Abstract
The wrongful disability problem arises whenever a disability-causing, and therefore (presumptively) wrongful, procreative act is a necessary condition for the existence of a person whose life is otherwise worth living. It is a problem because it seems to involve no harm, and therefore no wrongful treatment, vis-à-vis that person. This essay defends the nonconsequentialist, rights-based, account of the wrong-making features of wrongful disability. It distinguishes between the person-affecting restriction, roughly the idea that wrongdoing is always the wronging of some person, and the harm principle, the idea that all wrongings are harmings. It argues, first, that the harm principle should be rejected, in light of offending intuitions in salient examples. Rejection of the harm principle is not only independently plausible, but also paves the way for a nonconsequentialist diagnosis of wrongful disability. This diagnosis conceives of wrongdoing as a failure to express adequate respect for the humanity or personhood inherent in the person created. The paper defends a theory of humanity-respecting rights that accommodates plausible intuitions about satisficing and fairness, without resorting to consequentialist premises that lead to well-known impossibility results and paradoxes.
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I shall assume that certain lives may not be worth living, in virtue of the pain, suffering, and low duration they involve. For discussion, see Feinberg (1992). During a seminar at Oxford in 2007, Derek Parfit proposed a distinction between a life not worth living and a life worth not living, where the quality of the latter life is lower than that of the former. I shall take ‘wrongful life’ to refer to the latter class of cases.
She knows because there is only one sperm, one egg, and conception within 2 min is certain. A more realistic example would involve parents preselecting the genes of their child but failing to prevent disability, say, on a whim.
This is a variation on Parfit’s famous 14-year-old girl example from Parfit (1984, p. 358). The metaphysical assumption here is that the identity of the child can only be preserved by a particular combination of gamete-tokens. This combination fails to obtain after a sufficient amount of time has passed.
At least as long as not having birth in the winter is not very difficult or costly, which is what I assume for the rest of this essay.
Note that (1) is not true by definition: some consequentialists reject it, for they believe there can be impersonal (i.e. victimless) wrongdoing. I accept that (1) is not true by definition, and therefore that wrongdoing and wronging are conceptually distinct. But I believe that (1) can be defended as a substantive thesis (see section 4 for discussion).
All normative definitions are put forward in terms of wrong, rather that right, because ‘right’ may be confused with ‘rights’ and because ‘wrong’, unlike ‘right’, has a verb form. Note that the person-affecting restriction asserted here imposes a necessary condition on wrongness. There can be other forms of person-affecting restriction, for instance imposing a necessary condition on goodness or betterness. Accordingly, one can deny the restriction with respect to betterness and assert it with respect to wrongness. Note, further, the distinction between person-affecting and person-directed wrongdoing: instances of the former merely affect A, regardless of whether they are also directed towards A (e.g. through the wrongdoer’s intentions). I shall, hereafter, utilise the broader notion of person-affectingness as encompassing both forms of wrongdoing.
I assume away the possibility of self-harm: A harms B only when, for any A and B, A ≠ B.
The said consequentialist may object that he need not affirm (2). For assume A can benefit B moderately by giving him an apple or benefit C significantly by giving him the same apple. Both B and C are well-off. A gives the apple to B. Consequentialists are inclined to regard this act as wrongful, although it harms neither B nor C. And it also fails to wrong B or C: the relevant wrong-maker consists in the failure to produce the best outcome. Consequentialist moral censure of this non-beneficent action presupposes rejection of the person-affecting restriction, not the harm principle. See Section 4 for discussion.
This is, roughly, the general argumentative strategy pursued in Roberts (2007).
The argument above is valid. Falsehood of (5) and truth of (4) implies falsehood of (3). And if (3) is false then either the person-affecting restriction, or the harm principle must be false.
I will assume, like Roberts, that population is fixed, and hence that the choices of present people can only affect the identity of future people, and not their number.
The fact that A’s φ-ing is necessary for B’s doing, having, or being, something worthwhile does not imply that φ-ing is not harmful, wrongful, malicious, or whatever. Furthermore, the fact that φ-ing produces a desirable effect E does not imply that A φ-ed with the intention or desire to bring about E. An exclusive focus on effects/consequences/harms necessarily misses these distinctions. See section 3 for discussion.
This principle, which Buchanan et al (2000) label ‘Principle M’ seems very well-suited to handle cases like Two minute break, where a child’s identity is not at stake as a result of the action(s) of parent, or medical provider.
Neither Buchanan et al. (2000), nor Roberts (2009), draw a distinction between the person-affecting restriction and the harm principle. Indeed, much of the literature on the non-identity problem seems, illicitly, to run these fundamental, but distinct, principles together. This has led many to think that there are only two ways out of the non-identity problem: rejecting the person-affecting restriction, or biting the bullet on offending examples. By running the two principles together, consequentialists and nonconsequentialists have managed to obscure a major point of contention between their theories, a point central to sorting out this and related problems in moral philosophy.
‘…our reason for accepting principle N should evaporate should it turn out that we can explain the wrong of wrongful disability in terms that are purely person-affecting.’ (Roberts 2009, p. 18f)
It might here be objected that harm carries wrongdoing on its back, as it were, so that harming logically entails wronging. Conjunct b) is therefore superfluous. The argument proffered here is consistent with this thesis. It is consistent, that is, with the view put forward by R. A. Duff, to the effect that some harms are individuated by their (wrongdoing-infused) causes. (see Duff 2001, p. 22) This would suffice to establish that (some) harming is constituted by, and therefore implies, wrongdoing. Note that the latter thesis is not the harm principle but its converse.
I am not claiming that the shooter’s behaviour is wrongful merely because of his intentions: even if his intentions were not intentions to kill, his belligerent and vicious attitude would, in and of itself, suffice to constitute (harmless) wrongdoing.
Note that A does not even suffer a risk of harm in this example.
It may be objected that these examples presuppose an unjustifiably narrow notion of harm: a broader notion would capture the idea that A is harmed in both examples. The harm principle is therefore unscathed. This objection is misguided, however, since the stated presupposition is false. That is, for any notion of (wrongful) harm, one can always come up with compelling examples that involve wronging of A without (wrongful) harming of A. Say, for example, we were to adopt a broad notion, according to which people are harmed when their (informed) preferences go unfulfilled. It would still be wrong for B to (intend to) hit A in the street, even if A himself —unbeknown to B— had an (informed) preference for unexpected street-fighting: A would not be harmed, but would still be wronged by B’s behaviour.
Though perhaps not as artificial as it seems: poor teenagers sometimes give birth to children, which might, in turn, end up disadvantaged and/or disabled, in order to secure public housing. I hasten to add that ascribing wrongdoing is not tantamount to holding the wrongdoer blameworthy for his actions independently of his circumstances.
Roberts might insist that distributive harms will still surface somewhere on the distributive grid (e.g. in high health expenses for the welfare child, depriving others of scarce resources). All these possibilities can easily be stipulated away, however: the welfare child may possess a unique capacity for self-healing, or for generating resources that automatically cover his (increased) educational needs, such that children conceived differently would necessarily lack such abilities. Mundane examples show that ‘no harm done’ is more common than Roberts seems to think.
The most prominent advocate of such a view is Derek Parfit (although he presents his own theory in axiological, rather than normative terms). See chapter 16 of Parfit (1984).
Consequentialism entails the harm principle, or something like it, by definition (see section 1). That principle forms an indispensable —for consequentialists— normative bridge between wrongdoing and the good.
This form of dilemma is developed by Parfit at greater length in his ‘mere addition paradox’. See Parfit (1984, pp. 419–441). For a series of impossibility results along similar lines, see the work of Gustaf Arrhenius, particularly Arrhenius (2000a) and Arrhenius (2000b). Holtug (2004) has argued that the dilemma works the other way around: any axiology embracing a defensible form of the person-affecting restriction will be subject to the repugnant conclusion —and not the non-identity problem.
It does not follow that people have a right to a disability-free existence. All that follows is that, when one faces a costless choice between, say, child A and child B, where A has a limp and B has Huntington’s disease, one has to choose A, partly out of respect to B (strictly: the disrespect to B actualised if and only if B comes into existence). I thank an anonymous referee for raising this question.
By ‘humanity’ I mean here a predisposition to setting ‘ends through reason’. Kant discusses the ‘predisposition to humanity’ in Kant (1992, p. 437). Since the said predisposition is not coextensive only with the species homo sapiens, the account offered here is not speciecist.
Charging an exorbidant price for a basic necessity is sometimes called extortion in ordinary language. In my special sense, charging such a price may well suffice for exploitation, but not for extortion. The distinction between exploitation and extortion is not as sharply drawn in Kavka, but given the ambiguity in his account of Slave Child, I believe it is necessary.
Someone might object that this misunderstands Kavka, since he allows that the couple could pass on the proceeds of $50,000 to charity. The couple is therefore not exploiting the child, but rather its position of power over that child. It scarcely follows that what the couple does is wrongful, however, for one can justifiably exploit an (undeserved or unjustified) position of power. Exploiting or extorting other people, on the other hand, is necessarily wrongful, but not necessarily present in wrongful disability cases. I thank an anonymous referee for raising the objection motivating this footnote.
Rendall (2011) assumes that unfair-advantage taking is a sufficient condition for exploitation, a claim I do not wish to dispute here.
Such as Parfit’s Risky Policy, in Parfit (1984, p. 371), which is Rendall’s principal aim.
It is no coincidence that Rendall’s view fails to capture such nuances, for it limits itself to evaluating person-independent states of the world.
Kant’s second formulation of the categorical imperative is as follows: ‘Act in such a way that you treat humanity, whether in your own person or in the person of another, always at the same time as an end and never simply as a means.’ Kavka only emphasises the latter half of Kant’s formula, on treating ‘simply as a means’, which is why he needs extortion or exploitation to reinforce his view that the child is so treated. If, on the other hand, one thinks that wrongful disability need not involve treating someone ‘simply as a means’, as opposed to (merely) failing to treat him ‘at the same time as an end’, then no such reinforcement is required.
Here ‘claim’ is not meant to be coextensive with interests: the winter child has an interest-independent claim that the humanity in him be adequately respected. A claim is exclusionary if it excludes, or pre-empts, other claims, such as certain desires or whims, from the justificatory calculus pertaining to candidate courses of action. One’s flourishing furnishes such a reason.
On rational attitudes, see Anderson (1993).
Note, however, that the expressionist condition italicized two paragraphs back is in way weaker and in a way stronger in its implications than Darwall’s ‘intentionalist’ reading of respect. It is weaker in that it allows, in principle, that A can treat B respectfully even if A is not motivated by the right sorts of reasons in interaction with B, and perhaps even if A’s prior intentions are disrespectful to B. This is why, on the expressionist view, one can inadvertently treat another respectfully, just as one can inadvertently treat another disrespectfully. It is, strictly speaking, individual attitudes as expressed in action that matter, not the prior intentions that generate them (except, that is, insofar as such intentions are necessary for generating (or constituting?) the right sort of attitudes). The expressionist condition is stronger in its implications than intentionalism, in that A’s acting for the right (set of) consideration(s), call it C*, does not suffice to establish absence of disrespect (see Anderson 1996). Rather, A’s φ-ing should adequately express C*. On the expressionist view respect is a sort of success term. I cannot do justice to these nuances here, however.
It is not, it bears repeating, necessary that W and C ever do have such a dialogue, or can have any dialogue whatsoever: what matters is the nature of the dialogical relationship implicit in their particular form of interaction.
I discuss procreative obligations at greater length in ‘Do Procreators have Special Obligations?’, available from me upon request.
Indeed, the most abject forms of exploitation can be instances both of ‘no harm done’ and/or of free consent by all parties involved (for discussion see my ‘Why Marxists Should be Interested in Exploitation’, which is available from me upon request).
It is consistent with this view that it may be wrongful to bring a child into existence if the anticipated level of dignity, or respect, to be enjoyed by him is below a certain level, even if this is not due to harmful ‘defects’ in the child, but simply due to the fact that this particular society does not allow for decent lives. I do not know exactly what counts as a sufficiently decent life, but it most certainly rules out a lifetime of torture, disgrace, humiliation, etc.
I thank an anonymous referee for pointing this out.
It may, of course, be impermissible that she does so on a whim, as in Two Minute Break. All this is consistent with the view put forward by Francis Kamm (2002), who argues for the permissibility of the creator taking the pill before conception, or giving it to the fetus, and against the permissibility of giving him the pill after birth.
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Acknowledgments
I am grateful to Enrico Biale, Axel Gosseries, Annabelle Lever, Sylvie Loriaux, Livio Simeone and three anonymous referees for excellent criticisms of earlier drafts of this paper. I have also learned from numerous discussions with Konstantinos Kalliris on the harm principle.
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Vrousalis, N. Smuggled into Existence: Nonconsequentialism, Procreation, and Wrongful Disability. Ethic Theory Moral Prac 16, 589–604 (2013). https://doi.org/10.1007/s10677-012-9378-z
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DOI: https://doi.org/10.1007/s10677-012-9378-z