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Personhood as a ‘Range Property’

One way to understand the claim that personhood is fully realized and equally possessed by all human beings past a minimum threshold is to think of it as having the character of a ‘range property’. The term ‘range property’ was coined by John Rawls to describe a certain feature of some concepts.[1] For instance, when considering the category of beings to whom the ‘constraints ofjustice’ apply, Rawls believed that the sufficient condition for being in that category is the capacity for moral personality. However, he acknowledged a possible problem with this criterion. In essence, this was the equality problem I laid out above. Although human beings in general meet the condition, (as he explains, ‘there is no race or recognised group of human beings that lacks this attribute’[2]), there are of course some individuals who fail entirely to realize that capacity, or who realize it only to a minimal degree, perhaps as a consequence of some unfortunate defect or deprivation.

Nevertheless, Rawls believed that grounding human equality on variable ‘natural capacities’ could be consistent with a commitment to basic human equality. While a ‘natural’ (meaning, capacities-centered) basis for equality may be needed to identify the morally important class, Rawls argued that a correct conception of justice does not permit fine-tuning the amount of moral protection to a subject’s individual capacities, once a minimum threshold is crossed. Rather, ‘once a certain minimum is met’, he claimed, a person is entitled to equal liberty on a par with everyone else’5. He explained further:

All we have to do is to select a range property (as I shall say) and to give equal justice to those meeting its conditions. For example, the range of being in the interior of the unit circle is a range property of points in the plane. All points inside this circle have this property although their coordinates vary within a certain range. And they equally have this property, since no point interior to a circle is more or less interior to it than any other interior point.6

The crux of the range property analysis is that once the boundaries of the range are specified, every example within it is regarded as being an equal instantiation of the property, whether it is at the centre of the range or right at the boundary-line. Jeremy Waldron further explains the nature of a range property with the use of a juridical analogy:

Consider the legal or administrative characteristic which a town might have of being in New Jersey (e.g. as opposed to being in New York or being in Pennsylvania). Though the city of Princeton is in the heart of New Jersey, well away from the state line, and Hoboken is just over the river from New York, right on the boundary, still Princeton and Hoboken are both in New Jersey, and they are both in New Jersey to the same extent, so far as the law is concerned. One could point to the scalar geographical difference between them and for various reasons that might be important; but jurisdictionally it is irrelevant. Being in New Jersey, then, is a range property, ranging over all the points within the boundaries of the state.[3]

As far as the administrative law is concerned, just where Princeton is located in New Jersey is irrelevant: ‘that it is within the range is all we need to know’.[4] Our judgements about moral personhood suggest that we regard it in much the same way. Embracing the ‘range property’ approach to personhood does not mean that we should remain blind to differences in degree at all times and for all purposes. There are many sound reasons for the law, especially, to respond to differences in rational functioning, independent agency, and other capacities, in its treatment of human beings. Children need to be assigned guardians, because they are not mature enough to care for themselves. The mentally incompetent cannot give valid legal consent to medical procedures, because of the limits of their understanding, or be held accountable for crimes, because of their lack of agency. The law makes wards of those who, owing to a dearth in one or many of the paradigmatic person-like qualities, cannot live independently. And it bars the immature from some potentially dangerous activities: teenagers cannot make foreign policy, or operate dangerous machinery.

There may be all sorts of contexts, then, in which scalar differences are important. But on the ‘range property’ approach, there is one respect in which these differences do not make a difference: the property of being a full, rights-holding person. If personhood is a range property, then all humans within its range are persons equally, however much or little they instantiate its base properties. As far as inclusion in the category of persons is concerned, the switch is either on or off[3].

But how is the range property analysis of personhood to be defended? One might wonder if the range property view is not just an attempt to have it both ways - to claim that personhood is a binary property and that it supervenes on scalar properties. Defenders of the species membership criterion of personhood might well retort that this kind of thinking about personhood is simply indefensible. If personhood is correctly analysed in terms of rationality, self-awareness, emotional sensitivity, and so forth, then how could it fail to diminish or increase with the strength of those traits? If, instead, our commitment to human equality leaves us unable to relinquish the binary view of personhood, then perhaps we must reconsider the possibility that it supervenes on a property which is not graduated across born human beings, like human species membership.

Another pressing question is how we are to draw the boundaries of the range property. On the range property account, all individuals past a minimum threshold count as persons to the same extent; they are all equally within the circle. But what exactly is that minimum? The working assumption, of course, is that it is birth. But it is not obvious why birth, rather than some earlier or later threshold, should mark entry into the range of persons. Rawls recognized that ‘the required minimum may often prove troublesome’.[6] Here, that trouble is the potential resuscitation of the abortion—infanticide issue. Of all the boundary- lines that could be chosen, why passage through the vaginal canal?

The beginning of a defence for the range property approach might be hinted at in Waldron’s suggestion that where range properties are at issue, there is an ‘interest’ which ‘drives us away from scalar differentiations’.[7] In the New Jersey example, that interest is ‘constitutional and administrative’. He writes:

Relative to the interest driving the specification of the range property, the precise location of the entity on the scale is uninteresting. That it is within the range is all we need to know. Without such an interest, of course a range property seems merely arbitrary. One might stipulate it. But it would be hard to see the point ... the interest shapes the range property and makes it intelligible.n

It is not hard to imagine what possible legal or pragmatic interests there could be in understanding personhood as a range property. There is a serious need for legal bivalence about personhood status in any individual case. The reasons for the law to regard personhood status as absolute may be many. They include: avoidance of the harmful symbolic significance of sub-classifications; the maintenance of social cohesion; the prophylactic interest in avoiding unjust or callous treatment of marginalized groups and the disintegration of a common citizenship which might result from hierarchies of personhood status. It is nothing short of unthinkable that the law should deal with personhood as anything other than an absolute property.

But the objection is likely to arise that these are merely pragmatic or instrumental reasons for treating all human beings within a certain range as equal in moral status. Even if human equality under the law is practically necessary for human life as we know it, it might be argued that a purely contingent basis for moral equality fails to properly address the equality problem. For that, one must be able to produce a non-instrumental reason why all human beings within a range are in fact persons equally. As Margaret Little contends, any theory on which the equality of mentally impaired human beings is a matter of ‘polite extension’ seems to be ‘a limited theory indeed’.i2

We should, I think, be cautious of supposing that all pragmatic or instrumental considerations are necessarily non-moral ones, or that contingent worries cannot feature in moral assessments. Some instruments are of a very special kind. Maintaining a coarse-grained approach to gradations across human beings for the purposes of ascribing basic moral status might be an attitude that is absolutely critical to human life and what is valuable within it. Given this, it would be distorting to claim that the range property analysis lacks a compelling justification because it is a ‘merely’ contingent necessity. Further to this, though, the ‘merely instrumental’ objection might fail to account for very particular ways in which the maintenance of human equality within a range is a genuinely moral, not only practical, necessity. More needs to be said to explicate that moral necessity. Taking our cue from Waldron, it seems what we must look for is a general moral interest that drives the range property analysis and ‘makes it intelligible’.

  • [1] John Rawls, A Theory ofjustice (Original edn, Belknap Press 2005), 508.
  • [2] ibid 506. 5 ibid. 6 ibid 508.
  • [3] Jeremy Waldron, God, Locke, and Equality: Christian Foundations of John Locke's Political Thought(Cambridge University Press 2002) 77.
  • [4] ibid 78.
  • [5] Jeremy Waldron, God, Locke, and Equality: Christian Foundations of John Locke's Political Thought(Cambridge University Press 2002) 77.
  • [6] Rawls (n 3) 509. io Waldron (n 7) 78. n ibid. My emphasis.
  • [7] 12 Margaret Little, Abortion and the Margins of Personhood’ (2008) 39 Rutgers Law Journal 336.
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