From: Russell Blackford (rblackford@hotmail.com)
Date: Thu Jun 28 2001 - 05:38:56 MDT
I applaud Anders' post.
One sub-set of the overall argument about possibly transhuman technologies
is the repeated idea that certain technologies or their uses would violate
human dignity. When I get some free time next year, I have a project in mind
of examining the historical conceptions of human dignity - Stoic, Christian,
Enlightenment - in detail and trying to discern how any real argument
against, say, cloning could be made from these ideas.
Generally, the word "dignity" is thrown around with nothing like that kind
of rigour.
One argument I've seen recently that attempts to give some structure to
"human dignity" and its implications appears in an article I came across in
the _Journal of Law and Medicine_, an issue published last year.
Here's some material I've written attempting to explain the argument, by an
academic called Judith Thomson, and to rebut it. I offer it for whatever
value it may have as a resource.
++++++++++++++++++++++++++++++++++++++++++
Rights versus liberties
A societal right to protect human dignity?
Thomson is no libertarian thinker, as becomes apparent when she discusses
the proposition that people have reproductive liberty. She places great
emphasis on the point that this is not a "right"—it is "no more than an
individual liberty" —and states as follows:
"At best, what any individual may enjoy is a liberty to reproduce, but
arguably this is circumscribed by the interests of society as a whole if
such reproduction tends to the detriment of its members."
In one sense, I have no argument with this. I do not assert that there are
any absolute individual liberties which can never be overridden, for any
reason, in the legislative process. However, a reason for overriding a
recognised individual liberty, even a prima facie liberty, must be something
stronger than mere social disapproval of the way the liberty is proposed to
be exercised. Otherwise, recognition of the liberty puts no brake on
majoritarian rule and is essentially meaningless.
Thomson develops an argument that each of us has a "negative duty not to
detract wilfully from human dignity" and suggests that the concomitant
"societal right to the maintenance of human dignity" is a reason to resist
human cloning. Her argument for the existence of this negative duty and
societal right is based on the following considerations:
 The negative duty is shown in defamation law, which requires us not
to subject others' reputations to hatred, ridicule or contempt.
 It is also inherent in the justification of censorship to protect
human dignity against displays of "excessive violence, sexual exploitation,
pederasty, sado-masochism, etc."
 There has been a revulsion at cruel and unusual punishments, the
degrading treatment of the Jews and gypsies by the Nazis and other examples
of extreme inhumanity.
 Respect for human dignity may be shown in society's refusal to
countenance experimentation on profoundly brain-damaged or comatose humans
or even the mistreatment of a corpse.
She draws the following conclusion:
"If the above argument for the existence of a right to human dignity were
recognised, then in any situation where the liberty to reproduce were urged
at the expense of human dignity the right would prevail as having the higher
legal status."
This analysis has some force but contains many problems. Its force may be
felt when we examine our intuitions about the respect that should be given
to comatose patients or to human corpses, where the analogy to a fertilised
oocyte, an embryo or a fetus carries some plausibility. What is interesting
about the argument, however, is that it is not deployed against the
destruction of biological artifacts such as cloned embryos but against
reproductive cloning. It is difficult to see how the argument can do the
required work.
#
Rights do not trump liberties
Though it may not be critical to her analysis, it is notable that Thomson
asserts, without any argument or citation, that in any clash between an
individual liberty and a societal right the latter must prevail. This is
hopelessly confused. Any proposition that P is at liberty to act in a
particular way entails that no one else is authorised to prevent her. It is
not to the point to refer to "mere" liberties, any more than it would be to
talk about a "mere" societal right. If there are good reasons to deny that
the state has authority to legislate in some area, but also reasons to
affirm it, we are simply in territory where no unqualified liberties, claims
or duties exist. That will usually be the case.
The classic analysis of the logical relationships among rights, liberties,
duties and so on is that of Hohfeld. Within Hohfeld's scheme, a clash
between a liberty and a claim of right is logically impossible, they cannot
co-exist. In this scheme, an individual liberty is treated as a "privilege".
If P has a privilege to act in a certain way, this entails that P is not
under a duty (of the type under discussion) to any other party, Q, not to
act in that way. It also entails that Q has no claim against P that P
refrain from so acting. In the context of individual rights against the
state (or against society as a whole, or a democratic majority), the
following can be deduced from the Hohfeldian scheme. The proposition that P
has reproductive liberty entails that the state/society/the majority has no
right to interfere with P's reproductive choices. Thus an individual liberty
to reproduce by means of nuclear somatic transfer is inconsistent with any
societal right to prohibit it.
There are other analyses than that of Hohfeld, but Thomson does not suggest
or rely upon any alternative, much less argue for it. Perhaps, however, her
confusing paraphernalia of "rights talk" is unnecessary. Thomson's argument
might best be interpreted simply as the plausible assertion that there is no
unqualified reproductive liberty together with the claim that there is a
good reason to restrict or prohibit reproductive cloning, namely that our
laws should protect human dignity. I shall now assess it on that basis.
#
Protecting human dignity
Thomson's examples of laws that protect human dignity are less than
convincing when we consider defamation and censorship laws. Defamation law
can be given a practical and quite compelling rationale, that we are all
social beings who can be injured or destroyed by attacks on our reputations.
If an individual's good reputation in the society where she lives, and on
which she depends economically and psychologically, is harmed, that is a
significant injury which is far more than an affront to her dignity.
Various arguments are put in favour of censorship. In some cases, material
may be censored out of mere prudery; in others, the material may pander to
tastes that it is genuinely dangerous for society to tolerate. Child
pornography is an uncontroversial example of the latter class. Another
argument is that exposure to certain material will be morally corrupting:
for example, exposure to it might shape propensities to sexist behaviour or
to violence. However, once we move away from the emotionally charged issue
of child pornography, there is much opposition to censorship. Attempts to
prevent adults from reading or viewing whatever they want are controversial.
For example, many people would argue strongly against the censorship of
material that depicts fetishism or sado-masochistic acts. Any attempt to
argue that certain material should be censored merely because it is somehow
undignified, without proof of any other direct or indirect injury, is highly
controversial.
The reference to the Nazi Holocaust is to an episode in human history in
which atrocious pain and suffering were inflicted upon totally undeserving
victims. This was motivated by the Nazis' irrational hatred for Jews and
certain other groups. An attempt was made to annihilate the entire Jewish
people, and millions died before the mad process was ended.
However, the whole point of an argument from human dignity, at least as
Thomson deploys it, is to find a basis to prohibit actions where, as with
reproductive cloning, no physical, psychological, financial or even social
injury has been directly inflicted or indirectly caused. By contrast, the
actions of the Nazis could not have been more blatantly injurious. They
involved the infliction of unjust imprisonment, physical and mental abuse,
torture and outright murder—all on a mass scale. The scope and intensity of
the Nazis' assaults on the bodies and psyches of those whom they considered
racial or spiritual enemies was without precedent, even in the most barbaric
military reprisals recorded by ancient and medieval history. Our sense of
the preciousness of fellow human beings and our knowledge of the malevolent
intent behind the Nazi actions deepen our repudiation of the extermination
camps and all they symbolise. These acts were intolerable and are almost
unbearable to contemplate, but they do not call for an ethico-legal
principle that operates in the absence of explicable injuries to
individuals.
Any attempt to find a common denominator among slanderers, pornographers,
Nazis and people who might merely be interested in having a cloned child
appears foolish and even offensive. Thomson may be on stronger ground,
however, when she refers to the respect with which we treat corpses and
comatose patients. Although a corpse cannot experience pain or feel
humiliation, and cannot suffer injury in those senses, most of us feel that
the dead should not be defiled. Even speaking ill of the dead is commonly
considered impolite and may produce twinges of real guilt. In a sense, we
pity the dead, though they can no longer suffer. Something of this attitude
extends to others who are beyond reach of our pity, including permanently
comatose patients.
There may be an argument that we should generalise these sentiments to
include biological artifacts that cannot yet engage our full sympathies
because they have not become fully formed human beings—for example, an
embryo produced by cloning. However, this seems to be an argument against
therapeutic cloning, in which the embryo is likely to be "harmed", not
against reproductive cloning, where the intention is for it to develop into
a living child who will be loved and cared for.
Even this argument, tangential to Thomson's actual analysis, would not be
convincing. A variety of elements probably inform our attitude to the dead.
Some of them may be the residue of ancient superstitions, but there are also
interests that the living have in the bodies and memories of the dead. A
dead person was once a member of her social group, probably loved (and now
mourned) by at least some. Her body is not merely inert matter, but evokes
feelings and memories; there are those for whom it is still significant,
charged with value. Perhaps some people are such social outcasts that no one
cares what happens to them, or to their bodies after death, but this would
be very exceptional. Thus there are good psychological and social reasons to
treat death ceremonially. In all societies, funerals are highly ritualised
and the dead accorded respect. It would be heartless to propose that this be
changed.
However, there is no basis to take a similar attitude to fertilised oocytes,
embryos and fetuses, or to force people by law to act as if they had such
an attitude. In any event, none of this relates to reproductive cloning.
Thomson puts no argument as to why attempts to have a child by the nuclear
somatic transfer procedure would be analogous to the mistreatment of a human
corpse or a comatose patient, much less the horrific mistreatment of the
Jews by the Nazis.
Many activities produce feelings of moral revulsion in particular segments
of the population and might be claimed, by someone or other, to violate
human dignity. For example, it might be claimed by some that homosexual
activities, and non-procreative sexual acts in general, lack dignity in the
requisite sense and are a travesty of the true "purpose" of human sexuality.
Such claims strike others (I am one of them) as irrational and cruel. Beyond
the area of sexuality and reproduction, a vast range of activities, from
participating in body contact sports to parading in garish clothing, can be
said to lack "dignity". The challenge that Thomson faces is how to produce
an ethico-legal principle of human dignity that is sufficiently strong,
clear and structured to entail that reproductive cloning deserves
condemnation, yet sufficiently narrow to avoid giving the censorious an
excuse to condemn anything at all which they dislike. Nothing in her article
suggests that it is possible to navigate the waters between this particular
Scylla and Charybdis.
++++++++++++++++++++++++++++++++++++
At this stage, the above is unpublished. I'd be pleased to receive any
comments on it or for people to draw upon it (with appropriate citation) if
it is useful in any context that you have. Its weakness at this stage (at
least the weakness I am aware of) is the same as that of the material it is
attacking: it needs a much more rigorous exposition of the various
historical conceptions of human dignity.
Philosophically
Russell
==================
Russell Blackford
rblackford@hotmail.com
_________________________________________________________________________
Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com.
This archive was generated by hypermail 2.1.5 : Sat Nov 02 2002 - 08:08:19 MST