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Kant and Property Rights in Body Parts

Published online by Cambridge University Press:  09 June 2015

Stephen R. Munzer
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A “human being,” Kant writes, “is not entitled to sell his limbs for money, even if he were offered ten thousand thalers for a single finger” (LE 124). This arresting statement is part of a broader position of Kant’s according to which persons lack property rights in parts of their own bodies. One can find in his work at least three arguments in support of this position. One is an argument from human freedom. It is riddled with difficulties. The second is an argument from humanity and dignity. It has general appeal but does little to justify Kant’s verdict on some of his own examples. The last is an argument from self-respect. It has some force. Yet, unless one tempers the Kant of moral opinion with the Kant of moral theory, this argument sometimes delivers unacceptable answers to casuistical questions.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 6 , Issue 2 , July 1993 , pp. 319 - 341
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1993

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References

For help I thank Alan Brudner, David Copp, Carl Cranor, Simon Evnine, Gary Gleb, Seana Shiffrin, Dan Sutherland, Ernest J. Weinrib, and an anonymous referee; my colleagues and seminar students; members of the Law and Philosophy Discussion Group; and a gracious audience at the University of Minnesota. gratefully acknowledge the assistance of a Fellowship from the National Endowment for the Humanities and financial support from the Academic Senate and the Dean's Fund at UCLA.

* References to Kant’s works use these abbreviations. LE = Kant, I. Lectures on Ethics [1775-80],Google Scholar trans. Infield, L. and foreword by Beck, L.W. (Indianapolis and Cambridge: Hackett, 1963)Google Scholar (page references are to the English translation); G = Kant, I., Groundwork of the Metaphysic of Morals [1785]Google Scholar, trans. Paton, H.J. as The Moral Law (London: Hutchinson University Library, 1948)Google Scholar (page references are to Kant’s second edition and the Academy edition before and after a slash mark, respectively); MM = Kant, I. The Metaphysics of Morals [1797],Google Scholar trans. Gregor, M. (Cambridge: Cambridge University Press, 1991)Google Scholar (page references are to the Academy pagination given in the margin).

1. Here are some relations among the works relied on in this article. The Lectures on Ethics, though published posthumously, was delivered to students before the publication of the Critique of Pure Reason (1781). The Groundwork is the first work on moral philosophy squarely within the critical period. The Metaphysics of Morals is among the last of Kant’s works. Kant’s substantive position on points of detail regarding property rights in body parts as well as related topics such as sexual morality and responsibilities toward one’s body remained much the same. The chief differences, for present purposes, are that The Metaphysics of Morals, but not the Lectures on Ethics, has a deep account of self-respect and a fully developed dual view of human beings as both phenomenal entities, subject to causal determinism, and noumenal entities, in possession of free will, or, at any rate, as entities with these dual phenomenal and noumenal aspects. The Groundwork has little discussion of sexual morality and body parts but it suggests what is here called the argument from humanity and dignity.

2. Munzer, S., A Theory of Property (Cambridge: Cambridge University Press, 1990) at 130–33.CrossRefGoogle Scholar

3. Ibid. at 37–58.

4. Ibid. at 22–25.

5. Ibid. at 44–56.

6. If one presents Kant’s views in the language of rights, he appears to recognize some personal rights with respect to the body when he allows circumcision, haircuts, and amputation of a limb to save one’s life (LE 116; MM 423; cf. LE 149). But he disallows castration if a man does it to get a better living as a singer (MM 423). Kant seems not to recognize a personal right to have oneself castrated for this purpose.

Kant may think of a right to reputation as a property right, though it is less clear that he thinks of it as a body right (MM 295-96).

7. Some may object that not all property rights are transferable—for instance, the rights of a beneficiary of a spendthrift trust—and that perhaps not all transferable rights are property. I give a brief answer elsewhere. Munzer, supra, note 2 at 49-50 and nn.12, 13. Those who find the answer unpersuasive can regard the terminoiogy in the text as stipulative definitions. The stipulations leave open the chief issue of substance—namely, which body rights, if any, are transferable.

8. Hohfeld, W., Fundamental Legal Conceptions as Applied in Judicial Reasoning [1919], ed. W., Cook and foreword Corbin, A. (Westport, Conn.: Greenwood Press, 1978).Google Scholar

9. Hononé, A.M., “Ownership” in Guest, A.G., ed., Oxford Essays in Jurisprudence (First Series) (Oxford: Clarendon Press, 1961) at 107.Google Scholar

10. For other examples, see Waldron, J. “A Right to Do Wrong” (1981) 92 Ethics 21 Google Scholar, who argues for the claim that one can have a moral right to do what is morally wrong.

11. I attempt no general analysis of what Kant means by “contradiction” or “self-contradiction.” For a useful discussion, see O’Neill, O. “Consistency in Action” in Potter, N. & Timmons, M., eds, Morality and Universality (Dordrecht: D. Reidel, 1985) at 159.CrossRefGoogle Scholar

12. Munzer, supra, note 2 at 132–33. The discussion uses W. Hastie’s 1887 translation of the Rechtslehre.

13. See, for example, Strawson, P.F., The Bounds of Sense (London: Methuen & Co., 1966) at 247–49;Google Scholar Sullivan, R. , Immanuel Kant’s Moral Theory (Cambridge: Cambridge University Press, 1989) at 281–83.CrossRefGoogle Scholar

14. For an effort to interpret and defend Kant’s conception of freedom, based on a sympathetic understanding of his transcendental idealism, see Allison, H. Kant’s Theory of Freedom (Cambridge: Cambridge University Press, 1990).CrossRefGoogle Scholar An appraisal of Allison’s book may be found in the review by Guyer, P., (1992) 89 J. of Phil. 99.Google Scholar

15. Hill, T., “Humanity as an End in Itself,” (1980) 91 Ethics 84.Google Scholar See also Cranor, C., “Kant’s Respectfor-Persons Principle” (1980) 12 International Studies in Phil. 19;Google Scholar Korsgaard, C., “Kant’s Formula of Humanity” (1986) 77 Kant-Studien 183.Google Scholar

16. One can reformulate the argument from human freedom along similar lines. The human body, made up of appropriately integrated organs, is the phenomenal expression of noumenal freedom. It is the locus of an innate right to liberty, and so to sell any organ integral to its power to will and act in the world is to degrade an innate right to the status of an acquired right. Since the argument from human freedom seems beset by so many other problems, I did not try to reformulate it in this way in Section II.

17. Chadwick, R., “The Market for Bodily Parts: Kant and Duties to Oneself” (1989) 6 J. of Applied Phil. 129,Google Scholar comments usefully on Kant’s views, but moves swiftly to a contemporary virtue-ethic conception of human flourishing without addressing whether Kant’s duties of virtue could be an account of human flourishing.

18. Elsewhere, I distinguish between “self-respect” as “a state of regarding oneself as having inner moral worth” and “self-esteem” as “a sense of one’s worth deriving from one’s characteristics, advantages, and attainments.” Munzer, supra, note 2 at 116. Since I wish to maintain something like this distinction, I do not follow Gregor in rendering Selbstschätzung as “self-esteem.” See MM 402 and her translation, supra, note * at 204. Kant uses Achtung (and, sometimes, the Latin words reverentia or observantia) for “respect” (e.g., MM 402,462). Since he defines Selbstschätzung as Achtung für sich selbst (“respect for oneself”) (MM 399), I translate Selbstschätzung as “self-respect” rather than “self-esteem.” I see no evidence that Kant uses Selbstschätzung in my sense of “self-esteem.”

19. See, for example, LE 119-20, 178-84; G 67/429; MM 420,422-23,428-37.

20. I leave aside the further problem that parts of Kant’s account of self-respect involve the same distinction between the noumenal and the phenomenal (see MM 417-18) that bedeviled the argument from human freedom and the argument from humanity and dignity.

21. See, for example, Henson, R., “What Kant Might Have Said: Moral Worth and the Overdetermination of Dutiful Action” (1979) 88 Phil. Rev. 39;Google Scholar Herman, B. “On the Value of Acting from the Motive of Duty” (1981) 90 Phil. Rev. 359.Google Scholar

22. The “rules of moral salience” suggested in Herman, B., “The Practice of Moral Judgment” (1985) 82 J. of Phil. 414,Google Scholar are one way of interpreting Kant in this fashion.

23. See Cohen, L., “Increasing the Supply of Transplant Organs: The Virtues of a Futures Market” (1989) 58 Geo. Wash. L. Rev. 1.Google Scholar

24. See Hansmann, H., “The Economics and Ethics of Markets for Human Organs” (1989) 14 J. of Health Politics, Policy and Law 57.Google Scholar

25. For example, my conception captures only moral standards, and these standards are extended to relevantly similar persons in relevantly similar circumstances. For a less confining conception, see Hill, T. “Self-Respect Reconsidered,” in Thomas, E. Hill, Autonomy and Self-Respect (Cambridge: Cambridge University Press, 1991) 19 CrossRefGoogle Scholar at 22.I stress that Hill discusses other conceptions of self-respect, such as appreciation of equal basic rights as human beings, and that a conception of self-respect might have a role in life other than to be morally confining or to generate answers to moral questions.

26. Hare, R.M. Freedom and Reason (Oxford: Clarendon Press, 1963) at 157–85.Google Scholar

27. See Daniels, N., “Wide Reflective Equilibrium and Theory Acceptance in Ethics” (1979) 76 J. of Phil. 256;Google Scholar Munzer, supra, note 2 at 308-10.

28. Hare, R.M. Moral Thinking: Its Levels, Method and Point (Oxford: Clarendon Press, 1981)CrossRefGoogle Scholar. For a response, see Munzer, supra, note 2 at 10-11; Munzer, S., “Intuition and Security in Moral Philosophy” (1984) 82 Michigan L. Rev. 740.Google Scholar