persona non grata

(the third in a series on the rights of the individual, this article examines the inherent legal and ethical challenges of granting a being “personhood“, also written during my first year in university)

Philosophy has long been concerned with the issue of personhood. In the world of Plato and Aristotle, simply being “human” was enough to qualify a creature as a person. Over time, however, numerous exceptions to that rule have been found, and other theories have quickly followed in this burgeoning field of philosophical study. This paper will focus on Frankfurt’s theory of personhood in particular, which despite its subtle imperfections gives us insight into what constitutes a person. His theory will then be compared and contrasted with the intuitive conception of a person in the moral sense. It is a view of personhood that outlines those qualities that, at the very least, are necessary for personhood.

To analyze these two theories properly and to simplify their messages, I will use the case of a Winnipeg woman accused of endangering her fetus through habitual solvent sniffing. After examining the case in detail, it becomes apparent that there is a slight disparity between the law’s conception of personhood and those philosophical ideas examined in this paper. Frankfurt’s account of personhood coheres with our intuitive conception of personhood in the moral sense, but together they fail to specify every characteristic necessary for determining a being’s status as a person.

To apply these concepts of personhood to modern ethical situations, one need look no farther than the case of Ms. Deborah Gregory. The ethical and legal dilemmas posed by her actions are directly related to the idea of personhood, both in the analysis of the mother and the analysis of her child. To be sure, there are some very important questions that must be asked when examining the case. First, was Ms. Gregory imprisoned by her addiction and consequently had no choice but to endanger the life of her unborn child? Or did her decision depend solely on her strong desire to take drugs, coupled with a lack of concern for the harm she was inflicting on her children? Along with these questions, the child’s status had to be taken into account by the Supreme Court, both as a person, and more importantly, as a legal entity when determining whose rights it should protect.

The judge presiding over this case was placed in a very difficult position: trying to preserve the tenets of the legal system while searching for a humanitarian solution to this issue. “I would love to protect this fetus,” he remarked. “It’s going to come into the world, presumably, as a child,” (“Mother versus Child” Globe and Mail: Nov. 1, 1997: p25). The argument in favour of protecting the rights of the fetus insisted that “if the court will step in one second after the child is born to apprehend and protect it [as a legal entity], should it not do so now?” (ibid. p25). It is dilemmas such as this that prompt philosophical inquiries into the status of beings as persons, and the result of such inquiries that will be used to examine the case.

To begin the investigation, it is important to arrive at a classification for the mother, mainly because her mental competency was called into question during the trial. She was diagnosed as suffering from “chronic solvent abuse and mixed personality disorder, with antisocial and dependent features,” (ibid, p25). It was determined, however, that in legal terms she “did not suffer from a mental disorder and there were no grounds for confining her,” (ibid, p25). Where the law failed to recognize her desire to sniff glue as grounds for revoking her privilege as a legal entity, Frankfurt’s account of personhood succeeds in demoting Ms. Gregory from her status as a person. Because she does not care which one of her effective first-order desires moves her to action, and acts only upon that desire which most strongly moves her into action, she is exempted from personhood, a status which requires concern for one’s effective first-order desires. Before we define effective first-order desires, however, we must distinguish between the different orders of desires and examine the implications of these desires on personhood.

The two kinds of desires identified by Frankfurt are first-order desires and second-order desires. First-order desires are stated in the form “A wants to X,” whereas second-order desires can be stated in the form “A wants to want X.” In other words, second-order desires describe desires about desires. To apply the concept of first- and second-order desires to Ms. Gregory and the fetus, we must examine the possibility that as persons, they would have the capacity for first-order desires and would be fully aware that those desires are their motives for action.

Evidence of the mother’s capacity for first-order desires is apparent in her participation at the conception of the child. She was not raped, and we must then assume that she willingly had sex with the father of her child to satisfy a sexual first-order desire. Conversely, the actions of a fetus are more of an automatic response to biological needs rather than premeditated actions based on desires, and this idea will be looked at in more detail later. Frankfurt goes one step further in his analysis of desires, however, and this subsequent stratification of desires comes into play when determining the personhood of the mother.

If a being does not “care” about the desire in question, than the desire is classified as a mere second-order desire. If, however, the being does “care” about the desire, than the desire is classified as an effective second-order desire, or what Frankfurt calls a second-order volition. An effective second-order desire is defined by the statement “A wants the desire X to provide the motive for his actions.” To want the “desire to X” to be one’s will, says Frankfurt, is a second-order volition, and having second-order volitions is “an essential to being a person” (Frankfurt in Study Guide, p33). He is quick to point out that only beings with second-order volitions are persons because possessing the ability to determine one’s first-order desires implies freedom of the will. To be unfree is to be at the other end of the psychological spectrum, where one suffers from internal conflict and is unable to actively choose one’s effective first-order desires. To illustrate the difference between unfree persons and wantons, Frankfurt compares an unwilling addict to a wanton addict.

Our prime example of a wanton addict is Ms. Gregory. In Frankfurtian terms, a wanton is a creature who may have mere second-order desires but does not have second order volitions. Thus, a wanton “does not care about his will” (ibid, p31). By sniffing solvents without concern for the impact such action could have on her children, Ms. Gregory might qualify as a wanton. She does not “care” about what she is doing, only that her actions satisfy her first-order desires. Evidence of her wantonness can be found in her treatment of her three previous children. Two of them were born developmentally handicapped as a result of her drug abuse. This tangible evidence of the consequences that result from abusing drugs in no way influenced her to change her ways or seek help for her problem. She even rejected treatment for her apparent “addiction,” showing no remorse or concern for the condition of her children. This obvious lack of concern for the repercussions of her effective first-order desires on her children suggests that she is indifferent towards the formation of her second-order volitions. In Frankfurtian terms, this reduces her to the status of wanton.

Expansion on Frankfurt’s original categorical separation of persons and wantons reveals two classes of wantons: “junior wantons” (mainly animals with higher intelligence like primates and dolphins) and “senior wantons” (mainly infants and insane adults). The major difference between junior and senior wantons is the potential for development into persons: the former lack the capacity for personhood. Having said this, an even more specific division of “senior wantons” is possible. Senior wantons who have the capacity for personhood, like fetuses, are considered “proto-persons.” These “proto-persons” are contrasted with other senior wantons who were once persons but can no longer receive that classification because they lack some essential characteristic of personhood.

With this progression in the definition of wantons, Frankfurt would consider the mother and the fetus senior wantons. The mother was once a person before she began abusing solvents and ceased to care about her effective first-order desires, consequently forfeiting her capacity to form second-order volitions. The fetus, on the other hand, will one day be a person with the capacity to form second-order volitions. It is at this point that Frankfurt’s theory becomes a little inconsistent. A fetus would be considered a proto-person by virtue of its future capacity for personhood, but at present, I do not believe that it should even be considered a wanton. Any conscious being lacking second-order volitions is a wanton, whether or not it has second order desires. The fetus is not a conscious being, however, and does not fall under the jurisdiction of this argument. For this reason it is precluded from any classification as a wanton. Its actions, or more specifically, reactions are caused by stimuli in its environment which induce natural responses. As the fetus grows, it will become proactive and form second-order desires that will move it to action. At this fundamental stage in its development, however, it has not yet acquired awareness of its awareness, and must therefore remain a “creature” (in Frankfurtian terms) until it does so.

In a stock analysis, disregarding any capacities for personhood and guarantees of psychological development, a fetus (most noticeably during the early months of its gestation) holds a lower standing than, for instance, a domesticated pet. Its actions are completely dictated by stimuli, equivalent to the basic reactions of a simple, multi-celled organism, and as such are reflex oriented. These actions are strictly instinctual at this point, and fail to display any desire-based or proactive consciousness. Conversely, cats can find their food, they can “want” to be pet, and are able to decide what it is that they “do not want,” as is often the case with strangers trying to pet them. Their instincts are the foundation for their actions, but they are granted some leeway, by virtue of their wantonness, to enjoy those first-order desires that most strongly move them to action.

Now that the fetus has been categorically removed from wantonness, our focus turns to the mother and her lack of concern for those desires which move her to action. Wantons do exhibit high-order consciousness, but in contrast to rational agents, their will is altogether unimportant. All that matters to the wanton is the satisfaction of their strongest first-order desire, regardless of whether it is the desire upon which he truly wants to act. There is an obvious convergence of this theory with the personality of Ms. Gregory. Whether or not she uses drugs is of no concern to her, as long as she satisfies her strongest effective first-order desire to sniff glue. When she finally decided to get help, it was not because she had beaten an addiction, but because the weight of her effective first-order desires had changed.

When she resisted treatment and continued her abuse of drugs, it was like saying: “Leave me alone. I don’t care if what I am doing is wrong, you still don’t have the right to force me to do otherwise.” This parallels what Ms. Gregory said when she insisted, through an appeal to the Supreme Court, that to force her to give up solvent sniffing was limiting her freedom of choice. The fact of the matter is: solvent sniffing is not illegal. Thus, she could not be restricted from sniffing glue, even if doing so was harming an unborn child, because the rights of the fetus are not legally recognized.

This lack of concern illustrates the difference between wantons and unfree persons, and is the key to analyzing potential persons. Ms. Gregory pursued that desire which most strongly moved her to action, regardless of the result. She did not care that her actions were harming her children, nor did she care that her strongest desire was to sniff glue. This behavior is similar to that of a serial killer, another example of a wanton, who lacks the ability to form second-order volitions. This other wanton does not care that his strongest desire is to kill. There is no question that serial killers can display high levels of intelligence and cognitive ability. It is their psychopathic imbalance, however, that keeps their rational agency (and hence, moral agency) separate from any apparent intelligence.

Thus, they have no concern for their victims, just like Ms. Gregory has no concern for the welfare of her children, and so they are both justly considered wantons by Frankfurt’s account. Even in her soberest moments Ms. Gregory failed to see the error in her ways. Telephone help-lines and support centres are available to deal with such problems, but she did not make use of them because it did not even occur to her that she was doing something wrong. This lack of remorse is also a trait closely associated with criminal psychopaths, and is obvious in her refusal to get help. Such indifference denies her any chance of personhood.

When examining Ms. Gregory’s personhood intuitively, it is apparent that her predilection for sniffing glue detracts from her capacity for freedom. The two types of freedom directly relevant to the intuitive conception of a person are positive freedom and negative freedom. Capacity for positive freedom is important for personhood because it deals with a recognition of what ought to be done, an essential characteristic of personhood in the moral sense. Negative freedom, on the other hand, deals with the insurance that a being is free from overwhelming external and internal forces.

Ms. Gregory is not positively free because she is not concerned with what ought to be done, that is, to stop sniffing glue in order to secure the health of her baby. She is negatively free, however, because she has yet to display any signs of resisting her desire to abuse drugs. It seems that her desire to abuse drugs is not imposed by any addiction, but is instead a decision based merely upon the relative strengths of her first order desires. Even though she is negatively free, it is her lack of positive freedom that prevents her from being a person by intuitive standards.

Judgment of the fetus by means of the intuitive conception of a person in the moral sense reveals the same conclusion as did a Frankfurtian analysis. By this method, in order to be considered a person the fetus would have to display the capacity for positive freedom. Intentions and plans for action are precisely that application of positive freedom which labels beings not simply as persons, but as persons who are morally accountable.

As such, persons are also the focus for morality and ethics, for indeed, beings other than persons are not responsible and cannot be held morally or ethically culpable for their actions. Therefore, in deciding what to do, it is imperative that a person act in such a way so as to recognize what ought to be done, then pursue that end in accordance with his or her own intuitive moral dictates. A fetus cannot recognize what ought to be done, and then pursue that end. The fetus does possess a calculative, low-level, means-to-end rationality, somewhat like an Intentional System in Dennett’s account of personhood, but it is unable to define exactly what that end is, or indeed, what that end ought to be. It follows, then, that such a rudimentary consciousness in the absence of positive freedom confirms that the fetus is not a person by intuitive standards.

When the case is analyzed with respect to personhood, the two theories presented complement the law in one instance and contradict it in another. Frankfurtian theory did cohere with the intuitive conception of a person in the moral sense, as did the legal system’s estimation of the unborn child, all three resolved in their designation of the fetus as a non-person. The rights of the unborn child could not be protected in the courtroom because it was not recognized as a legal entity, and thus, not recognized as a person. It was established, however, that the mother was not a person when judged by both methods of analyzing personhood, and yet the law treated Ms. Gregory as a person with the complete set of human rights associated with personhood.

Again there was agreement between the two theories of personhood with respect to the mother, but the law rejected these theories, utilizing instead its own theory of personhood which is based upon mental competence. The law granted Ms. Gregory full status as a legal entity simply because she was a human being who was judged to be mentally competent by a psychiatrist, and not because she was a free person by any philosophical standards. Such disparity proves that examining the personhood of beings is essential for the legal system to operate properly. Without clearly defined conditions for personhood, some beings who are not persons will receive the full benefit of legal status as persons, while others who deserve such status will be denied that same privilege.

Both Frankfurt’s concept of personhood, and the intuitive conception of a person in the moral sense serve as good guides for defining personhood, but like so many other time-honoured questions, there may never be a definite resolution to this question. The most we can do is find the aggregate of all those theories that seem to identify at least some portion of personhood and add them all together. In this way philosophers develop increasingly more complex qualifications for personhood, while striving for a unified theory to classify all beings. It is the proverbial carrot at the end of the string, teasing us with more and more insight but always keeping us from our goal. That is what makes the quest for a single definition of personhood all the more rewarding, and it is precisely why this quest continues today.