Your body: you, or yours?

I. Introduction

It is, often, very wrong to do something to someone’s body without their permission, to hit them or touch them or give them medical treatment against their valid objections. Indeed, these are the paradigm wrongs that can and should be coercively restrained by the law.

Sometimes these bodily wrongs are wrong because they are harmful—as in paradigm cases of unjustified physical violence. But wrongs involving the body are not always wrongful because they are harmful. Some incursions into our bodies do not straightforwardly harm us at all: for instance, if intimate parts of your body are used to educate medical students, without your consent, while you are unconscious for a procedure.¹ Or consider the patients of Simon Bramhall, a brilliant British transplant surgeon who adopted a practice of (unconsensually) “signing” his initials onto the livers he operated on, using a painless and practically riskless procedure involving an argon laser.² It is wrong to do these things to people—wrong to do these sorts of things to you—simply because your body is yours, and not the hospital’s, or the surgeon’s. It is for that very reason, that you have rights in it, that preclude these actions.

This sort of justification is intuitively powerful. Yet, it contains an important ambiguity. It grounds body rights in a relation expressed by a possessive construction: “yours” “ours” “X’s”. Possessive expressions like these have multiple meanings. My car is mine in the sense that I own it. The car in turn has tires, but not in the same sense as I have the car. Grammatically possessive constructions sometimes express concepts in the neighborhood of ownership; but sometimes they express instead something more like identity. The claim that your body is yours raises this ambiguity sharply: for it can seem plausible to say, both, that your body is you and that you own your body—and either seems like it might reflect a reason your claims over your body ought to be respected.

I argue here that your legally enforceable rights in your body cannot be grounded ultimately in the fact that your body is—or is a part of—you. My discussion proceeds as follows. First, I exhibit the appeal of this “Identity-Based” view of our rights in our bodies. I then raise a series of specific extensional problems for the claim that we can ground body rights directly in rights over the self, arguing that no plausible metaphysics of the self actually supports this sort of explanation.³ I go on to argue that, given what would be required to solve these problems, an Identity-Based view is prima facie inconsistent with plausible constraints against introducing controversial metaphysics into public reasoning. I then rebut arguments that we should give up the requirement of metaphysical agnosticism itself, since we need metaphysics to settle bioethical issues (abortion; the definition of death) regarding the temporal boundaries of the self. I go on to consider, and reject, some recent Kantian attempts to frame an Identity-Based view of our body rights without reference to fundamental metaphysics. Finally, drawing on what seems right in these Kantian views, I sketch a view of how public reason can construct persons as loci of body rights, on the (perhaps surprising)⁴ analogy of how international public reason must construct the embodied “peoplehood,” or the territoriality of states.

II. Body Rights as Rights in the Self

It can seem very natural to explain rights in the body in terms of rights in ourselves. We do seem to be intimately connected to our body parts. In legal contexts it is sometimes said that assaults on our bodies are assaults “on our persons,” wrong because they are unwanted interference with or damage to us. Call this the “Identity-Based” view.

This seems to have been Kant’s view, and something like it also seems to be the view of Kantians like Ripstein and Japa Pallikkathayil. Ripstein says: “Your right to your person is your right to your body.”⁵ The feminist political theorist Anne Phillips says, “We do not just ‘have’ our bodies. In an important sense, we ‘are’ them.”⁶ Here she echoes the German critical theorist Jürgen Habermas: “A person ‘has’ or ‘possesses’ this body only through ‘being’ this body in proceeding with her life.”⁷

To be sure, Phillips and Habermas distance themselves somewhat from the metaphysical freight of this claim, with scare quotes and the like. And, as we will see, Ripstein and Pallikkathayil maintain that they are relying here on a kind of normative theory, rather than the metaphysics of identity (we will also see that this assertion is hard to sustain, given the normative theory they offer).⁸

Warren Quinn is less metaphysically reticent. He says, straightforwardly: “A person is constituted by his body and mind. They are parts or aspects of him. For that very reason, it is fitting that he have primary say over what may be done to them.”⁹ Quinn, here, clearly expresses the core idea of the Identity-Based View of body rights: interference with your body is wrong, not solely because it is harmful, but rather, simply, because it is interference with you. To wit:

• (i) People have (enforceable) rights to decide what happens to them—that is to say, to their selves.

• (ii) If someone has a right to decide what happens to a thing, they have a right to decide what happens to its parts (“or aspects”).

• (iii) Bodies and their parts are literally parts (“or aspects”) of the self.

• (iv) For reasons 1–3, people have (enforceable) rights to decide what happens to their body and its parts.¹⁰

Let us grant the first premise, for the sake of argument, since (almost)¹¹ anyone who would agree that we have rights in our bodies would agree that we have rights in ourselves. Questions could also be raised about the second, conditional premise, passing rights down from wholes to parts (or “aspects”): I will also leave these for another time.¹² I will focus on the third premise, about the metaphysical relationship between body and person—and also, particularly, on the propriety of the inference from this metaphysical claim to the argument’s ethical and indeed political conclusion.

This appeal to the metaphysics of personal identity in specifying and justifying bodily right is, I argue, problematic in two significant ways. First, the claim that the self includes everything we would tend to regard as a part of the body is deeply questionable as a matter of metaphysics: it is not easy to find a plausible account of the self on which the self actually includes everything that seems to be part of the body, for moral purposes.¹³ Second, any version of this Identity-Based view specific enough to answer hard questions about bodily rights, any specific view about the nature of the self and its relation to the body, will have to be enormously and reasonably controversial: too controversial, I argue, to ground the sorts of enforceable rights we have in our bodies.

III. Boundaries of the Body, Boundaries of the Self?

So: what range of things can we say, about the relation between self and the body? It will not be possible to survey all existing views, even all reasonable views, here. But it is relatively easy to see that many widely held and plausibly argued conceptions of what we are would be ill-suited to explaining our rights in our bodies as rights in selves.¹⁴

To begin with: any such explanation—of our rights in our bodies as rights in our material parts—implies, at a minimum, that we are the sorts of things that have material parts. Even this is far from uncontroversial. On some views of what you are you turn out to be nothing at all: arguments against the existence of the self have been offered, and accepted, by many serious and thoughtful people.¹⁵ On some other historically influential views, you exist but as a purely mental thing: not a body at all, but rather a soul or spirit that inhabits a body. These views cannot say, literally, that your body is yours because it is, or is a part of, you.

Skeptical and supernatural views of the self, to be sure, are not widely endorsed in contemporary Anglophone philosophy. Still, even among naturalistic non-skeptical views, some do not seem to entail, or even allow, that our body parts are literally parts of us. Hume is often interpreted as maintaining that we are simply “bundles of perceptions.”¹⁶ Suppose we take this claim literally. Body parts are not perceptions, or (on most views) parts of perceptions; so, body parts are not parts of us.

Other so-called “psychological” views of our identity are more difficult to interpret on this score.¹⁷ Explications of these views are typically far more concerned with “diachronic identity,” extension across time, than with “synchronic identity,” extension in space.¹⁸ Some psychological theorists, however, might yet insist on a close synchronic connection between the person and the body. They could say that we are essentially psychological, but accidentally material: there is no particular kind of material thing that must constitute us, but nonetheless, some material things always (contingently) do (a related version might say: some material parts—say, brains—are essential parts, while other—kidneys—are merely accidental parts).¹⁹

Which particular things are our bodies, on such a view, and why? Various answers are possible. Some of these have broadly psychological starting points themselves. It is sometimes suggested that our material parts are just those things that we can directly or transparently feel, or act through—so that, for instance, my hand is part of me because I can move it without moving anything else.²⁰ However, for purposes of grounding body rights, this view is both too weak and too strong. As Merleau-Ponty and others have argued, many tools are transparent in skilled use—tap a pen on a table; you will find, both, that you intend directly to move the pen tip to the table, and that you experience the contact at place where the pen touches the table, not (or not only) where your finger touches the pen.²¹ And, as Samuel Wheeler and Kasper Lippert-Rasmussen point out, any view that defines our material parts in terms of experience or agency will have trouble telling us how we can have parts that we do not experience or act through at all—parts like blood cells, or the interior of the lungs and liver.²² Nor will it suffice, in response, to identify these things as bodily simply because they stand within the phenomenological manifold of the skin—limbs and their interior parts still count as body parts when the encasing skin is numb; bullets and other “foreign objects” do not so count even when lodged firmly beneath sensitive skin.

It is therefore hard to see how we could plausibly solve these problems without adverting to broadly biological relations. The thought would be that our parts are not merely those things that we experience in a certain way, or things located in a certain way with respect to our experience. Instead, they are something more like: those experienced things, plus things that are in some suitable sense organically integrated with them, things that are all together part of the same organism.

It seems likely, then, that organism-involving views of our identity as human beings will constitute the most plausible metaphysical basis for an Identity-Based View of body rights. This will include those animalist views of our identity that say that we are literally identical to certain human organisms.²³ But many psychological views of identity will also agree; proponents of these views often if not always seem to accept that, though we persist over time as psychological entities, our boundaries at any one time are the boundaries of a human organism.²⁴

Suppose, then, that as material beings, we are organisms: that there is some organism that is my body, and that a material thing is a part of me just in case it is part of that organism. What things would we have body rights in? On an Identity-Based View, it will be just those things that are, in the relevant way, biologically integrated into our bodies.²⁵ This combination of moral and metaphysical positions, however, also faces serious problems.²⁶ For, as Japa Pallikkathayil has suggested, some things we do seem to have body rights in do not seem to be organically unified with the rest of our bodies.²⁷ For instance: we might think that an inorganic prosthesis could be the subject of a body right, such that, if you damage my only, irreplaceable prosthetic leg, or my pacemaker, or some such thing, that would be assault and battery, rather than mere vandalism.²⁸ But it is, at best, very far from obvious that an inorganic prosthesis could be a part of an organism. Or take detached parts (prosthetic or otherwise). Consider, for instance, a hypothetical proposal to do research on cancerous pieces of bone, taken for the very real purpose of blasting them with cancer-killing radiation, before reimplanting.²⁹ It seems clear that your consent is required, for this research; and it seems plausible, that this is because the bone remains a part of your body even while detached. Yet it seems very hard to maintain that this piece of bone is part of your organic self, while it is not even touching your body: an organism, whatever else it is, seems clearly to be a physically continuous sort of material object.³⁰

Some may think that Pallikkathayil’s cases, even thusly supplemented, are hardly clear counterexamples of an organism-featuring Identity-Based View of body rights—one can, so the thought goes, simply deny that the prosthesis or the bone is part of the body. There are, however, other problems with this organicist view of the moral boundaries of the body. It is, it turns out, surprisingly difficult to find an account of the organism on which it includes, even, all of our ordinary attached and organic body parts. To consider this issue in detail would take us too far into the philosophy of biology;³¹ still, it will be helpful to give a flavor of the options on organism-individuation, to see that it is far from obvious that an animalist can argue that the human body and the human organism are coextensive.³²

Some philosophers of biology argue that we should look to the history of a thing, or a kind of thing, to determine whether it is a part of an organism—to whether a token thing grew from some earlier “bottleneck” stage, like a zygote; or whether it of a type of thing that evolved in combination with other things. Transplants raise obvious problems for the first account; “idioplasties,” or surgeries that construct novel structures from existing tissues, for the second.³³ Others argue that we should look to how a thing functions together with other things on a forward-looking basis. The best-developed version of the view holds that whether something is a part of an organism depend on whether it is recognized and accepted by the structures that police boundaries—in human organisms, primarily the immune system.³⁴ But this view also faces serious challenges in cases of transplanted tissues (not generally accepted by the recipients immune systems) and serious immune dysfunction (sufferers of which still have bodily rights, even as many or all of their parts fail to be recognized or accepted by their own immune systems). Pathological (and vestigial) structures of various kinds will be a problem, indeed, for any view that focuses on forward-looking function: if to be a part of an organism is to make a certain contribution to its functioning, it will be a hard question how to say in what sense non-functioning items remain a part of the functionally-specified whole.

IV. Identity, Rights, and Reasonable Disagreement

More could be said, no doubt, about the boundaries of the human individual; maybe, in the end, there is some theory thereof, that supports a match between our moral and metaphysical boundaries.³⁵ Even if so, it should be clear, at least, that any determinate version of the Identity-Based View of our rights in our bodies—any actual explanation of why my body parts are mine because they are part of me—would have to involve subtle, sophisticated, and therefore controversial metaphysical claims, about our identity as embodied beings and about the nature of the beings (organisms, etc.) we are supposed to be.

This appeal to metaphysics in justifying enforceable bodily rights is, however, problematic in itself, irrespective of details. It is a well-known and plausible principle of political philosophy that fundamental, unchosen aspects of social structures should be justifiable to a wide variety of reasonable religious and philosophical perspectives.³⁶ If anything is precluded by this “public reason principle,” one would think, it would be justifications of basic legal and moral rights that, like body rights on an identity view, require specific, tendentious metaphysical claims about the very nature of persons and selves.³⁷ And indeed, one need not accept the whole liberal/Rawlsian package of methodological views about political philosophy to think that Rawlsians are right to reject the relevance of deep metaphysical claims in politics. The same would follow, for instance, if we thought that these claims, or our means of knowing about them, are simply philosophically defective (per the logical positivist) or (per some contemporary proponents of “conceptual engineering”) that what answers we should give to them depends on the very same sorts of normative matters at stake here. Non-Rawlsian Kantians, per above (and below) will have scruples about metaphysics in ethics too—at least, the kind of metaphysics that Kant and Kantians tend to regard as beyond ambit of theoretical reason, properly applied.

These arguments might, of course, be resisted. One might attempt to vindicate the relevance of identity in politics without reference to metaphysics (see below, for discussion of Kantian attempts to do this). Or one might reject constraints on metaphysics in politics altogether, in the context of political problems concerning the boundaries of persons and their bodies. It is after all common practice in philosophical bioethics to appeal to metaphysics, particularly the metaphysics of the person, to make arguments concerning difficult issues like abortion and the definition of death. If we have reason to believe that such appeals to identity are necessary to justify conclusions about matters that require publicly justified conclusions, then we have reason to doubt that plausible norms of public reasoning could render these appeals impermissible.³⁸

In the remainder, I take these two challenges in turn, using them, together, to develop a view of bodily rights that respects the constraints of public reason liberalism in particular. In the next section I consider views that try to ground body rights in an understanding of identity not drawn from personal identity metaphysics. I argue that extant, Kantian, attempts to develop such a conception lack the resources to explain why our bodily rights have the determinate shape they do—and, indeed, struggle to give these rights any determinate shape at all. That said, these views have important insights about the analytic connection between treating something as part of my body and treating it as part of me. The ensuing section uses these insights to sketch an account of the basis of bodily rights that appears capable of providing determinate bodily boundaries whilst avoiding at least the most controversial aspects of the metaphysics of personal identity. This, both, shows us where to look, for a view of bodily rights that is consistent with public reason requirements; and, provides the basis of a defense of those requirements themselves against the charge that they are inevitably, excessively, indeterminate on these matters.

V. “For Practical Purposes”: Identity without Metaphysics?

The Identity-Based View, as I have thus far considered it, takes seriously the idea that I ought to decide what happens to my body because I am my body. I have argued that, if this is meant as an appeal to my literal, metaphysical identity, it is unlikely to produce an extensionally plausible theory of the boundaries of our bodily rights. And, just by being dependent on some specific metaphysical theory or other, it raises problems from the perspective of public justification—enforceable moral claims like body rights ought to be (and, for all we know, can be) justifiable without taking sides in metaphysical controversies about the nature of persons.

That said: not every invocation of identity, in attempts to explain bodily right, is meant to be heard in quite such literal and metaphysical register. Recall that many of the proponents of an apparently Identity-Based view discussed above seek to qualify their apparent appeal to metaphysics, in some significant way. Phillips and Habermas do not say, simply, that we are our bodies. They say that we ‘are’ our bodies, using inverted commas to distance themselves from the metaphysical freight of apparent claims about our identity. It may be, then, that there is a way of understanding the notion of “Identity” in the Identity-Based View which avoids the problems considered above.

Phillips and Habermas do not say how they hope to avoid heavy-duty metaphysics, even as they seem to be making claims about the very nature of the body and the self. Some Kantians are more explicit about how they hope to avoid metaphysical claims.³⁹ So for instance, Ripstein says:

[The] formulation of your right to your person as your right to your body neither presupposes nor conflicts with any more general metaphysical claims about the relation between your person and your body […] As far as your claim against others, and the claims of others against you go […] the starting point must be your person as your body.⁴⁰

So, the idea is: the body is the person for practical purposes; we have to recognize a close connection (identity, perhaps) between person and body if we are to understand ourselves as interacting beings—whatever we think, ultimately, about our identity in the metaphysical sense.

Why? Kantians have us consider, by analogy, the territorial state. One state needs to know something significant about where another state’s borders begin and end—or who “belongs” to it as subject, citizen, or representative—to know whether and when interaction with that state has or could occur. This provides a reason for each state to identify the other with a certain territory (and citizenry, and government). A similar problem arises, less obviously, for “natural” persons: to know what has been done by you or to you, we need to know something about where you begin and end, at least for practical purposes.

This much seems right—and, as I argue below, importantly so. But to support an Identity-Based view of body right, a stronger claim is needed. The thought would have to be that our architectonic needs to identify each other in spatiotemporal terms tells us what precisely we must be identified in. If the need for identification cannot play this role, then it does not after all provide a metaphysically neutral premise for an Identity-Based View of body rights: rather, at most, it tells us that body rights are based in the practical need for identification plus whatever else tells us what we ought to be identified in.

No Kantian has, to my knowledge, attempted to give a full theory of the body, and bodily rights, in these austerely formal terms. We can get some sense of how it would go, however, by considering an argument from Ripstein, to the effect that our practical identity in the world, and thus the ambit of our especially ‘innate’ rights, must include at least our bodies, construed (per Kant) as organic unities:

You are the one to whom various things happened, the one who engaged in various transactions, and every time you did something or something happened to you, your body did it, or it happened to your body.⁴¹

The thought being: you must be identified with some physical thing; for purposes of solving the distinctive political problem of determining which decisions are mine to make, and which yours, on the assumption that we are free and equal. And when we ask, which thing?, it is supposed to be clear that this must include at least the organic body. That, after all, is what acts, any time you act, and what is acted upon, any time you are acted upon. It, therefore, bears a special relation to your identity for practical purposes, a relation to your agency not borne by anything else.

This is an interesting view, a kind of “constructivism.” It says that, once we have defined the problem—seeing each other as embodied, acting, beings, required to live together as free equals—we will see that rights in (at least) our organic bodies must be (part of) the solution.⁴² That said, it is far from clear that this view can work. For, it is very far from clear that the boundaries of our body, on any plausible construal thereof, in fact delimit either our agency or our patiency.

Take patiency first. I can, apparently, affect you as a moral patient by (say) harming you, without doing anything to your body. I can do this, among other ways by damaging your reputation, or destroying your property, or harming your loved ones. So it appears you can, after all, do something to me without doing something to my body. To be sure, my vulnerability to these non-bodily effects may depend in some ways on my having a body—with which to acquire property, or to act well or poorly, or to form loving relationships.

But this fact offers no obvious way to define the body in terms of patiency—say, (as the above quote from Ripstein suggests) ‘that which must be affected, for a person to be affected.’ For it remains that, even if I am affected by your effects on (say) my property only because I have a body, these are, still, not effects on my body. Nor are they, always, effects on me because of anything about effects on my body; even if my body must be involved in some point—in acquiring property, say—it is involved not passively/patientially (things are not mine simply because of what “happens” to me), but rather actively/agentially (because of what I do).

It seems more promising, then, to turn to agency; perhaps saying, with Ripstein, that: “The body is that through which you act; the only way you do anything in space and time, and so the only way you do anything in relation to others is with your body.”⁴³ Yet: I can act through legal agents and intermediaries without thereby incorporating them. Or I can act through a tool, without literally incorporating it: whatever we think of the bodily status of pens or other handheld tools in active use, a radio-controlled drone surely does not need to become part of the pilot, for the effects of a drone strike to be attributable to her.

That said, it does seem significant that when I buy a piece of property by way of my lawyer’s signature, or drop a bomb by way of a command to a drone, my bodily agency is involved at some point—in virtue of signing a power of attorney with my own hand, say, or manipulating the mouse and keyboard that control the drone. A more promising interpretation of the Kantian idea, then, would hold that the body is to be defined, not as anything at all through which we act, but as that through which we perform basic or fundamental actions, those actions by which we do other things, but which are not done by doing anything else.⁴⁴

Here, Kantians might seem to be on firm ground. This body-emphasizing or (as Anton Ford terms it) “corporealist” view about basic action has been widely (though not universally) thought to be superior to the intentionalist alternative, on which we act, ultimately, by an inner exercise of will.⁴⁵ Among other reasons, corporealism is thought to better capture the phenomenology of agency. When I want to pick up the pen and write, I do not see my arm as a separate means, which I might consider employing to do so. Rather, I move my arm, directly. But as Elizabeth Anscombe suggests, and Anton Ford demonstrates, much the same can be said for the pen. That is to say, when I go to write my name, I do not have to see the pen as a separate means which must be operated by my hand: rather, I go to work directly with the pen.⁴⁶ For these and other reasons, Ford argues, it is very far from clear that the body actually has the privileged place traditionally given to it in the philosophy of “basic” action.

Now, the Kantian might reply that his concern is different than Ford and Anscombe’s: neither the surface phenomenology of acting nor the deep structure of agency—not how we see ourselves, as we act, or what action really is, but how we must see each other, to interact, as embodied agents. And this claim about the “forensic” basicness of the body can seem to have plausibility, independently of corporealism as a theory of the nature of action—don’t we, after all, ultimately determine which actions and events are attributable to whom, by deciding who has done what, with their body? If so, why can’t we still define the body as follows: precisely, that thing which must lie in the causal history of a state of affairs, if others are to hold an agent responsible for it?

Perhaps. But the difficulty will be finding one single thing, for each agent, that must lie in the causal history of a state of affairs, if we are to hold them responsible for that state of affairs. For, this is no more or less true of the brain as part of the body, than of the body as a whole. After all, whatever we think of the extent to which thought and decision are embodied processes, they do not occur absent the brain. But since the brain is always involved in any action, it, as much as the body entire, is a thing that is always involved, any time any other outcome or action is attributable to an agent.

What is needed, to make this sort of argument work, is some reason not to stop anywhere underneath the skin, in attributing action—and something which also provides a reason to stop at the skin, without going “out” further into tools in use or human delegates. If corporealism were the correct theory of basic action in general, it might be able to do this. But since it is not, some other principle would be required, to specify the body entire—and not any of its parts—as that unique thing that must be identified as the source of all our actions, for second-personal purposes.

Now: I suspect, and suggest below, that such a principle can be found; what I doubt, and what Ripstein certainly has not shown us, is that it can be found in the very presuppositions of practical thought, rather than in substantive considerations concerning which ways of defining bodies best allow us to live together as healthy, prosperous equals (more on which, below).

Japa Pallikkathayil proposes another reply to this sort of problem, on behalf of the Kantian view. We cannot, she says, stop at your brain, as we decide what will count as you, for practical purposes. For: “If we tried to identify you with your brain, we would have in mind a living, active brain and that involves smuggling in the system in which that brain is operating. So, the answer to the question of identification cannot really be less than one’s whole body.”⁴⁷ The idea being that a brain, in order to be a brain, has to be part of a whole organic system; therefore, we cannot identify you, for practical purposes, with the brain alone, but must include the rest of that organism as well. In this way, the very fact that we must be embodied in something is supposed to tell us what we are embodied in, given the kinds of beings we are.

It is, at best, unclear that this inference is valid—is it impossible, in general, to (practically) “identify” someone with a thing and only that thing, if that thing itself is (metaphysically) “identified” in terms of other things? Even without knowing what, exactly, practical identification (or metaphysical identity) comes to, this linking principle between them seems suspect. Some philosophers of biology might argue that a brain, to be a brain, has to stand in a certain relations not just to other parts of the same organism but to other organisms, and parts thereof, in the same lineage: that a brain is something which evolved to work in certain ways, where that fact about evolution is ultimately a fact about patterns of reproductive success in some quite large population.⁴⁸ Suppose, as seems very possible, they are (or were) correct; would we have to practically identify your brain with these things, too, given that their metaphysical identity is dependent on them? I would think not—metaphysical identity is one thing, practical identity another.

To be sure, matters remain a bit murky: Kantians have not yet made entirely clear what exactly it means to “identify” an agent with a thing for practical purposes, nor what it means metaphysically for one thing to depend on another for its “identity.” Perhaps the inferential principle in Pallikkathayil’s argument is valid after all, once we understand these notions properly. Even so, the premise seems dubious. Plausibly, my brain can be identified independently of at least some particular parts of the organic system in which it actually operates; indeed, any particular non-brain part of that system might go missing without ipso facto changing the identity of the system itself. Brains, human brains anyway, are brains because of something like: how they normally relate to other human parts. But a brain to be a brain at any given moment need not be attached to any fingers (much less mine), any kidneys (much less mine), or any heart (much less mine).

Pallikkathayil’s argument, then, does not seem to do much better than Ripstein’s at saying just what physical thing we must be identified with, for practical purposes—not even, at grounding a sufficient condition for something to be part of what we are to be identified with, practically speaking. Thus she does not do much more than Ripstein to verify the hypothesis that there is some determinate set of material things in which we must recognize “innate” rights, if we are to interact as free embodied beings. This does not mean that Pallikkathayil or Ripstein are wrong to think that there is some intimate connection between treating something as a body part and treating it as a part of us. It is just that the connection is not a grounding or explanatory connection—or not one running, only, from the need to identify us with something in particular to a particular account of what we should be identified in.

Now, it may be that this is not quite her goal – and shouldn’t be the Kantian’s goal generally. Pallikkathayil’s larger argument is that the boundaries of our body rights, like the boundaries of our property rights, must be determined by social institutions (indeed, in particular, by the state). Her view thus appears to differ from Ripstein’s, and perhaps from Kant’s own view, in abandoning or moderating the constructivist ambition to deduce a conception of the boundaries of the body from a description of the problem that conception is supposed to solve. Rather, this Kantian view (as modified by the foregoing objection) seems to be more conventionalist than constructivist. A priori political philosophy tells us that the state must constitute something, as our body (and therefore, for practical purposes, as us) but it tells us very little about just what this embodiment is. That seems to imply, on Kantian premises, that what we are for practical purposes—and thus, what we will have body rights in—is determined entirely by the positive law of a legitimate state. This, however, ought to be troubling for Kantians and non-Kantians alike. Kantians should wonder what this view implies about bodily rights in situations of statelessness: be that a classic state of nature, or a system of positive law that has become so corrupt and barbaric that it lacks the legitimate power to constitute any rights at all.⁴⁹

Those of us who do not come to this issue with Kantian commitments, in political philosophy, are likely to be even more troubled by the resulting conventionalism. States that avoid barbarism, states that are legitimate in Kantian terms, might yet make very different decisions about the boundaries of the body than those that seem to you or me to be well-justified. To recur to an earlier example, suppose limb prostheses become functionally and phenomenologically indistinguishable from ordinary organic limbs, so that literally the only difference is what they are made of. But suppose that, as this happens (and perhaps partly because it has happened), society moves in a “bio-chauvinist” direction, coming to endorse a narrow organicist interpretation of persons and bodies. It seems that right to say: they are mistaken. People with these perfect, albeit inorganic, prostheses, really have the same rights in them as people with fully organic bodies. Or at least, it seems that saying this sort of thing makes moral sense, so that, in at least some cases, a state that meets Kantian constraints on legitimacy can nonetheless fail to recognize real bodily rights.⁵⁰

VI. Being and Owning, Redux

Suppose we conclude from all of this that our body rights cannot be justified by facts about our identity—that my body is not to be treated as mine because it is, or is a part or aspect, of me. Should we infer that mine-ness and me-ness are utterly unrelated? This would be a surprising result, at odds with how we normally talk about the moral and legal status of the body. Crimes against the body are often and aptly described as crimes “against the person”; torts involving the body, as involving “personal” injury. Moreover, as Pallikkathayil points out, disconnecting the body and the person can leave it mysterious why body rights would require especially careful protection, as compared to rights in non-bodily property: why, for instance, property can be taken in tax, while body parts cannot be.⁵¹ A natural explanation of this is that our persons have a kind of inviolability that ordinary property does not.⁵² And: if a body is a mere possession, like any other, it is unclear why there would be any truth in the not-completely-true idea that I can act, or be acted upon, only where my body acts or is acted upon.

The Kantians are, therefore, probably right to say that we have an ethical need to identify each other as embodied beings, existing not merely as abstract isolated wills but as entities defined in some sense by our capacities for concrete interaction. Where they go wrong is in supposing that this kind of ethical thinking can be neatly subdivided, into two independent steps: first, figure out what in the world we should regard as me, and what as you; then, figure out how the thing that is me may move in the world, without wronging you. As we saw above, there seems to be no obvious way to complete the first step which does not raise problems at the second—no way to say where you are without always already being in the business of saying where you (and I) can permissibly go.

The way around this challenge, I want to suggest, is to abandon the methodological separation of the question of what in the world I should understand as part of you, from the question of how I should treat you. Instead, we should endeavor to understand both together: to construct a conception of when we are interacting, and how we should interact, all at once. To do this would be to construct a practical, indeed political, conception of personhood, of the kind bioethically-inspired skeptics of political liberalism (among others) have been inclined to reject as impossible. This in hand, we could say what principles persons, so understood, would choose for determining both the spatial and temporal boundaries of their own and one another’s embodiments, and bodily rights.

Though this idea has not been developed fully, or explicitly, in literature, various materials are available for it. Philosophers have attempted to say, on broadly contractualist grounds, how our distinctive interests in the things that make up our bodies generate reasons to respect our claims in them.⁵³ Others have developed increasingly sophisticated conceptions of our bodily interests, conceptions that could serve these arguments by providing a normative basis for contractualist choice.⁵⁴ Still others, we have seen, have developed accounts of whether and in what way body rights are like and unlike property rights, not least in respect of their analytic connection, or lack thereof, to social practices around agency and responsibility.⁵⁵ From this work emerges a picture of the body not as what we must (per Ripstein) or contingently do (per Pallikkathayil) socially represent as a site of agency and patiency, but as what we should so represent, given the claims our interests in this sort of emplacement in the world produce for others.⁵⁶

VII. Constructing Persons (and Peoples)

This proposal will require much more development than it can receive here. I hope it suffices to show how this sort of view could work, without the kind of problematic circularity or indeterminacy that can seem to plague attempts to define the agents that have significant claims in these processes of public justification: indeterminacy, because it can appear that there are insufficient normative considerations in public justification to give specific answers to questions about where exactly moral subjects extend; circularity, because it can seem that the question of when we have a morally significant subject must be decided before we can say who is a member of the justificatory public. The case of peoples, I argue, and in particular a certain interpretation or reconstruction of Rawls’s Law of Peoples,⁵⁷ shows how both problems can be avoided.

Now: this analogy itself may look like a non-starter. Don’t facts about international justice depend on prior facts about the existence of nations or peoples, as morally considerable entities? Some argue, at least, that this must be Rawls’ view, in The Law of Peoples, where peoples already-constituted by a common conception of justice come to the “table” of an international original position to determine what principles ought to govern their relation to one another.⁵⁸ But as Thomas Baldwin points out, it is at best far from obvious that this is the best way for a Rawlsian to proceed here.⁵⁹ Peoples, to be sure, may well have some reality prior to the choice of principles—but not, as it were, a determinate enough reality so as to be able to identify each other for practical purposes prior to determining how they ought to interact. Where precisely borders ought to be placed; what degree of democratic responsiveness or respect for rights is required for international recognition; who is responsible for refugees and other “stateless” persons: all of these are normative questions about international relations, normative questions which are at the same time questions about the practical identity of peoples—that is, questions which must be answered in order for international actors to understand, in a given case, which agent has acted and which has been acted upon.⁶⁰

What peoples seem to need, then, is some basis for settling these identificatory questions, which does not require that they be determinately settled in advance, by pre-political features of the relevant agent-patients. But there is reason to think that a normative theory like that of The Law of Peoples, with its contractualist device of choice under limited information, can provide this. Peoples are characterized for purposes of theory-choice at a high level of abstraction, as beings having certain fundamental interests (pursuit of their liberal or decent conception of justice; peaceful co-existence with other peoples in a mutually justifiable international regime) and capabilities for pursuing those interests (effective internal governance, recognizable representatives on the international stage).⁶¹ These choosers do not need to know everything about themselves to begin choosing more particular norms—indeed, must not know everything, if the “veil of ignorance” is to do its impartializing work. They do not need to know, for instance, the size or extent of their territory or population, or how exactly a government or diplomatic corps will be selected to represent them internationally.

These matters, rather, are matters they can regard as open for settlement, as they decide what rules to accept regarding them—when and whose diplomatic credentials will be recognized, say, or how border disputes will be adjudicated. How this settlement will go is of course an open, and important, question—and not one that Rawls himself addresses, in any detail, in his text. But there seems to be no bar to settling issues like these using the resources Rawls offers. It seems likely, for instance, that peoples would reject the current regime of international recognition, on which governments are recognized largely in virtue of possessing power over a population or territory, in favor of a human-rights based regime, where more robust normative conditions are imposed on diplomatic recognition.⁶² As for borders, peoples can decide whether their fundamental interests are best served (as Rawls suggests)⁶³ by recognizing historically arbitrary boundaries, even where these may leave some peoples economically disfavored, or (departing from Rawls) by choosing a principle which allows for greater diachronic redistribution of territories and their resources. In doing so they proceed holistically, considering what norms they should accept all at once—perhaps, as Rawls suggests, accepting the anti-redistributivist principle for territory itself on grounds that adequate economic advantage can be ensured by a separate “duty of assistance.”⁶⁴ Or perhaps not; though any case not, would have to take into account the difficulties of disrupting polities bound together by prior ties of de facto political integration.

Similarly, I propose, for persons. Persons have the standard Rawlsian interests in (i) developing and pursuing a conception of the good, (ii) in ways justifiable (and justified) to others. Both interests require embodiment, for beings like us: to place us in the world as agents and patients, beings who can act and be acted upon in pursuit of our rational and reasonable ends. But these interests, like the similar interests of people in having a presence on the international stage, do not suffice all by themselves to specify the spatiotemporal boundaries or compositional structure of that embodiment.⁶⁵ What we need is a way of combining interests one with another; some process for negotiating how to divvy the world up, determining what should count as part of (what) person, and what as a mere thing.

There is, I think, reason to be optimistic that this can be provided, given the international analogy. Persons, like peoples, are likely to default to demanding rights in the embodiments they were “born with” or grew into. While the resulting boundaries are, as it were, “historically arbitrary,” their contents are bound together by ties (biological ties, rather than political ones) that it is difficult and dangerous to disrupt. Plausibly, “deficits” in bodily resources that result can and should be made up for by health care (viz., a “duty of assistance”) including prosthetics (properly understood), rather than direct bodily redistribution.⁶⁶

So much (for now!) for where we have a person/people.⁶⁷ What about when we have one? Doesn’t that need to be settled prior to contractualist reasoning, so we can decide who to consult, in that reasoning? Isn’t that, indeed, the classic concern about the application of a Rawlsian approach to thinking about practical issues—abortion, the determination of death—that seem to turn on the identity of the relevant moral subjects?

To see how to allay this concern: consider peoples again; and particularly, the norms peoples might adopt regarding the emergence of new actors onto the international stage. In the world Rawls envisions, this would happen in two ways—(i) as territories previously unrepresented (because ungoverned [“burdened”], or illegitimately governed [“outlaw states”]) come to have decent or liberal governments; (ii) if and when territories “calve off” or secede from existing peoples to form new ones. Rawls does not attempt an account of either of these problems himself, though he mentions both issues and gives the impression that he regards them as matters of detail rather than as potentially fundamental challenges.⁶⁸ Is he wrong to do so? I think not.

Here is why. The international community at any given time is constituted not simply by any group that has the capacity for internal justice, but, rather, only by those that can exercise that capacity acting alongside other societies, because they are possessed of an effective and recognized government. Peoples so-constituted have to decide when to recognize new peoples coming onto the scene. In doing this they are guided, but not determined, by facts about which proto-peoples, which collectivities capable in principle of joining the community of just and decent nations, are abroad. These proto-peoples matter because they are the loci of the interests that peoples already take to matter—potential sites of just or decent collective self-government; potential sources of constructive engagement with the international community, and therefore bearers of some or all of the interests and values that fully-fledged peoples take to matter in their own case.⁶⁹ But of course many such collectivities exist, or could exist, and not all can realize their interests consistent with full realization of the interests of others. Selecting rules for the introduction of new peoples, then, would require a negotiation of these interests, a decision about where these interests rise to a level that outweighs any interests frustrated in their recognition.

In the case of burdened societies this is probably fairly straightforward; since liberal and decent peoples do not desire territorial expansion as such, and these burdened societies (qua societies) often have the potential to become novel sites of valuable self-determination in their own right, it will make sense to allow and indeed assist in this in many (maybe not all) cases.⁷⁰ Secession, notoriously, will be much more complicated, though perhaps not intractably so. That will require a negotiation of the interests of existing peoples with the interests of potential ones; turning, among other things, on just how much of a threat a secession-friendly regime would be to the stability (and hence, on a Rawlsian view, the justice, thus the core interest in remaining just) of extant societies.

We can say something similar about persons. There are many beings in the world—small children, fetuses—who have the potential to have the interests of full-on embodied moral persons, interests in having a place in the moral universe so that they can act and be acted upon in pursuit of their conceptions of the good in conjunction with others. These interests matter, when we imagine adults choosing principles, because these adults are already committed to their mattering; they are part of what they take to matter about themselves. Which of these potential sites of personhood should be recognized, and in what way, is a question about how to negotiate all these actual and potential interests together, into a workable system of rules and principles. And that will depend, in turn, on how we should balance the interests of these proto-persons/peoples with persons/peoples assumed to be, already, in existence—for instance, on whether a pregnant woman’s claim to have her body available for her own purposes outweigh the fetus’s claim to use that body to survive into adulthood. These are not easy questions, but they do not seem to be intractable ones, for this sort of approach.⁷¹

Or so it seems. But it might be argued that this is because we have pursued a shallow, indeed question-begging, way to answer the “when” question, about the agents of contractualist choice. Really the question here is which beings deserve justification in the first place; that is, who should do the choosing. And, so the thought goes, answering this requires just the sort of metaphysics I have claimed we must avoid: that we must first determine which beings in the world have the kinds of capacities or interests that require us to make justification to them, before we can ask these beings who deserves what treatment and how.

This, however, is hardly obvious. Certainly it is not the case that we have to decide which beings deserve full-on justification, in the way we ourselves do, before we can determine which beings have interests at all. We must, to be sure, attribute some kind of existence to any bearer of interests. But, as the case of peoples shows, this is not an insuperable methodological difficulty for this sort of constructivism. There are many groups in the world that have some interest in making decisions together, from the membership of a book club, to the residents of a small town, to the populations of large territories. These entities exist, since interest-bearers must of course exist, to bear interests. But that does not yet mean they matter in the way that “we” do, when we occupy the “we” position of the people we ourselves live in (or, perhaps, hope or imagine we do, if we live in a burdened society or outlaw state instead). To determine that we have to determine that their interests are enough, like ours. Similarly, for persons themselves; candidate persons must exist, to bear the interests that make them candidates—but whether their candidacy should be recognized, depends on the precise nature of those interests, how they are like and unlike the interests of persons already-recognized, and how that recognition would affect all involved.

I would suggest that the deeper idea behind the objection, the idea that we cannot do even this, this identification of the beings or interests that matter, without first doing serious metaphysics, reflects a conception of moral normativity that Christine Korsgaard once called “moral realism”; the claim that the most fundamental moral truths are truth about what response certain entities or properties in the world demand of us.⁷² That approach, of course, requires metaphysics, to decide what entities and properties there are; and a certain, classical (Platonic/Aristotelian), kind of moral thinking, to decide how these entities put claims on us. This picture may be a coherent one, but, as Korsgaard points out, it is not the only one: it may be instead that all (or even just: some) fundamental moral truths are truths about how we have to solve problems we face as moral agents in media res.

That seems to be how Rawls does—or anyway, could—think of the moral significance of peoples—not as a matter the warp and weft of the universe, but rather as something we must accept as we think through the problem of how to live together, in societies that sit alongside other societies. And, I propose: this is how we can think about persons, too. We begin our moral inquiry about peoples (and persons!) already in the midst of life; assuming there are some fully-fledged peoples (persons!), and asking how they should relate to one another.⁷³ In unravelling the answer to that question we find that peoples/persons must regard themselves in a certain way—as mattering, to themselves and to others, because they have certain characteristic interests and abilities. That gives them a reason, albeit a defeasible one, to consider beings with similar interests and abilities as having similar—but not necessarily identical—claims.⁷⁴ The initial choice is justified, not by underlying metaphysics, but by how this all hangs together in the end, as an account of the problem we started with, as modified by our new reflections on it.

VIII. Conclusion

These responses are, admittedly, far from decisive; and there are no doubt other objections that have yet to be raised to the idea that persons, or peoples, can construct themselves and one another, for practical purposes. For now, however, I think the analogy between peoples and persons ought to give us some reason for confidence that public reason liberalism can say what it would have to say about the relationship between you and yours: that your body rights are not, per the Identity-Based view, grounded in prior facts about your identity. Rather, as with (this construal of) Rawlsian peoples, the right view looks to be more like the reverse: for practical purposes at least, it is more apt to say that your body and its parts are you because they are yours, than that they are yours because they are you.

Acknowledgements

Thanks, first and foremost, to David Wasserman for a decade of fruitful conversation on this material and collaboration on many related issues. Audiences at the National Institutes of Health, the University of Washington, Georgetown University, and the Greenwall Philosophical Bioethics group, provided helpful feedback and commentary on this paper or its predecessors. For comments on drafts, thanks to David Estlund, Derek Bowman, Japa Pallikkathayil, Daniel Robert MacDougall, Robert Steel, Rafeeq Hasan, and more anonymous reviewers than I care to count. This paper was supported by a grant from the Greenwall Foundation Faculty Scholars Program.

Competing Interests

The author has no competing interests to declare.