Book Recommendations ♯5: The Logic of Real Arguments

Another week, another book recommendation.

It’s pretty obvious to anyone who reads this blog on a regular basis that I like analysing arguments. Indeed, my first ever book recommendation was for a book that covered 100 key arguments in Western philosophy. It was essentially a celebration — an encomium if you will — of the formal argument, the centrepiece of modern analytical philosophy.

Today’s book recommendation is similar. It is Alec Fisher’s the Logic of Real Arguments, which I think of as a celebration of arguments in their natural habitat: lurking beneath the sometimes dazzling foliage of an author’s prose. The key insight of Fisher’s book is that persuasive writing contains a lot of unnecessary verbiage. When making a relatively straightforward argument, a writer will often distract the reader from the true nature of their reasoning with decorative phrasings, tangential passages, and rhetorical posturing. And while these might the very things that make a writer worth reading, they can serve to confuse, muddle and obfuscate. We sometimes need to cut through the excess verbiage and focus on the real arguments at play.

Fisher’s book goes well beyond providing that insight, important though it may be. It also provides the reader with a method for first deconstructing a persuasive piece of writing and then reconstructing it in argumentative form. Many of the techniques I employ on this blog, I first learned by reading Fisher’s book. He tells you what an argument is, how to look for premise and conclusion indicators in a piece of writing, and how to diagram the structure of an argument. He also shows how to evaluate an argument and provides some elementary lessons in formal logic.

What’s more, Fisher doesn’t simply discuss these techniques in the abstract; he also shows you how to apply them by examining a number of famous (and not so famous) passages of writing. The case studies he uses are diverse and interesting. They include Mathus’s famously pessimistic population bomb argument, Galileo’s argument for the claim that objects fall at the same rate in a vacuum, Dawkins and Ayer’s arguments for atheism, arguments for nuclear deterrence, mind-body dualism and so on. In each case, Fisher takes you through the piece of writing slowly, showing you exactly how to apply his method.

Personally, I find this hands-on, example-oriented approach to be much more engaging than what is typically found in a book on logic and critical thinking. I also think it’s the ideal way for a student to be introduced to logic and critical thinking since they will have to deal with similar passages of writing both in their own studies and, indeed, when they get out into the big bad world. For these reasons, I highly recommend this book. The only note of caution I will strike is that you need to be aware how limited this book is in its focus. It’s not a comprehensive introduction to logic and critical thinking — for that you will need to go elsewhere — but it is an excellent hand guide to argument analysis in the real world.

Book Recommendations ♯4: Human Enhancement by Savulescu and Bostrom

I’ve written quite a bit on the theme of human enhancement on this blog. Last summer I did a series on Nicholas Agar’s book Humanity’s End, a couple of posts on Allen Buchanan’s book Beyond Humanity, and more recently I did a series on enhancement in education and sport. All of these posts dealt with the ethics of human enhancement. Is it a good idea to enhance human capacities beyond the current limits? Is this a no-brainer? Are there in principle or in-fact objections to enhancement? And so on. If you’re interested in pursuing these questions, but aren’t quite sure where to begin, then I would recommend checking out the book Human Enhancement, edited by Nick Bostrom and Julian Savulescu, which is today’s book recommendation.

There’s not a whole lot to say about the book itself. It’s an edited collection of essays on the ethics of enhancement; it’s published by Oxford University Press; and it features contributions from some of the leading authors in this area (Bostrom, Harris, Sandel, Caplan, Singer, Hanson, Sandberg to name but a few). As with all edited collections, the quality can be patchy, with some essays being more thoughtful and better written than others.

The particular highlights for me were John Harris’s “Enhancements are a Moral Obligation”, which is a good summary of Harris’s basic case in favour of enhancement (as well as being a response to another author within the same volume); Sandel’s “The Case Against Perfection”, which is a good summary of his (I think odd) argument against enhancement; and Savulescu’s “The Human Prejudice and the Moral Status of Enhanced Beings”, which is a representative sampling of Savulescu’s thinking on these matters.

The lowlights were not particularly low, but present nonetheless. Frances Kamm’s essay “What is and is not wrong with Enhancement?” being a particularly annoying entry. While Kamm has many strengths as a philosopher — a relentless commitment to an intuition-led method of moral philosophy being one of them — I’ve never found it pleasurable to read anything she has written. Maybe some day that will change, but her contribution to this volume was, alas, too much of a drudge for my liking.

Although I do recommend this book, I am aware that there may be a better edited collection, dealing with the same topic, in existence by now. Savulescu, Meulen and Kahane last year released Enhancing Human Capacities which looks to be a more comprehensive tome. But since I haven’t had a chance to peruse a copy of that tome yet, I’m not in a position to recommend it.

Tooley on Infanticide and Potential Personhood

Given that Giublini and Minerva’s recent article on after-birth abortion was little more than a restatement of Michael Tooley’s 1972 article “Abortion and Infanticide” (with maybe one minor difference), I thought it might be worth briefly revisiting Tooley’s argument. Now, I don’t wish to revisit the whole thing since it is a long and complex piece (which he gave a book-length elaboration and refinement to in 1983), but one aspect of it seems to warrant reconsideration in light of the recent discussion: his treatment of the potential personhood objection.

Those of you who read my analysis of the “after-birth abortion” article will be familiar with Tooley’s central argument. To give it the briefest of summaries, the argument is roughly as follows: only persons have a right to life; newborn infants are not persons; therefore, newborn infants do not have the right to life; therefore, it is permissible to kill newborn infants. Whatever about the merit of the personhood criterion, one typical objection here is that even if newborn infants are not yet persons, they are on the way to becoming persons, and that has to count for something. This is the potential personhood objection.

I looked at Minerva and Giublini’s response to this objection in my earlier posts, now I want to consider Tooley’s response, which is quite short but, I think, rather interesting.


1. Tooley on Why is is Permissible to Kill a Potential Person
Tooley’s response to the potentiality objection centres on two key premises. The first claims that there is no general duty to act so as to turn potential persons into actual persons. The second claims that there is no real moral difference between acts and omissions. From the conjunction of these two premises is drawn the conclusion that there is no prohibition on taking active steps to prevent a potential person from becoming an actual person. From which it follows it is permissible to kill a potential person. Let’s go through this more carefully.

First up, let’s consider the idea of personhood. Tooley defines a person as any being with the concept of itself as a “continuing subject of experiences”. In other words, as a being that is sentient, has a concept of self and has a concept of this self existing through time. He maintains that only beings with this kind of self-concept have a right to life. No doubt, that’s something you might like to critique, but taking it onboard for now, what does it say about potential persons? Tooley seems to understand “potentiality” in terms of counterfactual conditions. Roughly, he seems to think that a being has the potential to become a person if, some plausible possible world, it could have become a person.

It’s not clear exactly which concept of possibility Tooley is working with here. It clearly can’t be conceptual or logical possibility, that would be much too loose a standard. After all, there’s nothing logically contradictory in the notion of a possible world in which desklamps can turn into persons, but that surely doesn’t mean that my desklamp in this world is a potential person? So it must be a more constrained concept of possibility that's at play.

Reading between the lines, I think Tooley must be working with some combination of physical and technological possibility. In other words, he would maintain that if it were physically and technologically possible to turn my lamp into a person in this world, it then counts a potential person. I glean this by reading between the lines of the thought experiment Tooley uses to support the first premise of his argument.

The thought experiment is the following:

Personhood Serum: Suppose that scientists develop a serum that, when injected into a cat, will cause them to develop the mental faculties necessary (and sufficient) for becoming a person. This means that the cat is now a potential person. Do we have an obligation to inject all the cats we see with the serum?

Tooley’s intuition, no doubt shared by many, is that even though every cat is now a potential person, we have no duty inject them with the serum. In other words, there is no duty to take active steps to turn a potential person into an actual person. This is the first premise of Tooley’s argument. Note, given traditional deontic schemes of opposition, the corollary of this would be that it is permissible to fail (i.e. it is omissible) to take steps to turn potential persons into actual persons. Given the subsequent steps in the argument, this correlative formulation of the premise might be more sensible.

Moving on then to the second premise of Tooley’s argument. As you recall, this is the claim that there is no moral difference between failing to do something (omitting) and actually doing something (acting). This is the so-called “symmetry” principle and it is certainly controversial. For instance, many people hold that there is a significant moral difference between killing and letting die, which is based on the acting/omitting dichotomy.

Nevertheless, there are ways in which to defend the symmetry principle. One is to rely on James Rachel’s classic Jones/Smith thought experiment (note this dates from after Tooley’s article):

The Baby and the Bathtub: Smith enters the bathroom of his young nephew while the nephew is taking a bath. Knowing that he stands to gain a substantial inheritance upon the nephew’s death, Smith drowns the child. Jones is in a similar predicament with his nephew so he also decides to drown the nephew. However, when Jones enters the bathroom he finds that the nephew is already drowning so he simply stands by and watches as events unfold. Are Smith and Jones equally culpable?

The suggestion here is that Smith and Jones are equally culpable: they both had the same intent and both allowed their intentions to become a reality. As a result, this thought experiment is thought to provide support for the symmetry principle. And so Tooley has his second premise.

What now follows? Well, if its true it is permissible to fail to take active steps to turn potential persons into actual person, and if it is true that there is no moral difference between actively doing something and failing to do something, then wouldn’t it follow that it is permissible to take active steps to prevent potential persons from turning into actual persons? And wouldn’t that amount to the same thing as saying that it is permissible to kill a potential person.

In other words,

• (1) It is permissible to fail to take steps to turn a potential person into an actual person.

• (2) There is no moral difference between failing to something and actually doing it.

• (3) Therefore, it is permissible to take actual steps that prevent a potential persons from turning into an actual person.

• (4) Therefore, it is permissible to kill a potential person.

Now, to be clear, I’m not entirely sure about the validity of this argument, but I can’t quite put my finger on the reasons for my lack of certainty, so perhaps it would be best to consider its soundness.



2. Challenging Tooley’s Argument
Obviously, there are two ways to challenge the soundness of Tooley’s argument. The first is to challenge the principle he draws from the Personhood Serum example. The second is to challenge the symmetry principle. In his recent book on the ethics of abortion, Christopher Kaczor mounts both sorts of challenge. I’ll briefly outline what he has to say here.

Kaczor challenges premise (1) in two different ways. The first is to argue that the potentiality objection is flawed in the first place and so it does not even matter whether premise (1) is true or false. The reason for this is that, according to Kaczor, most abortion opponents — at least, within the philosophical community — do not base their opposition to abortion on the potential status of the foetus (or, indeed, the newborn), rather, they base their opposition to abortion on the actual status of the foetus/newborn. They argue that this status is what gives the foetus/newborn a right to life. Of course, this is to reject Tooley’s personhood criterion and if we were to consider the relevant arguments in favour of the actuality principle, we would be drawn away from the current topic. They are in Kaczor’s book, if you are interested.

But let’s just assume that potentiality is important, does the personhood serum case, which Tooley uses to support premise (1), really establish what needs to be established? Kaczor argues that it does not. This is because Tooley fails to distinguish between two varieties of potentiality. They are:

Passive Potentiality: Where the entity does not have any internal system or capacity to develop the actual status but instead requires outside intervention to develop the actual status.

Active Potentiality: Where the entity does have an internal system that allows it to develop the actual status.

Kaczor argues that the cat in Tooley’s thought experiment only has passive potentiality, whereas the newborn infant has active potentiality. What difference does that make? Well here’s what Kaczor has to say about it:

If functioning rationally [i.e. as a person] is the benchmark of respect, a being actively developing toward functional rationality (the human fetus [sic]) deserves a greater respect than a being with the passive potential to become a being actively self-developing towards functional rationality…

Unfortunately, that’s all he says about this important issue and I’ll be damned if I can detect anything close to an argument, as opposed to a mere assertion, in what he has said. One problem with the assertion is that it’s not really that obvious that the newborn infant has active potentiality. Although there is a biological developmental process that unfolds in a particular way, this process is constantly assisted by outside forces (e.g. parents providing care and nourishment). Is that really all that different from passive potentiality?

Furthermore, as some author’s have pointed out (McMahan, 2007) some infants definitely do not have the active potentiality to develop into persons. These are infants with severe congenital disorders. Kaczor seems to accept the counterexample here, but then responds by pointing out the importance of species-membership and flourishing relative to a species-typical ideal. Now the moral importance of species membership is one of Kaczor’s main arguments in his anti-abortion book, but it’s not something I can hope to explore here.

Even if Kaczor is a bit weak in his critique of premise (1), there’s always his critique of premise (2) to fall back on. What does he have to say about this? Several things, as it turns out. First, he notes that the truth of the symmetry principle is not self-evident. The Jones/Smith example provides one intuitive scenario in which symmetry seems to hold, but there are others which support asymmetry.

Second, there seems to be an important moral difference between failing to initiate a causal process, on the one hand, and intervening to prevent a causal process from continuing, on the other. The former may attract no moral blame, but the latter might. For example, you probably have no general obligation to promise to help your friend move into his new house, but if you do make the promise and are assisting them in carrying their grand piano into the house, you’d probably be doing something wrong if you suddenly decided to back out of the promise.

Third, Kaczor suggests that there is a moral difference between refraining from making someone better off, on the one hand, and positively acting so as to make them worse off, on the other. This difference is probably highlighted in the previous example anyway, but it seems less persuasive in this context. Why so? Because one of the big questions here is whether you actually make a non-person worse off by ending their lives. Kaczor is aware of this problem and promises to give an answer later in the book. Again, I won’t get into it here.

That then brings us to the end of this post. As I said at the start, the goal was mainly to set out Tooley’s response to the potentiality objection and hint at some possible criticisms of it. I appreciate that many rabbit holes have been opened but not followed down, but that, unfortunately, is the nature of this debate.

What the "After-Birth Abortion" Article Said (Part Two)

(Part one)

This post is the second in a short series on the, now infamous, article “After-Birth Abortion: Why Should the Baby Live?” by Antonio Giublini and Francesca Minerva. The article generated a good deal of controversy upon its publication last week. I noted this in part one.

The purpose of this series is to clarify the logical structure of the argument being made by Giublini and Minerva and offer some critical observations. I ended part one with what I thought was the best formulation of their central argument. It was this (with the numbering following what was set down in part one):

• (8) It is permissible to kill non-persons (even if they are potential persons).

• (9) Neither the foetus nor the newborn infant are persons.

• (10) Therefore, pre-birth and post-birth abortions are permissible.

I will now consider the how the authors’ defend the two key premises of this argument. As we shall see, they spend far more time on premise (8) than they do on premise (9).

[Note: Those of you who have read the original article will find that my discussion of their defence of premise (8) does not follow exactly the sequence of their discussion. This is because, as I noted in part one, I found their discussion slightly confusing in that it didn’t clarify how their subsidiary arguments related to their central arguments. I’m hoping my discussion does a better job of this, while still reflecting the authors’ actual argument.]


1. The Permissibility of Killing Non-Persons
The key move in Giublini and Minerva’s defence of premise (8) is an old one. It is to argue that: (i) anything that lacks a right to life can be permissibly killed; and (ii) only actual, not potential, persons have a right to life. This is pretty much what Tooley argued in his 1972 article “Abortion and Infanticide”, but the authors adopt slightly different definitions of the key terms “person” and “right to life”.

Their definition of “person” is as follows:

Person = An individual who is capable of attributing at least some basic value to her existence such that being deprived of existence represents a loss/harm to him or her. (pg. 2)

Presumably then, a non-person is any entity, living or indeed non-living, that lacks this capacity. Some people might throw more into their definition of personhood (e.g. rationality), but this slightly more minimalistic definition is appropriate enough given the context. Since the argument is going to be that only persons have a right to life, and it is permissible to kill anything that lacks the right to life, we probably want to err on the side of inclusiveness in our definition. The authors’ themselves believe that their definition includes some non-human animals within the scope of personhood, but (controversially) excludes newborn infants. More on that anon.

Tooley’s definition of a person was roughly “anything that conceives of itself as a continuing subject of experience”. This personhood criterion is clearly broader than mere sentience since it requires awareness of existence through time. And allthough not worded in the same manner, it may be that his definition amounts to the same thing as Giublini and Minerva’s definition insofar as a continuing subject of experience might be the only thing that can attach basic value to continued existence.

Moving on, the authors’ offer the following general description of the conditions under which an entity has a “right”:

Rights: An entity possesses a right to X only if they are harmed by a decision to deprive them of X.

Giublini and Minerva describe this as being a minimal necessary condition for possessing a right. One interesting thing is that, on this definition, non-person’s can have rights since they may be harmed, (although presumably only if they have some form of sentience). Indeed, the authors make this point themselves when they declare (pg. 2) that a foetus may have right not to be inflicted with pain, since they may have some form of sentience. But sentient non-persons may still lack the right to life (or, better, to “continued existence”) if they cannot attach value to their continued existence and so be harmed by it. In other words:

Right to Life: An entity possesses a right to continued existence only if they can attach some value to their continued existence and so be harmed by being deprived of that existence.

One might complain that there some “stacking of the deck” going on here since the definition of person and right to life are so closely intertwined. The original paper is quite short though so presumably there wasn’t much space for engaging all these definitional subtleties. I’m sure if you want to criticise the argument you might like to go after some of these definitions.

Anyway, at last, this brings us to the basic argument for the permissibility of killing non-persons.

• (10) It is permissible to kill anything that lacks the right to life.

• (11) Non-persons (even if they are potential persons) lack the right to life.

• (8) Therefore, it is permissible to kill non-persons (even if they are potential persons).

There are two obvious lines of attack on this argument. The first targets premise (10), arguing that it may be impermissible to kill things even if they do lack the right to life. And the second targets premise (11), arguing that there is an important distinction between what we might call “pure” non-persons and non-persons who have the potential to develop in actual persons (potential persons). We’ll consider both of these lines of attack, and how the authors deal with them, next.


2. Attacking Premise (10)
Let’s look first to the attack on premise (10). Giublini and Minerva really only discuss one such attack (as far as I can tell). It is this: a living being ought not to be killed, even when it is a non-person, if it can derive a right to continued existence from someone else. In the context of the overall debate, this objection captures the idea that the parents or family of a foetus/infant may have an interest in its continued existence and so it would be impermissible to deprive them of that interest by killing the child. There are some, no doubt unfortunate, analogies that could be used to underscore this objection. For instance, one could argue that it is wrong to kill a person’s pet on similar grounds.

It seems that the authors’ are willing to concede the force of this objection. They argue that parents and family of a newborn infant often do have an interest in keeping the child alive and so, in this kind of scenario, it would, of course, be wrong for anyone to come along and kill the infant. But they maintain that this doesn’t do enough for the pro-life position. In this kind of scenario, the impermissibility of the killing is contingent upon the interests of the parent. It is those interests that do all the heavy ethical lifting. If the parents have conflicting interests — which might be the case if rearing the child would cause great physical/psychological or economic harm to the parents — then the impermissibility might dissolve.

In other words, any derivative right to continued existence that could be conferred on a non-person would not trump the (potentially conflicting) rights that actual persons have. In fact, the situation would be the exact reverse: the conflicting rights of actual persons would always trump the derivative rights of the non-person.

To summarise:

• (12) It is impermissible to kill a living being when another living being has an interest in its continued existence, i.e. a living non-person can derive a right to continued existence from an actual person.

• (13) But any such derivative right could be trumped by a conflicting right of the actual person (as may arise in the case of parent who would be harmed by the continued existence of their child).

To this point, the objection has in mind the scenario in which the parents and family have an interest in continued existence, which is then trumped by a conflicting interest. But couldn’t other actual persons (e.g. the persons in the broader society) have an interest in keeping children alive that would in turn trump the interests of the parents and family?

Giublini and Minerva make some gestures towards this kind of objection in their article when they consider whether compulsory adoption should be allowed instead of after-birth abortion. They respond to this suggestion by arguing that adoption could cause greater harm to the parent (mother in particular) than abortion, citing studies done on grief in adoption in support of this observation. However, they follow this up by saying:

We are not suggesting that these are definitive reasons against adoption as a valid alternative to after-birth abortion. Much depends on circumstances and psychological reactions. What we are suggesting is that, if interests of actual people should prevail, then after-birth abortion should be considered a permissible option for women who would be damaged by giving up their newborns for adoption (pg. 3)

I’m not sure that this response quite gets at the objection I was making — which was about interests of all actual people in society, not the parents — but I take it that it still lessens the force of the objection: much will depend on what the interests of actual people are. Empirically, it may be that society’s interests would trump those of the parents, but that is an empirical not a conceptual point. So the basic argument-counterargument in (12) and (13) would remain intact.


3. Attacking Premise (11)
We turn then to the second possible attack on the permissibility of killing non-persons. This one accepts that killing some non-persons might be acceptable, but that potential persons are in a separate class. They can in fact be harmed by their non-existence and so do have a right to life. One way to think of this might be in terms of Don Marquis’s classic “future like ours” argument, which I discussed on a podcast some time ago. Unfortunately, the authors never speak to this argument directly, which is surprising given its prominence in the literature.

What the authors do do, however, is consider some counterexamples to the general principle that, in order for an entity to have a right to X, they must both aware of and harmed by its absence. As they point out, there seem to be several cases in which a person is harmed by an action that deprives them of something, even when they were not aware of it.

One example they cite is that of the person who buys a lottery or raffle ticket, which is then stolen, but subsequently (and unbeknownst to them) turns out to be the winning ticket. The authors suggest that such a person is harmed by this even though they aren’t aware that their ticket is the winning one. It hard to know what to say about this. While there is a harm here, there isn’t really a lack of awareness. The person is presumably aware of the theft and of being deprived of the possibility of winning the lottery, and so is harmed by the theft itself, irrespective of whether the ticket is in fact the winning one. Maybe the authors’ saying that there is an additional harm here in respective of absence of the money they would have received. But this isn’t clear and, unfortunately, due to the brevity of their paper, I can’t work it out.

The other example they cite is that of the person who is harmed by their mother taking drugs while they are in womb because this subsequently compromises their quality of life. On the face of it, this seems like a bad counterexample to use here since it deals directly with the foetus (i.e. a potential person), which is the focus of this whole debate. But letting that slide, it does seem to work a little better than the first example since it does involves a clear case of harm coupled with a complete a lack of awareness (at least in the personhood sense of awareness).

The problem with the counterexample, though, is that the harm is not done to the foetus per se, but to the person that the foetus eventually becomes. In other words, the harm is not realised until the status of personhood is obtained. But that is not the same as saying that a foetus (or potential person) is harmed by being denied continued existence and not becoming a person. If they don’t become a person, which is what will happen if they are aborted, then they won’t actually be harmed. As the authors put it:

So, if you ask us one of us if we would have been harmed, had our parents decided to kill us when we were foetuses or newborns, our answer is “no”, because they would have harmed someone who does not exist (the “us” to whom you are asking the question), which means no one. And if no one is harmed, the no harm occurred.

Another way of putting this is to say that the example of the person harmed by foetal drug abuse works because the person really is harmed when they become a person. But that is disanalogous to the case of abortion (pre or after birth) because no person comes into existence. To given a snapshot summary of this dialectic:

• (14) If a person can be harmed by actions of which they were unaware, then potential persons have a right to life.

• (15) Potential persons can be harmed by actions of which they were unaware (the foetal drug abuse example).

• (16) But the example does not establish the key claim: the harm is only truly realised when the foetus becomes a person, so a potential person that never becomes a person cannot be harmed.

Before moving on, three observations. First, premise (14) might well be false here anyway, it is my creation and it looks a bit odd. Second, the authors make some interesting comments about the asymmetry between the harms and benefits of coming into existence in support of their rebuttal (i.e. in support of premise 16). The comments are interesting because they seem to clash with David Benatar’s comments on this asymmetry, which I discussed before. Third, I do think this section of the paper could have been improved by considering something like Marquis’s future like ours argument, or Christopher Kaczor’s more recent defence of potential personhood arguments. Or indeed by offering some response to actuality arguments against abortion, which are also defended by Kaczor (an actuality argument being one that defends the right to life of the foetus/newborn on the basis of what it actually is rather than what it has the potential to become).

Maybe these couldn’t be considered due to lack of space, but then the question arises: is a three-page article the correct place to discuss a controversial argument like this if its brevity then forces it to ignore significant counterarguments?


4. The Moral Equivalence of Foetuses and Newborns
So much for the authors’ defence of the claim that it is permissible to kill non-persons (even if they are potential persons). As you’ll recall from earlier, they also need to defend the claim (premise 9) that foetuses and newborns are not persons. Interestingly, for all their initial fanfare about drawing an analogy between the post-birth and pre-birth individual, they have surprisingly little to say about this. They seem to think it obvious that the foetus and the newborn lack the kind of self-awareness required for personhood.

Their main comment on this important issue comes in the second-to-last paragraph of the article. There, they say that they have no idea when the threshold of personhood is actually crossed, but that no more than a couple of days or weeks after birth would be required to determine whether a child suffered from some abnormality that would permit killing it. This statement about abnormalities is odd given, as I pointed out in part one, constraining the permissibility of abortion in this manner doesn’t seem to fit with their overall argument which gives an unconstrained permissibility to killing non-persons. But ignoring that, the implication seems to be that the personhood threshold is not be crossed until at least a couple of weeks after birth.

Is this a realistic point at which to draw the line? What we have here is the classic problem of drawing a categorical boundary across an underlying empirical reality that is inherently gradualistic. If we imagine a spectrum ranging from the newly-fertilised zygote at one end, to the fully mentally competent adult at the other, then it’s pretty clear that what was once a non-person does manage to morph into a person. But when we zoom in on each stage in that spectrum, there is probably no distinct point at which transmogrification occurs. This leaves us in a bind.

Since the relevant moral status here is personhood, and since personhood is defined in terms of a certain kind of awareness, it is probably fair to say that birth itself not a morally relevant boundary. After all, there’s no reason to think that the passage through the birth canal magically bestows the relevant kind of awareness on the child. But that’s not to say that the relevant kind awareness is not obtained prior to birth. David Boonin, for instance, suggests that the threshold may be crossed when the foetus achieves organised cortical brain activity, which would be prior to birth (around the 25th week of gestation, apparently). Boonin, however, may be working with a weaker criterion than personhood when determining what possesses the right to life.

The fact is, it’s really hard to say when personhood is achieved. This is because most of the informal “tests” we use to figure out whether someone is a “person” are based on observable behaviours (talking, making plans, remembering things etc.) which are typically absent in the foetus or newborn infant. But in this instance absence of evidence is not evidence of absence. And since we probably should err on the side of caution here, far deeper consideration of the empirical reality would be needed before we could even begin to say that after birth abortion was permissible.


5. Conclusion
So that brings us to the end of this series. As I said at the outset, the primary intention here was to clarify the logical structure of the argument offered by Giublini and Minerva in their controversial paper. I hope I have succeeded in that aim. And while it was not my goal to heap any serious criticism (or, indeed, praise) on the argument, I think I have pointed out some weak points along the way. In particular, I have suggested that the argument would have benefitted from a greater engagement with the relevant literature (in particular with the arguments on potential persons and the “future like ours”-principle); and by a deeper consideration of the empirical reality (or lack thereof) in the transition from non-personhood to personhood.

What the "After-Birth Abortion" Article Said (Part One)

Those of you who follow the world of applied ethics will, no doubt, be aware of the recent furore surrounding the Journal of Medical Ethics’s decision to publish an article defending the moral permissibility of infanticide. The article is entitled “After-birth Abortion: Why Should the Baby Live?” and it’s by Alberto Giubilini and Francesca Minerva. Apparently, the authors have been threatened with violence and the editors of the journal have received a considerable volume of hate mail as a result of it’s publication. You can read about this, as well as the editor’s defence of the decision to publish over here, if you like.

Given the controversy, I thought it might be worth taking a look at the paper and figuring out what kind of argument it is making. But also, given the controversy, I should probably preface my attempt to do this with a few cautionary remarks.

First, I’m certainly very queasy about the argument, as I think most people are, but I’m not sure where I ultimately come down on this issue. I’m trying to approach this in as neutral a way that I can. Second, I have no problem with the decision to publish the article, believing it is perfectly acceptable to discuss these issues in a reasoned manner. And third, I find the controversy somewhat odd: I can understand why people might be challenged or offended by what the authors say, but the fact is that leading philosophers (Singer and Tooley) have been making similar arguments for a long time.

The editors raise this in their defence of the decision to publish and, ironically, this is the one thing that makes me question the decision to publish. As far as I can make out, there’s nothing particularly original about the article, Tooley (in particular) made an almost identical case a long time ago. But to say that Tooley’s case is “almost identical” is not to say that it is “identical”. The authors do present the argument in a different way and it’s my goal to figure out the logical structure of their reasoning.

As it turns out, this is not a particularly easy thing to do. While the article is a short easy read (just three pages), I struggled as I read it to figure out exactly where each section fit in to the central argument. I concede that my difficulties may stem from my desire to project my own understanding of what the argument should be onto the article, but I can only speak from my own perspective and from that perspective I do genuinely think the central argument is not as clearly presented as it could be. Thus, I dedicate this first post in the series to an attempt at reconstructing the central argument.


1. Some Notes on Terminology
Before I get down to the reconstructive task, I need to back-up for a moment and talk about terminology. As it turns out, terminology is important to understanding the central argument so this is not a complete distraction.

Giublini and Minerva state that they are defending the permissibility of after-birth abortion. But “after-birth abortion” is a term of their own invention. On the face of it, it seems oxymoronic: you can’t have an abortion after birth since an abortion is defined as the termination of a pregnancy. Aware of this problem, the authors still prefer to use the term “after-birth abortion”. Why so? They offer two reasons.

The first is that using the term “after-birth abortion”, rather than the more traditional “infanticide”, plays an important role in the framing of the debate. It is designed to direct our attention toward the parallels between aborting a foetus and killing an infant. The authors are quite explicit about this, writing:

We propose to call this practice “after birth abortion”, rather than “infanticide”, to emphasise that the moral status of the individual killed, is comparable with that of a fetus…rather than to that of a child. (pg. 2)

The second reason is similar to the first. It is to draw attention away from possible parallels with euthanasia (hence, they don’t call it “after birth euthanasia”). This is because the authors think that the case of euthanasia is significantly different to that of after-birth abortion. Euthanasia is usually justified on the grounds that death is in the best interests of the person being killed. But the justification of abortion is different: it can be justified on the grounds that it is in the best interests of persons other than the individual being killed. Indeed, as we shall see, part of the argument is that foetuses and newborn infants are not “persons” properly so-called, so they can’t have interests of this sort anyway.

Another terminological/conceptual point, worth mentioning at the outset, is the difference between saying something is “permissible” and saying it is “obligatory” or “supererogatory”. To say that an action is permissible, is to say that its performance attracts no moral blame or introduces no moral disvalue to the world. This is very different from saying that the action is something that would attract moral blame if it were not performed (i.e. is obligatory) or that it enhances the moral value of the world (i.e. is supererogatory). The authors are arguing only for the permissibility of after-birth abortion.


2. An attempt at Reconstructing the Central Argument
I complained in the introduction about the authors' lack of clarity in presenting their central argument. But what exactly do I mean by “central argument”. Basically, I use the term to draw a distinction between what I see as being the primary argument of the paper — i.e. the one that ends with the conclusion “Therefore, after birth abortion is permissible” or something pretty close to that — and the subsidiary arguments that are used to defend the key premises of that primary argument. One of the main problems with the paper, as I see it, is that the authors are (sort of) clear about their subsidiary arguments, but not about their central argument.

They do, however, offer several clues as to the nature of the central argument. One such clue — already highlighted — is that the central argument tries to draw some clear parallels between the pre-birth and after-birth situations. Roughly, the authors are trying to say that since the status of the foetus is similar to the status of the newborn infant, if pre-birth abortion is permissible so too must after-birth abortion be permissible. So their argument must work with at least one premise setting out the similarity between the two cases and one setting out the implications thereof. What might those premises look like?

Well, the authors start the article with this statement:

Severe abnormalities of the fetus and risks for the physical and/or psychological health of the woman are often cited as valid reasons for abortion… A serious philosophical problem arises when the same conditions that would have justified abortion become known after birth. In such cases, we need to assess facts in order to decide whether the same arguments that apply to killing a human fetus can also be consistently applied to killing a newborn human. (pg. 1)

And then later they give the following capsule summary of their position:

Therefore, we argue that, when circumstances occur after birth such that they would have justified abortion, what we call after-birth abortion should be permissible. (pg 2)

This tempts me towards the following reconstruction of their central argument:

• (1) Abortion is permissible in a variety of circumstances (severe foetal abnormalities, damage to health of mother etc.).

• (2) If the circumstances permitting abortion arise after birth, then they would also permit after-birth abortion.

• (3) The circumstances permitting abortion do arise after birth.

• (4) Therefore, after-birth abortion is permissible.

The first two premises of this argument have some textual support, which is highlighted above. And there is an attempt to defend something like the third premise at the outset of the article. Thus, in paragraph three, the authors discuss a variety of factors that can lead to severe abnormalities that can actually be caused by the birthing process or are only capable of being discovered after birth.

But for all its textual support, I think this version is a poor fit for the central argument of the paper. The main reason for this is that when the authors get down to the actual business of defending the other premises — i.e. the premises defending the permissibility of abortion and the equivalent moral status of the newborn infant and the foetus — they don’t limit permissibility to just those cases involving harm to health. This is unsurprising, given the way in which abortion is most commonly defended: as a “free” choice, not something constrained by particular circumstances. This isn’t to say that a constrained version is implausible in general, just that it doesn’t seem to fit with the remainder of the article.

That leads me to pose an alternative formulation of the argument, a much broader and simpler one:

• (5) Pre-birth abortion is permissible.

• (6) If pre-birth abortion is permissible, then so too is after-birth abortion.

• (7) Therefore, after-birth abortion is permissible.

This formulation has the virtue of brevity and is a better fit with what the author’s ultimately say, but it is still not quite right. For one thing, this formulation may lead to an unfortunate straw-manning of the author’s argument. What do I mean by this? Well, since the main argumentative thrust of the article is framed in terms of the analogy between the moral status of the pre-birth and post-birth individual, one may end up thinking that the authors offer no defence of premise (5) and simply assume it to be true. Indeed, some people seem to be viewing the argument like this already and looking on it as a potential reductio of the permissibility of abortion. (It could also be construed as a slippery slope argument against abortion.)

But I don’t think that’s fair to the authors since they do offer something like a defence of premise (5), only their defence is explicitly not limited to the pre-birth scenario. Instead, it is a general defence of the permissibility of killing non-persons, which is then defended against an various counterarguments. That suggests that this might be the better formulation of the central argument:

• (8) It is permissible to kill non-persons (even if they are potential persons).

• (9) Neither the foetus nor the newborn infant are persons.

• (10) Therefore, pre-birth and post-birth abortions are permissible.

This, I think, is the best version of the central argument. It does justice to the authors’ attempt to argue for the equivalent moral status of the foetus and the newborn infant (in premise 9), and so grants them their framing of the debate. But it also allows them to avoid the straw man discussed above and offer some explicit defence of the permissibility of killing non-persons (premise 8). I’ll talk about how they do both of those things in part two.

The Cryonics Dilemma (0)

(Introduction and Index)

Note: The hope is that this series will be edited and updated in response to reader’s comments and exposure to more of the relevant literature. So if you have any suggestions, please make them in the comments section.

To freeze oneself or not to freeze oneself? That is the question.

In this post, I’ll take a closer look at the "cryonics dilemma", mapping out the basic contours of the decision-problem faced by anyone thinking about undergoing cryopreservation. This exercise will have two main benefits. First, it will allow us to confront some of the complex, and perhaps neglected, features of the decision. And second, the mapping exercise will provide a framework into which the subsequent ethical arguments can be placed.

Before we get down to serious business, it’s worth dealing with a terminological issue at the outset. As you will have noticed, I have titled this post the “Cryonics Dilemma” and have also structured the post and the series around a dilemmatic question: should we freeze ourselves or not? But this may not be the right way to go. To me, the term “dilemma” denotes a decision-making problem in which one has two choices which lead to two morally equal outcomes — the novel/movie Sophie’s Choice provides a classic example of this.

The thing is, the cryonics decision problem may not have these key features. The outcomes may not be morally equal, and the choices may not be limited to two. Thus, it might be best not to call this a dilemma. We could, perhaps, call it an false-dilemma: something that initially appears dilemmatic but, on closer inspection, is not. But that has other unfortunate connotations, particularly in that it might lead one to trivialise the ethical dimensions of the decision, which is something we want to avoid doing at the outset. The term “the cryonics decision problem” might be the most descriptive and accurate in this context, but it lacks punchiness. So, I’ve stuck with “cryonics dilemma” and added these few cautionary words.


1. Some Elementary Decision Theory
For the purposes of this entry, and for the rest of the series too, we will be analysing the decision to undergo cryopreservation with the tools of (elementary) decision theory. Consequently, we will need to be familiar with some of the key concepts in decision theory. I'll discuss them here. Some readers might be familiar with these concepts already, they advised to skip to the next section.

Decision theory provides us with various tools for understanding, predicting and guiding decisions. The predictive powers (or lack thereof) of decision theory are irrelevant in this series. We are not concerned with predicting whether or not people will undergo cryopreservation; we are solely concerned with working out whether they ought to do so. Hence, we will be looking at the decision from the perspective normative decision theory. To do this, we need to look at two things: (i) the tools for formally modelling a decision problem and (ii) the normative axioms or assumptions that guide decision-making.

When modelling decisions, decision theorists typically break them down into four elements: agents, actions, states and outcomes. An agent is the person or entity that makes the decision. An action is a choice (i.e. sequence of bodily movements) that an agent can actually make. A state is any feature of the world that causally independent of the agent’s actions, but which may affect the outcome of the decision. And an outcome is…well, an outcome is an outcome: it is a possible state of the world after a decision has been made.

One neat tool that decision theorists often use when analysing decision problems is that of the decision tree. This is a diagram that effectively and succinctly illustrates the four elements of a decision problem. Consider the example below. There is a node, which represents a decision point; two branches, which represent the two actions available to the agent; and two outcomes at the end of these branches.

There are other ways of representing decision problems — the decision matrix being the main one — but I’ll stick with the decision tree here. One reason I do so is because the decision tree can capture the sequential nature of some decision problems -- i.e. the fact that first you make one decision, which leads to another and so on -- more effectively than the matrix. Also, a decision tree handles probabilistic decisions more effectively (at least in my opinion) than a matrix. If a decision has an uncertain outcome, this can be represented by inserting a new decision node at the end of the relevant branch and by allowing a special agent (Nature) to roll the dice and choose the outcomes according to their respective probabilities. You can think of this as nature selecting the “state” that the world is going to be in. As below.

In addition to all these tools for formally modelling a decision problem, we need to introduce some normative axioms that will help us to “solve” the decision problem. If you ever read the literature on decision theory, you’ll find that there are quite a number of suggested axioms. I’m going to keep things simple here and focus on one key axiom, namely: people ought to choose the action that leads to the (morally) best outcome. Hence, our goal in analysing the cryonics dilemma will be to work out which decision leads to the morally best outcome.

One might object that this needlessly biases our analysis in favour of consequentialism. If the purpose of this series is to examine the ethics of cryonics, it should be open to all ethical theories, be they consequentialist or otherwise. I basically agree with this criticism, but I also tend to think — like Parfit and Ord — that the three dominant strands in ethical theory (consequentialism, deontologism and virtue ethics) can be subsumed under a common framework. Thus, I think it is possible — perhaps on a strained interpretation of consequentialism — to incorporate some of the concerns of deontologists and virtue ethicists. So that when we look at the morally best outcomes in this series, we will consider effects that decisions might have on a person’s character, and on the general rules/duties that we wish people to follow.


2. An Attempt to model the Cryonics Dilemma
Now that we have outlined the key elements of normative decision theory, we can make a first pass at modelling the cryonics dilemma. On the face of it, the cryonics dilemma seems to confront the agent with a simple binary choice: (i) freeze yourself and (ii) do not freeze yourself. Furthermore, there would appear to be two obvious outcomes to these choice: (a) you are resuscitated and live an extended life ("Life") or (ii) you die ("Death"). Thus, we might be tempted to construct the following decision tree.

This is wrong for all sorts of reasons. For starters, the way in which the outcomes are placed at the end of the respective branches is hugely misleading. Obviously, if you freeze yourself, you do not necessarily live, it’s a possibility sure, but one that needs to represented in a probabilistic fashion. In other words, we need to include Nature in this decision tree. Nature will role a dice and determine whether the cryopreservation will have its intended aim or not.

Another problem with this diagram is that it may unnecessarily limit the choices available to the agent. Assuming, for sake of argument, that the ultimately goal is for the agent to extend their life, there may be other ways to do this. In particular, there may be other ways of preserving one’s body with the hope of future resuscitation. Reader gwern pointed out to me that plastination or chemical preservation may be a distinct possibility, one that might even have a higher probability of success than cryopreservation.

While I accept that there may be other choices worth considering in the model, I will not include them in my analysis. I do so for a simple reason: this series is intended to discuss the ethics of self-preservation and resuscitation, not the respective merits of the different forms of preservation and resuscitation. Cryonics is simply chosen as the most widely-known example of such a technology.

So, I’ll simply correct the decision tree here by including Nature as a decision-maker. Nature chooses successful resuscitation with probability p and no resuscitation with probability 1 - p. As follows:

Have we nailed it now? Clearly not. For one thing, we haven’t included the actual probabilities. We’ll talk about that later. More important here is the fact that the possible outcomes arising after the decision not to freeze oneself are underspecified. Clearly, one will die (unless some other form of life extension is available) but to limit the outcomes to death alone is misleading. As many of the anti-cryonics arguments point out, one could do other morally valuable things after by freezing oneself that would not be possible by choosing to freeze oneself. Thus, we need to alter the model to include post-not-freezing choices. I’ll include two here: (a) one does nothing morally valuable (that could not also be done by someone choosing to undergo cryopreservation), and so dies (Death); or (b) one chooses to do something morally valuable (that could not have been done by someone choosing to undergo cryopreservation), which creates a morally valuable outcome, but also leads to one’s death. Since the possibly morally valuable outcome is a variable in this model, I’ll simply label it “Opportunity Cost” and fill it in with appropriate examples when they arise.

So here is the, for now final, model of the cryonics “dilemma”:

3. Measuring the outcomes
Now that we have our model, we can move on and consider how to solve the decision problem. To do that, we need to follow our normative principle: choose the action that leads to the morally best outcome. But how do we know, and measure, what is best outcome?

Adjudicating which outcome is best is a long-standing thorn in the side of the decision theorist. Basically, the goal is to work out which outcomes we (individually or collectively) prefer. The problem is figuring out how to measure our preferred outcomes. Numbers of some sort are needed here in order to take advantage of the mathematical elements of decision theory, but there is a great danger that any numbers we do attach to an outcome end up being erroneous or, worse, misleading.

There are two basic approaches to this measurement problem. One is to use ordinal rankings to adjudicate between outcomes; the other is to attach cardinal values to outcomes.

Constructing an ordinal ranking is a very straightforward process. It simply requires us to state the order in which we prefer one outcome to another. So, in the case of the cryonics dilemma, we would probably say, ceteris paribus, that death is worse than life, i.e. that given a choice we would prefer to live than to die. Once we have that ranking in place, we can attach a number to the respective outcomes, largely for convenience and not for mathematical precision. Thus, assuming the higher the number the better the outcome, we can say that death garners a “0” and life is a “1”, and since “1” is better than “0”, we should choose the option that leads to "1", over the option that leads to "0".

The problem with using an ordinal ranking is twofold. First, it doesn’t allow us to say “by how much” one outcome is preferred to another. Looking purely at the numbers in my ordinal ranking, one might get the misleading impression that life is merely one unit better than death. Many people would dispute that. They might say that life is 100 times better than death, or maybe even more, who knows. The point is that the ordinal ranking simply doesn’t allow us to say anything about the “distance” between our preferences even though we would like to.

The second problem is more serious and flows from the first. It is that the ordinal ranking doesn’t allow us to incorporate any probabilistic calculations into our resolution of the decision problem. But this is precisely what we need to do if we are to successful resolve the cryonics dilemma. After all, it is far from certain that one will be successfully resuscitated in the future if one signs up for cryonics. Indeed, as others have pointed out, the probability of resuscitation is going to be determined by something akin to the Drake equation. Over on his website, gwern suggests that the probability of resuscitation is found by multiplying the following (presumably independent) probabilities:

The upshot of this is that in order to figure out the value of undergoing cryopreservation, we will need to take the value of the desired outcome (continued life in the future) and discount it (i.e. multiply it) by the probability of resuscitation. This will give us the expected value of the decision to undergo preservation.

We will then need to compare that expected value with the expected value of the other outcomes, i.e. death and opportunity cost. We might assume that these outcomes are not affected by probabilities since one is definitely going to die (p = 1) and one is in complete control of whether or not one achieves the opportunity cost outcome. But this might not be wise since whether one achieves the opportunity cost might be dependent on a variety of probabilistic factors such as the probability of suffering from weakness of the will and so on.

In any event, if we are to calculate the relevant expected values, and compare them, then we need to adopt a cardinal scale to measure each of the respective outcomes (life, death, and opportunity cost). This scale must represent the real "distances" between the outcomes.

It might be surprisingly difficult to do this. One easy-to-adopt cardinal measurement of the respective outcomes would be “number of extra life years”, however, this could run into problems. Leaving aside the fact that figuring out the likely number of extra life years could itself be difficult, it might also be the case that the value of the opportunity cost outcome cannot be measured in terms of life years. One might also object that the moral complexity of the respective outcomes is missed with such a simple metric.

This leads to conclusion that there might be no way to provide good cardinal measures for the outcomes. But I don’t see this as being a fatal flaw in the decision theoretic model of the cryonics dilemma. I think we can probably muddle along with qualitative evaluations of the outcomes, and, if needs be, attach some reasonable, albeit, conservative estimates to them. For instance, we might say that although we don’t know exactly how much better life is to death, it is at least five times better. As long as we are aware of the limitations involved in these kinds of figures, it shouldn’t be too much of a problem.


4. Conclusion
That brings us to the end of this post. To sum up, the basic tools of decision theory can be applied to the cryonics dilemma. When they are, we can see that the “dilemma” is actually reasonably complex. It is a decision problem involving at least two possible choices and three possible outcomes (continued life, death and opportunity cost). A simple normative parsing of the problem would admonish us to pick whichever choice led to the morally best outcome, but figuring out which outcome is morally best can be tricky due to the lack of a good cardinal measure.

Book Recommendations ♯3: The Art of Strategy

Game theory is something that has long fascinated me. I suspect there are several reasons for this, two of which spring readily to mind. The first is that the central ideas of game theory are often presented in story-based form. Take the classic prisoners’ dilemma for example. We are introduced to a cast of characters (two prisoners), we are told about some sequence of events in their lives (the crime and subsequent arrest), and how these events force them make strategic decisions (the dilemma). The fact that game theory has room for such stories makes it interesting and creative. The second reason I like game theory is its use of formal models. The stories are the bait, they’re what lure you in initially; the formal models are the hook, they’re what keep you there for the long term. Learning the skills of formal modelling is something that is useful in a number of domains.

For all its fascinating features, game theory can be daunting to the uninitiated. Pick up a standard textbook on game theory, and you are likely to see a bewildering array of symbols, mathematical models, charts, decision trees, and other mathematical paraphernalia. Since math phobia is so common, that’s likely to scare off a lot of people. That’s where today’s book recommendation comes in. The Art of Strategy by Avinash Dixit and Barry Nalebuff provides the most comprehensive, reader-friendly introduction to game theory there is. Certainly other introductory books, aimed at a popular audience, exist, but none of the others I have read — and I have read several — come close to this one.

What Dixit and Nalebuff manage to do in this 400-plus page volume is to be commended. They tell you why game theory is interesting, they cover all the basic concepts of game theory (the nature of strategic interactions, simple modeling of such interactions, the Nash equilibrium concept and mixed strategies), and they provide decent introductions to several of the most interesting applications of game theory (voting, auctions, bargaining, mechanism design). They do this by using interesting examples — both real and fictional — and with a minimal amount of math.

Now, if you want to get more serious about game theory, you’ll have to go elsewhere, but this is definitely a good place to begin. If I have a complaint, it has to do with the general authorial tone that is present throughout the book. It’s hard to put my finger on it exactly, but it feels like the authors are being a little bit too self-satisfied, smug and all-knowing in their explanatory style. As a result, I find they talk down to the reader and make things out to be more simplistic than they really are. That said, I’m willing to tolerate this stylistic foible on the grounds that the content is still interesting, and I definitely think you'll learn a lot by reading this book.

If you want to step up from this book, I'd recommend Dixit's textbook Games of Strategy. I think it's the most straightforward textbook level treatment of the topic, although it's not my personal favourite. I'll talk about that some other time.

Neuroscience-based Mind-Reading in the Law (Part Two)

An image from an fMRI-based mind-reading
experiment performed by Miyawaki et al in 2008

(Part One)

This is the second part in a short series on neuroscience-based mind-reading in the law. The series works off the article “What will be the limits of neuroscience-based mind-reading in the law?” by Murphy and Greely, which appears in The Oxford Handbook of Neuroethics.

In part one, we looked at some of the basic arguments in favour of using neuroscience-based mind-reading in the legal context, as well as the problems confronting such technologies. In this part, we will take it for granted that the technologies could deliver on their promises and consider whether they would actually have an important impact on the way in which the legal system works.

As Murphy and Greely note at the outset, the legal system seems, at first glance, like the ideal place for such technologies to be deployed. For starters, as pointed out in part one, the legal system is one place in which people might have an incentive to mislead us about the true state of their mind and, hence, it is one place in which traditional mind-reading techniques might be less reliable. Furthermore, in the legal system, the content and quality of a person’s thought is often of great importance.

Murphy and Greely give three examples of this. In the realm of personal injuries law, people can recover damages for experiencing “pain”. But pain is, of course, a mental state, one that those wishing to claim damages might be inclined to “fake”. So working out whether they really are in pain could be important. In the criminal law, a person’s guilt or innocence is often contingent upon their state of mind at a particular historical moment. So having some means for working out that state of mind could be beneficial. Finally, legal decision-making is best when it is free of bias, but bias is itself part of person’s mental framework. If we could use mind-reading to filter out biased jury members or biased judges, we could improve the quality of legal decision-making.

Despite the superficial appeal of these three examples, Murphy and Greely are keen to argue that the usefulness of mind-reading in the law is not as straightforward as it initially appears. Although mental states feature prominently in the law, the actual subjective state of mind of a individual litigant or defendant’s is not always that important. Sticking to their trinitarian ethos, Murphy and Greely offer three examples of this. I’ll discuss each in turn.


1. The Mental Aspect of Criminal Liability
There is a standard formula for criminal liability. Every offence is defined in such a way that it consists of a number of “elements”. These elements fall into two general categories: (i) external elements (actus reus elements) and (ii) fault elements (mens rea elements). In order to held criminally liable, the defendant in a criminal trial must satisfy both the external and fault elements of the offence. The fault elements are typically defined in terms of someone’s mental state, e.g. what did they intend or believe at the time of the offence.

The offence of murder provides an illustration of this. The external element of murder is defined (roughly) as “the death of one (or more) persons caused by the actions of another”, whereas the fault element is defined (roughly) as “the intent to kill or cause grievous bodily harm”.

At first glance, it might seem like mind-reading could play an important role in determining whether someone was criminally liable for murder. Although we noted in part one that there are problems associated with historical mind-reading, we are not going to be shackled by technological limitations here. Let’s speculate that, in the future, every human being is fitted, at birth, with a mind-reading device that records their brain states at every moment of their lives. This would effectively provide the brain equivalent of CCTV footage. If we had such a technology, and if we knew which mental states were correlated with which neural states, we could check to see whether, at the relevant time, the defendant actually intended to kill or cause grievous bodily harm. Hence, we could establish their liability for murder.

But this is not the end of it. Whilst knowing that someone intended to kill at a historical moment might be sufficient for a determination of criminal liability, it is not necessary for such a determination. One thing that has long been noted by criminal courts is that the subjective content of a person’s intentions might not be to kill, but nevertheless their subjectively intended action might have the obvious (or virtually certain) consequence of causing death. For instance, someone might plant a bomb on plane with the subjective intent of claiming an insurance payout, while lacking the intent to kill all the passengers. Still, the death of the passengers is a virtually certain consequence of their actions. Are we really going to say that such a person is not guilty of murder?

Most people think not. And criminal courts have developed doctrines of oblique (or indirect) intent to cover exactly these kinds of scenarios. As a result, people can be held liable for murder, despite not having the subjective intent to kill or cause GBH. What’s more, this is just the situation in relation to murder. In other cases, the mental element might be defined in terms of “recklessness”, and working out whether someone has been “reckless” typically involves considering the objective reasonableness of their state of mind, not just their actual state of mind. In still other cases — so-called strict liability cases — there is no fault element that needs to be proved.

While there are disputes about the moral propriety of how the criminal law determines liability, these examples illustrate how knowing what someone’s subjective state of mind was at a historical moment is not always that important in the criminal law. Oftentimes what we think an objectively reasonable state of mind would have been is what really matters.


2. Contract Law - Saying versus Thinking
This situation is replicated in other areas of law. Murphy and Greely next use the example of contract law. In order to create a legally enforceable contract, two or more parties must reach an agreement as to the terms and conditions upon which a good or service is to be bought and sold. To reach an agreement, there must be a “meeting of minds” between the two parties. That is to say, one party's mental picture or understanding of the agreement must match-up with the other's.

Again, given this description of the doctrine, one might think that mind-reading technologies could play an important role in determining whether or not a valid contract has been formed. But, once again, this is not quite true. The actual legal test for agreement depends, almost entirely, on objective factors. From what the parties said and did, does it seem like they reached an agreement? Would an objectively reasonable bystander think they had reached an agreement? And so on. The answer to these questions is not dependent on knowing the subjective states of mind of the parties. Thus, the potential for mind-reading technologies to help might be quite limited.

That said, Murphy and Greely are less dismissive of mind-reading in this context. As they point out, a reliable neuroscience-based mind-reading technology might still have an important role to play in contract law. For one thing, a reading of a person’s neural states at the moment when the alleged contract was formed might be a piece of evidence that goes towards determining whether the parties thought they had reached a deal. For another thing, it may be that the reliance on objective factors was just a way for the law to get around the practical difficulty of establishing what someone really thought. If mind-reading technologies remove this practical difficulty, then the law might revert to a largely subjective test of agreement. Finally, it may be that mind-reading could play an important role in contract negotiation, helping the parties to work out what one another really want and thus allowing them to craft an appropriate deal.


3. Tort Law - Where the mind may not matter at all
Tort law is complex. Basically, it provides a legal mechanism for a person (call them A) to claim damages from another person or persons (call them B), in the event that A is injured or harmed in some way. That’s the basic idea, but, as Murphy and Greely point out, there are different kinds of tort and each one has a different test for liability. Again, three examples are discussed.

First, there are such things as “intentional torts”, which require proof of intent to perform the tortious act on the part of B. The example the authors give is the tort of trespassing on another person’s property. In order to be liable for this, you must intend to be on another person’s property without their consent. A mind-reading device might have some utility here in proving whether or not you have the requisite intent.

Second, there are “negligent torts”. In these cases — which are the most common — B must owe A a duty of care, must have failed to live up to the standard of care owed to A, and A’s injury must have been reasonably foreseeable by B. In these cases, the state of mind of B counts for relatively little, objective factors count for far more.

Third, there are “strict liability torts”. In these cases, damages can be recovered from the mere fact that some injury or harm has been incurred, irrespective of B’s intent or state of mind with respect to that injury or harm. A classic example would be a product liability tort where a manufacturer can be held liable for injuries caused to a purchaser of their product even without proof of intent or, indeed, negligence.

One area in which mind-reading might become important in tort law is in determining the level of damages to be awarded. As noted at the start of this post, subjective states of mind, such as whether a person is experiencing pain or not, can be relevant here. Also, how much a defendant (like B) has to pay out in damages might depend on their state of mind. Punitive damages, which go beyond mere compensation for injury caused, are sometimes awarded if it can be proved that the defendant acted with “malice, oppression or fraud”.


4. Other potential legal implications of mind-reading
By peering beneath the surface of these three areas of law — crime, contract, and torts — we see how, despite initial appearances, neuroscience-based mind-reading might have relatively little to offer to the legal system. All three of these examples worked with the assumption that mind-reading might be used to assist legal decision-makers when making determinations of liability. In other words, they assumed that the legal system might like to support the use of mind-reading technologies. But of course the legal system may also wish to hinder or prevent the use mind-reading technologies, especially if these technologies impact upon the legal rights of participants in the legal system.

For example, a court might ban the use of neuroscience-based mind-reading evidence on the grounds that it would be unfairly prejudicial. The justification for this ban would be helped by the fact that some studies suggest that people are irrationally biased in favour of explanations that make use of neuroscience (Weisberg et al, 2008). Similarly, the results of a neuroscience-based mind-reading test might be banned on the grounds that they violated the privilege against self-incrimination. This would only apply if the test was not undertaken voluntarily and, to be honest, I reckon it’s pretty hard to administer an fMRI or EEG-based test to a non-compliant subject (definitely in the case of fMRI).

While I think these kinds of concerns have a legitimate basis -- and, indeed, might be used to support a more general right to cognitive liberty (or privacy) -- I sometimes worry about playing up these kinds of concerns. It seems to me that in worrying about these kinds of implications, far too much credibility is given to what is, at present, a nascent technology.

Anyway, I shall leave it there for now. I’ve skipped over one section of Murphy and Greely’s article which deals with standards of proof within the law. I hope to look at this in more detail at a later stage. Still, despite this omission, I hope I’ve given a reasonable overview and introduction to the topic.

Neuroscience-based Mind-Reading in the Law (Part One)

An image from an fMRI-based mind-reading
experiment performed by Miyawaki et al in 2008

The philosophical, scientific and legal implications of neuroscience-based mind-reading technologies has actually preoccupied me for quite some time in my “professional” life. In fact, I’ve written a couple of peer-reviewed articles about it. That said, I don’t think my own writing about the topic has been as insightful or useful as it might have been. Consequently, I thought I might start to explore some of the issues associated with it on the blog since, invariably, the more blog posts I write about something the clearer my own thinking becomes.

I’ll start off by looking at an article by Emily Murphy and Henry Greely (both of Stanford, I believe) entitled “What will be the limits of neuroscience-based mindreading in the law?”. The article appears in The Oxford Handbook of Neuroethics - which is a nice fat collection of introductory articles on all things neuroethics-y. The article provides a decent overview of the basic issues so it’s a good place to start.

Although the article itself is relatively short (as are most contributions to these Oxford handbooks), I’m going to take a couple of posts to discuss it. This is so as to really analyse some of Murphy and Greely’s more enthymematic moments. In this entry, I’ll look at the basic pro-neuroscience-based mindreading argument (what I call the NMRA) and then consider some of the problems it faces. In the next post, I’ll look at what Murphy and Greely have to say about the potential impact of mindreading on the law.

An important fact, worth flagging at the outset, is that we all engage in mind-reading everyday. Whenever I interact with another human being, I implicitly rely on an ability to decode what they are thinking by interpreting their speech, gestures and other external movements. This capacity for mind-reading is crucial to everyday life, so crucial in fact that those who lack this skill (say, autistics and young children) are noticeable for their deficit. And yet despite its obviousness, this fact is often overlooked in discussions of mind-reading (though not by Murphy and Greely, I hasten to add).

The everyday banality of mind-reading raises interesting questions in the present context. Chief among them being: why neuroscience-based mindreading? What is it about neuroscience-based technologies (such as fMRI and EEG) that makes them particularly useful when it comes to reading minds? What advantages do they confer over the more mundane sorts of mental decoding that we engage in on an ongoing basis? Answering these questions has important repercussions for how we understand the debate surrounding neuroscience-based mind-reading.


1. The Neuroscientific Mind-Reading Argument (NMRA)
Let’s look at the first question: why are neuroscience-based technologies thought to be useful for mindreading? Many people, Murphy and Greely among them, think the answer to this question lies in the implications of mind-body physicalism. The argument appears to run as follows: the mind is ultimately reducible to (or realized by) a physical entity known as the brain; neuroscience-based technologies allow us to detect the status of this physical entity; therefore, neuroscience-based technologies allow us to read minds. QED.

Attractive as this line of reasoning may be, I think it is clearly flawed. Apart from containing some important hidden premises, the relevance of neuroscience-based technologies to mind-reading is not dependent on the truth of mind-brain physicalism, nor should one construe as being so dependent simply because one is a physicalist (as I am). All that matters for the purposes of mind-reading is that there is some more-or-less reliable link between mental events and neural events. It is this reliable link, not the reducibility of the mental to the physical, that allows us to determine mental events on the basis of neural event. As far as I can tell, such a reliable link can exist even on strong forms of mind-body dualism. After all, many dualists would agree that there is a reliable correlation between the neural and the mental.

This might seem like a pernickety point, but I think it is important: there’s no sense in limiting the appeal of neuroscience-based mind-reading unnecessarily simply because one is wedded to mind-body physicalism.

This leads me to suggest the following argument for neuroscience-based mind-reading (the NMRA):

• (1) If we wish to read someone’s mind, there must be a link between observable events and mental events, such that reliably detecting an observable event of type X will help us to determine whether someone is experiencing a mental event of type Y [mental code premise].

• (2) Every neural event X1…Xn is linked to a mental event Y1…Yn in such a way that detecting the presence of X1…Xn might allow us to know that someone is experiencing Y1…Yn.

• (3) Therefore, detecting neural events might allow us to read someone’s mind.

• (4) Neuroscience-based technologies (such as fMRI and EEG) allow us to detect neural events.

• (5) Therefore, neuroscience-based technologies might allow us to read someone’s mind.

Allow me to say a few words about this argument here. First look at premise (1). This is more complex than it might first appear. For one thing, it contains within it the assumption that mental events are distinct from observable events. This seems like a credible assumption — one of the distinguishing features of mental events is that they are, first and foremost, private. But, of course, that is not to deny that they may be linked to publicly observable events, indeed, the premise explicitly demands that some such link exists. Furthermore, the premise demands that the link be a decodable one (this is a term I’m inventing), i.e. one that allows you to determine nature of the mental event on the basis of the corresponding observable event. A decodable link need not be causal, constitutive or reductive.

Now let’s look at premise (2). This proposes that there is decodable link between neural events and mental events. This premise is certainly helped by the assumption of mind-body physicalism, but as noted above it is not dependent on that assumption. Also, the premise makes no assumptions about the nature of the correspondence between mental events and neural events. Specifically, it does not stipulate that there must be a one-to-one correspondence between mental events and neural events or vice versa; it just stipulates that there must be some correspondence, this could be one-to-many or many-to-one.

This is actually an important point, one worth expanding on in a little more detail. Throughout this discussion I have spoken about the link between mental events and observable/neural events, but I have been unclear about what I mean by “mental event”. It’s probably worth clarifying this now. What I mean by “mental event” is not just an intentional state with a specific kind of content (e.g. the desire to eat ice-cream or the belief that ice-cream is good for you) but also the general category or quality of intentional state (e.g. an “unwelcome desire”, “false belief” or “malevolent intention”).

I construe the term broadly because I want to avoid implanting in the reader’s mind the belief that mind-reading requires the ability to determine the fine-grained content of person’s thoughts. While this might be ideal, oftentimes it is unnecessary. Oftentimes it is enough to know the general category or quality of mental event. For example, in the process of crime investigation, it might help the investigation to know whether a suspect is being deceptive or has a false belief, without also having to know the specific content of the deception or the belief.

Once we get beyond premise (2), I think the argument is relatively straightforward. The only concern that is worth addressing here is the claim in premise (4). Some people might argue that technologies such as fMRI or EEG do not really detect neural events at all, rather, they detect the (assumed) effects of neural events. I agree, but I’m under the impression that the link between those effects and their underlying neural causes is grounded in some pretty solid theory. The only thing I will say is that the link is a crude and imperfect one, so some important information is undoubtedly being missed.


2. Why Neuroscience-based Mind-Reading
If we accept the NMRA, we will have accepted very little. Essentially, all we will have conceded is that neuroscience technologies may help us to read other people’s minds. We won’t have accepted that neuroscience-based mind-reading is something that we ought to embrace, or ought to spend considerable resources developing. After all, I do a pretty good job reading other people’s minds by simply decoding their gestures, their words and their external behaviour. Why do I need expensive neuroscience equipment to help me in this regard? To answer that, additional arguments are needed. I’ll mention two here. The “greater accuracy” argument; and the “hard-to-fake” argument.

The first argument — unlike the NMRA itself — makes considerable concessions towards the truth of mind-body physicalism. Roughly, it maintains that neural events are somehow closer to or more representative of the underlying mental events than are the kinds of observable events we normally use to read one another’s minds. To put it another way, neural events provide more accurate information about mental events than do observable behaviours such as speech and gesture. And since we should generally prefer getting more accurate information to less accurate information, we should prefer neuroscience-based mind-reading to everyday mind-reading.

To put this in more formal terms:

• (6) In general, if our goal is to obtain information about an event or type of event, we should use the information source that is most representative of (or most accurate about) that event or type of event.

• (7) Neural events are more representative of (or more accurate about) mental events than are observable behaviours such as speech and gesture.

• (8) Therefore, if our goal is to obtain information about mental events, we should look to neural events more than observable behaviours.

I think this is a pretty weak argument. While those of a physicalist disposition will probably be more inclined to accept premise (7), I think there are good reasons for physicalists to reject it too. I think that speech and gesture are, nine times out of ten, far more accurate sources of information about a person’s mental states than are neural events. After all, that is one of the great marvels of language: it allows you to directly convey to another person what you are thinking. Now you’ll notice I said that this is true “nine times out of ten”. That’s because there are obvious cases in which speech and gesture are not good guides to what a person is thinking. This is what the hard-to-fake argument is designed to highlight.

What are the obvious cases I just alluded to? Well, they are the cases in which a person might have some inclination, desire or tendency to deceive you about the true state of their mind. In these cases, their observable behaviours will tend to mislead us or provide us with inaccurate information. These cases are particularly prevalent in the anti-terrorist or crime-investigation contexts since would-be criminals and terrorists often have strong incentive to mislead you about their true state of mind.

It should come as no surprise then to learn that these are the contexts in which neuroscience-based mind-reading are most widely touted. But why is that? The answer lies in a key assumption, namely: that neural events will be hard to fake. That is to say, a person won’t be able to control their neural events in the same way that they can control their speech and gestures, hence these events will get us closer to their true state of mind. This assumption allows us to make the following argument.

• (6) In general, if our goal is to obtain information about an event or type of event, we should use the information source that is most representative of (or most accurate about) that event or type of event.

• (9) When a person is being deceptive or has an incentive to be deceptive, neural events are likely to be more representative of (or accurate about) mental events than observable behaviours such as speech and gesture (because neural events are not as controllable as observable behaviours).

• (10) Therefore, when a person is being deceptive and our goal is to obtain about information about their mental state, we should look to neural events more than observable behaviours.

As you can see, this argument is similar to the previous one, but limits the context and provides a decent rationale for that limitation. I think this is definitely a better argument than the previous one, but it too suffers from an obvious flaw. The thing is, there’s no reason to think that neural events won’t be manipulable in the same way that speech and gesture are. Indeed, this is a something that many mind-reading tests (such as those based on EEG, or the classic polygraph test) have had to confront. Once people know how these tests work, they can often develop countermeasures that allow them to distort or corrupt the information that is being decoded by the test. At the same time, that’s not to say that countermeasures will always be easy to develop, and it may be that countermeasures are more difficult when the test is neuroscience-based. Thus, these kinds of test may still have the upper hand.


3. General Problems for Neuroscience-based Mind-reading
Now that we know some of the basic arguments in this debate, we can move on to consider the general problems that Murphy and Greely’s think affect neuroscience-based mind-reading. There are three of them.

The first is that the brain is an incredibly complex organ and so the code linking neural events to mental events is likely to be very difficult to work out. Here’s what Murphy and Greely say about this problem:

“To…associate…a particular Brain State A with a particular Mental State A, we need to be able to define both states accurately and to be confident that the detection of one indicates the presence of another…To define Brain State A in detail, though, we would need to understand the human brain and its relevant states in great detail. Such detail may well be, even in theory, impossible to obtain, both for an idealized human brain, and, for additional reasons, for any real, living human brain”

They then proceed to recite some interesting facts about the size of the brain, the number of neurons and other cells it contains, the number of connections between these neurons and the difference between idealised brains and the brains of actual people. While I accept all these points about complexity, I find the premise that motivates their presentation to be flawed. Murphy and Greely assume that we need a very fine-grained code, one that allows us to determine specific mental content from brain states. As I pointed out above, this assumption is questionable: sometimes a far more coarse-grained code will be enough (they make some gestures towards this argument later in the article, but they are not explicit enough for my liking). On these occasions, the complexity of the brain may be less of an impediment to mind-reading.

The second problem discussed by Murphy and Greely is that of neural plasticity. By neural plasticity they mean two things: (i) the fact that people’s brains can change over the course of their own lifetimes in such a way that different anatomical regions can acquire different functions; and (ii) the fact that the functional anatomy of different people’s brains can be different. That both forms of plasticity seem to exist creates many problems for proponents of neuroscience-based mind-reading. The main one being that the experimental evidence supporting (some) versions of the technology rely on correlations between the mental states and neural activity of particular individuals on particular days.

The third problem is something the authors call “the time travel problem”. It is the fact that, especially in the legal context, when we engage in mind-reading we typically don’t want to know what someone is thinking right now, instead we want to know what they were thinking at a historical moment (e.g. the time when they committed a crime, or signed a contract, or something along these lines). Murphy and Greely acknowledge that this problem might be circumvented if all we wish to do is figure out whether someone is currently lying about the state of their mind in the past, but they add that the ability to reliably distinguish a presently deceptive state from a non-deceptive state depends on how accurate someone’s present memories of their past mental states actually is. And, of course, present memories of the past may not be accurate at all.

Okay, so that brings us to the end of this post. As we have seen, the basic argument in favour of neuroscience-based mind reading (the NMRA) is more complex and resilient that we might first have thought: it does not rely on the truth of mind-body physicalism, and may not demand fine-grained mind-reading. We also saw how neuroscience-based mind reading is only likely to be useful in contexts where deception is a major problem. Finally, we looked at three general problems facing this kind of mind-reading. In the next post, we will consider how mind-reading might impact upon the law.