Wednesday, March 28, 2012

Bad Oklahoma Bills: Personhood by Legislative Fiat

Okay—very quickly now: Personhood. What is it?

I ask because here in the great state of Oklahoma, the Senate has passed—and the House is preparing to vote on—legislation (SB 1433, the so-called "Personhood Act") that essentially declares a fertilized human egg to be a person. If this bill passed, what would the legislature be declaring?

All of us agree, I assume, that you and I and other adult human beings are persons. And I also suppose we agree about other things. For example, were there such alien beings as Klingons or Wookies, they’d be persons too, even if not biologically human ones. Traditional Christians believe that God the Father, God the Holy Spirit, and God the Son are all persons—although only the last of them can have a claim on being human.

Personhood is not a biological category, not determined by species membership. To be alive isn’t sufficient to be a person (mosquitoes are alive, but I’d defy you to call one of them a person). To concede that human life begins at conception is thus not to concede that personhood does. To be a cell with a full complement of human DNA in its nucleus isn’t sufficient to make one a person (if so, I would have just scratched a bunch of persons off my face).

Were I to try to offer a rough idea of what we are referring to when we use the word “person,” it would be this: “Person” names the kind of being that you and I and our neighbors most essentially are. Personhood is an essential property the possession of which lends to us the kind of moral standing we have in relation to one another, a moral standing that imposes demands on others to respond to us with a certain basic level of respect.

As such, the nature of personhood is one of those philosophical issues that straddles the intersection of ethics and metaphysics. The question is so vexing that philosophers who have written about the ethics of abortion have routinely sought to sidestep the question by granting the opposing side’s assumptions about the personhood of the fetus. While a kind of continuity exists between a fertilized egg and the child that eventually develops, this continuity isn’t enough to settle the question of whether a fertilized egg is a person—because it’s quite possible for some kind of continuity to underlie an essential change. When I die, there will be a kind of continuity between the body I have now and the corpse that will be there then. But at death an essential change will have taken place. The corpse that remains isn’t a person—and as such, in an important sense, it isn’t me. Likewise, until we know what defines personhood, we can’t say whether that fertilized egg from long ago with which I enjoy a kind of physical continuity was in fact me, or whether an essential change happened somewhere further along in the gestation process.

In important ways, our understanding of what makes you and me persons will depend on how we answer some very hard questions about reality. The philosopher Mary Ann Warren famously tried to characterize personhood in terms of the possession of some significant subset of a cluster of properties—including such things as consciousness, reasoning ability, self-motivated activity, the capacity to communicate, and the presence of self-concepts and self-awareness. Warren isn’t sure which of these is required for personhood, but she is confident that if none of these things are present, then we don’t have a person.

I suppose that if you’re a reductive materialist, then something like Warren’s definition of personhood--in terms of a set of functioning capacities or powers--will be what you’ll have to go with. And so, if you think the fundamental nature of reality is what the reductive materialists take it to be, you’d also be likely to conclude that a fertilized egg is not a person. If, by contrast, you think that mind isn’t reducible to matter, and that having a mind is essential to being a person—if, for example, you believe that to be a person requires the possession of something we call a “soul” that isn’t merely an emergent property of one’s physiology—you’d be less enamored with Warren’s approach to characterizing persons. You might then think that having a soul of a certain kind is sufficient to being a person, even if limitations in one’s body might prevent the soul from exercising those powers that are natural to it. The absence of discernible capacities of the sort Warren lists might, in that case, not rule out a claim to personhood.

Of course, belief in a soul leaves unanswered the question of when the soul comes on the scene. If you're a mind-body dualist, the presence of a physically human organism is not guarantee of the presence of a mind.

And there are a range of interesting alternatives to reductive materialism and dualism. The point is simply this: The issue of who counts as a person and why is bound up with questions having to do with the very nature of reality itself. So, to decide who qualifies as a person, we simply need to figure out the fundamental nature of reality. No wonder so many philosophers in the abortion debate try to sidestep the personhood issue!

Put simply, the question of who qualifies as a person is one of the most difficult philosophical questions you can find. And I don’t think that’s the sort of question that can or should be settled by a vote of the state legislature.

It is true, of course, that we have to make policy decisions in the face of all sorts of uncertainty. But the framers and supporters of SB 1433 are insisting that by itself it establishes no explicit policy requirements. It simply declares that the status of personhood begins at conception.

In effect, then, this is an attempt to legally settle a question about what is the case, as opposed to implementing a policy that reflects our uncertainty about what is the case. It seeks by legal fiat to tell us to operate as if there is no uncertainty. Good legislation acknowledges where uncertainty exists and looks for the best ways to reflect that uncertainty in the contours of our laws and collective practices. By that measure, SB 1433 is, simply put, bad legislation.


  1. Hi Eric,

    I am not sure I understand what you're trying to do regarding the definition of a person. Are you saying that “person” is something that exists out there or something and that you're trying to find out what it is? If so, I don't know what you mean.

    Now, clearly, there are tremendous consequences to what the law says about what a person is. But, leaving this aside, a word is just a word and, while we should aim for a useful and practical definition, there is something arbitrary about this.

    Take “life”. Is a virus alive? Would a highly advanced robot be alive? As such, these questions are not very interesting: it just depends on the definition we use. This doesn't mean there aren't deep questions about life, of course. But I don't think the definition itself is one of them.

    Isn't the case of personhood similar? As you say, there are things that would qualify as persons as it is generally understood: mathematicians, klingons. Others that wouldn't: a virus perhaps. But I don't know what it means to ask whether a fetus or a chimpanzee is a person – we seem to be entering an area where the word loses its usefulness.

    To be sure, I don't want to minimize any of the issues you raise as they can be formulated in a way that would not involve the definition as such. But, is an ape a person? Determining what is common or not between us and apes is an extremely difficult and fascinating question. And no doubt, calling chimps persons would have a strong emotional side to it. But how can this be something we find out? Isn't this instead a matter of agreement or convention?

  2. Anti-choice activists, the more careful ones anyway, typically state that it is simply "playing it safe" to assume that personhood begins at conception. Perhaps it is not so, but if there is any chance at all that the zygote is a person, then we should treat it as one.

    The problem of course is that the government interfering in a woman's reproductive decisions, forcing her to remain pregnant, is also not "playing it safe" in any way.

  3. Also, whatever definition of personhood we use, it is difficult for me to accept one that does not include having experiences, or even the ability to have experiences. Surely a zygote, blastocyst, embryo, etc. is better described as a potential person - which is certainly a serious category unto itself, but not the same as a person in the way we assign value to it.

  4. JP: Your question hits on a number of issues in philosophy of language--and I must concede that I was making an assumption about what kind of term "person" is...albeit an assumption that I take to be implicitly operative in the thinking of those who stand behind the "Personhood Act" (that is, I don't think the bill would make much sense under different linguistic assumptions). What I want to say is that even if we grant this assumption about what kind of term "person" is, the bill should be rejected.

    As I see it, the bill treats "person" as a designator for a certain kind of thing discoverable in the world (as opposed to being a "family resemblance term")--and, I would argue, the bill furthermore has to assume that "person" is defined not in terms of a definite discription, but in terms of "direct reference".

    Here's how Linda Zagzebski concisely and helpfully summarizes the theory of direct reference (developed by Saul Kripke, Hilary Putnam, and others):

    "...a natural kind such as water or gold or human should be defined as whatever is the same kind of thing or stuff as some indexically identified instance. For example, gold is, roughly, whatever is the same element as that, water is whatever is the same liquid as that, a human is whatever is a member of the same species as that, and so on. In each case, the demonstrative term 'that' refers to an entity to which the person doing the defining refers directly, typically by pointing.One of the main reasons for proposing definitions such as this was that Kripke and Putnam believed that often we do not know the nature of the thing we are defining, and yet we do know how to construct a definition that links up with its nature. We may not know the nature of gold, and for millenia nobody knew its nature, but that did not prevent people from defining 'gold' in a way that fixed the reference of the term and continued to do so after its nature was discovered. In fact, the discovery of the nature of gold implies that modern speakers are knowledgeable about the nature of the same stuff of which premodern speakers were ignorant. So the theory of direct reference permits the referent of the word 'gold' to remain invariant after the discovery of what makes gold what it is. If 'gold' did not refer to the same thing both before and after such a discovery, it is hard to see how we could claim that there is something about which the discovery is made."


  5. (Continued from above)

    Note that this theory not only helps make sense of continuity of language through new discoveries--and helps make coherent such statements as "We've discovered that water is H20"--but it also provides a framework for inquiry with respect to uncertain or controversial cases. If we don't know whether some object at issue is the same kind of thing as what has been indexically defined through direct reference ("Is this hunk of yellowish material gold?"), we can hope to conduct an investigation into the nature of the things that clearly and unambiguously fall within the term's scope--that is, an investigation of the exemplars--that leads us to discover its nature ("gold is an element with atomic number 79, an atomic weight of 196.9665, etc., etc."). This discovery of the nature of the thing can then help us to settle the controversies surrounding the controversial cases ("No, that's not real gold. It's fool's gold.")

    But if this is the approach we take with respect to persons, we face a serious challenge--because, if "person" is a certain kind of being whose exact nature is unknown, we are in the position of not merely being ignorant about the nature of persons but also about the proper way to investigate the matter. Given the way that persons are bound up with our conflicted ideas about the nature of reality and ethics, we cannot explore the nature of personhood in abstraction from these vexed philosophical controversies without, in effect, begging the question at hand.

  6. Hi Eric

    Is it possible to get by without natural kinds altogether? Would the alternative be definition by agreement: an ever fluid, culturally mediated process? Water sometimes refers to H2O, and sometimes it doesn't (the water in the sea, the water in a river). The meaning might be purely contextual, with ultimate context being the experiences and beliefs of the people engaged in the conversation.

    So, irrespective of whether the soul exists or not, a person is just whatever, in a particular place and time, we say it is, isn't it? Gold becomes a good comparision, if we think about the way we shifted away from a gold standard for currency. Money becomes whatever those involved in the transaction are willing to say it is.

    There may be a true, objective essence of personhood underlying this, but given we have no tools for collectively getting at this essence, this becomes irrelevant, doesn't it? Personhood may be complex not because it's philosophically complex, but because it's culturally freighted.

    Might this law, then, be seen as a particular interest group participating in, and perhaps attempting to manipulate, the process of cultural negotiation?


  7. Eric,

    You write: “Traditional Christians believe that God the Father, God the Holy Spirit, and God the Son are all persons

    Many Christians believe this, but I don’t think that’s the classical understanding. Indeed the most careful writings about the Trinitarian nature of God speak of the three hypostases of God, which together and inseparably constitute the personal nature of God. Also, the fact that the Father, the Son, and the Spirit are understood of having exactly the same will, it seems to me contradicts the idea that they are distinct persons. There may also be some linguistic confusion. It seems to me that when Jesus, the incarnation of God’s second hypostasis, prayed to the “Father” or spoke about the “Father”, He was referring to God, who in Jesus’ time was very often called “Father”. So in my understanding the “Father” in Jesus’ teaching is not the “Father” of the Trinity. Anyway, this is peripheral to your post.

    In relation to the soul, perhaps the right way to think about it is that since its intrinsic nature is spiritual, it exists outside of physical time. If this is right then it makes no sense to ask exactly when in the development of a new human does the soul come into existence. Rather one should ask at what stage in that development does the soul start to express itself, or to partake if you will, in physical reality. Like Jesus we too are embodied spirits, and we should not think about ourselves in primarily physical terms.

    As for SB1433 one way to go about it is to point out its legal implications. For example we know that a large proportion of human fertilized eggs (at least two-thirds) fail to implant and are ejected with the next menstrual cycle. Since there are laws about the proper procedures and burial of deceased people, the SB1433 would greatly complicate the legal duties of Oklahoma couples of childbearing age. Actually, I shudder to think about the legal implications.

    There are also theological implications. If what SB1433 claims is true and the fertilized egg is a human person, then since most human persons fail to implant and die in a state of absolute innocence, most people in heaven will be fertilized eggs