Personhood is a foundational concept in ethics, yet defining criteria have been elusive. In this article we summarize attempts to define personhood in psychological and neurological terms and conclude that none manage to be both specific and non-arbitrary. We propose that this is because the concept does not correspond to any real category of objects in the world. Rather, it is the product of an evolved brain system that develops innately and projects itself automatically and irrepressibly onto the (...) world whenever triggered by stimulus features such as a human-like face, body, or contingent patterns of behavior. We review the evidence for the existence of an autonomous person network in the brain and discuss its implications for the field of ethics and for the implicit morality of everyday behavior. (shrink)
This edited work collates novel contributions on contemporary topics that are related to human rights. The essays address analytic-descriptive questions, such as what legal personality actually means, and normative questions, such as who or what should be recognised as a legal person. As is well-known among jurists, the law has a special conception of personhood: corporations are persons, whereas slaves have traditionally been considered property rather than persons. This odd state of affairs has not garnered the interest of legal (...) theorists for a while and the theory of legal personhood has been a relatively peripheral topic in jurisprudence for at least 50 years. As readers will see, there have recently been many developments and debates that justify a theoretical investigation of this topic. Animal rights activists have been demanding that some animals be recognized as legal persons. The field of robotics has prompted questions about driverless cars: should they be granted a limited legal personality, so that the car itself would be responsible for damages? This book explores such concepts and touches on matters of bioethics, animal law and medical law. It includes matters of legal history and appeals to both legal scholars and philosophers, especially those with an interest in theories of law and the philosophy of law. (shrink)
Could an artificial intelligence become a legal person? As of today, this question is only theoretical. No existing computer program currently possesses the sort of capacities that would justify serious judicial inquiry into the question of legal personhood. The question is nonetheless of some interest. Cognitive science begins with the assumption that the nature of human intelligence is computational, and therefore, that the human mind can, in principle, be modelled as a program that runs on a computer. Artificial intelligence (...) (AI) research attempts to develop such models. But even as cognitive science has displaced behavioralism as the dominant paradigm for investigating the human mind, fundamental questions about the very possibility of artificial intelligence continue to be debated. This Essay explores those questions through a series of thought experiments that transform the theoretical question whether artificial intelligence is possible into legal questions such as, "Could an artificial intelligence serve as a trustee?" What is the relevance of these legal thought experiments for the debate over the possibility of artificial intelligence? A preliminary answer to this question has two parts. First, putting the AI debate in a concrete legal context acts as a pragmatic Occam's razor. By reexamining positions taken in cognitive science or the philosophy of artificial intelligence as legal arguments, we are forced to see them anew in a relentlessly pragmatic context. Philosophical claims that no program running on a digital computer could really be intelligent are put into a context that requires us to take a hard look at just what practical importance the missing reality could have for the way we speak and conduct our affairs. In other words, the legal context provides a way to ask for the "cash value" of the arguments. The hypothesis developed in this Essay is that only some of the claims made in the debate over the possibility of AI do make a pragmatic difference, and it is pragmatic differences that ought to be decisive. Second, and more controversially, we can view the legal system as a repository of knowledge-a formal accumulation of practical judgments. The law embodies core insights about the way the world works and how we evaluate it. Moreover, in common-law systems judges strive to decide particular cases in a way that best fits the legal landscape-the prior cases, the statutory law, and the constitution. Hence, transforming the abstract debate over the possibility of AI into an imagined hard case forces us to check our intuitions and arguments against the assumptions that underlie social decisions made in many other contexts. By using a thought experiment that explicitly focuses on wide coherence, we increase the chance that the positions we eventually adopt will be in reflective equilibrium with our views about related matters. In addition, the law embodies practical knowledge in a form that is subject to public examination and discussion. Legal materials are published and subject to widespread public scrutiny and discussion. Some of the insights gleaned in the law may clarify our approach to the artificial intelligence debate. (shrink)
Lockean accounts of personhood propose that an individual is a person just in case that individual is characterized by some advanced cognitive capacity. On these accounts, human beings with severe cognitive impairment are not persons. Some accept this result—I do not. In this paper, I therefore advance and defend an account of personhood that secures personhood for human beings who are cognitively impaired. On the account for which I argue, an individual is a person just in case (...) that individual belongs to a natural kind that is normally characterized by advanced cognitive capacities. Since “human being” is just such a natural kind, individual human beings can be persons even when they do not themselves have advanced cognitive capacities. I argue, furthermore, that we have good reason to accept this account of personhood over rival accounts since it is uniquely able to accommodate the intuitive concept of an impaired person. (shrink)
The concept of artificial intelligence is not new nor is the notion that it should be granted legal protections given its influence on human activity. What is new, on a relative scale, is the notion that artificial intelligence can possess citizenship—a concept reserved only for humans, as it presupposes the idea of possessing civil duties and protections. Where there are several decades’ worth of writing on the concept of the legal status of computational artificial artefacts in the USA and elsewhere, (...) it is surprising that law makers internationally have come to a standstill to protect our silicon brainchildren. In this essay, it will be assumed that future artificial entities, such as Sophia the Robot, will be granted citizenship on an international scale. With this assumption, an analysis of rights will be made with respect to the needs of a non-biological intelligence possessing legal and civic duties akin to those possessed by humanity today. This essay does not present a full set of rights for artificial intelligence—instead, it aims to provide international jurisprudence evidence aliunde ab extra de lege lata for any future measures made to protect non-biological intelligence. (shrink)
Drawing heavily on recent empirical research to update R.M. Hare's two-level utilitarianism and expand Hare's treatment of "intuitive level rules," Gary Varner considers in detail the theory's application to animals while arguing that Hare should have recognized a hierarchy of persons, near-persons, & the merely sentient.
Wennemann argues that the traditional concept of personhood may be fruitfully applied to the ethical challenge we face in a posthuman age. The book posits that biologically non-human persons like robots, computers, or aliens are a theoretical possibility but that we do not know if they are a real possibility.
Traditionally, it has been assumed that metaphysical and practical questions about personhood and personal identity are inherently linked. Neo-Lockean views that draw such a link have been problematic, leading to an opposing view that metaphysical and ethical questions about persons should be sharply distinguished. This paper argues that consideration of this issue suffers from an overly narrow conception of the practical concerns associated with persons that focuses on higher-order capacities and fails to appreciate basic practical concerns more directly connected (...) to our animality. A more inclusive alternative is proposed. (shrink)
Kagan argues that human beings who are neither persons nor even potential persons — if their impairment is independent of genetic constitution — are modal persons: individuals who might have been persons. Moreover, he proposes a view according to which both personhood and modal personhood are sufficient for counting more, morally, than nonhuman animals. In response to this proposal, I raise one relatively minor concern about Kagan's reasoning — that he judges too quickly that insentient beings can have (...) interests — before engaging the appeal to modal personhood. I challenge the thesis that modal personhood is relevant to one's moral status, first, by way of analogy to a kicker who misses a field goal though he might have made it; second, by casting doubt on implications for two impaired infants ; and, finally, by examining implications for dogs who would count as modal persons when genetic enhancements are capable of transforming them into persons. (shrink)
This paper explores the debate between personists, who argue that the concept of a person if of central importance for moral thought, and personists, who argue that the concept of a human being is of greater moral significance. On the one hand, it argues that normative naturalism, the most ambitious defense of the humanist position, fails to identify moral standards with standards of human behavior and thereby fails to undermine the moral significance of personhood. At the same time, it (...) contends that a more focused attention on the morally relevant features of human life may indeed play a crucial role in enhancing our moral understanding. (shrink)
It is generally accepted that the normative idea of personhood is central to African moral thought, but what has not been done in the literature is to explicate its relationship to the Western idea of rights. In this article, I investigate this relationship between rights and an African normative conception of personhood. My aim, ultimately, is to give us a cursory sense why duties engendered by rights and those by the idea of personhood will tend to clash. (...) To facilitate a meaningful philosophical discussion, I locate this engagement in the context of a debate between Ifeanyi Menkiti and Kwame Gyekye about the nature of Afro-communitarianism, whether it will ground rights as primary or secondary. I endorse Menkiti’s stance that duties are primary and rights secondary; and, I also problematize moderate communitarianism for taking a Western stance by employing a naturalist approach to rights. (shrink)
The lives of persons are valuable, but are all humans persons? Some humans—the immature, the damaged, and the defective—are not capable, here and now, of engaging in the rational activities characteristic of persons, and for this reason, one might call their personhood into question. A standard way of defendingit is by appeal to potentiality: we know they are persons because we know they have the potentiality to engage in rational activities. In this paper I develop acomplementary strategy based on (...) normativity. We know that the humans in question are persons because we know that lacking the here-and-now ability to engage in rational activities is—for them, unlike for tulips or kittens—a falling-short of some norm. Their personhood, in other words, is established on the basis of their being subject to the norm of having those here-and-now capacities. (shrink)
It is intuitively plausible that not every evildoer is an evil person. In order to make sense of this intuition we need to construct an account of evil personhood in addition to an account of evil action. Some philosophers have offered aggregative accounts of evil personhood, but these do not fit well with common intuitions about the explanatory power of evil personhood, the possibility of moral reform, and the relationship between evil and luck. In contrast, a dispositional (...) account of evil personhood can allow that evil is explanatory, that an evil person can become good, and that luck might prevent evil persons from doing evil or cause non-evil persons to do evil. Yet the dispositional account of evil personhood implies that some evil persons are blameless, which seems to clash with the intuition that evil persons deserve our strongest moral condemnation. Moreover, since it is likely that a large proportion of us are disposed to perform evil actions in some environments, the dispositional account threatens to label a large proportion of people evil. In this paper I consider a range of possible modifications to the dispositional account that might bring it more closely into alignment with our intuitions about moral condemnation and the rarity of evil persons. According to the most plausible of these theories, S is an evil person if S is strongly disposed to perform evil actions when in conditions that favour S's autonomy. (shrink)
What I will be referring to as the normative view in contemporary African discourse on personhood has received substantial treatment and is beginning to exhibit the sort of systematic coherence that I believe Kwasi Wiredu once anticipated.1 Much of this is due to Wiredu's own work, as well as important recent work by Polycarp Ikuenobe, whose most recent articulation and defense of the view appear in this journal.2 My aim is to engage with this way of thinking about what (...) it means to be a person with a view to repairing aspects of it deemed to be most problematic. To this end, I pursue two broad lines of contestation—the one is theoretical, contesting some of the features it takes to be conceptually required for... (shrink)
Emotions and personhood are important notions within the field of mental health care. How they are related is less evident. This book provides a framework for understanding the important and complex relationship between our emotional wellbeing and our sense of self, drawing on psychopathology, philosophy, and phenomenology.
Article responds to the criticism of speciesism that it is somehow less immoral than other -isms by showing that this is a mistake resting on an inadequate taxonomy of the various -isms. Criticizes argument by Bonnie Steinbock that preference to your own species is not immoral by comparison with racism of comparable level.
In the Introduction to Self to Self, J. David Velleman claims that 'the word "self" does not denote any one entity but rather expresses a reflexive guise under which parts or aspects of a person are presented to his own mind' (Velleman 2006, 1). Velleman distinguishes three different reflexive guises of the self: the self of the person's self-image, or narrative self-conception; the self of self-sameness over time; and the self as autonomous agent. Velleman's account of each of these different (...) guises of the self is complex and repays close philosophical attention. The first aim of this paper is therefore to provide a detailed analysis of Velleman's view. The second aim is more critical. While I am in agreement with Velleman about the importance of distinguishing the different aspects of selfhood, I argue that, even on his own account, they are more interrelated than he acknowledges. I also analyse the role of the concept of 'bare personhood' in Velleman's approach to selfhood and question whether this concept can function, as he wants it to, to bridge the gap between a naturalistic analysis of reasons for action and Kantian moral reasons. (shrink)
Scientists, engineers, and healthcare professionals are currently developing a variety of new devices under the category of brain-computer interfaces (BCIs). Current and future applications are both medical/assistive (e.g., for communication) and non-medical (e.g., for gaming). This array of possibilities comes with ethical challenges for all stakeholders. As a result, BCIs have been an object of both hope and concern in various media. We argue that these conflicting sentiments can be productively understood in terms of personhood, specifically the impact of (...) BCIs on what it means to be a person and to be recognized as such by others. To understand the dynamics of personhood in the context of BCI use and investigate whether ethical guidance is required, a meeting entitled "BCIs and Personhood: A Deliberative Workshop" was held in May 2018. In this article, we describe how BCIs raise important questions about personhood and propose recommendations for BCI development and governance. (shrink)
The President’s Council on Bioethics has addressed the moral status of human preembryos in its reports on stem cell research and human therapeutic cloning. Although the Council has been criticized for being hand-picked to favor the right-to-life viewpoint concerning human preembryos, it has embraced the idea that the right-to-life position should be defended in secular terms. This is an important feature of the Council’s work, and it demonstrates a recognition of the need for genuine engagement between opposing sides in the (...) debate over stem cell research. To promote this engagement, the Council has stated in secular terms several arguments for the personhood of human preembryos. This essay presents and critiques those arguments, and it concludes that they are unsuccessful. If the best arguments in support of the personhood of human preembryos have been presented by the Council, then there are no reasonable secular arguments in support of that view. (shrink)
Personhood is ascribed on others, such that someone who is recognized to be a person is bestowed with certain civil rights and the right to decision making. A rising question is how severely brain-injured patients who regain consciousness can also regain their personhood. The case of patients with locked-in syndrome is illustrative in this matter. Upon restoration of consciousness, patients with LIS find themselves in a state of profound demolition of their bodily functions. From the third-person perspective, it (...) can be expected that LIS patients might experience a differential personal identity and may lose their status as persons. However, from the patients’ perspective, it is uncontested that they retain their personal identity and that they consider themselves to be persons. We here include results from a survey with patients with LIS aimed at identifying the primary expectations of patients for their care by non-medical professionals. Based on these first-hand reports, we argue that personhood in LIS is progressively regained as the widening circle of others recognizes them as persons. (shrink)
This paper examines how three central aspects of personhood — the capacities of individuals, their normative status, and the social aspect of being recognized — are related, and how personhood depends on them. The paper defends first of all a ‘basic view’that while actual recognition is among the constitutive elements of full personhood, it is the individual capacities (and not full personhood) which ground the basic moral and normative demands concerning treatment of persons. Actual recognition depends (...) analyti- cally on such pre-existing normative requirements: it is a matter of responsiveness to them. The paper then discusses four challenges. The challenges claim that pace the basic view, the relevant capacities depend on recognition, that recognition seems to have normative rele- vance, and that the basic view cannot as such explain the equality either of persons, or of humans. Responding to these challenges amounts to refining the basic view accordingly. (shrink)
Theories regarding the nature and achievement of personhood in a communitarian context appear to differ in significant respects in the writings of several contemporary African philosophers. Ifeanyi Menkiti seems to regard ethnic differences as sufficient to warrant a national accommodation of multiculturalism with respect to moralities and attendant beliefs. Kwasi Wiredu argues that there is a substantive universal moral principle that undercuts such apparent and relatively superficial diversity. Communitarianism also seems to provide a better framework for explaining how a (...) human being becomes a person than classical liberal theory as enunciated by someone like John Rawls. (shrink)
The present paper unravels ontological and normative conditions of personhood for the purpose of critiquing ‘Cognitivist Views’. Such views have attracted much attention and affirmation by presenting the ontology of personhood in terms of higher-order cognition on the basis of which normative practices are explained and justified. However, these normative conditions are invoked to establish the alleged ontology in the first place. When we want to know what kind of entity has full moral status, it is tempting to (...) establish an ontology that fits our moral intuitions about who should qualify for such unique normative standing. But this approach conflates personhood’s ontology and normativity insofar as it stresses the primacy of the former while implicitly presupposing the latter; it thereby suffers from a ‘Normative Fallacy’ by inferring from ‘ought’ to ‘is’. Following my critique of Cognitivism, I sketch an alternative conception, contending that, whereas the Cognitivist ontology of personhood presupposes the normative, a social ontology is constituted by it. In due consideration of evidence from developmental psychology, the social embeddedness of persons—manifested in the ability of taking a ‘second-person stance’—is identified as a key feature of personhood that precedes higher-order cognition, and is directly linked to basic normative concerns. (shrink)
This work offers a new theory of what it means to be a legal person and suggests that it is best understood as a cluster property. The book explores the origins of legal personhood, the issues afflicting a traditional understanding of the concept, and the numerous debates surrounding the topic.
Artificial persons are those who speak and act for others. Nurses speak and act for patients as well as for physicians and institutions, or, more aptly, institutionalized medicine. Yet, acting for institutionalized medicine can be harmful to nurses, due to the psychological experience of moral distress and the loss of integrity of their practice. This paper illustrates the harm to nurses as expressed in narratives of their practice, and suggests some initial steps we might take in resisting the artificial (...) class='Hi'>personhood imposed by institutionalized medicine. (shrink)
According to a predominant view, reflection is constitutive of personhood. In this paper I first indicate how it might seem that such an account cannot do justice to the socially embedded nature ofpersonhood. I then present a phenomenologically-inspired account of reflection as critical stance taking and show how it accommodates the social embeddedness of persons. In concluding, I outline how this phenomenological account is also not vulnerable to a number of additional challenges that have been raised against accounts that (...) consider reflection to be constitutive of personhood and what matters for responsibility. (shrink)
This paper considers the hotly debated issue of whether one should grant moral and legal personhood to intelligent robots once they have achieved a certain standard of sophistication based on such criteria as rationality, autonomy, and social relations. The starting point for the analysis is the European Parliament’s resolution on Civil Law Rules on Robotics and its recommendation that robots be granted legal status and electronic personhood. The resolution is discussed against the background of the so-called Robotics Open (...) Letter, which is critical of the Civil Law Rules on Robotics. The paper reviews issues related to the moral and legal status of intelligent robots and the notion of legal personhood, including an analysis of the relation between moral and legal personhood in general and with respect to robots in particular. It examines two analogies, to corporations and animals, that have been proposed to elucidate the moral and legal status of robots. The paper concludes that one should not ascribe moral and legal personhood to currently existing robots, given their technological limitations, but that one should do so once they have achieved a certain level at which they would become comparable to human beings. (shrink)
We are very grateful to Richard Ashcroft 1 and Andrew McGee 2 for their thoughtful and articulate criticisms of our views. 3 Ashcroft has disappointingly low aspirations for the law. Of course he is right to say that the law is not a ‘self-sufficient, integrated and self-interpreting system of doctrine’. The law is often philosophically incoherent and internally contradictory. But it does not follow from this that all areas of the law are philosophically unsatisfactory. And if that were true, the (...) response should not be Ashcroft’s contemptuous despair, but a determination to make it better. Ashcroft would say that such idealism is unrealistic in the light of the very nature of ‘the Law’: ‘...a complex assemblage of institutions, rules, accredited persons, practices and systems’. That isa radically ‘legal realist’ position and is plainly unsustainable. We can demonstrate its unsustainability while demonstrating both that he is wrong... (shrink)
Often overlooked in studies of the corporation is the recognition that the modern corporate form and its power are rooted in the issue of race, and more specifically, in racial oppression. The racialized roots of the corporation become exposed when we acknowledge the significance of slavery and the Fourteenth Amendment to the evolution of the corporate form along with the discriminatory role corporations have traditionally played in shaping race relations in the U.S. This article draws upon several theoretical perspectives, primarily (...) critical race theory, management theory, legal studies, diversity management, and corporate social responsibility to introduce the corporate responsibility to race concept and establish it as a new basis for understanding why corporate persons have a responsibility for improving race relations. (shrink)
A widely adopted approach to end-of-life ethical questions fails to make explicit certain crucial metaphysical ideas entailed by it and when those ideas are clarified, then it can be shown to be inadequate. These metaphysical themes cluster around the notions of personal identity, personhood and humanness, and the metaphysics of substance. In order to clarify and critique the approach just mentioned, I focus on the writings of Robert N. Wennberg as a paradigm case by, first, stating his views of (...) personal identity, humanness, personhood, and the relations among them; second, offering a comparison of a view of humans as substances (understood in the classic interpretation of Aristotle and Aquinas) vs. a view of humans as property-things; third, applying the metaphysical distinctions surfaced in the second section towards a critique of Wennberg. (shrink)
This book explores the metaphysical underpinnings of theories of human nature, personhood, and the self. The coverage of the work is broad in scope, moving from the Pre-Socratics to Postmodernism, critically assessing what transpired during the intervening 2500 year period, with a special focus on the contributions of the Aristotelian/Thomistic tradition of inquiry. The work is designed to meet the needs of a wide range of readers, from beginners to more advanced students.
Thinking about how the law might decide whether to extend legal personhood to artificial agents provides a valuable testbed for philosophical theories of mind. Further, philosophical and legal theorising about personhood for artificial agents can be mutually informing. We investigate two case studies, drawing on legal discussions of the status of artificial agents. The first looks at the doctrinal difficulties presented by the contracts entered into by artificial agents. We conclude that it is not necessary or desirable to (...) postulate artificial agents as legal persons in order to account for such contracts. The second looks at the potential for according sophisticated artificial agents with legal personality with attendant constitutional protections similar to those accorded to humans. We investigate the validity of attributes that have been suggested as pointers of personhood, and conclude that they will take their place within a broader matrix of pragmatic, philosophical and extra-legal concepts. (shrink)
The law tends to think that there is no difficulty about identifying humans. When someone is born, her name is entered into a statutory register. She is ‘X’ in the eyes of the law. At some point, ‘X’ will die and her name will be recorded in another register. If anyone suggested that the second X was not the same as the first, the suggestion would be met with bewilderment. During X's lifetime, the civil law assumed that the X who (...) entered into a contract was the same person who breached it. The criminal law assumed that X, at the age of 80, was liable for criminal offences ‘she’ committed at the age of 18. This accords with the way we talk. ‘She's not herself today’, we say; or ‘When he killed his wife he wasn't in his right mind’. The intuition has high authority: ‘To thine own self be true’, urged Polonius.1 It sounds as if we believe in souls—immutable, core essences that constitute our real selves. Medicine conspires in the belief. If you become mentally ill, a psychiatrist will seek to get you back to your right mind. The Mental Capacity Act 1985 states that when a patient loses capacity the only lawful interventions will be interventions which are in that patient's best interests,2 and that in determining what those interests are the decision-maker must have …. (shrink)
What kind of animals are human beings? And how do our visions of the human shape our theories of social action and institutions? In Moral, Believing Animals>, Christian Smith advances a creative theory of human persons and culture that offers innovative, challenging answers to these and other fundamental questions in sociological, cultural, and religious theory. Smith suggests that human beings have a peculiar set of capacities and proclivities that distinguishes them significantly from other animals on this planet. Despite the vast (...) differences in humanity between cultures and across history, no matter how differently people narrate their lives and histories, there remains an underlying structure of human personhood that helps to order human culture, history, and narration. Drawing on important recent insights in moral philosophy, epistemology, and narrative studies, Smith argues that humans are animals who have an inescapable moral and spiritual dimension. They cannot avoid a fundamental moral orientation in life and this, says Smith, has profound consequences for how sociology must study human beings. (shrink)
The Human Brain Project (HBP) is a massive interdisciplinary project involving hundreds of researchers across more than eighty institutions that seeks to leverage cutting edge information and communication technologies to create a multi-level brain simulation platform (BSP). My worry is that some brain models running on the BSP will be persons. If this is right then not only will the in silico experiments the HBP envisions being carried on the BSP be unethical the mere termination of certain brain models running (...) on the BSP will be unethical. To assess the possible personhood of certain brain simulations I consider John Searle’s critique of strong AI. In arguing that Searle’s critique fails I conclude that the HBP must tread carefully and devise strict rules on how research using the BSP ought to proceed. (shrink)
This paper focuses on Confucian formulations of personhood and the implications they may have for bioethics and medical practice. We discuss how an appreciation of the Confucian concept of personhood can provide insights into the practice of informed consent and, in particular, the role of family members and physicians in medical decision-making in societies influenced by Confucian culture. We suggest that Western notions of informed consent appear ethically misguided when viewed from a Confucian perspective.
Most philosophical accounts of human rights accept that all persons have human rights. Typically, ‘personhood’ is understood as unitary and binary. It is unitary because there is generally supposed to be a single threshold property required for personhood. It is binary because it is all-or-nothing: you are either a person or you are not. A difficulty with binary views is that there will typically be subjects, like children and those with dementia, who do not meet the threshold, and (...) so who are not persons with human rights, on these accounts. It is consequently unclear how we ought to treat these subjects. This is the problem of marginal cases. I argue that we cannot resolve the problem of marginal cases if we accept a unitary, binary view of personhood. Instead, I develop a new non-binary personhood account of human rights, and defend two main claims. First, there are many, scalar properties, the having of which are conducive to personhood. Second, different subjects have different human rights depending on which of these properties they have, and what threats apply to them. On my view, and contra most existing accounts, most marginal cases have some degree of personhood and are entitled to some human rights. (shrink)
We are very grateful to Richard Ashcroft1 and Andrew McGee2 for their thoughtful and articulate criticisms of our views.3 Ashcroft has disappointingly low aspirations for the law. Of course he is right to say that the law is not a ‘self-sufficient, integrated and self-interpreting system of doctrine’. The law is often philosophically incoherent and internally contradictory. But it does not follow from this that all areas of the law are philosophically unsatisfactory. And if that were true, the response should not (...) be Ashcroft’s contemptuous despair, but a determination to make it better. Ashcroft would say that such idealism is unrealistic in the light of the very nature of ‘the Law’: ‘…a complex assemblage of institutions, rules, accredited persons, practices and systems’. That isa radically ‘legal realist’ position and is plainly unsustainable. We can demonstrate its unsustainability while demonstrating both that he is wrong to tar all areas of the law with the same brush and wrong to deny that medical ethics are ‘intellectually and metaphysically prior to medical law’. Take the law of murder which, of course, is part of ‘medical law’. It is surely trite to observe that humans thought that killing people was wrong before they started penalising murder. Ethics generated the law. There is nothing elusive or incoherent about the philosophical foundations of the law of murder. Human life is thought to matter. To kill is both to cause a harm and to commit a wrong. There is more than something of the straw man in Ashcroft’s elaboration of his argument. For he chooses, of all things, autonomy and, in particular, its invocation in the law of consent. Lawyers’ eyebrows will rise at his assertion that ‘while the concept of “autonomy” has an explanatory role in discussions of the …. (shrink)
In contemporary free will theory, a significant number of philosophers are once again taking seriously the possibility that human beings do not have free will, and are therefore not morally responsible for their actions. (Free will is understood here as whatever satisfies the control condition of moral responsibility.) Free will theorists commonly assume that giving up the belief that human beings are morally responsible implies giving up all our beliefs about desert. But the consequences of giving up the belief that (...) we are morally responsible are not quite this dramatic. Giving up the belief that we are morally responsible undermines many, and perhaps most, of the desert claims we are pretheoretically inclined to accept. But it does not undermine desert claims based on the sheer fact of personhood. Even in the absence of belief in moral responsibility, personhood-based desert claims require us to respect persons and their rights. So personhood-based desert claims can provide a substantial role for desert in free will skeptics' ethical theories. (shrink)
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