J Med Ethics 39:281-283 doi:10.1136/medethics-2012-101198
  • The argument

Capacity, harm and experience in the life of persons as equals

  1. John Finnis
  1. Correspondence to Professor John Finnis, University of Oxford, University College, Oxford OX1 4BH, UK; john.finnis{at}
  • Received 31 October 2012
  • Accepted 29 November 2012


This paper identifies and contests the thesis it takes to be the central premise of Giubilini and Minerva, ‘Why should the baby live?’, namely that rights, subjecthood and personhood have as a necessary condition that the undergoing of a harm be experienced. That thesis entails the repugnant or absurd conclusion that we do not have the right not to be killed in our sleep. The conclusion can be avoided by adding some premise or qualification about actual capacities for experience of harm, but nothing in the Giubilini and Minerva article shows that such capacities do not exist, as actual and not merely potential, in the newly born human infant (and indeed in the unborn human child/foetus). The present paper reviews an earlier philosophical attempt to deploy an awareness criterion of personhood, and proposes objections to some other aspects of the article under consideration.


Giubilini and Minerva hold that (1) ‘it is a necessary condition for a subject to have a right to X … that she is harmed by a decision to deprive her of X’, and that (2) ‘in order for a harm to occur, it is necessary that someone is in the condition of experiencing that harm.’1 They also offer a more rigorous version of (2), namely (2′) for a person to be harmed it is necessary that that person be ‘at least in the condition to value the different situation she would have found herself in if she had not been harmed.’ Condition (2) is less demanding than condition (2′), for the latter requires that the subject not only experience the harm but be able to compare the state of being (or having been) harmed with the previous or hypothetical alternative state of living without (or without having undergone) the harm. (But I am not confident that the authors distinguish between (2) and (2′); they may regard the latter as simply explicating the former (ie, what it is to experience harm as harm).) So it will be safe to consider only (1) and (2), and to leave aside (2′); what needs to be said about the former will apply a fortiori to the latter.

What needs to be observed about the conjunction of (1) and (2) is their entailment: that no-one has a right not to be killed—or at least, that no-one has a right not to be killed painlessly (whether in their sleep or by decapitation or lethal anaesthesia inflicted without warning). For in the foregoing account of rights as (1) susceptibilities to harm, one (2) undergoes no harm without experiencing it. And someone killed without pain or warning has no experience of either harm or loss.

This repugnant implication or reductio ad absurdum of the Giubilini–Minerva approach to rights (and to what it is to be a subject of rights, and therefore a person) was demonstrated more than a decade ago, in the debates around Jeffrey Reiman's thesis—strongly analogous to although not identical with theirs—that the newborn lack any right to life (indeed, lack any rights) until, some years after birth, they develop self-awareness, aims or expectations, and have a concern about whether their aims or expectations are or are not satisfied.2 ,3 There are strong echoes of this focus on aims and expectations early in Giubilini and Minerva's paper, although these echoes fade away, to be replaced by the paper's central focus on harm and experience of it. The paper shares with Reiman's book the important accompanying thesis that, fundamentally, the point of the right to an abortion—and the standard justified intention in an exercise of that right—is not: to be relieved of an unwelcome presence in one's body, but: to get the baby dead (kill it) so that no-one will have the burden of sustaining its life or helping it flourish. As the burdens of pregnancy itself thus cease to be decisive, birth (the cessation of pregnancy) becomes substantially irrelevant to the core of the argument about the rights and wrongs of choosing to terminate, not a pregnancy but an infant (prenatal or neonatal or early infant) life. It is indeed striking that both Reiman and the Giubilini–Minerva paper adopt such similar strategies in attempting to find an alternative marker for identifying the circle or class of subjects of human rights (and consequently, the class of persons) and the gateway into that circle.

Against Reiman's strategy and marker it was objected that ‘if my right to be respected (… not killed; etc.) depends on my being aware of and concerned to continue my existence, why should I not be killed suddenly and without warning?’4 ,5 Reiman2 responded that ‘the loss to an aware individual of the life whose continuation she is counting on, is a loss … that remains a loss, a frustration of an individual's expectations …’ (p. 197), but this response does not meet the objection. For if a sleeping individual is killed without warning, there is at no time any individual with frustrated expectations, and at no time any individual suffering from (experiencing) a loss. Searching around for a being that undergoes this experienced or experienceable loss and frustration, Reiman2 doubled up the entities in play: ‘Once a human being has begun to be aware of her life, that life unfolds before a kind of inner audience that has an expectation of its continuation, an affective stake in living on. This expectation persists until the audience shuts down for good—even if, before that, the audience dozes off from time to time. We defeat this expectation even if we kill a temporarily sleeping or comatose individual who has begun to be aware of her life.’ (p. 198)

This doubling up got Reiman nowhere. For when the sleeping individual—call her V—is killed without warning, the alleged audience, too, is simultaneously ‘shut down for good’. So the plain fact remains that there is never anyone (actor or audience) of whom we can rightly say ‘this individual (V) has some defeated expectations’.

Reiman was simply equivocating on ‘defeated expectations’; when someone has them, they are a cause or kind of misery and often the resultant subject-matter of injustice. Looking at the expectations, as Reiman proposed, we can see that, in the case under consideration, there never are any defeated expectations. First, there are V's undefeated expectations, and then, a moment later and forever after, nothing in the way of expectations, defeated or undefeated. There is no change in V's subjective awareness; as happens with modern anaesthesia, that awareness simply ceases, without any awareness of its cessation. Substituting Giubilini's and Minerva's term ‘experience’ for Reiman's term ‘aware(ness)’ makes no difference; Reiman's theatre of actor and audience serves as an explication of both terms equally.

Between Reiman's thought that no-one has rights (or personal existence) until the onset of self-reflective consciousness some years after birth, and Giubilini and Minerva's suggestion that the time of acquisition of such status should be remitted to ‘neurologists and psychologists’ (asked to answer what question?), it would be wrong to take sides.1 ,2 The former, unlike the latter, is at least methodologically coherent, but it too is intolerably vague, and arbitrary not with the inescapable arbitrariness of line-drawing in a sorites regression but with the unacceptable arbitrariness of an inappropriate criterion.

For everyone is at times, indeed, for hours each day and many hours each week, devoid of self-reflective consciousness. So it cannot be a precondition of personhood or human rights that one be actually conscious, let alone self-reflectively conscious. Capacity, actual capacity, is what counts, but actual (not merely potential) capacity for self-consciousness (including experience and awareness) is present in the unborn human from a very early stage in its (his or her) existence as a distinct individual—the one who, as Reiman2 conceded, ‘traverses the span from conception to death (as) a self- identical individual’ (p. 194). Provided the product of a fertilising of human gametes has the epigenetic primordia for development of the kind characteristic of humans, that conceptus then and there already has the actual capacity—in its earliest form, which can helpfully be called a radical capacity—to laugh, be conscious of failure and frustration, and in general to live the life of a human person in the way appropriate to its (his or her) age. Already it should—as a matter of coherent respect for data—be judged to be a subject of rights—for example, of the right not to be killed by a technician or gynaecologist who wants to kill members, including the youngest members, of a certain race or sex he hates. Compared with a mouse embryo in an adjacent petri dish, the human embryo is already ‘in a condition to’ have aims, experience disappointment, regret having been harmed in early life, and so forth—although, unlike a 6 or 60-year-old, the embryo's condition requires that the having of such experiences be postponed quite a lot longer than a normal period of sleep.

In saying all this, I am of course contesting the prime philosophical assumption of Giubilini and Minerva's paper, which is that rights, status as a subject, ‘moral status’, and personhood are matters of attribution or ascription, rather than of acknowledgement of reality. The reality in question is that, despite their manifold differences between each other, human beings are each others’ equals in a fundamental respect: possession of the radical capacity for understanding and self-conscious reasoning, a capacity that, in the relevant sense of self-conscious reasoning, is evidently not shared by animals of any other species known to us but is, as a radical capacity, shared by all of us (with the aforementioned epigenetic primordia) even when its exercise is prevented by sleep, illness, disability, immaturity or decay. The presence of these forms of overlaying or blocking of the radical capacity's exercise does not negate the individual's dynamic, constitutive orientation towards such exercise, an orientation and dynamic structure that enables many forms of therapy to alleviate or overcome the overlay or block and allow the individual's nature to realise/actualise its potentialities/capacities.

The line of thought sketched in the preceding paragraph has nothing arbitrary in it. It is not indebted to convention, or to any religious faith or tenet, or to speciesism (giving preference to the us or the ours because us and ours). When I say that the entailments of Giubilini and Minerva's position are a reductio ad absurdum, I am appealing not to any convention declaring our right not to be targeted for death, but to the reader's own understanding that his or her own existence and knowledge are intelligible and deep goods opposable to any claim to trash them, and that the existence and knowledge of other human beings is of the same kind, and so, similarly, opposable to such a claim. There is something mysterious about the depth of personal goods such as these, and therefore about personal reality in all its stages of immaturity and maturity, and all its vicissitudes. One has no accurate understanding of the ethical, the moral ought/right/wrong, unless one has some sense of, and tension towards, this mysterious depth (which can, and perhaps should, be referred to in other ways, without the metaphor I am for brevity using here). (On the ‘depth’ and ‘mysteriousness’ or ‘strangeness’ of commonplace, everyday life as a person engaging in acts of understanding (and misunderstanding), communication (and miscommunication) of abstract ideas and arguments, regrets and aspirations, etc., see Finnis.)6 ,7 All this is at a far remove from the arbitrariness of the (fuzzy) line-drawing to which Giubilini and Minerva invite us, and the mere conventionality or moral-majoritarianism of the judgements they rely on along their way.


Among many other questionable features of their paper, I will mention only three. First, the use of ‘unbearable’, five times in all but especially in the paper's opening paragraph and very last sentence. In each of these strategic places, the thesis about the permissibility of ‘post-birth abortions’ in cases not involving abnormality of the child is framed in terms of ‘unbearable’ burdens on the mother and/or other members of the family (and in between, this is extended to ‘unbearable burdens’ on the state or ‘society as a whole’). Now ‘unbearable’ is a strong word, even stronger than ‘intolerable’; it connotes or suggests agonies apt to leave someone screaming or blubbering in anguish, like deliberate torture. The authors’ use of the word in these places is therefore entirely misplaced (although regrettably not without precedent). For they in due course disclose, by implication, that its meaning for them is no more than that ‘the well-being of the family is at risk’ or that there are ‘women who would be damaged’ more by giving up a child for adoption than they would by having it killed before or after birth, even if the damage on both sides of the comparison is slight and transient. Indeed, the authors’ thesis is that any currently accepted ground for abortion (apparently even early abortion) is an ethically objectively justified ground for ‘post-birth abortion’, that is, for infanticide. As, notoriously and as a matter of law in the UK, the USA and Canada (for example), no serious ground whatever is required for abortion during most or the whole of pregnancy, what the paper framed as justifiable to avert the unbearable is in fact defended by the paper as justifiable to avert the inconvenient or even simply the undesired. Such a use of the term seems as unfitting as the thesis is morally unacceptable (and argued with an unfitting imprecision).

Second, there is the title's deliberate shift from Kuhse and Singer's ‘Should the baby live?’ to ‘Why should the baby live?’. The former has at least some kind of neutrality (albeit not a commendable neutrality). The latter is rhetorically loaded so as to put the onus of proof (of entitlement to live) firmly on the baby, whether before or at some never delimited period after birth, in infancy. This is faithful to the authors’ thesis that any interest of ‘actual persons’, however slight an interest, outweighs what might be thought of as an interest of the unborn or infant human being, because ‘interests’ of the latter kind are the interests of no-one at all, and therefore have no weight, or indeed reality, at all. (This is the more radical version of Giubilini and Minerva's position; it claims that the unborn and the newborn have no right to life not only because they cannot be harmed, but also because they (at least as subjects or persons) do not exist (and therefore cannot be harmed): ‘if you ask one of us if we would have been harmed, had our parents decided to kill us when we…were fetuses or newborns, our answer is ‘no’, because they would have harmed someone who does not exist (the ‘us’ whom you are asking the question), which means no one. And if no one is harmed, then no harm occurred.’ (emphases added)

However, no argument is advanced for this claim, besides the argument from lack of awareness of harms and aims.) Mothers and their medical advisers and practitioners who struggle to preserve the prenatal health of their wanted child, like mothers and paediatricians and nurses who are attentive to their babies’ wellbeing, and who soon enough are aware of the baby's now seeing eyes locking onto their own—all are grossly deluded in thinking there is somebody, indeed, an actual person, there, inside, or lying there before them.

So strong a thesis, so grave not only in its presumption against infant life but also in its obvious implications for children and adults who suffer from severe congenital disablements or illnesses and injuries, and for the mentally decayed, could be responsibly maintained only, at best, if strong and carefully developed argumentation were in place and objections to it were confronted or at least anticipated. Instead, the paper develops the old and manifestly vulnerable argument to absence of personhood and rights from (lack of) awareness or experience of harm. Such stipulations of artificially constrained meanings of ‘harm’, ‘person’ and ‘subject’ do nothing to undermine the perceptions and judgements of the mothers, gynaecologists and paediatricians just mentioned, or the arguments of philosophers that radical capacities are actual—not merely potential—properties of a subject, the individual who began at conception.

The unborn, like the newly born, can undergo unjustly inflicted harm, which damages them then and there as actual persons, even though their awareness of it as a harm and loss and impairment that they underwent may emerge in their consciousness only months or years later. Seeking (as the paper coolly envisages) to prevent this subsequent awareness, by ensuring that the person so treated (I say harmed) is also killed before the awareness arises, no more cancels the harm in such early states or stages of an individual human person's existence than the harm is cancelled or negated or averted when an assassin ensures that his victim has no warning and no awareness of his being murdered.

Third, the authors’ method involves treating as ethically determinative the parameters of recently adopted laws and conventions permitting (in most countries) abortions and (although not in so many countries) destructive embryo experimentation. Their deployment of this method lands them in a position (and in argumentation) that offends against a fundamental, publicly declared ethical principle with accompanying judgement about reality: human beings are equal in their entitlement to fundamental human rights, because equal in their actual possession of the form of life of the humanly personal kind, although not in their present, developed capacities to experience, enjoy and deploy that form of life. The declarations of human equality (factual and moral) were solemnly reaffirmed after the sobering, thought-provoking experiences of the mid-20th century. They are a better standard for confirmation of a critically philosophical argument about these matters than is provided by laws and conventions all too easily (but truly) explicable by reference to the self-interest of people who relative to the human beings under discussion in Giubilini and Minerva's paper are people of power.


  • Funding None.

  • Competing interests None.

  • Provenance and peer review Commissioned; externally peer reviewed.