Harm and the Right Not to be Harmed
Cara Kent Gillis
We all agree that harm is bad, but what does this mean?[1] On the face of it, it seems to mean that harm should be avoided; but there is a more complicated story to tell then mere avoidance. I want to give a complete account of harm by focusing on two different sides of this story: The first side explains what harm is, which types of harm are more significant than others, and what it means to experience harm. The main argument that will emerge from this aspect is that subjectively experienced harm carries the most amount of significance. The second side addresses how the significance of certain types of harm is so great that it essentially generates a moral right not to be harmed, with all the correlative duty components. There are several arguments that emerge from this second side. One is that a being’s status as harmable[2] generates a general claim right that the being not be harmed. Another is that, given the special nature of harm, this general claim right is charged against all relevant individuals without the need for contracting to justify the right. The final argument focuses on the nature of the duties that are necessarily correlative in order to make sense of the right not to be harmed. Because the nature of the right not to be harmed is not as straightforward as the nature of, for example, the right to sustenance, the correlative duties may be exceedingly complex; however, while in some ways this may place more of a burden on the duty-bearer in the harm case, it in no way detracts from the significance of the duty.
Introduction
Imagine three things, a painting, a dog, and an adult human being, each being slashed with a knife. What, if anything, captures the wrongness of that action? One intuition is that slashing the three objects is wrong, albeit to varying degrees, because it harms them. Many may find this contentious: can we really say that the painting has been harmed? Is it not more appropriate to say that is has been damaged? Although it seems wrong to damage the painting, it seems worse to slash the dog, and many may say even worse yet to slash the human. One account that captures these intuitions is that the wrongness of the harm is, in part, determined by a being’s ability to experience it. Under such an account, the morally significant aspect of harm is the subjective experience of it and it is questionable whether instances that we refer to as objective harm are not more accurately classified as damage. In light of this, if we think that the dog is in some way less conscious or less aware than the human is, such that it, like the painting, cannot experience the harm, then it is less reprehensible to slash the dog than the human.[3] We also may have the intuition that because the human (and arguably the dog) can experience the harm, she at least has a right not to be harmed. While the painting obviously has no such right, the human clearly does, and the dog (depending on what it means to have a conscious experience of harm) may as well. These intuitive judgments suggest that the capacity to experience harm is morally significant in such a way that it generates a right. In what follows, I want to examine the natures of harm and the right not to be harmed; I will argue that beings that can experience harm have a moral status that grants them at least the right not to be harmed.
The main point of my argument can expressed as follows:
x has the ability to experience harmà x has moral status à x has rights-bearing status
This point is motivated by a central assumption: the best way to make sense of moral status/significance/considerability is by making it a sufficient (although not exclusive) criterion for rights-bearing status. If being morally significant amounts to anything at all, then it at least amounts to the possession of rights (at minimum the possession of one right).[4] One very compelling way, although certainly not the only way, that a being (x) can have moral status is by x’s possessing the capacity to experience harm (what I will eventually call ConsciousnessM: the ability to have a relevantly conscious experience of harm). To ground the moral significance of x’s ability to experience harm I will rely on the common intuition that harm is bad, and that the badness of harm in some way, which I hope to clarify, makes the experience of harm morally significant.
Although the intuition that harm is bad is obvious, a complete account of the right not to be harmed requires an explanation for the intuition. This explanation needs to take in to consideration that the experience of harm, which seems to focus on the subjective aspect of harm, is not the only account of why harm is bad. Objective harm, the harm a being can incur without consciously experiencing it, is also bad. Although the distinction between the fact and significance of objective and subjective harm needs to be explained, it should not cause tension between my intuition that the experience of harm is morally significant and the common intuition that objective harm is also morally significant (although perhaps not equally so). One potential solution to this tension may be a re-characterization of objective harm as damage.
X’s status as morally considerable, in virtue of x’s ability to experience harm, generates at least the general claim right that x has a right to not be harmed.[5] My explanation of this aspect of the argument will involve two separate discussions. The first will involve an argument for why status-based approaches offer the best account of how and why beings have (or ought to have) rights, especially when contrasted with the traditional alternative of an instrumentalist justification.[6] The second will involve a more detailed examination of the nature of rights, particularly general claim rights in rem, and the correlativity between such rights and duties.[7]
To summarize, I will consider the following claims:
1. Harm, especially subjective harm, is bad.
2. The experience of harm is morally significant.
3. x has the ability to experience harmà x has moral status à x has rights-bearing status
4. A status-based justification for general claim rights in rem best capture what is required by 3.
5. The claim right not to be harm has correlative duties without the need for explicit contracting.
Claims 1, 2, and 4 and 5 will be dealt with in respective sections, while claim 3 will serve as the unifying thesis for the entire project.
The Nature of Harm
To recap what I said in the introduction, my primary area of interest focuses on the moral significance of the experience of harm and the right and obligations can be generated from this. However, there are two further issues that I will also explore to provide a thorough understanding of the nature of harm. The first issue is whether it is the fact that a being has the ability to experience harm that is morally significant or the fact that the being is currently experiencing some harm that it does not ‘want’ to be experiencing that is morally significant. The second issue pertains to the objective and subjective natures of harm. A being is objectively harmed when it is harmed in the physical sense.[8] For example, much like a plant is harmed by lack of water, so to is a human or animal. In the case of many at least minimally conscious beings, objective harms often, but not always, lead to subjective harms: a harm that has “some sort of impact upon the mental life of a subject.”[9] Beings can be subjectively harmed causally when something causes “a creature’s goals to be subjectively frustrated…or that in one way or another cause a creature to suffer…” and beings can be subjectively harmed a-causally, by “the mere fact that the things that [a being] desires don’t occur (as a matter of objective fact and independently of the animal’s beliefs)…”[10] What is significant for our current purposes is that a being can be harmed subjectively when its interests are frustrated or it experiences harm either directly, as in the causal case, or indirectly, as in the a-causal case.[11] Since the view I am developing is one designed to strongly justify and potentially expand the sphere of moral consideration and rights-bearing status, explaining a) the nature of the different types of harm, and b) (in the section on Consciousness) how a being experiences the different types of harm are both necessary.
On the face of it, the nature of harm seems quite simple and intuitive; this is misleading. Although it may seem obvious that slashing the painting, the dog, and the human are acts of harm, there are clearly different conceptions of harm at work. One way to further understand the tension that may exist here is by considering another example. Imagine two individuals: individual N is a normal human being and individual P is a paraplegic.[12] Both are blind. On one hand, it seems equally bad to slash the legs of N and P; however, on the other hand, there may be the intuition that, although the slashing may be morally significant in both cases, it is worse in N’s case because N can have some kind of significant experience of the harm. Upon initial examination, it seems like this account tracks along the objective/subjective experience distinction: both N and P have been objectively harmed in the sense that their legs have been damaged, but N has experienced a much clearer case of subjective harm (especially if P is kept ignorant of the slashing). This is not to say that slashing the legs of a paraplegic is morally analogous to slashing a painting, but it may reflect the intuition that the experience of harm (however that is qualified) is significant in determining what counts as harm and the moral significance of harm.[13]
The example of N and P may be taken to indicate that the significance of harm is the suffering that it causes; this is not necessarily the case. Breaking down this distinction begs the question of what we consider suffering, which seems to lead to the answer that suffering is both physical pain and/or psychological distress.[14] The point I want to make here is to distinguish pain from harm. To expand this distinction let us imagine a strict vegan, V, who is steadfastly against the consumption of any animal product. V’s peer, a meat-eater, M, believes (erroneously) that V’s diet is causing V to lack certain vital nutrients and is secretly lacing V’s food with various animal products. V is not in any physical pain because of M’s actions; however, it seems that, particularly in the case where V becomes aware of M’s action, V has been harmed. This may be an instance of harm because V’s desire to not consume animal products has been thwarted. While that raises other issues to be addressed in the upcoming section on Consciousness, the current point to note is that although pain may be associated, often intimately, with our conceptions of harm, it is not a necessary condition for harm.
I have now, at least preliminarily, distinguished harm from pain, but what about the distinction between psychological suffering and harm? This is a much trickier point, especially given my initial claim that the experience of harm (whether the harm be physical or mental) is significant in generating rights. Regardless, thoroughness requires that, at the very least, psychological suffering and harm be conceptually distinguished. The most obvious way to track the distinction is to once again appeal to the objective/subjective distinction. Psychological suffering may be the product of objective or subjective harm, but one could equally experience psychological suffering without any obvious instance of harm at all. In an attempt to flesh out the intuitions behind this distinction, consider some examples. First, recall the example of the blind paraplegic, P. Imagine I amputate P’s foot. While P has been objectively harmed, P may not be subjectively harmed, given that P may not have a direct awareness of the amputation the way P’s non-paraplegic counter-part might. This is not to say that P does not suffer psychologically. If P finds out that P’s foot has been amputated, P may feel extreme psychological suffering. In this case, it may be safe to say that psychological suffering is, in fact, a form of subjective harm (even though P’s awareness and experience of the harm is achieved by less traditional means); however, we must note that here the subjective harm is a result of the psychological suffering.[15] Moving on to a second example, consider a particularly sensitive 12 year-old, T, who stayed up late watching horror films. T has horrible nightmares that night and awakes in a state of extreme terror, convinced zombies are in the room. In this case, it is obvious that there has been no instance of objective harm, but it does seem that the psychological suffering T experiences is a result of some subjective harm (in the sense that T is under the mistaken impression that there is an objective threat of harm posed by zombies in the room). In contrast to the case with P, T’s psychological suffering is a result of T’s subjective experience of harm. Finally, consider a married couple where the scheming husband, H, stands to gain a substantial fortune upon his wealthy wife’s, W, demise. To speed up this process, H is secretly poisoning W with some poison that, until the moment of death, causes W no apparent harm. In this case, W is being objectively, but not subjectively, harmed. Since there is no awareness of the harm, W is not psychologically suffering.[16] The point to take away from these examples is that while psychological suffering seems to be closely associated with subjective harm, and to a lesser degree with objective harm, psychological suffering is not identical with either form of harm.