over the treatment of pre-implantation embryos.[3] These ways of talking reveal, at best, an assumption that human species-membership is the only characteristic relevant to moral status, and at worst a deep degree of confusion or dishonesty in understanding and discussing the issue.

Distinguishing Terms

There is a standard way of referring to entities with full moral standing that does not draw in any assumptions about biological categorization. The term "person" is used by philosophers to identify individuals with full moral standing. This term does not prejudice discussions of moral standing, as it is easily compatible with either the "all and only human beings" position or the "some and not others" position described above. If one holds that moral standing accrues to all human beings simply by virtue of their being human, then "person" is simply co-extensive with "human," but causes no confusion. If one holds that some characteristics other than human species-membership define moral standing, then "person" denotes a category comprised of all entities who have such standing, and does not imply inclusion or exclusion on biological grounds. (This is even more important in the case of theoretical discussions of the potential personhood of non-humans such as animals or, hypothetically, intelligent creatures such as space aliens, computers, etc.) The term "person" is thus preferred in discussions of moral standing. One must be aware, however, of the widespread usage of "human being" to mean "person," even among the philosophically sophisticated.

Personhood

In bioethics, "person" is a technical word. A "moral person" is a being who enters into morality-governed interactions with other persons, is morally responsible (i.e., is subject to moral obligations to other persons), and is entitled to moral consideration (i.e., other persons have moral obligations to that person). Non-persons are those who are not subject to morality-governed relationships: they are not held morally responsible for their actions, and also not granted moral consideration or moral rights. Not all living things are "persons" – most animals, obviously, are not, which is why we don’t punish animals for doing "immoral" things like eating other animals, and why we don’t think (most) animals have moral rights.

It’s useful to distinguish between moral persons and moral non-persons. Every theory of morality must distinguish those who are worthy of moral protection from those who are not. No moral theory can operate if it cannot tell the difference between entities who are entitled to moral regard and those who are not. Casting the net too wide would lead to absurdities such as that of the 17th-century Puritans, who gave the death penalty to farm animals for behaving immorally; constraining the category too narrowly would leave some persons vulnerable to moral harm, while also allowing them to get away with immoral behavior without punishment. "Personhood" is simply the term used by moral philosophers to reflect this distinction between moral categories; "moral persons" are those who are subject to the obligations and protections of the moral law, and "non-persons" are those who are not. (The category "person" is sometimes further subdivided into "moral agents" and "moral agents." The former are those who have full moral personality – they have moral interests and claims against others, and also are regarded as responsible for their own behavior, and thus liable to punishment or reward on moral grounds for their actions. The latter are those who, because of some cognitive disability, cannot be held morally responsible for their actions, but still have moral interests which must be respected; they are subjects of the moral law, but not agents of moral action. The difference is important, but not relevant to the broader discussion here.)

The real issue, of course, is how to make that fundamental distinction – how to decide what entities are "persons" and which are not, and on what grounds.

Criteria for Personhood

Any attempt to assign status as a "person" (i.e., to identify "personhood" in an entity) requires reference to the defining features of "personhood." That is, to decide who are persons and who are not, we need a set of criteria for personhood – characteristics, features, capacities, or qualities of an entity that confer moral standing upon it. Not surprisingly, what these criteria should be is the subject of a fierce controversy.

Human Species Membership

As was previously noted, an easy criterion for personhood can be defined by equating "personhood" with "membership in the human species." Those who are inclined to do so then have a simple test for whether a given entity is a "person": determine whether that entity is a member of the human species; if yes, then yes, and if no, then no. Since it is usually easy to tell what species an entity belongs to, the determination is easy to make; and since all entities belong to one and only one species, the determination is definitive and unambiguous. However, there has to be a reason for adopting this position. The usual reason given for this position is some religious precept or a general religious sense that humans are made distinct from other animals by divine fiat – that God has set humans in some special place in the moral realm, and humans have moral personhood for that reason.

Naturally, accepting this position requires holding the religious beliefs necessary to making such a claim seem plausible. For those who do not hold such beliefs, this claim seems impermissibly ad hoc; the idea that a fundamental moral claim is true "just because" is unattractive. And, religious belief being what it is, it is particularly difficult for those who hold this position to convince dissenters to agree, since it is notoriously difficult to rationally argue someone into adopting religious beliefs – the necessary prerequisite to adopting claims of moral standing grounded on those beliefs.

On the other hand, however, why would we imagine that "personhood" is not synonymous with "human"? After all, the only entities we normally recognize as "persons" are humans, right? And we pretty much assume that all humans are persons (or at least we look sharply askance at attempts to define some humans as non-persons, which smacks of Nazism, "scientific racism," and so forth). So why do we need to be coy about "personhood"?

Cognitive Capacity

We can observe that the most minimal criterion of personhood (i.e., for being a moral subject) – to have moral interests at all – requires considerable mental acuity: it takes a degree of sentient awareness of one’s own situation in order to experience and appreciate what happens to oneself, and thus to be subject to the benefits and harms that persons may experience. Even before the question of the ability to act morally toward others (i.e., to be a moral agent), a moral person must be assumed to have moral interests of their own that can be subject to benefit or harming.

Someone having no interests at all – for whom nothing would count as a benefit or harm – is someone who cannot be treated morally, since their moral interests cannot be either violated or protected. So the category "moral persons" must distinguish those who are capable of being treated in a moral way – who have moral interests and can experience moral "good" and "bad" – from those for whom the very concept of moral treatment is irrelevant.

With this in mind, then, personhood accrues only to those who have moral interests – those who have the mental wherewithal to experience benefits and harms – and not to others. And because self-awareness and the conscious experience of one’s own interests is required to appreciate and benefit from moral treatment, personhood, on this view, requires a certain degree of cognitive capacity, related to the mental processes involved in consciousness, awareness of self and other, and the experience of benefits and harms. (Just what degree of experiential awareness is required is subject to debate: most proponents of this view would argue for some level of self-awareness and general cognitive capacity, but where to "draw the line" is a contentious subject.)

(Note that, on this view, one is a moral person if one has the minimal capacity to experience one’s own moral treatment, even if one lacks the capacity to make appropriate moral decisions or act morally toward others. Even mere moral subjects – those who are so cognitively impaired that they cannot control their behavior toward others, or who lack the moral sensibility to do so – are themselves capable of experiencing harm and benefit, and therefore are capable of being treated in a morally significant way, even if they cannot or will not treat others in like fashion.)

Who Counts?

In the view above (moral personhood as a function of the capacity for moral self-interest), the criteria of personhood have to do with sentience, self-awareness, and cognitive capacity. Any entity possessing the necessary combination, and minimum degree, of such attributes would qualify as a person. (And of course any entity possessing the capacity for entering into mutual moral relationships, and of taking responsibility for their own moral behavior – anyone who qualified as a "moral agent," that is – would far exceed this minimal criterion of personhood.)

It may turn out that all and only human beings do, in fact, qualify as moral persons under these criteria. If so, then only human beings are persons, but this conclusion rests on very different grounds from that of divine fiat. On the capacity-based definitions above, if it is true that only human beings are persons, that would be because it happens to be true that only human beings have the necessary mental capacity for participation in the moral sphere.

On the other hand, it could easily turn out to be that many human beings (early fetuses or embryos, possibly infants, some severely brain-damaged individuals, the "brain-dead," the persistently vegetative, some advanced dementia patients, etc.) do not qualify under some reasonable set of cognitive-capacity criteria for personhood. Which such set of criteria is correct depends in part on exactly what moral capacities we demand for personhood (a moral question), and in part on which physiological functions convey such capacities and to what degree any individual entity has them (scientific/medical questions). But if we accept cognitive capacity as a strict criterion for personhood, and set a moderately high standard for the minimal level of such capacity, almost undoubtedly some human beings will not qualify as moral persons.

It should also be noted that nothing about these capacity-based criteria necessarily entails that only humans could qualify under them. For those who feel that moral personhood is a functional status (related to your experience of moral goods and harms), and not a categorical one (applicable simply because of who you are), one attraction of the cognitive-capacity criteria for personhood is that they do not predetermine questions of whether some animals, or intelligent computers, or alien beings, could qualify. If moral standing really is a question of one’s capacities, it is irrelevant what kind of a being one is (other than to the extent that certain kinds of beings are or are not capable of the moral life). It could easily turn out, in fact, that a reasonable set of cognitive-capacity criteria for personhood would return a conclusion that many human beings do not qualify, while many animals – apes, monkeys, and dolphins are the usual candidates – do qualify. And, on this view, this determination must be made on an individual basis; some human beings would be moral persons, some would not, while some apes (perhaps) would qualify and others would not (and some apes might qualify even though some humans would not, which is one of the most controversial aspects of this approach).

Conclusion

From the discussion above, it should be clear that criteria for personhood are not self-evident. They must be argued for, and what, exactly, the correct criteria are is a question of what moral values we hold: what we regard as being, in fact, "moral interests," what we expect moral persons to acknowledge and value in one another. Identifying these values is a necessary first step, and then identifying those characteristics of entities that reflect these values is the next. Until some sense of these criteria is achieved, there are no grounds for assuming that some class of entities does or does not command moral standing.

It is a mistake to assume that moral standing accrues to any particular type of entity, even if in the end it is in fact confined to just one type. It is also a mistake to assume that moral standing is something that does not have to be explained, or that the claim that a given entity has or lacks such standing is one that does not have to be justified. That justification, when it is offered, will have to be grounded on what we take to be morally important in a fundamental sense.

For some, foundational moral values arise from a non-rational, and not-rationally-defensible source; this is a possible solution to the problems discussed above, though one that is notoriously difficult to defend against critics. For others, foundational moral values arise from some rationally-defensible notion of the "moral right" or the "moral good"; these systems of thinking at least have the advantage of being rationally defensible (an advantage that has proven to be of minimal practical benefit). Whatever the source of these values, once they are identified, a notion of personhood – and criteria for its recognition – can be generated.

The concept of personhood does a great deal of moral work: it defines who is liable to moral obligation, and who is privileged to claim protection for their interests on moral grounds; it provides a prima facie answer to questions regarding "who counts?" in any given situation, and regarding whether we may perform some certain act on some certain entity; it defines relationships between we who are persons and others of questionable or marginal status. Because it has such significant implications, the assignment of moral status to any given entity is always a question of moral substance, and one that requires a convincing answer. For this reason, then, it is not a question that can be overlooked, or the answer to which can be assumed a priori.

UPDATE: This was originally posted as a White Paper on my blog. It was later edited for re-use elsewhere, and the edited version re-posted here.          Home

Notes

1. Some have attempted to argue that there are grounds for moral protection of entities that do not, in themselves, have moral standing – thus it is not just bad policy, but immoral, to harm, say, a great artwork or part of the environment. This is a controversial notion that has not gotten much traction among ethicists – we will skip it here (but see the work by Stone in "Suggested Readings," below). [return]

2. Homo sapiens sapiens, that is. We will leave aside speculations upon the moral standing of Homo sapiens neanderthalensis or earlier hominids. [return]

3. "[The] Human Genome Project . . . has forever transformed the way we think about humanity and, indeed, about early human life. As attention has shifted from the study of single genes to the contemplation of all genes, one fact has become intriguingly conspicuous. The human embryo, from the moment of conception, possesses a complete and distinct human genome. . . . Science informs us that the human embryo is, objectively speaking, an early human life, and the same kind of being, a human being, as the scientist." – William P. Cheshire, MD, Center for Bioethics and Human Dignity

"Human embryos are not mere clumps of cells, but are living, distinct human organisms, the same as you and I were at earlier stages of our lives. With the fusion of sperm and ovum, . . . there is present a distinct organism which will (unless prevented) actively develop himself or herself to a more mature stage as a member of the human species. . . . [W]e — that is, the persons we are — come to be precisely when the animal-organisms we are come to be. The human person is a bodily entity — not a mere consciousness using a body — and so the human person comes to be at conception." – Patrick Lee & Robert P. George, Reason magazine

A classic illustration of this confusion, and perhaps an unintended reductio of this way of talking comes from Leon Kass, Chair of the President's Council on Bioethics under George W. Bush: "[A]fter fertilization is complete, there exists a new individual, with its unique genetic identity, fully potent for the self-initiated dvelopment into a mature human being . . . . Any honest biologist must be impressed by these facts, and must be inclined, at least on first glance, to the view that a human life begins at fertilization. . . . Granting that a human life begins at fertilization . . . surely – one might say – the blastocyst itself can hardly be considered a human being. I myself would agree that a blastocyst is not, in a full sense, a human being . . . . Yet, at the same time, I must acknowledge that the human blastocyst is (1) human in origin and (2) potentially a mature human being, if all goes well." – Toward a More Natural Science, pp. 103-104 (emphases original)[return]

Suggested Reading

Rethinking Life and Death: The Collapse of our Traditional Ethics, by Peter Singer

Practical Ethics, by Peter Singer

Personhood and Health Care, by David C. Thomasma

Reasons and Persons, by Derek Parfit

The Great Ape Project: Equality Beyond Humanity, by Paola Cavalieri & Peter Singer (eds.)

Rattling the Cage: Toward Legal Rights for Animals, by Stephen Wise

Animals and Their Moral Standing, by Stephen R.L. Clark

Should Trees Have Standing?, and Other Essays on Law, Morals, and the Environment, by Christopher D. Stone