Who is a primary subject of justice?

Rawls’ concept of the person, Nussbaum’s critique and the concept of autoaxional systems

by Dr. Philip von der Meden

In this essay I present Martha Nussbaum’s critique of John Rawls’ contractual theory of justice. Drawing on her capability approach, Nussbaum identifies three problems in Rawls’ work. Her critique is based upon Rawls’ concept of the person and his equation of contract framers with those for whom the contract is framed. Although I do not disagree with Nussbaum’s results, I claim that it is helpful to establish a foregoing concept of a right to have rights. This right might be the result of a broad overlapping consensus and it should, I argue, be ascribed to all entities which I call autoaxional systems. Autoaxional systems are all conscious forms of life which have an intrinsic value because they can feel pain and joy.

I. Introduction

Many contractual theories of justice begin with thought experiments which postulate some kind of fictional state of nature where members of a future society decide the principles that are supposed to govern their lives.1 One of the reasons for these thought experiments lies in the necessity to create moral standards in a world in which divine principles have lost their persuasive power. Those social contract theories that are procedural do not postulate a common conception of the good. They offer procedures the outcome of which is just by definition. All moral questions are shifted from the outcome to the procedure under which the outcome is negotiated. Although the description of the contract framers may be conceived of in very different ways, very much depending on the anthropological notions of each author, the concept of the contract framers is always – at least implicitly – at the heart of each theory. The concept of those who frame the contract is the source of all principles. It determines the possible results of the negotiating process like the semen determines the shape and color of a flower. Hence, it is not surprising that an important critique of contemporary procedural theories of justice challenges the concept of person underlying the description of the contract framers. In this essay I shall present Martha Nussbaum’s critique of John Rawls’ concept of person. This critique can easily be transferred to other procedural theories of justice which are based on the Kantian notion of person. I shall begin with a quick sketch of Nussbaum’s reception of Rawls’ concept of contract framers (II.). I will then turn to the three major problems that have been identified by Nussbaum, namely the characterization of the contract framers as free (III.), equal and independent (IV2 After having sketched Nussbaum’s principle of love of justice and compassion (V.), I will offer my own account postulating a principle of a right to have rights which is derived from the biological concept of autopoiesis (VI.). I will call all primary subjects of justice autoaxional systems (VII. and VIII.). These beings have a right to have rights. 3

II. The concept of the contract framers

Rawls places all members of society into the so-called original position. 4 Drawing on Hume’s description of the conditions under which “human cooperation is both possible and necessary” 5 , he assumes that all members of future society share a rough equality of physical and mental power and

1 For a survey of these positions compare: Nussbaum, Frontiers of Justice. Disability. Nationality. Species Membership, 2006, p. 9 et seqq. I only focus on this work in this essay. I thank Jan Gallert, Konstantin Pistorius, and Jan Sturm for their very helpful comments on earlier drafts of this essay.
2 Nussbaum (note 1), p. 14 et seqq.
3 For the expression “right to have rights” see Arendt, The origins of totalitarianism, 1951.
4 Rawls, A Theory of Justice, rev. ed., 1999, p. 102 et seqq.
5 Rawls (note 4), p. 109.

v. d. Meden, Who is a primary subject of justice? (BLJ 2013, 32)33

force. Rawls, who expressly understands his own approach as part of the social contract tradition,6 assumes that people, before entering into institutionalized forms of cooperation, do not necessarily care for one another. People are legitimately expected to be merely focused on furthering their own interests. In line with many other theorists, Rawls thinks that a political theory is stronger if it works even under the premise of selfish parties. However, people also have to be described as being fully rational actors. Without his strong emphasis on rationality, Rawls’ thought experiment would immediately collapse because all members of future society have to decide which principles shall govern their future life, and this decision is a highly complicated and abstract one. This implies that all people who frame the principles of future society must fully prescind from their own conception of the good.7 People are blinded by a veil of ignorance from “seeing” all facts concerning their individual status. As Rawls puts it,

“no one knows his place in society, his class position or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like.”8

In the liberal tradition the principles to be agreed upon are derived from the human capacity to rationality and self-determination. In its explicit procedural forms they gain their strength from the idea that legitimate principles not only have to be generalizable under the maxim of an individual person’s thought experiment but that they need to be the result of a fair process. But as this process is not conceived of to be a moral enterprise right from the start, Rawls and other procedural theorists postulate a rough symmetry of force and power among the persons who frame the contract. Nussbaum rightfully observes that

“the fiction of the state of nature, which is explicitly said to be an imaginary hypothesis, not an account of a remote historical time, is nonetheless held to be a veridical account of some especially important properties of human interaction in the real world.”9

This symmetry of power is an exceptionally demanding starting point for a theoretical framework which is supposed to be the base of a fair process. If all members of a future society shared roughly the same mental and physical qualities, there would indeed (one may assume) be hope for a just society. Unfortunately, the symmetry of power is not a veridical account of human properties, and it is fair to say that in fact it can never become veridical.

III. Nussbaum’s three Problems

Nussbaum, who worked with Rawls in Harvard for several years and who has repeatedly stressed how much she owes to him, identifies three major problems in Rawls’ work. (As Nussbaum, I will restrict myself to his Theory of Justice in this paper. We should keep in mind, however, that the following criticism also applies to similar procedural justice approaches, e.g. the discourse theory.) As the title of Nussbaum’s work, which I refer to, indicates, these three unsolved problems are all problems of exclusion. Some beings, Nussbaum claims, can never be integrated into Rawls concept of justice. They are “behind the frontier” of the theory. All unsolved problems “prove resistant, because all involve, in different ways, great asymmetries of power and capacity and, in some cases, of moral rationality itself.”10

According to Nussbaum, the problem of the social contract tradition is

“its equation of the group of framers with the group of eventual citizens; its reliance on an idea of rough equality of power and force, oddly run together at times with the very different idea of moral equality; its focus on mutual advantage as the point of the contract; its consequent difficulty in handling the citizenship of women and people of unequal physical and mental powers. These difficulties remain in modern contractarian theories.”11

Hence, all problems are ultimately the result of an inappropriate description of those who make the contract. Rawls acknowledged that the characterization of the citizens as free, equal and independent is in fact difficult for his approach.12 Why are these problems so difficult? Let us now shed light on each of the relevant features criticized by Nussbaum.

IV. Freedom

In the secular tradition of enlightenment the concept of freedom plays a central role in moral, legal and political philosophy. It has traditionally been associated with two meanings – a negative and a positive one.13 In its negative sense freedom is freedom from something, e.g. freedom from illegitimate coercion by the state. In its positive sense freedom is often seen as the capacity to moral self-determination. In Kant’s very influential legal philosophy each person’s freedom is only limited by other people’s freedom. According to Kant, no action may be prohibited, so long as it does not infringe upon “the freedom of others to pursue a similar end which can be reconciled with the freedom of everyone else within a workable general law.”14 Freedom is considered to be the defining element of being a person. As rationality can prevail over empirical self-interest, rational beings are endlessly more dignified than any other being. Rational beings share the ability to define their own goals. This confers dignity upon them.

The capacity to follow the moral laws of free will, i.e. the acknowledgement that others have their own free will, is central to Kant’s concept of person. In contrast, beings that lack the capacity to control their drives are merely subject to the laws of nature. These latter entities fail to take part in the intelligible sphere of freedom. They are solely part of the empirical world. Thus, they cannot develop self-esteem or respect necessary to ascribe dignity to somebody. As they can never be an end in themselves, Kant calls them things, not persons. In conclusion, one can say in Kant’s words that only a rational being whose ”nature already marks [him] as an end in itself, that is, as something that may not be used merely as a means and hence so far limits all choice (and is an object of

6 Rawls (note 4), p. 11.

7 According to Rawls “the concept of right is prior to that of the good.” Cf. Rawls (note 4), p. 28.

8 Rawls (note 4), p. 118.

9 Nussbaum (note 1), p. 28.

10 Nussbaum (note 1), p. 92.

11 Nussbaum (note 1), p. 53.

12 Nussbaum (note 1), p. 3.

13 Berlin, Two Concepts of Liberty, 1958, in: Berlin, Four Essays on Liberty, 1969.

14 Kant, On the Common Saying ‘This may be true but it does not apply in practice’, in: Kant: Political Writings, ed. Reiss, 1970, p. 74.

v. d. Meden, Who is a primary subject of justice? (BLJ 2013, 32)34

respect)”15 is a person. In his later work, Kant reformulated his definition of the concept of person which he then understood as ”a subject whose actions can be imputed to him. Moral personality is therefore nothing other than the freedom of a rational being under moral laws“.16 It is important to note that for Kant moral and legal obligations apply to all, but only, rational agents (no matter what species they belong to). It is easy to see then that the only natural right in Kant’s view is the right to freedom.17

This concept of freedom as a natural right has found much support in the subsequent centuries. It is also omnipresent in Rawls’ veil of ignorance which is an intellectually highly demanding thought experiment. It only works under the idea of rationality as described by Kant. Without rationality, which allows for an illusionary detachment from any form of self-interest, there would be no possibility to conduct the thought experiment. We can therefore (very roughly) define rationality as a being’s ability to internally negate its being.18

This positive account of the concept of freedom goes along with its negative meaning. If freedom is conceived of to be an ontological fact, any natural law theory drawing upon this concept must claim that freedom also has to be respected by anyone feeling obliged to act in accordance with generalized rules. For the social contract tradition, Nussbaum consequently observes:

“The parties to the social contract are, first of all, free: that is, nobody owns anyone else, nobody is the slave of anyone else.”19

This does not mean that a being without the capacity to form a free will may necessarily be enslaved under the social contract doctrine. It means, however, that slavery and other forms of treatment of un-free human beings that are usually considered to be gross violations of their interests cannot, without further argumentative effort, be conceived of as legally relevant violations of their subjective rights.20 This is not to conceal the striking impact of Rawls’ thinking on theories trying to overcome undeserved social advantages due to race, religion or income. The rationalistic idea of reciprocity entails an emancipatory potential for every society in which social and economic power is distributed unequally. Today, more than ever, Rawls’ powerful critique of Calvinist arguments stating that advantages by birth can be morally deserved remains a useful guidance for any kind of policy making. However, at the same time the idea of reciprocal freedom as a moral and legal principle has the potential to deny some beings the advantages of the ascription of subjective rights. As many human and non-human animals lack the capacity of rationality as presupposed by Rawls’ thought experiment, Nussbaum and many other authors take the position that the concept of freedom is too demanding to offer sufficient guidance for policies in a decent society. Let us have a closer look at this criticism.

The most obvious example certainly can be found in the case of very young infants. As Kant himself discussed this example in his anthropological work, I shall make use of it as well. (We should keep in mind, however, that the presupposition of rationality also excludes many psychiatric patients suffering from psychiatric or brain diseases as well as non-human animals.) In his “Anthropology from a Pragmatic Point of View”, Kant comes up with the question why an infant cries after birth.21 His answer is consistent with his general emphasis on the role of freedom for human life. He explains the infant’s yelling by reference to a wish to move its limbs. As it cannot fulfill its wish to act accordingly and thereby feels its restricted freedom, it gets outraged and angry. Being unable to otherwise help itself, it consequently expresses its displeasure by crying. Thus, Kant obviously assumes a deeply rooted urge for freedom in every human being. He therefore considers the casual frustration that can easily be observed in a newly born child as an expression of constrained liberty. The distinction between intentionally caused actions and mere events, for example unintentional movements, is also common in contemporary developmental psychology. It corresponds to the differentiation between means and ends.22 Note that Kant uses the same terminology in his second formulation of the categorical imperative according to which you shall “act in such a way that you treat humanity, whether in your own person or in the person of any other, never merely as a means to an end, but always at the same time as an end.”23

However, developmental psychology has shown that infants of age younger than 8 months are usually unable to make any distinction between means and ends.24 In one version of the so-called means-and-end task infants are presented an interesting toy which is placed out of their reach. The infants see, however, a string that is fixed to the toy. This string is in their reach. It is typically not before the age of 8-9 months that infants pull the string to get the toy. It is concluded that infants of that age do not yet have the capacity to perform goal-directed actions, a capacity which is a necessary precondition of intentionality. The existence of a necessary connection between goal-directedness and intentionality is an old idea in psychology. This idea, which can be traced back to William James, argues that goal representations are functional representations of action effects.25 According to a modern cognitive version of that view, perception and action have common representational resources.26 Action is controlled by the anticipation of action effects. There is strong empirical support from various psychological disciplines for that so-called common coding approach.27 What does this mean for the Kantian assumption that even very young babies cry to express their displeasure with their restricted freedom?

It is hard to imagine what definition of freedom in its positive meaning one could think of that would match the factual status observed in the first 8 months of infancy. This definition would have to postulate a concept of freedom independent of intentionality and even of goal-directedness. One might argue that freedom is merely a prerequisite for goal-directedness

15 Kant, Groundwork of the Metaphysics of Morals, ed. Gregor, 1997, Kt. 4:428.

16 Kant, Metaphysics of Morals, ed. Gregor, 1996, Kt. 6:223.

17 Kant (note 16), p. 30.

18 This definition is based on Sartre, Being and Nothingness, 2012.

19 Nussbaum (note 1), p. 28.

20 Nussbaum (note 1), p. 29.

21 Kant, Anthropology from a Pragmatic Point of View, ed. Louden, 2006, p. 229 (note).

22 Aschersleben, Early development of action control, Psychological Science, 48(4), 2006, p. 405, 406.

23 Kant, Grounding for the Metaphysics of Morals, 3rd ed., 1993, p. 30 (my emphasis).

24 Daum/Prinz/Aschersleben, Means-End Behavior in Young Infants: The Interplay of Action Perception and Action Production, Infancy 14(6), 2009, p. 613.

25 W. James, The Principles of Psychology, 1890; Prinz, Perspectives on perception and action, ed. Heuer/Sanders, 1987, p. 47.

26 Aschersleben (note 22), p. 407.

27 For specific literature see Aschersleben (note 22).

v. d. Meden, Who is a primary subject of justice? (BLJ 2013, 32)35

and intentionality. In this view, freedom would be seen as the capacity to develop intentionality, not as a sufficient condition of a concept of action and moral self-determination. In legal discussions about the point in time at which the right to life is ascribed to human beings one is often confronted with different forms of similar arguments making use of the idea that human beings have the potential to develop certain capacities which justify the ascription of rights as of their conception – even before those capacities have actually evolved. From a strict Kantian perspective, these arguments are not convincing because without the ability to act, that is, to intentionally do or omit something there is no room for freedom as a necessary prerequisite for the ascription of morally or legally relevant behaviour.28 If a being is unable to act, what should its concept of freedom be? Freedom is only of relevance to those beings who have already developed the ability to cognitively represent action effects, thereby experiencing intentionality.

As infants of age younger than 8 months lack intentionality in that sense, their expressions of comfort or discomfort must have a different cause than a feeling of restricted freedom. Even though, theoretically, it would be possible to assume that young infants do not have any subjective experience at all I will not follow this implausible assumption here. I will, on the contrary and in accordance with new research, take the position that subjective experience of a rudimentary form is not bound to goal-directedness as a necessary condition for freedom.29 That raises the question which criteria – if not freedom – can be used to distinguish between persons and non-persons. I will come back to this question under VII. and VIII.

V. Equality and Independence

Closely connected to the problem of freedom is the idea of equality in the social contract tradition. It is especially the notion of equality that makes it clear that the empirical features of the contract framers are a necessary precondition of the entire doctrine:

“ (…) social contract doctrines hold that their parties begin the bargain in a situation of rough equality – not just moral equality, but a rough equality of powers and resources.”30


“the parties of the social contract are imagined as independent, that is, individuals who are not under the domination of or asymmetrically dependent upon any other individuals.”31

People do not only enter into the bargain because they feel that they are morally obliged to do so.32 Drawing on Hobbes and Locke, Rawls starts with the idea that the physical features of those who frame the contract are more or less comparable. This results in a situation where every fellow being is a potential threat to anyone else’s personal integrity. People cannot enjoy any kind of social security. They are caught in a bellum omnia contra omnes where homo homini lupus. “The rough equality among the parties”, Nussbaum writes,

“is crucial to understanding how they contract with one another, why they would make a contract in the first place, and what they hope to gain from the social contract.”33

Nussbaum rightly objects that this presupposition fails to appropriately describe human relations. People are not driven apart in anguish and fear (as may have been the case during the time of the Thirty Years’ War). They are born into families. They have friends. They depend upon other people, and other people depend upon them. There is not – and there, in fact, has never been – a symmetry of power in many relations people have in the real world. Mutual advantage certainly is something human beings strive for, and it would be wrong to lose sight of this. Yet, Nussbaum stresses that there is much more to consider in the purpose of social cooperation. Making use of Aristotle’s philosophy, she says,

“it would be odd to imagine the human being flourishing outside a network of (…) relations; such a notion may even be a contradiction in terms, since these relations seem to be a part of human flourishing. Thus, while contractarians typically imagine a being whose good is in effect apolitical, although this being will respect the constraints of law, the Aristotelian account insists that the good of a human being is both social and political.”34

If the whole point in getting together to form a society is exclusively based on the idea of mutual advantage, justice could never be conceived of as an integral part of the good. Both concepts would analytically be separated.35 This separation, however, would be incompatible with the concept of justice. Justice is more than the entirety or a part of norms of a given positive law system. Although hard to define, it is, in principle, an accessible concept. And if the positive law is not to lose any connection to the idea of justice, the good cannot be ignored by lawyers.

VI. Love of Justice and Compassion

Where should a theory of justice then start from? If the concept of free, equal and independent persons who come together in order to frame a contract for their mutual advantage is too far away from reality as to offer any helpful guidance for establishing principles of justice, what principles might serve as such guidance? Is there a more appropriate description of the sources of our moral and legal aspirations?

Nussbaum offers a much broader account of a legitimate starting point for a theory of justice. The pursuit of other beings’ well-being is conceived of to be more than an extension of the concept of individual advantage. According to Nussbaum, we would miss the relevant point if we exclusively tried to explain altruistic behavior in terms of our own egoistic interests.36 There are certainly forms of altruistic behavior which, at a second glance, are to further our own interests. But some forms of altruistic behavior are more complex. Even though, in theory, it must indeed be possible to explain every action or omission by reference to motives that are ultimately one’s own, this does not mean that the motives themselves are restricted to furthering self-interest in a way Rawls and his predecessors understand the notion of self-interest. We should be aware that their idea of self-interest is

28 I shall not discuss potentiality arguments here. I have done that in: von der Meden, Das Recht, Rechte zu haben, 2013, p. 139 et seqq.

29 See Aschersleben (note 22) with further references.

30 Nussbaum (note 1), p. 29.

31 Nussbaum (note 1), p. 32.

32 Kant’s position is somewhat extreme here. He holds that it is a duty to enter into a civil society.

33 Nussbaum (note 1), p. 31.

34 Nussbaum (note 1), p. 86.

35 Nussbaum (note 1), p. 89.

36 Cf. Nussbaum (note 1), p. 35, 156 and passim.

v. d. Meden, Who is a primary subject of justice? (BLJ 2013, 32)36

very narrow because it is supposed to offer a starting point for a political theory allowing for an integration of the most diverse, or even opposing, conceptions of the good. With the exception of the right to freedom, not much is owed to one’s fellow beings in the original position. Even though in Rawls’ work the contract framers in their original position have some understanding of justice, questions of income and economic advantage remain the central issue.

Nussbaum’s account is both less demanding and more determinate.37 She emphasizes the fact that human beings are, at least for a limited period of time in their lives (and some for their whole lives), unable to offer valuable consideration to their fellow beings. Nonetheless, she holds, we feel that in a decent society their lives have a value beyond any economic exchange. We do not care for our babies and elders because we expect them to give something back which is measurable in economic terms. And we do not send mentally handicapped children to school because we hope that they become economically productive members of society. We care about the weak and helpless because we think that their lives have an intrinsic value. Therefore, Nussbaum argues:

“If we can arrive at principles related to those of Rawls by another route (…) drawing on suitably enlarged conceptions of reciprocity and dignity, we shall be able to extend those principles to cases that he believed a theory like his own could not reach. My conclusion is not that we should reject Rawls’s theory or any other contractarian theory, but that we should keep working on alternative theories, which may possibly enhance our understanding of justice and enable us to extend those very theories.”38

Nussbaum’s enlarged conception of dignity is close to the so-called “ensemble theories” of dignity.39 These theories try to elaborate individual rights of the most fundamental kind for every human being. They hold that human dignity is not a fundamental right which allows for the deduction of other rights, but they claim that dignity is a legal principle that has a variety of characteristics. Of course, the list of fundamental rights may vary depending on the function it has. Whereas the ensemble theory is, at least partly, an interpretation of dignity as a term of the positive law in Germany, Nussbaum’s list is supposed to help create standards for national and international policy makers. Included in her open list of central capabilities are

– the right to life;

– the right to bodily health and integrity;

– the right to being able to use one’s senses, imagination and thought;

– the right to being able to have emotional attachments to things and people outside ourselves;

– the right to use practical reason, that is, to develop one’s own conception of a good life;

– the right to affiliation, that is, being able to live with and toward others and having the social bases of self-respect and non-humiliation;

– the right to being able to live with concern for and in relation to animals and nature;

– the right to being able to laugh and enjoy recreational activities;

– and the right to politically and materially control one’s environment.40

This list of central capabilities is

“moralized, and socialized, from the very start”, and “it envisages human beings as cooperating out of a wide range of motives, including the love of justice itself, and prominently including a moralized compassion for those who have less than they need to lead decent and dignified lives.”41

People do not have to give something back in order to enjoy the rights to the most extensive capabilities possible. People are not conceived of as acting merely under the premise of prudence, but the list implies the fact that “you can’t get virtue J from a starting point consisting only of virtue P. Virtue J has to be in from the start. You have to put the rabbits into the hat if you are going to pull them out.“42 If love, care and concern for others are something we consider to be important features of our social lives, if we want them to be of significance in the world we live in, we have to rely on them right from the start. Of course, this cannot mean that they are in fact the guiding force of our actions and omissions in any situation in which we would want them to lead our behavior. But if we can, in principle, agree to them as desirable, we have to include them right from the beginning: A theory of justice would be a sad one without a strong emphasis on the role of concern for others and a minimum love of justice.

If a theory of justice is to begin with the idea that the lives we lead are of intrinsic value, regardless of the fact whether those who lead the lives are economically productive members of society who share a rough equality of physical and mental abilities, we have to reconsider our very idea of the social contract. As the contract is no longer seen as a prudent pursuit of mutual advantage, we must clearly distinguish between those beings who are primary subjects of justice and those who have the capacity to execute justice. In other words, we must no longer confuse the group of the contract framers with those for whom the contract is framed.43 This approach is far-reaching for the implications of the concept of person. Now, we are no longer forced to ascribe rights only to those beings who can contribute to the well-being of the contract framers. We can treat beings who are unable to act under the doctrine of rationality as ends in themselves. In short, we no longer need the concept of person in order to confer value upon other beings. This leads us to our central question: Which entities have an intrinsic value? Who should we include into the group of primary subjects of justice?

VII. How should we call primary subjects of justice?

I can neither extensively discuss Nussbaum’s capability approach in this paper, nor the question whether it is indeed a helpful base for an interculturally agreeable theory of justice. My intent is more humble. I will try to specify the core idea of the concept of primary subjects of justice. In other words, I shall ask what it is that makes an entity valuable so that we want to include it into our concepts of justice right from the beginning. My aim is to clarify the terminology and suggest

37 Nussbaum (note 1), p. 35.

38 Nussbaum (note 1), p. 25.

39 Hilgendorf, Die mißbrauchte Menschenwürde, in: Byrd et al. (ed.), Jahrbuch für Recht und Ethik (7), 1999, p. 137, 148.

40 Nussbaum (note 1), p. 76 et seqq.

41 Nussbaum (note 1), p. 156 et seq.

42 McCloskey, Hobbes, Rawls, Nussbaum, Buchanan, and All Seven of the Virtues, Journal des Economistes et des Etudes Humaines 17(1), Article 2, available at: http://www.bepress.com/jeeh/vol17/iss1/art2.

43 Nussbaum (note 1), p. 16 and passim.

v. d. Meden, Who is a primary subject of justice? (BLJ 2013, 32)37

an alternative concept naming all natural entities which should be treated as primary subjects of justice.

Nussbaum holds that all beings capable of a “dignified existence” should be considered as primary subjects of justice. She expressly includes animals arguing that a dignified existence for them includes

“adequate opportunities for nutrition and physical activity; freedom from pain, squalor, and cruelty; freedom to act in ways that are characteristic of the species (…); freedom from fear and opportunities for rewarding interactions with other creatures of the same species, and of different species; a chance to enjoy the light and air in tranquility.”44

Her approach is close to Peter Singer’s and other animal rights proponents’. But animal rights theorists usually restrict their position to moral claims. In a juridical context, the claim for subjective animal rights becomes more problematic if it is connected with the idea of an overlapping consensus. Obviously, the vast majority of people does not share the view that animals are entitled to the status of primary subjects of justice. Consequently, Nussbaum’s view has been criticized as a merely subjective and intuitive account of her own philosophical ideas of a fair society.45

It is indeed difficult to employ the notion of dignity as a starting point for a principle of justice. Not only has dignity traditionally been a religious and metaphysical concept associated with the Christian and Kantian ideas of freedom. It may also, as Nussbaum’s far-reaching claims show, prove to be a difficult requirement for an overlapping consensus in pluralistic societies. Dignity may be considered to be a fundamental principle of morality and law in societies influenced by enlightenment, but for people from other social backgrounds the notion of dignity may appear as a thought-terminating cliché. Why, so one might ask, should there be an overlapping consensus that all animals have a right to “enjoy the light and air in tranquility”? It seems to be difficult to justify such rights with reference to the notion of dignity. Although this does not mean that Nussbaum’s conclusion must be wrong, it is, I fear, not helpful to found it on the broad, unclear and theologically connoted concept of dignity.

The same, I hold, is true for the concept of person, which has been closely tied to the concept of dignity in the Kantian tradition of liberal law systems. Kant’s concept according to which “moral personality is […] nothing other than the freedom of a rational being under moral laws“46 is the implicit starting point for Rawls’ theory of justice with its emphasis on rationality. It still has a striking impact on Nussbaum’s work, though she expands her notion of dignity to the idea that rational as well as more emotion-bound forms of life can be ends in themselves.47

But I fear that an extension of the concept of person to non-human animals has the potential to kill the concept. The term person as it has been used for far more than a thousand years in normative contexts was developed as a result of disputes in early Christianity. It was supposed to solve the theological problems of trinity and incarnation.48 For early Christian theology it remained a serious mystery how Jesus’ nature was to be understood if he was not a demigod in the antique sense but at the same time a human son of the Holy Father. The concept of the person resolved that problem because it provided the possibility to speak of one being and many persons, that is, different aspects of the one divine epiphany.

Although some authors have suggested that non-human animals which can suffer pain should be regarded as persons,49 I do not think that their extension of the concept is helpful to their cause. As well-founded as their concepts may be, critics more often seem to feel provoked by their terminology than by the actual concern of these theories. I therefore suggest to use a different term in order to identify those entities who should be treated as primary subjects of justice. Let us call them autoaxional systems.

VIII. Autoaxional Systems

Autoaxional literally means self-valuable. Autoaxional systems are therefore systems that are valuable because of their existence. Their value is not derived from other entities or concepts, but the concept of autoaxional systems implies that the reason for their value consists in their ontological structure. But why do we need this term? We might, one could argue, simply rely on the notion of primary subjects of justice or, for interpretative purposes of the positive law, on the notion of legal capacity.

However, if a theory of justice is to start with as strong a principle as possible, that is, if we think that it is possible and necessary to ground discussions about fairness on a principle which is more than merely an intuitive starting point, we need to find arguments for the principle itself. These arguments cannot themselves be derived from legal or moral principles because of the very definition of the concept of a principle itself.50 This means that we have to draw on the findings of another subject if we do not simply want to end discussions at the most fundamental point of the theory. I hope that I can make plausible that the idea of moral and legal entities that we treat as valuable ends in themselves can be derived from the concept of autopoiesis. Furthermore, I hold that only conscious autopoietic systems can be valuable entities which should be protected by the law as primary subjects of justice. (Normally, conscious beings actively interact with their environment, that is, they move in space.) I think that the notion of autoaxional systems offers the appropriate wording in this context because it implicitly refers to the common structure that makes human as well as non-human animals valuable. What is autopoiesis?

In their paradigm changing work Maturana and Varela have proven that autopoiesis is the universal principle of life. Autopoiesis literally means self-production. An autopoietic system is defined as

“a network of processes of production (transformation and destruction) of components which: (i) through their interactions and transformations continuously regenerate and realize the network of processes (relations) that produced them; and (ii) constitute it (…) as a concrete unity

44 Nussbaum (note 1), p. 326.

45 Cf. Claassen/Düwell, The foundations of capability theory. Comparing Nussbaum and Gewirth, Ethical Theory and Moral Practice, 2012, p. 1.

46 Kant (note 16), p. 16 (my emphasis).

47 Nussbaum (note 1), p. 325 et seqq.

48 Spaemann, Personen. Versuche über den Unterscheid zwischen „etwas“ und „jemand“, 1996, p. 32 et seqq.

49 Cf. Singer, Animal Liberation, 1975; Regan, The Case for Animal Rights, 1983.

50 Principle literally means beginning.

v. d. Meden, Who is a primary subject of justice? (BLJ 2013, 32)38

in space in which they (the components) exist by specifying the topological domain of its realization as such a network.”51

Cells constitute autopoietic systems because they can be explained in terms of self-organization. The same is true for more complex levels of living creatures. Cells can cooperatively link together and form entities that become functionally interdependent. Animals, be they non-human or human, are therefore also autopoietic systems. In the animal mode autopoietic systems have developed a mode of sensorimotor way of being that requires the autopoietic system to actively search for nourishment. Autopoietic systems are closed, but this does not imply that they can exist without any exchange with their environment. On the most primitive level of organization of life unicellular autopoiesis is possible as a process of feeding on light. On the level of animal existence metabolism becomes the mode of exchange with the system’s environment.52

My attempt to identify primary subjects of justice is based upon the concept of autopoiesis. Here is my argument: It starts with four premises. (All premises can be challenged. I hold they are true, but I can see that at least premise 2 und 3 may seem strange at first glance.)

(1) All rational beings who can act as contract framers are conscious beings. (The opposite is not true. Not all conscious beings can be contract framers.)

(2) All conscious beings (all beings for which it is somehow to exist)53 are autopoietic systems who have feelings.

(3) Rational decisions we make when we establish rules are themselves embedded into an autopoietic structure.

(4) Interferences with anyone’s interests have to be justified.

Premise 1 should be relatively powerful, and I take it for granted that no further argument is necessary here for the time being. Premise 2 is still a strong point to start with although it might be challenged by anyone who thinks that artificial intelligence is possible and can be based upon non-autopoietic structures. Many forms of animal life are included into the group of conscious beings. Conscious does not mean self-conscious (conscious of self). I simply mean any primitive form of being-in-the-world which results in the experience that a given event can be advantageous or disadvantageous. All forms of conscious life normally have the ability to actively engage in relations with their environment. Whereas on the unicellular and the organic level the exchange of the autopoietic system with its environment is passive, it becomes active in the moment in which the system can no longer sustain itself without a “reciprocal, sensorimotor and active-receptive relation” with its environment.54

Premise 3 is more problematic. I cannot go into detail here (and it is true that this premise is not shared by every author in the sciences). I assume that cognition on all levels of animal existence is not a process in which a given thing is detected by the subject. I rather think that reality is constructed by way of circular interaction of the individual with its environment.55 Subjective experience is a form of life we find in beings who have developed a certain degree of independence from their environment. If we construct norms in moral or legal contexts, we do not change the world and do something entirely different in comparison to the construction of reality on the pre-verbal level. We rather do the same on a much more elaborated level because there is no ontological distinction between rationality and cognition.56 There is an ontologically necessary connection between rationality and our sentiments and empathy.

Premise 4, then, is nothing else than the ancient idea, underlying all theories of justice, that the maxims of our actions have to be generalizable if they are to be considered relevant in social contexts. Fairness is impossible without equality.

The autopoietic structure of all conscious beings (that have feelings) is the connecting form of beings for which it is somehow to be in the world.57 Only those beings can have interests because their interaction with their environment can be in accordance with their purposes or not. If we construct generalizable rules and if we want to include those beings which cannot act under the doctrine of rationality, we do not have to refer to the notion of dignity, but we can draw on the integrating force of our biological legacy. Whereas it seems morally and ontologically more than problematic to use rationality as a means to differentiate between those who are primary subjects of justice and those who are excluded right from the beginning, the concept of conscious autopoietic systems offers us a better understanding of why we should integrate the unproductive and helpless into our theoretical framework. Even if we, like Rawls, begin with the idea that in the original position the contract framers are legitimately expected to further their own interests as long as this can be done under a generalizable rule, we can still include every being that can suffer pain and enjoy its life. As humans, we cannot claim that we are ontologically distinct from the rest of the world. We are aware that we are embedded into a biological world and we know that the precondition for our moral and legal aspirations is our natural participation in the universal process of autopoiesis. This does not mean that human or non-human beings and cultural achievements can sufficiently be understood under materialist accounts. It means, however, that our ideas of fairness cannot be conceived of independently of the sources of our own existence and subjective experience if we want to act under a coherent scientific doctrine that can be shared by anyone subscribing to the above sketched premises.

This implies that we give up the idea of a primacy of reason over feeling which has often been stressed in the tradition of Kantian moral and legal philosophy.58 The concept of reciprocity as it is omnipresent in Rawls’, Nussbaum’s and other theories of justice is in fact dependent on foregoing concepts of sentiments and empathy. “Empathy in the moral sense is a

51 Maturana/Varela, Autopoiesis and Cognition: the Realization of the Living, 2nd ed., 1980, p. 78.

52 Cf. E. Thompson, Mind in Life. Biology, Phenomenology, and the Sciences of Mind, 2007, p. 221.

53 The expression alludes to Nagel, What is it like to be a bat?, The philosophical review 83 (4), 1974, p. 435 and the so-called qualia problem. The first person perspective is special because even if we had all relevant information about the neuronal processes that realize conscious experience, we could never know what it feels like to be in the position of someone else.

54 Th. Fuchs, Das Gehirn. Ein Beziehungsorgan. Eine phänomenologisch-ökologische Konzeption, 3rd ed., 2010, p. 95 (my translation).

55 Cf. Th. Fuchs (note 54), p. 144 et seqq.

56 All cognition must in some way be connected to the material world. The question how this connections is possible so that phenomenal experience evolves is the so-called hard problem of consciousness, cf. D. Chalmers, Facing up to the Problem of Consciousness, Journal of Consciousness Studies 2(3), 1995, p. 200.

57 Cf. von der Meden (note 28), p. 183 et seqq.

58 Cf. de Waal, Good Natured. The Origins of Right and Wrong in Humans and Other Animals, 1996, p. 87.

v. d. Meden, Who is a primary subject of justice? (BLJ 2013, 32)39

basic cognitive and emotional capacity underlying all the moral sentiments and emotions one can have for another.”59 A subjective perspective as it can be observed in many human and non-human animals is the basis for every feeling. Only sentient beings are confronted with the necessity to actively engage in their lives. For them, the world as it is can be different from the world as it ought to be. And for those who observe subjective experience in other beings, their suffering and joy can become meaningful aspects of their own interests because of the shared autopoietic structure. If we start to take other beings’ interests seriously in the original position, we, at least implicitly, have to refer to a common basis that is grounded in our biologically realized vulnerability as beings for which it is somehow to exist in a world that may be hostile or friendly to the purposes we have in any given moment. All conscious beings should therefore be treated as primary subjects of justice because they are autoaxional systems.

This approach might be able to offer a foundation for a principle that can be agreed upon by people from the most diverse cultural and social backgrounds. Because once we accept that rationality itself has its sources in biological structures, we will come to the conclusion that we cannot coherently describe our own interests as meaningful and valuable if we treat other creatures who share this structure with us as mere ends to our purposes. If we think that our minds are part of the biological realm, we cannot ignore the minds of other species because we would otherwise contradict ourselves in our moral and legal aspirations that are always bound to our cognitive structure.

From this no concrete rights can prima facie be deduced. What can be deduced, however, is the right to have rights, that is, the necessity to justify interferences with the interests of all conscious beings. Insofar my sketch can be seen as a necessary prerequisite of Nussbaum’s capability approach. We can discuss each of the capabilities in the light of any given subject of justice but we cannot, I hold, claim that no legal justification is necessary when we interfere with the interests of conscious beings. This is, I think, an ontological necessity.

59 E. Thompson (note 52), p. 401.