The Only Game in Town: Why Capacities Must Matter Morally

Chapter
Part of the Philosophy and Medicine book series (PHME, volume 108)

Abstract

In this chapter, I defend the second step of the main argument: if something has a set of typical human capacities, it has serious moral status. The major line of reasoning in this chapter is that there are cases of human organisms that are in such a state that the only satisfactory basis for their serious moral status is their set of typical human capacities. Since most of us—philosophers and non-philosophers alike—do believe that these human organisms have serious moral status, and since most of us do base this serious moral status on something, it must be the set of typical human capacities that we base it on. Finally, I spend the last two sections of the chapter explaining why the second step of the main argument can be arrived at in different ways, by adopting either the moral framework of John Rawls’ original position or the moral framework of Martha Nussbaum’s “capabilities approach”

In this chapter, I defend the second step of the main argument: if something has a set of typical human capacities, it has serious moral status. The major line of reasoning in this chapter is that there are cases of human organisms that are in such a state that the only satisfactory basis for their serious moral status is their set of typical human capacities. Since most of us—philosophers and non-philosophers alike—do believe that these human organisms have serious moral status, and since most of us do base this serious moral status on something, it must be the set of typical human capacities that we base it on. Finally, I spend the last two sections of the chapter explaining why the second step of the main argument can be arrived at in different ways, by adopting either the moral framework of John Rawls’ original position or the moral framework of Martha Nussbaum’s “capabilities approach”.

1 A Temporary Change Argument About What Matters Morally

There are cases of human organisms that are in such a state that the best available basis for their serious moral status is their set of typical human capacities. Since most of us—philosophers and non-philosophers alike—do believe that these human organisms have serious moral status, and since most of us do base this serious moral status on something, it must be the set of typical human capacities that we base it on.

The human organisms I have in mind here are not human infants. Of course, if I wanted to, I could adopt a strategy that begins with the intuition that normal human infants have serious moral status. I could then argue that, since this serious moral status must be based upon something, and since the only plausible thing that it could be based upon is the capacities of the infants, it follows that human infants possess a set of capacities that generates serious moral status. An advantage of this strategy is that it appeals to an intuition that is widely shared by philosophers. But a disadvantage of this strategy is that it cuts no philosophical ice with those who do not share the intuition.1

The human organisms I have in mind here are those who undergo various sorts of “temporary changes” like the temporary changes discussed in Chapter 2. Whereas Chapter 2 introduced what might be called a “metaphysical” temporary change argument, I would now like to defend what might be called a “moral” temporary change argument. While the metaphysical temporary change argument is supposed to show that being human is sufficient for having certain capacities, the moral temporary change argument is supposed to show that having these capacities is sufficient for having serious moral status.

This methodology, of course, immediately raises the following question: why not just focus on the property of being human, and avoid all these elaborate detours into the realm of capacities? After all, let us assume that temporary changes with humans lead us to recognizing the existence of two properties that might be sufficient for serious moral status. The first property, Q, is the property of having a set of typical human capacities. The second property, R, is the property of being human, which, as Chapter 1 argued, amounts to having the same basic genotype as you and I have and chimpanzees do not. Why prefer Q over R?

An answer to this question will emerge if we consider cases of what might be called “shumans” who undergo temporary changes. Shumans, let us say, are phenotypically indistinguishable from humans, but they have ZNA instead of DNA in their cells, so they have a different basic genotype than you and I. Shumans have all the same sorts of immediate capacities, and all the same sorts of higher-order capacities, as humans. Let us say that temporary changes with shumans lead us to recognizing the existence of two properties that might be sufficient for serious moral status. The first property is Q (the property of having a set of typical human capacities). The second property, S, is the property of being shuman, which amounts to having the same basic genotype as typical shumans with ZNA. Now, then, if S was sufficient for serious moral status, this would allow us to explain why shumans have serious moral status, but it would not help us to explain why humans have serious moral status. Conversely, if R was sufficient for serious moral status, this would help us to explain why humans have serious moral status, but it would not help us to explain why shumans have serious moral status. However, if Q were sufficient for serious moral status, this would help us to explain why both humans and shumans have serious moral status during their temporary changes. The fact that Q would have this explanatory power is what makes it the best explanation for why both humans and shumans have serious moral status during their temporary changes. Q is preferable to R or S because Q explains more.

So, then, what is this “moral” temporary change argument? How does it work? Once again, for expository purposes I shall focus on just one of the typical human capacities—the capacity to think.2 Consider the following question: do you have serious moral status when you do not have the immediate capacity to think? There are three approaches for arguing that the answer to this question is “yes”. One approach focuses on times of your life when you have not yet attained the immediate capacity to think: for example, when you were an infant. Unfortunately, this approach is not persuasive to people who are ambivalent or undecided about whether human infants have serious moral status. A second approach focuses on times of your life when you no longer have the immediate capacity to think: for example, when you become psychologically incapacitated in the later stages of a disease like Alzheimer’s. Unfortunately, this approach is not persuasive to people who are ambivalent or undecided about whether those who are in the later stages of such diseases have serious moral status. A third approach focuses on times of your life when you go through what Chapter 2 called “temporary changes” in your immediate capacity to think: for example, when you are temporarily unconscious due to being asleep, anesthetized, or comatose. Unfortunately, this third approach is sometimes left imprecise and undeveloped by its adherents. As a result, this third approach is often simply ignored or brushed aside by its detractors. It is often viewed as a conceptual wrinkle that can be easily ironed out while still preserving the central importance of the immediate capacity to think.

This third approach, which focuses on temporary changes, is actually far more promising than its detractors realize. Consider again times of your life when you lose the immediate capacity to think but eventually regain it: for example, when you are temporarily unconscious due to being asleep, anesthetized, or comatose. It seems that you would continue to exist during these temporary changes, that you would still possess the capacity at some order or other to think during these temporary changes, and that you would still have serious moral status during these temporary changes:
 

t1

t2

t3

Do you have serious moral status?

Yes

Yes

Yes

Do you have the immediate capacity to think?

Yes

No

Yes

Do you have the capacity (at some order or other) to think?

Yes

Yes

Yes

The moral temporary change argument can now be set out as follows:
  1. (1*)

    If there is no other feature of yours that we could base your possession of serious moral status on at t2, then we should conclude that, as long as you have the capacity (at some order or other) to think at a given time, you have serious moral status at that time.

     
  2. (2*)

    There is no other feature of yours that we could base your possession of serious moral status on at t2.

     

Therefore,

  1. (3*)

    As long as you have the capacity (at some order or other) to think at a given time, you have serious moral status at that time.

     

This “moral” temporary change argument has exactly the same form as the “metaphysical” temporary change argument of Chapter 2. And as before, it will no doubt be objected that the second step is mistaken, since there are other available features of yours that we could base your possession of serious moral status on at t2. I have already explained why the property of being human is unsatisfactory for this purpose. Consider then four other available features of yours, besides the feature of having a capacity (at some order or other) to think, that might be thought satisfactory for generating serious moral status: (A) the property of having a certain sort of past; (B) the property of having a certain sort of future; (C) the property of having the first-order capacity to think; (D) the property of being an “actual, continuing subject of experiences.” In the next four sections of this chapter, I shall be arguing that none of these properties, whether considered jointly or together, are satisfactory as properties for basing your possession of serious moral status on.

2 Moral Status and the Past

One strategy for replying to the temporary change argument is to ground your serious moral status at t2 in the fact that certain things were true of you in your actual past: for example, you actually possessed the immediate capacity to think at times like t1. According to this first strategy, serious moral status only exists in the case of the temporary change in virtue of the fact that the temporary change is a change from a previous state of a certain sort.

To see why this first strategy is unsatisfactory, consider the following cases. First, consider a case where two human organisms, A and B, are identical twins and are nurtured and developed in a highly refined science laboratory from conception onwards: they are exactly similar in their genetic constitution, environmental stimuli, and so on, throughout their entire biological lives. A and B are grown up like this for many years. Each is developed to the point where she has the first-order capacity to think, but neither is developed to the point where she actually possesses the immediate capacity to think. This is because there is some neuro-physiological event, the occurrence of which is the final necessary step in the process of an organism coming to possess the immediate capacity to think, and the scientists artificially delay the occurrence of this event for A and B. Perhaps two key neurons need to communicate with one another, and the scientists insert a magnetically-activated physical barrier that functions like a gate: unless activated, the barrier remains closed, preventing the two key neurons from communicating with one another; once activated, the barrier opens up, allowing the two key neurons to communicate with one another.

So, then, A and B are both in a kind of technologically induced sleep or coma: each is highly developed enough to the point where a push of a certain button will allow her to wake up and obtain the immediate capacity to think. Now imagine that, on a certain day, both A and B are going to get their respective buttons pushed. But a double malfunction occurs. The first malfunction is that A’s button works for a moment, but then stops working: perhaps the physical barrier is magnetically activated, allowing the two key neurons to begin communicating with one another, but then the physical barrier becomes de-activated, closes down, and once again prevents the two key neurons from communicating with one another. The second malfunction is that B’s button gets stuck and does not work at all. The result is that A, for a moment, is allowed to develop the immediate capacity to think, but then lapses back into the state she was in before the button was pushed, whereas B is not allowed to develop the immediate capacity to think—not even for a moment. The net effect of this double malfunction is that neither A nor B have the immediate capacity to think, but A did actually have the immediate capacity to think—at least for a moment.

The first strategy would hold that A now has serious moral status, but B does not. But this is hard to believe. Imagine walking into the lab shortly after this double malfunction had happened, without knowing how it happened: that is, even though you know that one of these two had her special moment, you do not know whether it was A or B. A scientist tells you that only one of these two human organisms has serious moral status. You would be quite perplexed. After all, A and B will both develop the immediate capacity to think at the same time if they are just allowed to. It seems reasonable to think that if A has serious moral status, B also does. The mere fact that A had once possessed the immediate capacity to think should not bear the moral weight that the first strategy insists it bear.

It might be objected that this example relies upon the implausible assumption that the first strategy would be satisfied with the merest instant of possessing the immediate capacity to think. However (this objection continues), many writers hold that it is crucial whether actual thinking has occurred, and indeed actual thinking of a special kind: namely, self-awareness over time, accompanied by some pro-attitude, such as desire or care, that attaches to what continues over time. So (this objection concludes) our intuitions about this case would be very different indeed if A spent a period of time thinking about herself, recognizing that she is the same enduring one living, wanting that living to go on, and then sinking back into unconsciousness.

In reply, I do not think that amending this example so that A has actual self-awareness and pro-attitudes will vindicate the first strategy. However, in order to let this objection be as strong as possible, consider a very different sort of case that does not involve developing identical twins. Imagine A is a normal, healthy adult with a rich and satisfying life, endowed with the immediate capacity to think, and also endowed with self-awareness and the desire to go on living. Now imagine A undergoes a temporary change so that she is currently at t2, and at t2 she gets replicated in one of Derek Parfit’s famous replication booths3: A is preserved intact and is not destroyed, but her perfect replica B is instantly produced across the laboratory. B has precisely the same sort of molecular structure that A had, and is functioning at precisely the same level as A. Furthermore, B has exactly the same capacities as A. Both A and B lack the immediate capacity to think, and both A and B will have the immediate capacity to think, along with self-awareness and the desire to go on living, at the same time if they are just allowed to.

Once again, however, the first strategy would hold that A has serious moral status, but B does not. But this is hard to believe. Imagine walking into the lab shortly after the replication had happened, without knowing how it happened: that is, even though you know that one of these two is a replica, you don’t know whether it is A or B. A scientist tells you that only one of these two human organisms has serious moral status. You would be quite perplexed. After all, A and B will both develop the immediate capacity to think at the same time if they are just allowed to. It seems reasonable to think that if A has serious moral status, B also does. The mere fact that A had once possessed the immediate capacity to think, along with actual self-consciousness and pro-attitudes, should not bear the moral weight that the first strategy insists it bear.

In these cases involving identical twins and replicas, we can admit that there are some morally relevant differences between A and B without admitting that only A has serious moral status. For example, in the replica case, imagine that A had worked hard and put her earnings into a savings account before falling asleep and getting replicated. Now imagine that A and her replica B both come out of their sleeps, and both claim to own the money in the savings account. I believe that A has a stronger claim to the money than B, since A actually saved the money whereas B merely has pseudo-memories of saving the money. However, not all morally relevant properties are dependent like this upon the actual history of an individual. In particular, the properties that constitute serious moral status, such as the strong moral presumption against killing, do not seem to be so dependent upon an individual’s actual history.

The upshot of these two cases is this. You can still have serious moral status at t2 even if certain things were not true of you in your actual past. Thus the first strategy for replying to the temporary change argument is unsatisfactory.

3 Moral Status and the Future

A second strategy for replying to the temporary change argument is to ground your serious moral status at t2 in the fact that certain things will be true of you in your actual future if allowed to live: for example, you actually will possess the immediate capacity to think at times like t3, or you actually will come to have a “future like ours” or a “future of value” because you will have conscious experiences which you will find valuable. According to this second strategy, serious moral status only exists in the case of the temporary change in virtue of the fact that the temporary change is temporary.

To see why the second strategy is unsatisfactory, it is important to see how it is similar to what have been called deprivation accounts of the wrongness of killing. Deprivation accounts of the wrongness of killing emerge from the combination of three claims:
  1. (1)

    The wrongness of a particular act of killing is solely a function of the misfortune of the particular death caused by that particular act of killing.

     
  2. (2)

    The misfortune of a particular death is solely a function of the goods that this particular death deprives the entity that dies of.

     
  3. (3)

    The goods that a particular death deprives the entity that dies of are the goods that the entity would have had, if, contrary to fact, the entity had not died that particular death.

     

Such accounts of the wrongness of killing are very similar to this second strategy for replying to the problem of the temporary change. While deprivation accounts emphasize the future goods you would have enjoyed had you not been killed, this second strategy emphasizes the future state you would have been in had you not been killed. (Of course, those employing this second strategy tend to think that being in the relevant state is a good thing. But this is not essential to the strategy itself.)

Deprivation accounts of the wrongness of killing face what has been called a problem of over-determination.4 For claims (2) and (3), taken together, entail something very odd whenever the following conditional holds true: if, contrary to fact, you did not die the particular death you did die, then you would have died some other way at the same time you actually did die the particular death you did die. Claims (2) and (3), taken together, entail that, whenever the just-mentioned conditional holds true, your particular death does not deprive you of anything and is therefore not a misfortune. When this entailment is combined with claim (1), the result is that, whenever your death is over-determined, someone can kill you without doing anything wrong.

To see why this is a problem, consider the following example. A man lives in a place where racial tensions are at the boiling point, and where race riots are known to lead to lynching that kills innocent people. He is walking down a deserted country road one night. Out of nowhere, a boy runs past him who is being chased by a mob of angry people shouting “Lynch him!” The man realizes that, no matter what he does to try and prevent it, the crowd will catch the boy and lynch him before any help arrives. In the past, the man has tried—in vain—to stop such crowds by pleas, by arguments, and by the use of force. Nothing ever works. So this time, the man decides to join the crowd; he himself catches up to the boy and tackles him to the ground, he himself wraps the noose around the boy’s neck, and he himself pulls on the rope that hangs the boy to death from the limb of a nearby tree.

Most of us want to say that this man has done something seriously wrong. But the deprivation account of the wrongness of killing cannot say this. For even if the man had not killed the boy, the boy would have died at the same time he actually died, because someone else in the crowd would have done the same sort of thing the man did, at the same time the man did it. Therefore, the man’s action did not deprive the boy of any of the goods he would have had if the action had not been performed. According to the deprivation account of the wrongness of killing, the man did not do anything wrong.

This case illustrates how the inevitability of certain sorts of outcomes is not relevant to the wrongness of certain sorts of actions. It also illustrates the inadequacy of grounding serious moral status in the fact that the individual being killed will be in a certain state in the future if the killing is not performed. But these illustrations are relevant to the problem of the temporary change.

Consider someone undergoing a temporary change in a situation such that they will be killed no matter what you try to do to prevent it. For example, imagine a woman undergoing anesthesia for surgery, and no matter what you do, she is going to be killed while under anesthesia: perhaps a team of utilitarian transplant surgeons is determined to remove her vital organs in order to save 5 needy patients elsewhere in the hospital. Surely, in a case like this, the woman under anesthesia still has serious moral status during her temporary change. The fact that her future will inevitably be cut short does not give us any reason to think that her serious moral status has been diminished.

The upshot is this. You can still have serious moral status at t2 even if certain things will not be true of you in your actual future. Thus the second strategy for replying to the temporary change argument is unsatisfactory.

Of course, a hybrid strategy for replying to the temporary change argument is to combine the first two strategies; that is, to ground your serious moral status at t2 in the fact that either certain things were true of you in your actual past (at times like t1) or certain things will be true of you in your actual future (at times like t3). According to this hybrid strategy, serious moral status only exists in the case of the temporary change in virtue of the fact that the temporary change is either temporary or a change from a previous state of a certain sort.

But it is hard to see how this is going to help. To see the inadequacy of this combinatorial approach, all one needs to do is to present a counterexample which combines the features of the previous counterexamples. Recall again the case where A is a normal, healthy adult with a rich and satisfying life, endowed with the immediate capacity to think, and also endowed with self-awareness and the desire to go on living. Now imagine A undergoes a temporary change so that she is currently at t2: perhaps she undergoes anesthesia for surgery. At t2 she gets replicated in one of Derek Parfit’s famous replication booths: A is preserved intact and is not destroyed, but her perfect replica B is instantly produced across the laboratory. The replica produced, B, has precisely the same sort of molecular structure that A had, and is functioning at precisely the same level as A. Both lack the immediate capacity to think, and both will have the immediate capacity to think, along with self-awareness and the desire to go on living, at the same time if they are just allowed to. But now imagine that no matter what you do, B is going to be killed. Perhaps there is a team of utilitarian doctors who are determined to remove all of B’s vital organs in order to transplant them to patients around their hospital. Whatever the reason, someone is going to kill B and nothing you can do will prevent this from happening.

The combinatorial strategy would hold that A has serious moral status, but B does not. But this is hard to believe. Imagine walking into the lab shortly after the replication had happened, without knowing how it happened: that is, even though you know that one of these two is a replica, you don’t know whether it was A or B. A scientist tells you that only one of these two human beings has serious moral status. You would be quite perplexed. After all, both will develop the immediate capacity to think at the same time if they are just allowed to. It seems reasonable to think that if A has serious moral status, B also does. The fact that A had once possessed the immediate capacity to think, along with actual self-consciousness and pro-attitudes, conjoined with the fact that someone is going to kill B, does not give you any reason to think that B’s serious moral status has been diminished.

The upshot is this. You can still have serious moral status at t2 even if it is both not true that certain things were true of you in your actual past (at times like t1), and not true that certain things will be true of you in your actual future (at times like t3). Thus the combinatorial strategy under consideration is unsatisfactory as a reply to the temporary change argument.

4 Why Not Stop at the First-Order Capacity?

The temporary change argument shows that your possession of the immediate capacity to think at a given time is not the basis of your serious moral status at that time. But since you do have serious moral status at t2, and since this serious moral status must be based upon something, what else can it be based upon? Since strategies that look to your actual past and your actual future are unsatisfactory, it seems that a satisfactory answer needs to focus on the features you actually possess at t2.

Although you do not possess an immediate capacity to think at t2, you do still possess a first-order capacity to think at t2. Recall the difference between a first-order capacity and an immediate capacity. What a first-order capacity to speak English amounts to is the neurological base for speaking English, which one gets from learning the language and which one retains as long as one remains a healthy and functional organism. What an immediate or immediately exercisable capacity to speak English amounts to, on the other hand, is a first-order capacity to speak English, the exercise of which is not impeded by some transient condition. When I am awake and free from any physical impediments blocking my ability to speak, I have both a first-order and an immediate capacity to speak English. But when I am asleep, or when my mouth is full of sand, I have a first-order but not an immediate capacity to speak English.

You still have the first-order capacity to think even when you are asleep, anesthetized, or comatose. Perhaps the first-order capacity to think is both necessary and sufficient for serious moral status. If so, then it will not be necessary to accept the claim that your possession of the capacity at some order or other to think is the basis of your serious moral status. It will only be necessary to accept the claim that your possession of the first-order capacity to think is the basis of your serious moral status. The original chart above could thus be replaced with the following chart:
 

t1

t2

t3

Do you have serious moral status?

Yes

Yes

Yes

Do you have the immediate capacity to think?

Yes

No

Yes

Do you have the first-order capacity to think?

Yes

Yes

Yes

This reformulated chart is structurally isomorphic to the original chart. But this means that everything said above about the original chart will apply to this reformulated one as well. According to this objection, we should accept a simpler and more elegant solution to the problem of the temporary change: namely, a solution that stops at the first-order capacity to think.

What are we to say to this objection? I believe that a little reflection will show why it is a mistake to make the first-order capacity to think necessary for serious moral status. Consider again the original chart. Simply replace the question “Do you have the immediate capacity to think?” in the original chart with the question “Do you have a first-order capacity to think?” Imagine that you receive an injury which causes you to lose the first-order capacity to think for a period of time before regaining it. You retain your moral status during this period of time, even though you do not have the first-order capacity to think. Therefore, having the first-order capacity to think is not necessary for serious moral status.

Another way of putting this reply begins with the “revised” chart proposed by this objection. It is a very simple conceptual move from the first-order capacity to think that one possesses when asleep, anesthetized, or comatose, to the second-order capacity to think that is yet “higher” in terms of its order within the same hierarchy. Hence the “revised” chart proposed by this objection can be replaced with the following one:
 

t1

t2

t3

Do you have serious moral status?

Yes

Yes

Yes

Do you have the first-order capacity to think?

Yes

No

Yes

Do you have the second-order capacity to think?

Yes

Yes

Yes

This chart is structurally isomorphic to both the original one and the revised one proposed by this objection. But this means that everything said above about the original chart and the revised chart will apply to this chart as well. The original chart and the revised chart showed how the possession of the immediate capacity to think was not necessary for you to have serious moral status. This chart shows how the possession of the first-order capacity to think is not necessary for you to have serious moral status.

Notice, however, that what is true about the first-order capacity to think is also true about any given order of the capacity to think. For any numerically-characterized order of the capacity to think (e.g., the 100th-order), we can always imagine a temporary change scenario in which that particular order of the capacity to think is lost, a higher-order capacity to think (e.g., the 101st-order) remains, and your serious moral status remains. Once you start down the path of higher-order capacities, there is no way—or at least no principled way—of turning back. The structure of a temporary change can be utilized on any two adjacent capacities in a hierarchy of capacities:
 

t1

t2

t3

Do you have serious moral status?

Yes

Yes

Yes

Do you have the nth-order capacity to think?

Yes

No

Yes

Do you have the (n+1)th-order capacity to think?

Yes

Yes

Yes

Thus the structure of the temporary change argument can be iterated as long as there is a higher-order capacity to think. It would seem, then, that the temporary change argument is able to show that the fact that you possess some higher-order capacity to think is sufficient for you to have serious moral status. In other words, your capacity at some level or other to think is what generates your serious moral status.

If the moves of this chapter up until this point are sound, then it seems to follow that normal human infants have serious moral status. For the sake of simplicity, let us again focus on the capacity to think. Notice what follows from the fact that your possession of the capacity at some order or other to think is sufficient for you to have serious moral status. As long as you already have the capacity (at some order or other), you already have serious moral status even before your very first moment of possessing the immediate capacity to think.

So, one of the philosophical moves above is from the first-order capacity to think to some higher-order capacity to think, and another philosophical move focuses on the times of your life before you possess the immediate capacity to think for the first time. When these two moves are combined, they seem to provide a promising way of reasoning with philosophers who do not begin with the intuition that normal human infants have serious moral status. What the two moves show, when combined, is that as long as you have some higher-order capacity to think during the time of your infancy, then you have serious moral status during the time of your infancy.

At this point, it is worth pausing to mention a few objections to my attempt to prove the serious moral status of normal human infants. First, why should someone believe that a human infant actually has any higher-order capacity to think? Those asking this question could agree with the claim that your possession of a higher-order capacity to think is sufficient for you to have serious moral status, even before your very first moment of possessing the immediate capacity to think. But they could disagree with the claim that you possessed this higher-order capacity when you were an infant, on the grounds that you never were an infant.

Since I already answered this objection in Chapter 2, I shall merely repeat the conclusion of that answer here. “Metaphysical” temporary change cases, like the cases of Albert and Benjamin, illustrate that you could become the capacity-equivalent of a human infant. You could become infantilized. Since you could become an infantilized human adult like Albert, there is no reason to think you could not have been a normal human infant like Benjamin. Indeed, once we realize that an adequate theory of personal identity must make room for you to become infantilized like Albert, there is every reason to believe that you actually were a human infant at one time, possessing merely the higher-order capacities, back then, to do the things you are in fact doing, right now.

I would like to focus on a related but distinct objection: why should someone believe that a human infant possesses the sort of higher-order capacity to think that generates serious moral status? Those making this objection could agree with the claim that your possession of a higher-order capacity to think is sufficient for you to have serious moral status, even before your very first moment of possessing the immediate capacity to think. But they could disagree with the claim that you possessed this higher-order capacity when you were an infant, on the grounds that the order of this capacity when you were an infant was too high to generate serious moral status. Perhaps there is an order in the hierarchy of capacities related to thinking—perhaps the 3rd or 4th order, perhaps the 30th or 40th—where serious moral status is no longer generated. After all, even if it is true that you once were an infant, and even if it is true that your serious moral status when sleeping is generated by the higher-order capacity to think you possess when sleeping, it still needs to be established that you had moral status when an infant because of the higher-order capacity to think you possessed when an infant. For the capacity to think you possessed when an infant is of a different and indeed much higher order than the capacity to think you possess when sleeping. Those making this objection might believe that some higher-order capacities to think generate serious moral status, while other higher-order capacities to think do not.

This objection will now be answered by a further argument, whose basic thrust can be summarized in this paragraph and whose premises can be set out and defended in the next few paragraphs. As we imaginatively alter the temporary changes you could undergo as an adult, the order of the capacities we must appeal to, in order to generate your serious moral status, gets higher and higher. Since previous possession of the immediate capacity to think is irrelevant, it follows that as we heighten the order of capacities sufficient to generate serious moral status for an individual who has possessed but then lost the immediate capacity to think, we thereby heighten the order of capacities sufficient to generate serious moral status for an individual who has not already possessed the immediate capacity to think. Eventually, we reach a point where the order of the capacity to think possessed by the individual in the middle of a temporary change is the same as the order of the capacity to think possessed by an infant: for example, just as an infant only has a (say) 100th-order capacity to think, so too we can envisage an adult in the middle of a temporary change who only has a 100th-order capacity to think. But since possession of this capacity is enough to generate serious moral status for the adult, possession of this capacity is also enough to generate serious moral status for the infant.

More formally, this “comparison” argument can be set out as follows:
  1. (1)

    Some adults are the same, in terms of the order of their capacity to think, as some infants.

     
  2. (2)

    For the adults in premise (1), having their particular order of the capacity to think is sufficient to generate serious moral status.

     
  3. (3)

    For any individuals x and y, for any activity A, and for any order N of the capacity to A, if x’s having the N-th order capacity to A is sufficient to generate serious moral status for x, then y’s having the N-th order capacity to A is sufficient to generate serious moral status for y.

    Therefore,

     
  4. (4)

    For the infants in premise (1), having their particular order of the capacity to think is sufficient to generate serious moral status.

     

I already defended premise (1) in Chapter 2, with the comparison between Albert and Benjamin. And it is not hard to see that premise (2) can be defended as well. Surely, Albert still has serious moral status during the period of his temporary change. Otherwise, certain sorts of temporary injuries or setbacks can cause your serious moral status to disappear. Furthermore, it can be shown (via the arguments above) that Albert’s serious moral status is generated by Albert’s possession of his higher-order capacity to think, and not, for example, by the fact that Albert once possessed the immediate capacity to think. The case of Albert and Benjamin therefore supports premise (2) in the above argument as well.

The fact that the temporary change argument can be iterated is what allows me to argue that human infants have serious moral status.

Likewise, the fact that the temporary change argument can be iterated is what allows me to argue that human fetuses, human embryos, and all manner of “marginal cases” have serious moral status. As we imaginatively alter the temporary changes, the order and type (active or passive) of the capacity to think possessed by the individual in the middle of a temporary change become the same as the order and type of the capacity to think possessed by a human fetus, or a human embryo, or a “marginal case.” But since possession of this order and type of capacity is enough to generate serious moral status for the former, possession of this order and type of capacity is also enough to generate serious moral status for the latter. All the comparison cases from Chapter 2—Albert and Benjamin, Caleb and Drake, and so on—reappear, in the context of serious moral status, to show that if the first member of the comparison has serious moral status, then so does the second.

Imaginary temporary change cases therefore explain why it is not enough to base serious moral status on neurophysiological features of a human organism like the fact that it has a functioning cerebral cortex. To see why, simply replace the question “Do you have the immediate capacity to think?” in the original chart with the question “Do you have a functioning cerebral cortex?” Imagine that you receive an injury to your cerebral cortex, which causes that organ to cease functioning for a period of time before it resumes functioning. You retain your moral status during this period of time, even though you do not have a functioning cerebral cortex.

One objection should be briefly mentioned. One group of philosophers, though willing to admit that you could have been an infant or fetus (or embryo or zygote), still deny that you had serious moral status at that time. When confronted with the case of an adult human organism that has serious brain damage, some of these philosophers, though willing to admit that you could survive such damage, still deny that you would have serious moral status at that time. For example, David Boonin writes, at the outset of his book A Defense of Abortion, that

In the top drawer of my desk, I keep another picture of [my son] Eli. This picture was taken on September 7, 1993, 24 weeks before he was born. The sonogram image is murky, but it reveals clearly enough a small head tilted back slightly, and an arm raised up and bent, with the hand pointing back toward the face and the thumb extended out toward the mouth. There is no doubt in my mind that this picture, too, shows the same little boy at a very early stage in his physical development. And there is no question that the position I defend in this book entails that it would have been morally permissible to end his life at this point.5

Although an examination of the details of Boonin’s own position is beyond the scope of this book, a move he makes when defending that position is directly relevant to the points being made in this chapter. Boonin considers a counterexample to his view of “…an imaginary case in which a temporarily comatose adult has had the entire contents of his brain destroyed so that there is no more information contained in his brain than is contained in that of the preconscious fetus.” Boonin argues that, in a case such as this,

It seems right that my position does not imply that such an individual has the same right to life as you or I. But … a critic of abortion cannot appeal to such a case as a means of rejecting my position because we cannot assume ahead of time that killing such individuals is seriously immoral.6

The last claim that Boonin makes in this passage—that we cannot assume ahead of time that killing certain sorts of temporarily comatose human individuals is seriously immoral—is a substantive, and surprising, claim.

I believe that the last claim Boonin is making here is simply mistaken. At this particular point in his argument, Boonin has misidentified who needs to bear the burden of proof. We are well within our rights to assume, ahead of time, that killing such individuals is seriously immoral. Any one of us could become such a temporarily comatose adult. If a cure for our condition were available—remember the case of Ronald Reagan at the beginning of this book—it would not be a matter of moral indifference whether we were killed or cured.

So, the assumption that killing such individuals is seriously immoral is an assumption we are entitled to use in framing our moral views. Someone who denies that killing such individuals is seriously immoral, on the other hand, needs to have a convincing argument for this denial. And this is so, regardless of what our current views are about the morality of abortion. If a given moral view cannot accommodate this assumption, this is a mark against the view and not a mark against the assumption.

So, then, the result of this temporary change argument is that if you have the capacity, at some order or other, to think, you have serious moral status. But of course, there is no reason to think this is unique to you: the temporary change argument could apply to any entity. Also, it was noted above that the capacity to think was chosen merely for the sake of simplicity: the temporary change argument could focus on the entire set of immediate capacities possessed by any normal adult human person. It would seem, then, that the temporary change argument is able to show that the fact that an entity possesses a set of typical human capacities, at some level or other, is sufficient for that entity to have serious moral status. And this, of course, is the very claim this chapter is seeking to prove.

5 Actual, Continuing Subjects of Experience

The view that has been defended in this chapter can be expressed as follows:
  1. (C)

    If something has a set of typical human capacities, it has serious moral status.

     
If the defense of (C) is to be successful, then one of the alternative views that needs to be refuted is the following one:
  1. (P)

    The only things that have serious moral status are actual, continuing subjects of experiences.

     

I would like to briefly explain (P) and highlight how (P) differs from (C). Then, I would like to explain why one of the reasons sometimes given for accepting (P)—namely, that it adequately handles thought-experiments that involve what may be called “complete reprogramming” of the upper brain—is actually a reason for favoring (C) over (P).

Chances are, everyone reading this sentence is an actual, continuing subject of experiences. But to understand what it means to be an actual, continuing subject of experiences, it is important to emphasize that a continuing subject of experiences is different than a momentary subject of experience. Suppose that there is an organism A that can experience pleasure, but that has no thoughts at all, including no memories of past experiences, no intentions for obtaining future experiences, and so on. One moment, A is enjoying the pleasure of eating. The next moment, A is enjoying the pleasure of standing in the shade. The next moment, A is enjoying the pleasure of resting. One might be forgiven for thinking that A itself is a continuing subject of experiences. But this is one of the things that are denied by those who employ the concept of actual, continuing subjects of experience. According to them, there is no continuing subject of experiences and other mental states associated with A, but only a series of psychologically isolated momentary subjects of experience.

Suppose next that there is an organism B that has thoughts, apparent memories, and intentions regarding the future, but that has these mental states in a way that appears completely random from one moment to the next. One moment, B is beginning the thought “I think, therefore, I am.” But before B can finish this thought, B’s mental state suddenly switches to the momentary belief that it enjoyed visiting Beijing. The next moment, B’s mental state switches to the intention to read Paul’s letter to the church at Rome. And so on. As with organism A, there is no continuing subject of experiences and other mental states associated with B, but only a series of psychologically isolated momentary subjects of experience.

When, then, does an organism have a continuing subject of experience associated with it? The short answer is: when the organism has certain sorts of mental states that are causally connected to one another in the right sorts of ways. And what this usually amounts to, for those who take this approach, is that the organism needs to have certain sorts of brain states that are causally connected to one another in the right sorts of ways. Of course, it is possible, in principle, to believe that some angels or immaterial minds could be, or could at least be associated with, actual, continuing subjects of experiences. But those who speak of actual, continuing subjects of experiences usually hold the view that experiences themselves, momentary subjects of experiences, and actual, continuing subjects of experiences all depend upon certain parts of the brain. The result is that, if an actual, continuing subject of experiences is associated with a given human organism, then once the relevant brain regions of that human organism are damaged or destroyed, the actual, continuing subject of experiences ceases to exist.

The view that actual, continuing subjects of experiences have serious moral status is able to handle some of the temporary change scenarios envisioned above at least as well as the view that possessing a set of typical human capacities suffices to give an entity serious moral status. After all, when you are asleep, anesthetized, or comatose, the relevant brain states that give rise to an actual, continuing subject of experiences presumably remain intact. However, some of the other scenarios envisaged above can only be seen as a direct challenge to the idea that only actual, continuing subjects of experiences have serious moral status. This is because, in order to be an actual, continuing subject of experiences, it is necessary to have actually had some of the right sorts of experiences already, in the past, and to have those past experiences causally connected to other sorts of experiences in the right sorts of ways. So, for example, in the replica cases, since the original, but not the replica, has an actual, continuing subject of experiences associated with it, it follows that the original, but not the replica, has serious moral status.

One of the more important things to emphasize in this context is this: the mere fact that a human organism has certain sorts of brain states does not by itself entail that the organism has an actual, continuing subject of experiences associated with it. Imagine that the replica cases envisioned above had not involved a temporary incapacitation of the original A: A gets replicated, let us say, while she is wide awake and enjoying her life very much. The replica produced, B, does not have an actual, continuing subject of experiences associated with it until B actually begins having the relevant sorts of experiences, and these experiences are causally related in the rights sorts of ways. So even after B has her first experience (such as the thought “am I the original or am I the replica?”), this only means that a momentary subject of experiences is associated with B; a continuing subject of experiences does not exist until it can be built up out of at least two momentary subjects of experiences, causally related in the right sorts of ways.

One of the reasons sometimes given for accepting (P) is that it handles the following sort of case very well, and indeed much better than its rivals:

Suppose … that there are technological developments that allow the brain of an adult human to be completely reprogrammed, so that the organism winds up with memories (or rather, apparent memories), beliefs, attitudes, and personality traits completely different from those associated with it before it was subjected to reprogramming. (The pope is reprogrammed, say, on the model of David Hume.) In such a case, however beneficial the change might be, most people would surely want to say that someone had been destroyed, that an adult human being’s ‘right to life’ had been violated, even though no biological organism had been killed.7

Many people have the intuition that such “complete reprogramming” of a normal adult human organism’s brain is morally on a par with killing that human organism. (P) apparently explains these intuitions, but these intuitions receive no explanation at all given (C), since reprogramming neither kills any human organism, nor does it change the typical human capacities that the human organism in question has.

I believe that the most direct way of replying to this argument is to show that careful consideration of cases that involve complete reprogramming actually provides one with several reasons for favoring (C) over (P). I will now consider several related cases, explaining why (C) handles these cases better than (P). For convenience, I will speak in terms of “serious moral status” instead of “a right to life”, “a strong moral presumption against killing,” and “a right to continued existence”.

Case 1: Malicious Reprogram, No Experience Yet: Imagine a malicious reprogrammer reprograms the brain of George W. Bush at some time t so that it (the brain) gives rise at t* to the exact same types of beliefs and desires as John Kerry’s brain. But at t* the reprogrammed brain has not given rise to any actual experiences. (C) Maintains that the human organism with this reprogrammed brain still has serious moral status at t*. But (P) denies this. (P) is mistaken; the human organism does still have serious moral status at t*.

Case 2: Malicious Reprogram, No Experience Yet, Benevolent Reprogram. Case 2 is the same as Case 1, only now there is a benevolent reprogrammer who can reverse the effect of the malicious reprogrammer at t* so that the brain gives rise at t** to the exact same types of beliefs and desires as George W. Bush originally had at t. (C) maintains (1) that the human organism with the reprogrammed brain still has serious moral status at t*, (2) that there is excellent reason to let the benevolent reprogrammer reprogram the brain at t*, (3) that the human organism with the re-reprogrammed brain still has serious moral status at t**. But (P) denies all three of these claims, maintaining instead (1) that the human organism with the reprogrammed brain does not have serious moral status at t*, (2) that it is a matter of indifference whether the benevolent reprogrammer reprograms the brain at t*, and (3) that the human organism with the re-reprogrammed brain still does not have serious moral status at t**. But all three of these holdings of (P) are mistaken.

Case 3: Malicious Reprogram, Experience, Benevolent Reprogram. Case 3 is the same as Case 2, only now, let the human organism with the reprogrammed brain have some appropriately related experiences between t* and t+, which is the time at which the benevolent reprogrammer arrives on the scene. (C) maintains that there is excellent reason to let the benevolent reprogrammer reprogram the brain at t+. But (P) claims that it would be morally wrong for the benevolent reprogrammer to reprogram the brain at t+; this, (P) claims, would be morally akin to murder. But this is a mistake; reprogramming at t+ is not morally akin to murder: in fact, it is the morally proper thing to do, since it is simply reversing the effect of the malicious reprogrammer, and giving back to George W. Bush the distinctive personality which he had at t.

Case 4: Double Malicious Reprogram, No Experience Yet. Case 4 is the same as Case 1, only this time the malicious reprogrammer reprograms the brains of both George W. Bush and John Kerry at t so that they (the brains) give rise at t* to the exact same types of beliefs and desires that the other person’s brain gave rise to at t. The original Bush brain gives rise at t* to the beliefs and desires the original Kerry brain had at t; the original Kerry brain gives rise at t* to the beliefs and desires the original Bush brain had at t. But at t* neither reprogrammed brain has given rise to any actual experiences. (C) maintains that the human organisms with these reprogrammed brains still have serious moral status at t*. But (P) denies this. (P) is mistaken; the human organisms do still have serious moral status at t*.

We could easily construct additional cases that parallel Case 2 and Case 3 in the same sorts of way Case 4 paralleled Case 1. A case paralleling Case 2 may be called Double Malicious Reprogram, No Experience Yet, Benevolent Reprogram. The case paralleling Case 3 may be called Double Malicious Reprogram, Experience, Benevolent Reprogram. But I think that it would be more instructive to leave behind for the moment malicious reprogrammers bent on altering the brains of George W. Bush and John Kerry, and focus instead on a case where a human organism might really want to have its brain reprogrammed.

So, then, Case 5 may be called Repentant Man, Benevolent Reprogrammer: Imagine a mature adult human organism comes to the conviction that most of his central beliefs about himself and his place in the world are false, and that most of his deepest desires are wicked. He wants to change his personality so that he becomes like Gandhi, but he realizes that the project of such self-transformation will take him more time than his biological organism has left to live. However, this man knows a reprogrammer who can reprogram his brain so that it gives rise to the sorts of beliefs and desires that Gandhi had. (C) does not automatically praise or condemn such reprogramming. On the one hand, if the repentant man asked the reprogrammer to do it, it might be morally permissible for the reprogrammer to reprogram the repentant man in the way he asks, since the repentant man would persist through the change and would himself be the beneficiary of the change. On the other hand, it is possible to think that such reprogramming would be wrong, since it may be a form of “cheating” similar to the taking of illegal substances to enhance one’s performance in a sport: perhaps a character like Ghandi’s is only valuable if the agent who has it was directly responsible for bringing it about.8 In any event, regardless of whether (C) would fit better with praising or condemning such reprogramming, the relevant point for our purposes is that (P) seems to take an entirely different view of this case. In the first place, (P) would insist that the repentant man is really requesting something akin to annihilation, or assisted suicide. According to (P), whether the repentant man realizes it or not, “he” is going to be gone forever once the reprogramming happens. Perhaps (P) will not condemn the repentant man’s decision, since (P) takes no stand on whether an actual, continuing subject of experiences has the right to wave its right to continued existence. But (P) will insist that the repentant man does not continue to exist past the point of reprogramming. In the second place, however, according to (P), the human organism that does exist right after the reprogramming does not have serious moral status until it actually begins having some experiences. But both of these implications of (P) seem strained.

Finally, it is worth noting that (C) is better able than (P) to handle other sorts of cases, which involve, not the reprogramming of a human organism’s brain, but the temporary destruction of a human organism’s upper brain. Case 6 may be called Voluntary Operation. Imagine a mature adult human organism finds out from his doctors that he has a degenerative disease in his upper brain that will eventually result in his biological death, and that the only way to prevent this from happening, since the disease has spread throughout his upper brain, is to agree to an operation that involves both destroying, and then reconstituting, the upper brain itself. One way this might work is as follows: a structural snapshot of his upper brain is “scanned out” into a computer file, but the process of “scanning out” necessarily involves the complete de-programming of the upper brain tissues themselves; the computer file is altered so that the parts of the file corresponding to the degenerative disease are removed; the altered structural snapshot is “scanned in” to his de-programmed upper brain so that the brain has the exact same structure that it had at first, minus the disease. Another way this might work is this: a surgical vacuum cleaner is used to painlessly suck out and transport all the upper brain tissues from the man’s skull to a “cleaning tank” where the diseased tissue is separated from the healthy tissue via a process of high-speed spinning, and the healthy tissue is then put back into the man’s skull with the same structure as it had before, minus the damage done by the disease. In any event, (C) has no objection to these procedures: the man being cured is there at the beginning of the operation, there in the middle of the operation, and there at the end—and he retains his serious moral status throughout the operation. But (P) denies that the man is there in the middle of the operation, denies that the man is there at the end of the operation, denies that the human organism in the middle of the operation has serious moral status, and denies that the human organism at the end of the operation has serious moral status. (P) seems to me to be mistaken in all four of these denials.

The same sort of case can be constructed without the voluntariness of the patient, and without the disease to eliminate. Consider Case 7: Involuntary Experiment: Imagine the following alien abduction story. It is a “kinder, gentler” alien abduction story, partly because it all happens while the abductee is asleep, so there is no experiential suffering on his part. A kind and gentle alien removes, and completely destroys, the upper brain of a normal adult human organism, but leaves the rest of the organism alive. It puts all the parts of the upper brain into an alien experiment and totally disaggregates them, right down to the simplest atoms. But then the kind and gentle alien re-assembles those parts, creating a new upper brain, indistinguishable from the original one in every way: the new upper brain not only has the same structure as the original upper brain, but has, in addition, the exact same parts in all their exact old places: atom #4321 is next to atom #4322, just as before, and so on. Finally, the alien implants the “new” upper brain where the “old” upper brain was, and flies away. All this happens without waking up the human organism in question. According to (C), the man being experimented on is there at the beginning of the experiment, there in the middle of the experiment, and there at the end—and he retains his serious moral status throughout the operation. But (P) denies that the man is there in the middle of the experiment, denies that the man is there at the end of the experiment, denies that the human organism in the middle of the experiment has serious moral status, and denies that the human organism at the end of the experiment has serious moral status. (P) seems to me to be mistaken in all four of these denials.

The basic points that emerge from these cases are as follows. Sometimes reprogramming a human organism’s brain is positively the right thing to do. Furthermore, the fact that there is not an “actual, continuing subject of experiences” associated with an organism does not mean that the organism is lacking in serious moral status. Consequently, these cases support (C) over (P).

It is time to sum up the discussion of the first five sections of this chapter. I have argued that there are cases of human organisms that are in such a state that the best available basis for their serious moral status is their set of typical human capacities. Since most of us—philosophers and non-philosophers alike—do believe that these human organisms have serious moral status, and since most of us do base this serious moral status on something, it must be the set of typical human capacities that we base it on. The human organisms in question were those who undergo various “temporary changes” like the temporary changes described in Chapter 2. I then considered four other available features of yours, besides the feature of having a capacity (at some order or other) to think, that might be thought satisfactory for generating serious moral status: (A) the property of having a certain sort of past; (B) the property of having a certain sort of future; (C) the property of having the first-order capacity to think; (D) the property of being an “actual, continuing subject of experiences.” I argued that none of these properties, whether considered jointly or together, are satisfactory as properties for basing your possession of serious moral status on.

The surprising result of this “moral” temporary change argument is that if something has a set of typical human capacities, it has serious moral status. Up until this point in the chapter, I have relied, not on moral theory, but on moral intuitions about temporary change cases. However, I shall now conclude this chapter by arguing that the same surprising result can be arrived at by adopting the moral framework of either John Rawls or Martha Nussbaum.

6 Capacities and the Original Position

Two different discussions in A Theory of Justice—one on the basis of equality, the other on paternalism—lead naturally to the idea that if something has a set of typical human capacities, it has serious moral status.9 In broad outline, Rawls’ discussions on these two topics lead naturally to this idea in the following ways. On the topic of paternalism, Rawls discusses how the parties in the original position would seek to protect themselves in case they end up as incapacitated or undeveloped human beings when the veil of ignorance is lifted. Hence the parties to the original position have every reason to agree with the claim that if something has a set of typical human capacities, at some order or other, then it has serious moral status. On the topic of the basis of equality, Rawls discusses how the parties in the original position would guarantee basic rights for all those with the capacity to take part in this original position. In order to guarantee the basic rights of infants and young children, he goes on to interpret this capacity as a “potentiality that is ordinarily realized in due course.” In other words, the part of serious moral status that falls under the basic rights of individuals is based on the possession of certain higher-order capacities typical of normal adult human organisms.

Let us examine these Rawlsian arguments in more detail, starting first with his discussion of paternalism in A Theory of Justice. Rawls discusses how the parties in the original position would seek to protect themselves in case they end up as incapacitated or undeveloped human beings when the veil of ignorance is lifted:

In the original position the parties assume that in society they are rational and able to manage their own affairs… But once the ideal conception is chosen, they will want to insure themselves against the possibility that their powers are undeveloped and they cannot rationally advance their interests, as in the case of children; or that through some misfortune or accident they are unable to make decisions for their good, as in the case of those seriously injured or mentally disturbed… For these cases the parties adopt principles stipulating when others are authorized to act in their behalf and to override their present wishes if necessary; and this they do recognizing that sometimes their capacity to act rationally for their good may fail, or be lacking altogether.10

The following argument seems implicit in this passage:
  1. (1)

    The parties in the original position are concerned to protect themselves during all the times of their lives when their capacity to act rationally for their good is undeveloped [or failing, or lacking altogether].

     
  2. (2)

    For the parties in the original position, the times of their lives when they are in a childhood state [or an injured state, or a foolish state] are among the times of their lives when their capacity to act rationally for their good is undeveloped [or failing, or lacking altogether].

     
Therefore,
  1. (3)

    The parties in the original position are concerned to protect themselves during the times of their lives when they are in a childhood state [or an injured state, or a foolish state].

     

This argument’s relevance to higher-order capacities can be made clear by considering what sorts of ideas one is committed to in assuming the truth of premise (2). First, it seems that (2) involves some sort of understanding of capacities: a party to the original position can imagine her capacity to act rationally for her good being undeveloped, etc. How might this be filled in? For starters, if x (e.g., a child) has the capacity to φ (e.g., to act rationally for her own good), then x has this capacity even when x is not φ-ing. Thus the mere fact that x is not currentlyφ-ing does not threaten the claim that x has the capacity to φ. This helps explain why someone can have the capacity to act rationally for her good even though that capacity (as Rawls puts it) may fail.

Second, it seems that premise (2) involves some sort of understanding of personal identity. The parties in the original position are not concerned to protect other people but themselves in case they end up in an unfortunate condition; this presupposes that the rational persons in the original position are the same persons as the irrational persons they can imagine becoming. How might this be filled in? For starters, if x has the capacity to φ, then x must be the same thing when she is φ-ing as when she is not φ-ing. Without this sameness, it would not really be x that has the capacity to φ but some other thing y. Indeed, without this sameness, this other thing y would not really have the capacity to φ; what y would have is some sort of claim to be the “ancestor” of the x that actually does the φ-ing.

Third, it seems that premise (2) involves some sort of understanding of what it is for a capacity to belong to someone even when that capacity is undeveloped or lacking altogether. Both of these notions can be clarified by the following idea: x’s capacity to φ, although in a real sense still belonging to x, need not be immediately exercisable by x. In Rawls’ example of children, a child’s capacity to act rationally for her good, while properly belonging to the child, might nevertheless be the sort of thing we must wait on before we can see “in action.” Part of the idea of an undeveloped capacity is that once certain conditions are met, x will have the immediately exercisable capacity to φ. In the case of children, such conditions include a certain amount of biological growth and maturation; when these conditions of growth and maturation are met, the x that started off as a child will eventually have the immediate capacity to act rationally for her good.

Another way of putting this idea is that having an undeveloped capacity to φ is like having a capacity for having the first-order capacity to φ. The capacity to have this first-order capacity can be understood as a second-order capacity. The most generic way of stating this idea is that capacities come in hierarchies of lower and higher orders.

To see why Rawls is assuming this hierarchical picture, recall how the failure to realize a capacity is not the same thing as the non-existence of a capacity. Just as the mere fact that x is not currently φ-ing does not threaten the claim that x has the capacity to φ, so too the mere fact that x lacks the first-order capacity to φ does not threaten the claim that x has the second-order capacity to have this first-order capacity. This helps us make sense out of Rawls’ claim that the parties in the original position are concerned about how they will be treated when their capacity to act rationally for their good is (as Rawls puts it) lacking altogether. Presumably this means that they are lacking an immediate capacity to act rationally for their good, or perhaps that they are lacking even a first-order capacity to act rationally for their good; but that were certain conditions to be met, they would have this immediate capacity, or they would have this first-order capacity. For example, if someone with a mental disease were unable to think straight due to a certain imbalance of chemicals in the brain, although in one sense she would be lacking altogether the capacity to act rationally for her good—in other words, she lacks the immediate capacity to act rationally for her good, and perhaps even lacks the first-order capacity to act rationally for her good—nevertheless, were this imbalance to be corrected for, she would have the immediate capacity (or at least the first-order capacity) to act rationally for her good. If this is correct, then perhaps Rawls’ claim that “sometimes their capacity to act rationally for their good may … be lacking altogether” could be read instead as “sometimes their capacity to act rationally for their good may be seriously undeveloped.”

Rawls himself uses the notion of a hierarchy of capacities in describing one of the two features of persons in Political Liberalism:

…since persons can be full participants in a fair system of social cooperation, we ascribe to them the two moral powers connected with the elements in the idea of social cooperation noted above: namely, a capacity for a sense of justice and a capacity for a conception of the good. A sense of justice is the capacity to understand, to apply, and to act from the public conception of justice which characterizes the fair terms of social cooperation…11

The italics are mine to highlight the following: since a sense of justice just is a certain sort of capacity (namely, a capacity to understand, to apply, and to act from the public conception of justice…), then the capacity for a sense of justice just is a capacity for a capacity. What makes you a member of a Rawlsian moral community is a capacity for a capacity.

This elaboration about hierarchies of capacities leads naturally to a fourth idea that must be assumed for premise (2) to make sense, and this idea again involves personal identity. It seems that x must be the same thing when she has merely the higher-order capacities as she is when she has both the higher and the lower-order capacities. Without this sameness, some other thing y would have merely the higher-order capacities, and y would be some sort of “ancestor” to the x that has both the higher and the lower-order capacities. With this sameness, however, it makes perfect sense to claim that a rational adult could thank you for treating her paternalistically when she was an irrational child.

Why might Rawls be justified in assuming the child is the same person as the adult she grows and develops into? Since personal identity is more of a metaphysical question than a purely political one, Rawls deliberately tries to avoid making controversial claims about it.12 Still, any account must make certain assumptions about personal identity, and Rawls’ account is no exception. I propose, negatively, that the ground of personal identity between children and adults Rawls is assuming could not be a matter of the bodies of children and adults being composed of the same materials, for this is never the case due to the well-known molecular turnover in the human body which occurs every several years. The cells that compose the child are not the same cells that compose the adult, but this provides us no challenge to our view that the child and the adult are literally the same being existing at different times. Nor is memory an adequate ground of the identity between child and adult, since few adults remember much of their childhood, despite the fact that it was still their childhood they have forgotten. Finally, this ground is not to be found in something like a similarity of fundamental beliefs, projects, and attitudes about life. Although a few people may have similarities of this sort between childhood and adulthood, most do not. So the ground of personal identity Rawls is assuming must be something else. I propose, positively, that Rawls is assuming that this personal identity is grounded in something like spatiotemporal or causal continuity between the child and the adult. The best candidate of this sort, and the one Rawls is probably assuming, is that the child and the adult are same organism.

The relevant point, however, is that lacking the immediate capacity to act rationally for one’s good cannot disqualify someone from being an object of concern for the parties in the original position. The parties want to look out for the well-being of individuals who lack this immediate capacity, because in so doing, the parties are looking out for their own well-being. Put differently, in terms of serious moral status, the parties in the original position would agree that they have serious moral status, and they would seek to formulate principles of justice that recognized the presence of serious moral status in individuals who lack the immediate (or even-first-order) capacity to act rationally for their good. Hence the parties to the original position have every reason to agree with the claim that if something has a set of typical human capacities, at some order or other, then it has serious moral status. This, then, is the relevance of Rawls’ discussion of paternalism to the claim this chapter has been defending.

On the topic of the basis of equality, Rawls discusses how the parties in the original position would guarantee basic rights for all those with the capacity to take part in this original position. In order to guarantee the basic rights of infants and young children, he goes on to interpret this capacity as a “potentiality that is ordinarily realized in due course.” Let us examine this discussion of the basis of equality more closely.

Broadly, Rawls thinks the basis of equality consists of those features of humans beings “in virtue of which they are to be treated in accordance with the principles of justice.” By clarifying these features, Rawls wants to address the grounds on which “we distinguish between mankind and other living things and regard the constraints of justice as holding only in our relations to human persons.”13

Rawls distinguishes three levels of applicability for the concept of equality. The first and least controversial level is “justice as regularity”, exemplified by the impartial application of rules (e.g., “treat similar cases similarly”). The second and more difficult level is the basic structure of society, where equality gets specified by the two principles of justice, which in turn demand “that equal basic rights be assigned to all persons.” The third level is where we specify what “persons” are; or, the way Rawls puts it, “what sorts of beings are owed the guarantees of justice.” Until this third level is explored, both the inclusion of humans among those “sorts of beings” and the exclusion of animals from those “sorts of beings” are left unexplained.14 His approach to this third level is that the only “persons” who are entitled to equal justice are “moral persons” distinguished by two features:

first they are capable of having (and are assumed to have) a conception of their good (as expressed by a rational plan of life); and second they are capable of having (and are assumed to acquire) a sense of justice, a normally effective desire to apply and to act upon the principles of justice, at least to a certain minimum degree.15

Moral persons are thus characterized by their capacities (as is evident from the twice-repeated locution “they are capable of having”), and Rawls’ very next move is to discuss the link between these capacities and the deliberations of the parties in the original position. Since the parties to the original position adopt the principles they do “to regulate their common institutions and their conduct toward one another,” and since the reasoning behind the selection of these principles factors in “the description of their [the parties’] nature,” it follows that “equal justice is owed to those who have the capacity to take part in and to act in accordance with the public understanding of the initial situation.”16

An important question now becomes: is this capacity, which characterizes moral persons, best understood as an immediate capacity, or a first-order capacity? Or is it better understood as a higher-order capacity? Rawls’ very next comment clearly establishes the latter understanding:

…moral personality is here defined as a potentiality that is ordinarily realized in due course. It is this potentiality which brings the claims of justice into play. I shall return to this point below.17

This potentiality is precisely the sort of higher-order capacity we looked at in the context of Rawls’ discussion of paternalism. To confirm this, we need only look at the passage Rawls refers to in his promissory note to “return to this point below.” When he returns to this point, he cites the need to guarantee the rights of children and infants as one of the motivations for construing the basis of equality in just the way he construes it:

…the minimal requirements defining moral personality refer to a capacity and not to the realization of it. A being that has this capacity, whether or not it is yet developed, is to receive the full protection of the principles of justice. Since infants and children are thought to have basic rights … this interpretation of the requisite conditions seems necessary to match our considered judgments.18

What is clearly doing the work here is a notion of higher-order capacities possessed by the infants and children.

Before examining the rest of Rawls’ discussion of the basis of equality, then, we can suggest a preliminary analysis for how his reasoning leads naturally to the claim that all human beings are entitled to the claims of justice:
  1. (4)

    All beings with the capacity for moral personality are entitled to the claims of justice.

     
  2. (5)

    All human beings have the capacity for moral personality.

    Therefore,

     
  3. (6)

    All human beings are entitled to the claims of justice.

     

Nevertheless, perhaps this preliminary analysis is too hasty. After all, is Rawls really committed to premise (4)? Is having a capacity for moral personality really enough to be entitled to the claims of justice? And even if it is enough, is it really true that all human beings have it (which is what premise (5) claims)? What about those unfortunate human beings who are born into this world with a crippling genetic defect that effectively guarantees that they will never develop the ability to think rationally, deliberate morally, or have a sense of justice? To treat these questions, we need to inspect more closely the remainder of Rawls’ general account of the basis of equality.

Immediately after his claim that the capacity for moral personality is a potentiality that is ordinarily realized in due course, Rawls claims that having this potentiality is sufficient for being entitled to equal justice, noting that nothing “beyond the essential minimum” is required. He abandons his initial aim of justifying why all and only human beings (as opposed to animals) are entitled to the claims of justice, and limits his task to one of justifying why all human beings are entitled to the claims of justice. “Whether moral personality is also a necessary condition I shall leave aside.”19 So much for premise (4); we are safe in claiming that Rawls is committed to it. What about premise (5)?

Even the limited task of justifying why all human beings are entitled to the claims of justice turns out to be considerably complex for Rawls. In some places, he seems to think that there are some human beings who do not possess even the “essential minimum” capacity for moral personality. For example, this thought is lurking in the background even where Rawls’ emphasis is on the “overwhelming majority” of human beings who do have this capacity:

…the capacity for a sense of justice is possessed by the overwhelming majority of mankind…. Even if the capacity were necessary, it would be unwise in practice to withhold justice on this ground. The risk to just institutions would be too great.20

These last two sentences are left tantalizingly undeveloped. But presumably they anchor the just treatment of a minority of human beings (those permanently incapacitated, as far as moral personality is concerned), not in the properties of those incapacitated human beings, but in the properties of other human beings (those in the “overwhelming majority”). In other words, it is not considerations of entitlement that secure the just treatment of those permanently incapacitated, but considerations of pragmatism. The idea is that we do not want to even start withholding justice from human beings whom we judge not to have the (higher-order) capacity, because to do so inadvertently puts other human beings who really do have the (higher-order) capacity at risk.

However, in other places Rawls seems to think that even the most unfortunate of human beings are merely lacking the realization of the higher-order capacity for moral personality, and not the capacity itself. This ambiguity is evident in this sentence:

Only scattered individuals are without this capacity, or its realization to the minimum degree, and the failure to realize it is the consequence of unjust and impoverished social circumstances, or fortuitous contingencies.21

Does Rawls think these scattered individuals are truly lacking the capacity in question, or does he think they are merely lacking the realization of this capacity to the minimum degree? To recall our earlier distinction, the question is whether certain individuals are merely lacking the immediate capacity, or whether they are lacking both the immediate capacity and the higher-order capacity to have this immediate capacity. The following passage shows Rawls is aware of the problem this ambiguity might pose, although he chooses not to fully investigate it:

A full discussion would take up the various special cases of lack of capacity … those more or less permanently deprived of moral personality may present a difficulty. I cannot examine this problem here, but I assume that the account of equality would not be materially affected.22

Some of Rawls’ critics view his decision to avoid a full discussion of this problem (combined with his optimism regarding its eventual solution) as indicative of a serious weakness (or serious blind spot) in his account.23 But there are two ways to solve this problem, corresponding to the two options for resolving the ambiguity, and on either solution, Rawls can at least get to the idea that all human beings should be treated as if they are entitled to the claims of justice.

One way of solving the problem is to develop Rawls’ enigmatic remark about the pragmatic foolishness of withholding justice from humans who supposedly lack the relevant capacity (“the risk to just institutions would be too great”). By thinking through the likely consequences of such a policy, we can see why the parties to the original position—who are themselves risk-averse—would reject it. Consider, for example, the fact that for every group of human beings whose members (supposedly) lack the relevant capacity, there is a second group of human beings whose members are difficult to distinguish from those in the first group, even though those in the second group possess the relevant capacity. Even if the parties to the original position were not concerned about being in the first group, they would be concerned about being in the second group; and since the two groups are difficult to distinguish, the parties would prudentially opt for protecting both groups rather than neither. For another example, consider the way humans have displayed a regrettable tendency to use the category of “human beings undeserving of justice” in the past. Humans with political powers have a tendency to manipulate such a category in order to achieve political goals, with resultant risks to the justice of their institutions. The history of eugenics and human experimentation shows how medical, political, and military institutions can become unjust in this way. Since the parties to the original position know these tendencies, they would have good reasons for avoiding these risks as much as possible.

But a more straightforward way to remove the problem would be to simply develop Rawls’ remark about “the failure to realize” a capacity. By attending more carefully to the notion of a hierarchy of capacities, all human beings can be seen to have the morally decisive higher-order capacity in question, even if not all human beings realize that capacity.

Recall my earlier example of the person with the chemical imbalance in her brain. That person, while not possessing the immediate capacity to act rationally for her good, nevertheless did possess a higher-order capacity to have this immediate capacity. This higher-order capacity, admittedly, would not be realized unless certain conditions were to be met—namely, the correction of the brain anomaly. But this should not cause us to be skeptical about the existence of this higher-order capacity. A human being can have a capacity even if certain physical conditions permanently block its realization. Presumably the same sorts of things would be said about other problematic cases, such as those who suffer life-changing accidents which permanently reduce them to having the mental life of a newborn infant, or those who have inherited genetic traits which guarantee they shall not exercise rational-decision-making unless dramatic genetic therapies enable these genetic flaws to be overcome. For example, human infants with anencephaly actually do have the higher-order capacity for moral personality; it is, of course, seriously undeveloped and will likely not be developed without great advances in medical technology. But an undeveloped higher-order capacity is a higher-order capacity all the same.

Hence there are two ways that Rawls could handle the question of how to treat a human being who is purportedly “permanently deprived of moral personality” or “lacking the requisite potentiality”. He could admit that there are such human beings, and then flesh out the remark about how withholding justice to these human beings would pose too great a risk to just institutions. Alternatively, he could simply refuse to admit that there are such human beings, since any human being who purportedly fits this description can be more accurately described as in fact having the “requisite potentiality,” albeit in a seriously undeveloped state. Either way, Rawls is committed to the view that all human beings should be treated as if they are entitled to the claims of justice.

Accordingly, there are two ways of formalizing Rawls’ general account of the basis of equality. The first way is to reject the suggestion that there are scattered individual human beings who lack the requisite potentiality. If we take a more nuanced and consistent view of capacities (as Rawls sometimes seems to), there are no such individual human beings, and the preliminary analysis would stand, arguing from (4) and (5) to (6). The second way of formalizing the account admits the suggestion (as Rawls sometimes seems to) that there are some human beings who lack the requisite potentiality, and so premises (5) and (6) must be amended:
  1. (4)

    All beings with the capacity for moral personality are entitled to the claims of justice.

     
  2. (5a)

    The overwhelming majority of human beings have the capacity for moral personality.

     
Therefore,
  1. (6a)

    The overwhelming majority of human beings are entitled to the claims of justice.

     
To deliver the conclusion that Rawls is really after, we would need to add some extra premises about the need to safeguard just institutions by protecting even the “scattered individuals” who purportedly lack the capacity in question:
  1. (7)

    If we want the risk of just institutions not to be too great, then all human beings should be treated as if they are entitled to the claims of justice.

     
  2. (8)

    We want the risk of just institutions not to be too great.

    Therefore,

     
  3. (9)

    All human beings should be treated as if they are entitled to the claims of justice.

     

The conclusion Rawls is really after is (9). Since (6) from the preliminary analysis also entails (9), Rawls gets (9) either way.

The basic thrust of the argument connecting these Rawlsian discussions to the claim this chapter is seeking to defend should be clear. The constraints of justice, and the basic rights corresponding to the constraints of justice, form a significant part of serious moral status. A party to the original position would attempt to guarantee that others in society treated her as if she had this part of serious moral status during the phases of her life when she is relatively incapacitated. What is this part of serious moral status based on? The answer is, the “capacity”, at some order or other, “to take part in and to act in accordance with the public understanding of the initial situation.” Since these capacities are among the set of typical human capacities, it follows that, if something has a set of typical human capacities, it has at least this part of serious moral status.

7 Capacities and the Capabilities Approach

Martha Nussbaum and Amartya Sen have long been formulating a “capabilities approach” to moral and political philosophy. Although Nussbaum’s formulation of the approach is a political view rather than a comprehensive moral view, and although she has developed and changed it in important ways over the years, two features of an intermediate stage of her formulation of the approach are especially relevant to the present chapter.24 First, if an individual has a certain set of what she calls “basic capabilities”, then the state is morally required, as a matter of justice, to provide that individual with the necessary conditions for the development of those capabilities. Second, if an individual has this set of basic capabilities, then the individual has certain natural human rights, such as the right to life. If these two claims of Nussbaum’s are true, then it seems that if an individual has this set of basic capabilities, then it has what I have called “serious moral status.” But the set of “basic capabilities” Nussbaum focuses on is best understood as a subset of what I have called the “typical human capacities” at some higher-order level. Hence, Nussbaum’s capabilities approach seems to imply that if something has a set of typical human capacities at some higher-order level, it has serious moral status.

The argument I wish to defend in this section thus runs as follows:
  1. (1)

    If something has a certain set S of basic capabilities, it has serious moral status.

     
  2. (2)

    If something has a set of typical human capacities, it has a certain set S of basic capabilities.

    Therefore,

     
  3. (3)

    If something has a set of typical human capacities, it has serious moral status.

     

I shall defend this argument by explaining what Nussbaum calls “basic capabilities”, by explaining the moral work she once thought such capabilities do, and by responding to possible objections to this interpretation.

Nussbaum’s discussions of basic capabilities are found in several of her works. In a 1998 paper she called basic capabilities “B-capabilities” and defined them as follows:

A person is B-capable of function A if and only if the person has an individual constitution organized so as to A, given the provision of suitable training, time, and other instrumental necessary conditions.25

She noted that, in this sense of capability, Aristotle thought that

…a boy is capable of functioning as a general (De An. 417b30); a myopic person is capable of seeing well (cf. Metaph. V.22); an embryo is capable of seeing and hearing; an acorn is capable of becoming a tree…26

In a 1997 paper Nussbaum claimed that basic capabilities are

…the innate equipment of individuals that is the necessary basis for developing the more advanced capability. Most infants have from birth the basic capability for practical reason and imagination, though they cannot exercise such functions without a lot more development and education.27

In her 2000 book Women and Human Development, Nussbaum claimed that

These [basic] capabilities are sometimes more or less ready to function: the capability for seeing and hearing is usually like this. More often, however, they are very rudimentary, and cannot be directly converted into functioning. A newborn child has, in this sense, the capability for speech and language, the capability for love and gratitude, the capability for practical reason, the capacity for work.28

What Nussbaum in these passages calls a basic capability is the same as what I have called a higher-order capacity. To say that an infant has from birth the basic capability to speak English is just to say that the infant has what I have called a higher-order capacity to obtain the first-order capacity to speak English.

In order to avoid misunderstanding here, it is important to note that what Nussbaum calls a “lower-level” capability is the same as what I have called (following C. D. Broad and others) a “higher-order” capacity. Whereas she would say that an infant has only a lower-level capability to speak English, I would say that it has only a higher-order capacity to speak English. What matters is the reality of a certain sort of nested hierarchy of powers, not whether we label those powers “capabilities” or “capacities”, or whether we label the layers of that hierarchy “levels” or “orders”, or whether we call a given layer of the hierarchy “higher” or “lower”.

Nussbaum claimed in 2000 that basic capabilities are “a ground of moral concern.”29 To understand why, it is important to see how she presented the basic moral intuition behind the capabilities approach, how she contrasted basic capabilities with what she calls combined capabilities, and how she made the production of certain combined capabilities the goal of public policy.

“The basic intuition from which the capability approach begins,” according to Nussbaum, is that “certain human abilities exert a moral claim that they should be developed”:

Not all actual human abilities exert a moral claim, only the ones that have been evaluated as valuable from an ethical viewpoint. (The capacity for cruelty, for example, does not figure on the list.)… . Human beings are creatures such that, provided with the right educational and material support, they can become fully capable of all these human functions. That is, they are creatures with certain lower-level capabilities (which I call “basic capabilities”) to perform the functions in question. When these capabilities are deprived of the nourishment that would transform them into the higher-level capabilities that figure on the list, they are fruitless, cut off, in some way but a shadow of themselves. When a turtle is given a life that affords a merely animal level of functioning, we have no indignation, no sense of waste and tragedy. When a human being is given a life that blights powers of human action and expression, that does give us a sense of waste and tragedy…30

Let the set of basic capabilities to perform valued functions be named S. Every member of S is a member of the set of typical human capacities, but not every member of the set of typical human capacities is a member of S. For example, the higher-order capacity for cruelty is a member of the set of typical human capacities but not S. Nevertheless, if something has a set of typical human capacities, it has a certain set S of basic capabilities.

Nussbaum originally elucidated basic or B-capabilities by contrasting them with internal or I-capabilities and external or E-capabilities,31 but in subsequent work she calls the external capabilities “combined” capabilities. Internal capabilities are

…states of the person herself that are, so far as the person herself is concerned, sufficient conditions for the exercise of the requisite functions. A woman who has not suffered genital mutilation has the internal capability for sexual pleasure; most adult human beings everywhere have the internal capability to use speech and thought in accordance with their own conscience.32

Combined capabilities, on the other hand, are

…internal capabilities combined with suitable external conditions for the exercise of the function. A woman who is not mutilated but is secluded and forbidden to leave the house has internal but not combined capabilities for sexual expression (and work, and political participation). Citizens of repressive nondemocratic regimes have the internal but not the combined capability to exercise thought and speech in accordance with their conscience.33

The production of these combined capabilities, Nussbaum claims, is the goal of public policy. This means “promoting the states of the person by providing the necessary education and care,” but it also means “preparing the environment so that it is favorable for the exercise of practical reason and the other major functions.”34

It is now possible to explain how Nussbaum used to argue that an individual’s basic capabilities are morally relevant to public policy in at least two related ways: first, basic capabilities were the basis (the necessary and sufficient conditions) for receiving a just political distribution of the combined capabilities; second, basic capabilities were the basis for natural human rights such as the right to life.

Consider first the relationship between basic capabilities and just political distribution. One of Nussbaum’s stated purposes in “Nature, Function, and Capability” was “to describe a promising view about the basis and aims of political distribution,”35 and part of her summary of this promising view went as follows:

The aim of political planning is the distribution to the city’s individual people of the conditions in which a good human life can be chosen and lived. This distributive task aims at producing capabilities. That is, it aims not simply at the allotment of commodities, but at making people able to function in certain human ways. A necessary basis for being a recipient of this distribution is that one should already possess some less developed capability to perform the functioning in question. The task of the city is, then, to effect the transition from one level of capability to another.36

Nussbaum claimed that once we recognize that an Aristotelian lawgiver seeks the goal of enabling people to live well and do well, we still need to confront the difficult question of “for whom will this goal be sought, and on what basis?”37 She then set out to argue for the idea that “the basis of distribution is a lower-level capability of the person, an untrained natural capability to attain the higher functioning level, given the addition of certain further distributable conditions.”38

Nussbaum’s argument in 1988 for treating this untrained natural capability as a necessary condition for being a recipient of developed ethical/intellectual capabilities emerged from Aristotle’s discussion of women and natural slaves.39 She also asked, “Is the presence of a B-capability (or B-capabilities) sufficient as well as necessary for being a subject of the lawgiver’s concern? I am inclined to think that it is.”40 Nussbaum gave several reasons for her inclination for treating this untrained natural capability as a sufficient condition for being a recipient of developed ethical/intellectual capabilities.41

One of these reasons focused on Aristotle’s discussion of the morally relevant criteria for the distribution of offices in the city:

[Aristotle’s] argument makes the more general point that in each area, when what we are distributing are the necessary material conditions for a certain function, what we should look to is not irrelevant characteristics (like birth or wealth) but a relevant characteristic, namely, the capability to perform the function in question. Aristotle’s example is aulos-playing…42

Nussbaum then explained why this example is relevant to basic capabilities:

[Aristotle] uses the example to make a more general point: that capability is the morally relevant criterion for distribution of the conditions for a function, since capability (unlike other features) has relevance to the performance of the function. Surely we may apply this general point to the situation in which the legislator is distributing education and other necessary conditions of the I-capabilities. When we do so, we find that the characteristic of persons to which he should look is not birth, or wealth, or good looks, but the presence of a B-capability to perform the function in question.43

Finally, Nussbaum made the conceptual link between basic capabilities and justice:

And the aulos example implies, furthermore, that it is unjust if the legislator does not give the auloi to the capable players…Applying this further point to the case of education, we would be entitled to say that it is unjust of the legislator not to give these essential goods to those who are by nature capable of using them.44

Nussbaum summarized the account as follows:

Aristotle is [saying]…to those who have a B-capability, give as much of the relevant goods as would be required to bring that person along from a B-capability to an E-capability…45

So, then, with these parts of Nussbaum’s 1988 discussion of just distribution before us, the following moral principle seems to emerge:

If something has a certain set S of basic capabilities (that are possessed by normal adult human beings, e.g. the basic capability for practical reason and the basic capability for imagination), then justice requires that the legislator give it as much of the essential goods as it needs in order to develop and use these basic capabilities.

And this moral principle, in turn, resonates with and helps to justify the following one:

If something has a certain set S of basic capabilities, it has serious moral status.

This, then, is the relevance of Nussbaum’s discussion of the relationship between basic capabilities and distributive justice.

Next, consider Nussbaum’s discussion of the relationship between basic capabilities and natural human rights. In 1997 she argued that rights and capabilities are related in two ways. The first relation involved thinking of certain combined capabilities as themselves rights:

The right to political participation, the right to religious free exercise, the freedom of speech, the freedom to seek employment outside the home…all of these are best thought of as human capacities to function in ways that we then go on to specify.46

The second relation involved thinking of certain basic capabilities as the criteria or ground of rights:

…there is another way in which we use the term “right” in which it [sic] could not be identified with a capability. We say, that is, that A has “a right to” seek employment outside the home, even when her circumstances obviously do not secure such a right to her. When we use the term “human right” this way, we are saying that just in virtue of being human, a person has a justified claim to have the capability secured to her: so a right in that sense would be prior to capability and a ground for the securing of a capability. “Human rights” used in this sense lie very close to what I have called “basic capabilities,” since typically human rights are thought to derive from some actual feature of human persons, some untrained power in them that demands or calls for support from the world.47

Nussbaum’s attempt to forge a close connection between basic human capabilities and rights was further clarified by her answer to the question of whether the language of rights is still needed once we have the language of capabilities. She claimed that the language of rights still plays important roles in public discourse:

…there is no doubt that one might recognize the basic capabilities of people and yet still deny that this entails that they have rights in the sense of justified claims to certain types of treatment…appealing to rights communicates more than appealing to basic capabilities: it says what normative conclusions we draw from the fact of the basic capabilities.48

Nussbaum believed that the fact that an individual has certain basic capabilities can appropriately generate normative conclusions about that individual’s rights. The idea is that, if an individual possesses a certain set S of basic capabilities, it follows that this individual has certain natural rights.

This link between capabilities and rights is especially relevant to serious moral status. For serious moral status, as I argued in Chapter One, includes a strong moral presumption against being killed, and the right to life has traditionally been thought of as one of the natural rights. Indeed, Nussbaum has consistently attempted to produce a working list of “what the most central human capabilities are,”49 and the very first capability on the current version of her list is life itself:

1. Life. Being able to live to the end of a human life of normal length; not dying prematurely, or before one’s life is so reduced as to be not worth living.50

So, then, with these parts of Nussbaum’s discussion of human rights before us, the following moral principle seems to emerge:

If something has a certain set S of basic capabilities, it has natural human rights, such as the right to life.

And this moral principle, in turn, resonates with and helps to justify the following one:

If something has a certain set S of basic capabilities, it has serious moral status.

This, then, is the relevance of Nussbaum’s discussion of the relationship between basic capabilities and rights.

We can now summarize the argument of this section. If something has a certain set S of what Nussbaum calls “basic capabilities”, then, according to her, the state is morally required, as a matter of justice, to provide it with the necessary conditions for the development of those capabilities. Furthermore, if something has a set S of basic capabilities, then it has certain natural human rights, such as the right to life. But if these things are true, then it also seems true that if something has a certain set S of basic capabilities, it has serious moral status. Finally, it can be shown that a set S of basic capabilities is merely a subset of the set of typical human capacities. Hence, if something has a set of typical human capacities, at some order or other, it has serious moral status.

There are three related elements in Nussbaum’s writing that might seem to undermine the argument of this section. First, she defines “human being” differently than I do. Second, she does not think that all of the entities that I would call human beings have the relevant set of basic capabilities. Third, she sometimes views sentience as a necessary condition of “moral considerability”. However, since she does not always view sentience this way, and is currently searching for a solid argument for so viewing it, I shall focus my discussion below only on the first two elements.51

For me, the concept of a human being is a purely descriptive concept, picking out all and only those entities in the world that have a certain sort of cell structure (the arguments for this were developed in Chapter One); for Nussbaum, the concept of a human being is an irreducible normative concept, picking out all and only those entities in the world that exhibit certain functional properties we deem to be morally significant. So, for example, the proposition “this human individual remains a human being during all the stages of his struggle with senile dementia” is simply true on my account, but it is not simply true, and perhaps not even true at all, on Nussbaum’s account. As she noted in a 1992 article:

I have argued that the conception of the human being is itself, in a certain way, a normative conception, in that it involves singling out certain functions as more basic than others. And there is no getting around the fact that correct application of the concept will involve answering evaluative questions that will sometimes be difficult to answer: for a creature falls under the concept only if it possesses some basic, though perhaps altogether undeveloped, capability to perform the functions in question. It will sometimes be very difficult to say whether a certain patient with senile dementia or a certain extremely damaged infant has enough of those basic capabilities to fall under the concept.52

Before explaining how Nussbaum has developed her views regarding these difficult cases, let me simply note that I believe she is incorrect in thinking that certain patients with senile dementia, or certain extremely damaged infants, lack the basic capabilities she wants to focus on. The arguments for this belief have already been given a detailed exposition in Chapter Two of this book. If she wished, Nussbaum could employ those arguments to show how even severely damaged infants and patients with senile dementia are still “human” (even in her normative sense) and endowed with the relevant basic capabilities.

In 1992, Nussbaum had two related strategies for handling these marginal cases. First, she re-emphasized the importance of basic capacities in judging whether an individual is “human” (in her normative sense).53 Second, she admitted that, even though there may be unfortunate cases where our relatives do not have the relevant basic capacities (and are thus not “human” in her normative sense), we should nevertheless proceed as if everyone related to us does have the relevant basic capacities.54

Subsequent work by Nussbaum on this topic has shifted to a third strategy for handling the range of difficult cases. As she described the shift in 2008,55

In early formulations of the idea, I said that the ground of political entitlements lay in a set of “basic capabilities,” undeveloped powers of the person that were the basic conditions for living a life worthy of human dignity. I acknowledged that the potential for abuse in assessing which children of human parents have the basic capabilities was very high, and that many groups (women, members of minority races, people with a variety of disabilities) had been prematurely and wrongly said not to have some major basic capabilities (rationality, the capacity for choice, and so forth). So in practical terms I took the line that it was always best to proceed as if everyone was capable of all the major internal capabilities, and to make tireless efforts to bring each one up above the threshold. I still believe that this practical approach is essentially correct. I do think, however, that it is quite crucial not to base the ascription of human dignity on any single “basic capability” (rationality, for example), since this excludes from human dignity many human beings with severe mental disabilities. Even if we should shift to some different capacity, such as the capacity for social interaction or care, many human beings would still be excluded.

After remarking on the complexity of the problem, she suggests that

…the best way to solve this complex problem is to say that full and equal human dignity is possessed by any child of human parents who has any of an open-ended disjunction of basic capabilities for major human life-activities.

Finally, to illustrate how she thinks this works out with particular cases, she says:

At one end, we would not accord equal human dignity to a person in a persistent vegetative state, or an anencephalic child, since it would appear that there is no striving there, no reaching out for functioning. On the other end, we would include a wide range of children and adults with severe mental disabilities, some of whom are capable of love and care but not of reading and writing, some of whom are capable of reading and writing but severely challenged in the area of social interaction. So the notion of “basic capabilities” still does some work in saying why it is so important to give capacities development and expression, but it is refashioned to be flexible and pluralistic, respectful of human diversity.

Two points should be made in response to this these developments within Nussbaum’s view. First, there seems to be nothing requiring Nussbaum to abandon her earlier view that the possession of certain basic capabilities is sufficient for an entity to have the moral entitlements she thinks normal adult human beings have: for if human dignity is possessed by certain beings who have even one of a relevant set of basic capabilities, then surely this dignity is possessed by beings who have the entire set of basic capabilities. Second, if the arguments of Chapter 2 are correct, then even the anencephalic and the patient in a persistent vegetative state can be correctly characterized as having the relevant basic capabilities.

I believe a short summary of this chapter would be helpful at this point. The main argument of the chapter was a “moral” temporary change argument. Whereas the “metaphysical” temporary change argument constructed in Chapter 2 attempted to show that being human is sufficient for having a set of typical human capacities, the “moral” temporary change argument of this chapter attempted to show that having a set of typical human capacities is sufficient for having serious moral status. One might naturally ask: why not just skip the detour about typical human capacities, and instead construct a temporary change argument that attempts to show that being human is sufficient for having serious moral status? The answer to this natural question is that focusing upon typical human capacities allows us to explain more: it allows us to explain both why humans retain their serious moral status when undergoing various sorts of temporary changes, and why “shumans” (with capacities just like ours, but with ZNA instead of DNA) retain their serious moral status when undergoing various sorts of temporary changes.

I considered and rejected several alternative strategies for attempting to explain our serious moral status in a way that accommodates our beliefs about temporary changes. Strategies focusing on an individual’s actual past and/or future are unsatisfactory, because we can think of cases where an individual still has serious moral status, even though it does not have the sort of actual past and/or future that these strategies recommend. Strategies focusing on a particular order of a given capacity, such as the first-order capacity to think, are unsatisfactory because we can think of cases where an individual still has serious moral status, even though it does not have that particular order of the capacity in question: since the temporary change can always be iterated, there is no principled way to stop as long as there is a capacity at some order or other to do the activity in question (e.g. think). Strategies focusing on “actual, continuing subjects of experience” are unsatisfactory, because we can think of cases where an individual still has serious moral status, even though it is not an “actual, continuing subject of experiences” (as that phrase is typically understood by its proponents). The cases I focused on were cases where the “actual, continuing subjects of experience” view is often taken to be most plausible: namely, cases involving the “complete reprogramming” of the upper brain of a human organism.

Finally, I considered why the writings of John Rawls and Martha Nussbaum lend support to the idea that if something has a set of typical human capacities, at some order or other, it has serious moral status. Rawls’ own discussions of the way his parties to the original position would deliberate about paternalism and the basis of equality lead naturally to the idea that certain typical human capacities—in particular, certain types of higher-order capacities for moral personality—are sufficient to make something owed justice. Nussbaum’s formulation of her capabilities approach lead naturally to the idea that certain typical human capacities—in particular, the “basic capabilities”—are sufficient to make something endowed with certain natural rights and entitled to just treatment by the state.

Footnotes

  1. 1.

    Michael Tooley argued, in Chapter 10 of Abortion and Infanticide, that the intuition should be set aside for at least three reasons. First, appeals to moral intuitions are plausible only if the appeal is to principles that are (what Tooley calls) basic moral principles (or derivable from basic moral principles), but the principle appealed to by this intuition is not. Second, the intuition in question is not unanimously shared in our own society and was not generally shared by earlier societies. Third, the intuitions of people over the past 2000 years have been heavily shaped by the religions of Judaism and (especially) Christianity, so that a person can reasonably rely upon such intuitions only if he takes the teachings of one of these religions to be true (Tooley, 1983).

  2. 2.

    But since the problem discussed in this section is a general problem, the discussion could be formulated in terms of any single capacity (e.g. the capacity to experience pleasure and pain) or any set of capacities (e.g. the set of capacities possessed by any normal adult human person).

  3. 3.

    Parfit (1984, pp. 199–200).

  4. 4.

    See McMahan (2002, pp. 117–120).

  5. 5.

    Boonin (2003, p. xiv).

  6. 6.

    Boonin (2003, p. 78).

  7. 7.

    Tooley (1983, pp. 102–103).

  8. 8.

    Thanks to Chris Tollefsen for pressing me on this point.

  9. 9.

    What follows is adapted from DiSilvestro (June 2005).

  10. 10.

    Rawls (1971, pp. 248–249).

  11. 11.

    Rawls (1993, p. 19).

  12. 12.

    Rawls (1993, p. 32), footnote 34.

  13. 13.

    Rawls (1971, p. 504).

  14. 14.

    Rawls (1971, p. 505).

  15. 15.

    Rawls (1971, p. 505).

  16. 16.

    Rawls (1971, p. 505). Emphasis [and brackets] mine.

  17. 17.

    Rawls (1971, p. 505).

  18. 18.

    Rawls (1971, p. 509).

  19. 19.

    Rawls (1971, p. 509).

  20. 20.

    Rawls (1971, pp. 505–506).

  21. 21.

    Rawls (1971, p. 506).

  22. 22.

    Rawls (1971, pp. 509–510).

  23. 23.

    See Dombrowski (1997, p. 59). See also Warren (1997, p. 105).

  24. 24.

    The examples of Nussbaum’s formulation of the capabilities approach that I will be working with are primarily from an intermediate stage in her development of the approach. They are found in Nussbaum (2000, 1988, pp. 145–184, 1992, pp. 202–246, 1997, pp. 273–300 [but the version I quote from is found on pp. 117–149 of Pablo De Greiff and Ciaran Cronin (eds.), Global Justice and Transnational Politics: Essays on the Moral and Political Challenges of Globalization (Cambridge, Mass.: MIT Press, 2002)]). For an example of Sen’s formulation of the approach, see his essay (1993). As we shall see below, very major changes in the concept of basic capabilities have occurred in the last several years. For example, in her 2006 book Frontiers of Justice (Cambridge: Harvard University Press, 2006) and in her 2008 article “Human Dignity and Political Entitlements”, President’s Council on Bioethics, 2008), she explains that she has dropped the concept of basic capabilities as originally articulated, because of her concern that it does not make enough room for the complete political equality of people with severe mental and cognitive disabilities. In its place, she says that every person born of two parents who possess the capacity for some type of striving and agency is a fundamental equal of every other. She also extends the idea of capability to non-human animals, although she gives the species a special importance. Thanks are due to Nussbaum (personal correspondence) for clarifying to me these changes in her view.

  25. 25.

    Nussbaum (1988, p. 191).

  26. 26.

    Nussbaum (1988, p. 191).

  27. 27.

    Nussbaum (2002, p. 132).

  28. 28.

    Nussbaum (2000, p. 84). Her text really does say “a capacity for work” rather than “a capability for work”.

  29. 29.

    Nussbaum (2000, p. 84).

  30. 30.

    Nussbaum (2000, p. 83).

  31. 31.

    The section where she explained the differences between basic, internal, and external capabilities was even titled “Levels of Capability.” See Nussbaum (1988, p. 186).

  32. 32.

    Nussbaum (2002, p. 132).

  33. 33.

    Nussbaum (2002, p. 132).

  34. 34.

    Nussbaum (2002, p. 132).

  35. 35.

    Nussbaum (1988, p. 145).

  36. 36.

    Nussbaum (1988, pp. 145–146), emphasis mine.

  37. 37.

    Nussbaum (1988, p. 160).

  38. 38.

    Nussbaum (1988, p. 160).

  39. 39.

    Nussbaum (1988, p. 166).

  40. 40.

    Nussbaum (1988, p. 166).

  41. 41.

    See Nussbaum (1988, p 166).

  42. 42.

    Nussbaum (1988, p. 167).

  43. 43.

    Nussbaum (1988, p. 167).

  44. 44.

    Nussbaum (1988, p. 192).

  45. 45.

    Nussbaum (1988, pp. 192–193).

  46. 46.

    Nussbaum (2002, p. 135).

  47. 47.

    Nussbaum (2002, p. 136). As she puts it in Frontiers of Justice “…the ‘basic capabilities’ of human beings are sources of moral claims wherever we find them: they exert a moral claim that they should be developed and given a life that is flourishing rather than stunted” (p. 278).

  48. 48.

    Nussbaum (2002, pp. 138–139). However, notice both the similarity and the shift in Frontiers of Justice (Cambridge, Mass.: Harvard University Press, 2006): “the language of capabilities…gives important precision and supplementation to the language of rights… .the capabilities approach holds that the basis of a claim is a person’s existence as a human being—not just the actual possession of a set of rudimentary ‘basic capabilities,’ pertinent though these are to the more precise delineation of social obligation, but the very birth of a person into the human community. Thus Sesha [Kittay]’s entitlements are not based solely upon the actual ‘basic capabilities’ that she has, but on the basic capacities characteristic of the human species. Even if Sesha does not have the capacity for language, then, the political conception is required to arrange vehicles of expression for her, through adequate forms of guardianship. Such entitlements would not exist were capabilities based only on individual endowment, rather than on the species norm” (pp. 284–285).

  49. 49.

    Nussbaum (2002, p. 128). “The List is supposed to be a focus for political planning, and it is supposed to select those human capabilities that can be convincingly argued to be of central importance in any human life, whatever else the person pursues or chooses” (p. 128).

  50. 50.

    Nussbaum (2002, p. 129, 2000, p. 78, 2008, p. 377). http://www.bioethics.gov/reports/human_dignity/human_dignity_and_bioethics.pdf

  51. 51.

    In Frontiers of Justice, Nussbaum admits that there are good reasons for holding that “the capabilities approach…strictly speaking, should not say that the capacity to feel pleasure and pain is a necessary condition of moral status” (p. 362, see discussion on pp. 361–362 and p. 449 fn 54). And in “Human Dignity and Political Entitlement” (President’s Council on Bioethics, 2008): “As for when human dignity begins to assert its ethical claims, I have so far argued that sentience is a necessary condition of moral considerability…I have no very solid argument for this position, and I have for some years urged the young members of the Human Development and Capability Association to work out alternative positions on the question, ‘Whose capabilities count?’” (pp. 373–374). She there briefly considers how this view about sentience might apply to debates about abortion and embryonic stem-cell research. Since Nussbaum is currently searching for a solid argument in favor of the view that sentience is necessary for moral status, since she is aware of good reasons against that view, and since she is currently urging younger scholars to work out alternative positions to that view, perhaps it will not be thought inappropriate to point out that the arguments advanced earlier in this section, and indeed all the argument advanced earlier in this chapter, explain why sentience should not be thought necessary for moral considerability, and point the way to a better alternative. For example, if a person can temporarily lose her sentience for a period of time without losing her moral considerability during that period of time, then sentience is not a necessary condition for moral considerability, even if the basic capability for sentience (what I call the “higher-order capacity” for sentience) is.

  52. 52.

    Nussbaum (1992, p. 227). For her treatment of this issue in Frontiers of Justice, consider: “…the notion of human nature in my theory is explicitly and from the start evaluative, and, in particular, ethically evaluative: among the many actual features of a characteristic human form of life, we select some that seem so normatively fundamental that a life without any possibility at all of exercising one of them, at any level, is not a fully human life, a life worthy of human dignity, even if the others are present. If enough of them are impossible (as in the case of a person in a persistent vegetative state), we may judge that the life is not a human life at all, any more” (p. 214); “Some types of mental deprivation are so acute that it seems sensible to say that the life there is simply not a human life at all, but a different form of life. Only sentiment leads us to call the person in a persistent vegetative condition, or an anencephalic child, human” (p. 220); “surely it would be only dogmatism to insist that the life of such a child [with anencephaly] is a human life…” (p. 492, fn 25). Her reason for thinking this with the cases of anencephaly and PVS is that “all possibility of conscious awareness and communication with others is absent” (p. 221).

  53. 53.

    For an example of the first strategy, consider the following passage: “So far, I have focused on the higher-level (developed) human capabilities that make a life a good human life but have not spoken at length about the empirical basis for the application of the concept ‘human being’ to a creature before us. The basis cannot, of course, be the presence of the higher-level capabilities on my list, for one of the main points of the list is to enable us to say, of some being before us, that this being might possibly come to have these higher-level capabilities but does not now have them. It is that gap between basic (potential) humanness and its full realization that exerts a claim on society and government. What, then, is to be the basis for a determination that this being is one of the human beings, one of the ones whose functioning concerns us? I claim that it is the presence of a lower-level (undeveloped) capability to perform the functions in question, such that with the provision of suitable support and education, the being would be capable of choosing these functions.” Nussbaum (1992, pp. 227–228).

  54. 54.

    For an example of the second strategy, consider this passage: “There is, of course, enormous potential for abuse in determining who has these basic capabilities. The history of IQ testing is just one chapter in an inglorious saga of prejudiced capability testing that goes back at least to the Noble Lie of Plato’s Republic. Therefore we should, I think, proceed as if every offspring of two human parents has the basic capabilities, unless and until long experience with the individual has convinced us that damage to that individual’s condition is so great that it could never in any way, through however great an expenditure of resources, arrive at the higher capability level. (Certain patients with irreversible senile dementia or a permanent vegetative condition would fall into this category, as would certain very severely damaged infants. It would then fall to other moral arguments to decide what treatment we owe to such individuals, who are unable ever to reach the higher capabilities to function humanly. It certainly does not follow that we would be licensed to treat such individuals harshly; we simply would not aim at making them fully capable of the various functions on our list.)” Nussbaum (1992, p. 228). Again, in response, I believe that there is no human individual who “could never in any way, through however great an expenditure of resources, arrive at the higher capability level.” The arguments for this belief are given a detailed exposition in Chapter 2. Indeed, I would say of the anencephalic and the patient in a persistent vegetative state exactly what Nussbaum says about Sesha Kittay in the following passage from Frontiers of Justice: “if we could cure her condition and bring her up to the capabilities threshold, that is what we would do, because it is good, indeed important, for a human being to be able to function in these ways. If such a treatment should become available, society would be obliged to pay for it, and would not be able to offer the excuse that she is impaired ‘by nature.’ And, further, if we could engineer the genetic aspects of it in the womb, so that she would not be born with impairments so severe, that, again, is what a decent society would do” (pp. 226–227).

  55. 55.

    The following passages are all taken from her fuller discussion in Nussbaum (2008, pp. 362–363).

Copyright information

© Springer Science+Business Media B.V. 2010

Authors and Affiliations

  1. 1.Department of PhilosophyCalifornia State University, SacramentoSacramentoUSA

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