The explanatory power of the nature of being human

The argument being made is that the nature of being human explains how moral personality can be based on moral agency and concurrently attributed to many so-called marginal humans. Human beings, as detailed earlier, are seen as entities of a multidimensional nature: biological and intellectual, and their cognition and volition, which are the two pillars of moral agency, like all other intellectual capacities, find their source in the soul. In this model, the soul is seen as the seat of moral agency. Despite the fact that the soul is an all-or-nothing attribute,593 _{moral agency, being based on the soul, is} not. It admits degrees and undergoes primitive stages before becoming autonomous in the meaning intended, when it is said that moral agency is the basis for personality.

590 _{Understanding bodily readiness as the acquisition of a cortex or cortical brain, as indicated in the quote,} is the position held in the current research, and will be explained in detail in the chapter allocated to applying the criterion of personality. See 5.1 Determining the timing of the ensoulment event.

591 _{Donceel, "Immediate Animation and Delayed Hominization”, 83.}

592 _{See the following chapter about Applying the Definition of Legal Personality to the Foetus.}

593 _{In Swinburne’s words, “…having a soul is all-or nothing (a creature either has some feeling or} awareness and so a soul, or no feeling or awareness and hence no soul); it cannot be measured.” Richard Swinburne, Is There a God? (Oxford: Oxford University Press, 1996), 84. However, some writers like Walter Glannon dispute that the soul is non-degreed. For him, “…if the soul is identified with the capacity for consciousness, and this capacity is something that we acquire gradually on the basis of the gradual development of the cerebrum and cerebral cortex, then it seems to follow that having a soul is not all-or- nothing but rather something that we possess to varying degrees, at least with respect to the margins of life when we begin to exist and cease to exist.” Walter Glannon, "Tracing the Soul: Medical Decisions at the Margins of Life," Christian Bioethics 6, no. 1 (2000): 49-69, 57. Personally, I see no contradiction in deeming as non-degreed the soul and consciousness (as an ultimate capacity) on the one hand, and considering the development of such a capacity as degreed when it requires the involvement of the brain. See below for more explanation.

4. Defining Legal Personality

However, these two facts can be reconciled if seen in the light of the soul-body relationship. In this relationship, the body is perceived as the machinery of the soul that receives and responds to its instructions regarding rational and voluntary functions.594 Since this machinery is a developing object, the effectiveness of implementing the soul’s instructions depends to a great extent on the phase of development it occupies. This explains why, in spite of the fact that ensoulment takes place at an early developmental stage,595 _{the exercise of moral agency in the proper sense, the sense that justifies holding} the agent accountable for his or her deeds, occurs at a much more advanced stage. It is the body, not the soul, that causes the capacity for moral agency to emerge gradually.

Introducing the concept of the faculties of the soul as theorised by James Porter Moreland should makes this clearer. According to this concept, the soul has different faculties, each of which consists of related capacities ranged hierarchically. At the top lie the ultimate capacities under which other capacities are arranged in different order. The actualisation of ultimate capacities depends on developing lower ones. The example is that when someone is able to speak English but not Russian, they have second order capacities towards the capacity to speak English and Russian, but only a first order capacity to speak English. The inability to develop lower order capacities has no effect on the existence of higher order ones.596 _{In Moreland’s words:}

An acorn has the ultimate capacity to draw nourishment from the soil, but this can be actualized and unfolded only by developing the lower capacity to have a root system and then developing the still lower capacities of the root system and so on. When something has a defect … it does not lose its ultimate capacities. Rather, it

594 _{See 4.2.2.4.1 The nature of being human .}

595 _{See 5.1 Determining the timing of the ensoulment event.}

596 _{J. P. Moreland and S. B. Rae, Body & Soul: Human Nature & the Crisis in Ethics (Downers Grove, IL:} InterVarsity Press, 2000), 203.

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lacks some lower-order capacity it needs for the ultimate capacity to be developed.597

In terms of moral agency, a distinction can be drawn between its ultimate and actual existences. As an ultimate capacity, moral agency finds its seat in the soul and so it first exists when ensoulment takes place. It also continues to exist as long as there is a soul. However, this ultimate capacity cannot be transformed into an actual capacity unless lower capacities, i.e. cognition and volition, develop enough. Since the latter are dependent on bodily development, the existence of actual moral agency becomes reliant on this bodily development as well. As an ultimate capacity, moral agency is not divisible; it is just like its seat, the soul, an all-or-nothing attribute. Nevertheless, as an actual capacity dependent on bodily development, moral agency is a graduated attribute, that is, one that comes into degree in accordance with bodily development.

An important result follows from this distinction. We can distinguish between actual, potential, post, and non-moral agents. Actual moral agents are those who have acquired, besides their ultimate capacity for moral agency, an actual autonomous moral agency. They have developed the lower capacities underlining moral agency as an ultimate capacity. Those are normal adult human beings.

The other type is that of potential moral agents. They are those who, although they have not yet acquired the actual autonomous moral agency due to their bodily development, do have souls infused into their bodies. As such, they have the capacity, in an ultimate sense, along with an active potentiality for developing it into an actual one.598 Their potentiality is immune from the weaknesses attributed to the potentiality argument,

597_{Ibid., 203, 204. Emphasis in original.}

598 _{Detailed explanation of active potentialities and passive potentialities will be provided in the following} chapter about the application of the personality’s criterion.

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that is, it is not open to every object that has a potential for developing into a human being such as unfertilised ova.599 _{Rather, the potentiality here is confined to those who} have undergone the ensoulment stage and so acquired the source of moral agency. As will be explained later, the ensoulment takes place long after the point when twinning is possible, and so another criticism levelled normally at potential arguments can be avoided.600601

The third category is that of post-moral agents. They are those who have lost their autonomous moral agency, such as the insane and those with severe brain damage, but still can show signs, however minimal, of rational and voluntary functions. Obviously, they cannot be fitted under any of the two previous categories. However, their ability to show the signs concerned indicates beyond any doubt that they still have souls. In other words, though their bodies’ capability to receive and execute the souls’ instructions has been badly damaged, it has not been completely lost. The signs of rational and voluntary functions are conclusive evidence of that. Hence, their souls still penetrate into their bodies providing them with the ultimate capacity for moral agency. It may be possible for their bodily capability to be restored upon scientific advancement and, if so, their actual moral agency will be reclaimed. Like the members of the first two categories, viz. actual, and potential agents, post-moral agents should always be regarded as persons.

However, the case is different with non-moral agents. They are those who fail completely and permanently to show any signs of rational and voluntary functions. The example of these entities is severely brain-damaged babies, as long as the absence of the

599 _{In mentioning this criticism, see Warren, Moral Status: Obligations to Persons and Other Living Things,} 105.

600 _{For an explanation of this criticism, see Katrien Devolder and John Harris, "The Ambiguity of the} Embryo: Ethical Inconsistency in the Human Embryonic Stem Cell Debate," Metaphilosophy 38, no. 2-3 (2007): 153-169.

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signs of rational and voluntary functions is complete and irreversible. Such absence indicates without any doubt that these entities have no souls infused in their bodies and so are not humans. As previously explained, no entity can be considered a human without a soul being present in its body.602 _{As such, non-moral agents lack moral agency in both} actual and ultimate senses and, accordingly, should be deemed non-persons.

The question that may arise is over the difference between the argument based on the nature of being human and that of kind, because each of them attributes capacities to so-called marginal humans that they, in actuality, do not possess. The real difference, for me, lies in the introduction of the concept of the soul. The capacities attributed to many so-called marginal humans because of their souls are real and non-derivative, unlike those attributed by proponents of the kind argument. It is the soul embodied in that particular human rather than something found in another fellow human, that justifies endowing him or her with ultimate capacities in the absence of actual ones. Moral agency here is not a derivative attribute but rather an intrinsic and individuated one.

Moral agency, then, can be reasonably chosen as the criterion upon which moral personality is based while avoiding the devastating effect on the status of many humans. Considering that moral personality is the basis of the definition of legal personality adopted in this thesis, moral agency becomes, indirectly, the criterion of the latter as well. Moreover, by considering that non-humans have been shown to lack autonomous moral agency while all humans, because of their souls, possess it in the ultimate sense, it can be concluded that moral agency is a human-specific criterion. As such, it can be concluded that the three concepts of legal personality, moral personality, and humanity are identical. To model it: since (1) legal personality is based on moral personality, and (2) moral

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personality is based on moral agency and (3) moral agency resides in humanity, then (4) legal personality, moral personality, and humanity are identical to one another. It follows that they can be used interchangeably, as will be the case in this thesis from now on. What remains is to apply moral agency as the criterion of personality to the foetus, to determine its status. This is the task that will be tackled in the following chapter.