31.2kumar

Who Can Be Wronged?

Rahul Kumar

Philosophy & Public Affairs, Volume 31, Number 2, Spring 2003, pp.99-118 (Article)

Published by Princeton University

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RAHUL KUMAR Who Can Be Wronged?

I. INTRODUCTION

Imagine that a child is born with severe restrictions on the quality of herlife, and that her parents might have prevented such an outcome if theyhad taken certain precautions prior to conception.1 Depending on howcertain other relevant considerations are filled out, such as how reason-able it was to have expected the child’s parents to have taken the neces-sary pre-conception measures and what the circumstances were that re-sulted in their failure to do so, many are inclined to believe that it is atleast arguable that the child has been wronged by her parents’ failure.Those who are skeptical of this possibility, however, argue that the intui-tive appeal of this line of thought is a result of overlooking a further rele-vant consideration: that taking the appropriate precautions would havesignificantly delayed conception.2 Drawing upon the lesson of whatDerek Parfit has labeled the non-identity problem, they argue that the le-gitimacy of a person’s claim to have been wronged requires that the psy-cho-physical identity of the wronged not be what it is because of the

© 2003 by Princeton University Press. Philosophy & Public Affairs 31, no. 2

Early versions of this article were presented at the University of Washington (Seattle),the Harvard Program for Ethics and the Professions, a meeting of the PHILAMORE group,and the BSET Conference at the University of Reading. Thanks to the participants on theseoccasions for helpful discussions of the material. For invaluable conversations that helpedme clarify my position, I am particularly indebted to Samuel Freeman, Maggie Little,Lukas Meyer, Derek Parfit, Tim Scanlon, David Silver, Gopal Sreenivasan, and AndrewWilliams. Many thanks are also owed to an anonymous reader for Philosophy & Public Affairs for extensive and insightful written comments that resulted in innumerable im-provements to all aspects of the paper.

1. Assume that her prospects, though limited, are good enough that the child’s life iscertainly objectively worth living.

2. A nice statement of the skeptical position is advanced in A. Buchanan, D. W. Brock,N. Daniels, and D. Wilker, From Chance to Choice: Genetics and Justice (Cambridge: Cam-bridge University Press, 2000), pp. 226–57.

Todd Holmberg

wrongdoing.3 On this view, a person can only claim to have beenwronged by the conduct or decision of another if she has been harmedas a result of the relevant conduct or decision, and that a person isharmed if and only if she is left worse-off than she otherwise would havebeen. The very possibility of being left worse-off than one otherwisewould have been requires that the psycho-physical identity of the per-son on whose behalf the claim is being made remain fixed between theworld as it is and the counter-factual world to which it is to be com-pared. For this reason, it is argued, the fact that the taking of appropriateprecautions would have significantly altered the timing of conceptionmust be a morally relevant consideration, because the time of concep-tion is an identity-fixing consideration.

In this discussion, I argue that the skeptical position about the possi-bility of wronging in such cases is not warranted. Whether or not thechild has in fact been wronged requires the filling in of further facts concerning, e.g., the circumstances of the parents’ failure to have takenappropriate precautions, and substantive moral argument to show theexpectation that they take such precautions to have been a reasonableone. The matter cannot be settled by conceptual fiat.

For purposes of argument, I accept that the fact of the parents’ failureto take appropriate pre-conception precautions is a consideration thatis relevant for fixing the child’s psycho-physical personal identity. What Itake to be mistaken is the idea that the kinds of considerations identifiedby the non-identity problem, concerning the fixity of psycho-physicalpersonal identity, are morally relevant for reasoning about whether ornot one person has been wronged by another. The idea is mistaken, Isuggest, irrespective of whether or not one also takes such consider-ations to be irrelevant for understanding what it is to have been harmed.Key to this argument is the distinction between the wronging and theharming of another. The kinds of considerations that are relevant for de-termining whether or not a person has been harmed have primarily todo with the state of the person who claims to have been harmed.Whether or not another has wronged one, on the other hand, has prima-rily to do with facts concerning the character of the wrongdoer’s regula-tion of her conduct with respect to how she has related to the wronged.

100 Philosophy & Public Affairs

3. See Derek Parfit, Reasons and Persons (Oxford: Oxford University Press, 1984), pp. 351–79.

By accepting, for the sake of argument, the metaphysical presupposi-tions of the non-identity problem, I do not mean to suggest that theycannot be fruitfully challenged. Rather, what I will argue is that themoral relevance of the considerations to which the non-identity prob-lem draws attention depends upon an understanding of wronging thatincorporates certain ideas about moral reasoning that have a naturalhome in consequentialist accounts of moral reasoning. In particular, theidea that the fundamental kinds of considerations that are relevant fordetermining whether or not one has been wronged have to do with out-comes, or more generally, with what happens, is taken to be an uncon-troversial matter. As an implicit component of the skeptic’s argument,this consequentialist-influenced approach to the explication of what itis to have been wronged is assumed but not defended. My claim is that ifone instead adopts a plausible, distinctively non-consequentialist char-acterization of reasoning about wronging, it turns out that consider-ations concerning the fixity of psycho-physical personal identity can beshown to be of no moral relevance. This alternative characterization canalso be fruitfully used to develop a plausible rationale for how it is pos-sible for the child to have been wronged by her parents’ failure to pursueappropriate precautions. The non-identity problem, then, need not betaken to pose a challenge to reasonably common convictions concern-ing who can be wronged.

The non-identity problem, I believe, only presents a serious challengeto common intuitions concerning who can be wronged when one ac-cepts the idea that a person having been wronged necessarily requiresthat the wronged be left worse-off than she would have been had thewrongdoing not taken place. Call this the outcome approach to under-standing the idea of wronging, as it is one that is most likely to appeal tothose who are generally inclined to take facts about outcomes as funda-mental for understanding moral wrongness. There are, however, also fur-ther considerations that are relevant to an account of its intuitive appeal.

Towards this end, consider first the standard consequentialist charac-terization of objective moral wrongness. It takes the fundamental relevantconsiderations for moral reasoning to be those that concern the aggregatevalue of the outcome that was brought about in comparison to others thatcould have been brought about. Moral wrongs in this sense are imper-sonal wrongs; what is objectionable is bringing about a worse outcome,regardless of whether or not it is worse for any particular individual.

101 Who Can Be Wronged?

Appeals to having been wronged, on the other hand, concern a distinctsense of moral wrongness, one at work in contexts where the claim is notimpersonal, but is made by, or on behalf of, an individual who is the vic-tim of the wrongdoing. Being wronged as a distinct category of moralwrongness is an idea closely associated with non-consequentialism;consequentialists do not generally accept that there is such a distinctcategory. The outcome approach to explicating wrongs in this distinctsense is one, however, that retains consequentialist remnants, insofar asit treats a claim to have been wronged as fundamentally having to dowith how the outcome that has been brought about is worse for the particular person wronged, rather than being worse in impersonal or aggregative terms. The intuitive appeal of this approach is often bol-stered by presenting it as the view that a person has been wronged onlyif she has been harmed, and that a person is harmed if and only if she isleft worse-off than she otherwise would have been. The characterizationof ‘harm’ here takes it to be a necessarily comparative concept, but nei-ther it nor any concept of harm is an essential element to this approach.4

What is necessary for a claim to have been wronged, on these terms, isthat the counter-factual judgment, that a person has been left worse-offthan she otherwise would have been had the wronging not occurred, bea plausible one.

As an account of what it is to be wronged, this approach has its intui-tive appeal. A claim to have been wronged suggests that something hasbeen done to the claimant, such that it is appropriate to think of her asthe victim of the wrongdoing. The suggestion that the claimant’s com-plaint must necessarily have to do with how she has been left worse-off(in some morally significant way) than she otherwise would have been,is a powerful way of spelling out this intuitive appeal. Connecting the


4. The widespread understanding of harm amongst consequentialists as an essentiallycomparative concept suggests that the way they often understand harm is as a catchall forthe class of considerations they countenance as morally significant. This class includesconsiderations that have nothing to do with how the concept is typically employed, e.g.,the view may count very well-off people as ‘harmed’ because they were not made as well-off as they might have been. Though such failures may be morally significant according tothe consequentialist, they are not the kind of consideration that intuitively come to mindwhen one thinks of harms. “Harms” on this view, at least intuitively, have to do with a sig-nificant setback to one’s goals or interests, in contrast to merely advancing them less thanone had hoped. Hence, it should be noted just how revisionist the consequentialist use of“harm” has turned out to be.

idea of being left ‘worse-off in some morally significant way’ with theconcept of harm further bolsters the conviction that there is something‘right’ about this approach.

On closer scrutiny, however, it proves to be inadequate. The root of itsinadequacy has to do with a commitment that is fundamental, thoughno doubt not exclusive, to the outcome approach, namely the account-ing for what it is to be wronged in terms of what has happened to the vic-tim. Can’t a person have been wronged without anything having hap-pened to her? Isn’t it conceivable that she may be left no worse-off as aresult of having been wronged?

Consider, for example, the case of a drunk driver who comes swervingalong the street where you happen to be taking a late evening stroll,thereby momentarily imperiling your life. Luckily, nothing happens toyou; the whole incident takes place so quickly, you don’t even have timeto be frightened. You are not, therefore, in any way worse-off as a resultof your life having been put at risk. As the risk did not in fact blossominto an actual harm, or end up setting back one’s interests in any way,any talk of one having been left worse-off as a result of the drunk driver’sconduct would be, in this case, misplaced.

But there is nothing suspect about the claim that one has beenwronged by the drunk driver (expressed, perhaps, as resentment of himor anger directed towards him), simply in virtue of his having, withoutjustification, taken your life in his hands by exposing you, even briefly, toso serious a risk. An adequate analysis of being wronged ought to beable to make good sense of our intuitions in this kind of case, ratherthan identify them as suspect because they do not involve anyone beingleft worse-off, or harmed.

Being left worse-off as a result of having been wronged is not, ofcourse, an unusual occurrence. It turns out, however, that the conse-quentialist analysis fares no better in making sense of claims to havebeen wronged in examples which do involve something happening tothe victim. Such claims have a distinctive character that simply cannotbe accounted for in terms of considerations having to do with what hashappened to a person, such as having been harmed.

Take, for example, the case of the hiker who steps on an animal traplying on the trail, resulting in a serious injury to her foot. She has cer-tainly been harmed, but it would be intuitively odd to assess the inci-dent as one in which she has been wronged. Say, however, that it turns


out that trap lying on the trail was not a fluke occurrence, but was in factplaced on the trail by the owner of the property that the trail traverses, asa way of discouraging hikers from venturing on to her land. This vari-ation to the example makes no difference to what has happened to thehiker; her injury is no worse, nor is she generally worse-off because thetrap lying in the trail turned out to be the result of the property owner’smachinations. The difference such added information does make is thatit justifies her claiming the incident to be one in which she was not onlyharmed, but one in which she has been wronged. Why this is so is diffi-cult to make good sense of using the resources of any approach, like theoutcome approach, to understanding interpersonal wrongdoing that takesthe fundamental class of relevant considerations to be about outcomes.

The outcome approach, then, proves to be intuitively dubious quiteapart from its revisionist implications concerning who can be wrongedthat stem from its endorsement of the non-identity problem. For it failsto isolate the kinds of considerations that are intuitively relevant for as-sessing whether a person’s conduct constitutes a distinctively moraltransgression, of the kind for which a person may be held accountable.It may be that a person’s conduct has resulted in harm befalling another,or another being born in a bad-off state, whose status as a harmed beingturns on what one takes to be the most plausible account of the natureof harm.5 Settling a question of whether or not conduct has resulted inharm will not, however, intuitively settle whether the conduct wasmorally faulty. Conduct may result in another being harmed without it being a moral violation, and a person’s conduct may be correctly assessed as morally defective even though it did not resulted in anyonebeing harmed. The kinds of considerations that I take to be intuitively rel-evant for assessing the morality of a person’s conduct are those having todo with the character of the conduct itself, taken apart from its conse-quences. It is to these kinds of considerations that I believe one is dir-ected in thinking about whether a person has been wronged. And asthese considerations do not concern outcomes, it is reasonable to thinkthat conclusions concerning wronging may not be sensitive to the samekinds of counter-factual considerations that can cast doubt on certain in-tuitive judgments concerning whether or not a person has been harmed.


5. I have in mind here questions concerning the plausibility of a counter-factual analy-sis of whether or not a person has been harmed. See the helpful discussion of this matterin Seana Shiffrin, “Wrongful Life, Procreative Responsibility, and the Significance ofHarm,” Legal Theory 5 (1999): 117–48.

The non-consequentialist conviction, broadly stated, is that what one does has an intrinsic significance in moral reasoning that is independent of what happens as a result of what one does. It is to themoral significance of what the wrongdoer has done, or more precisely,how the wrongdoer has related to the wronged (quite apart from theconsequences for the victim), that the non-consequentialist turns in or-der to account for the distinctive character of a claim to have beenwronged.

Now, a plausible characterization of the relation between wrongdoerand wronged needs to be one in which the former’s offense is funda-mentally an offense against the latter. This is to suggest that the basis ofthe offense should fundamentally focus on why the wrong in questionconstitutes a failure of the wrongdoer to respect the status of thewronged as a being worthy of respect. The outcome approach’s ap-peal to the victim having been made worse-off as a result of havingbeen wronged appears to satisfy this desideratum quite nicely, despitethe approach’s dubious overall plausibility. The challenge for a non-consequentialist account of wronging, that can be shown to be invul-nerable to the non-identity problem, is to avoid cashing out the basis ofthe victim’s complaint against the wrongdoer in counter-factual terms.

The resources of Scanlonian contractualism are helpful for illustratinga plausible non-consequentialist approach to the characterization ofwhat it is to have been wronged that both evades the non-identity prob-lem and vindicates commonsense convictions concerning who can bewronged.6 The argument I put forward does not, however, require ac-ceptance of the entire contractualist account of wronging. Although theargument does have implications for how contractualism ought to beunderstood, its role here is primarily as a helpful vehicle for illustrating ageneral non-consequentialist strategy for deflating the challenge of thenon-identity problem.

II. REASONING ABOUT WRONGING: THE CONTRACTUALIST APPROACH

Contractualism aims to provide a plausible framework for explicatingthe rationales of the principles, or normative standards, of that aspect ofmorality concerned with the regulation of interpersonal conduct and


6. See T. M. Scanlon, What We Owe to Each Other (Cambridge: Harvard UniversityPress, 1998).

consideration. Relating to one another on terms of mutual respect for oneanother’s value as persons requires compliance with these principles.

Though the moral wrongs of this domain are those having to do withone person having wronged another person by having related to her in acertain way, the view does not characterize a claim of having beenwronged as requiring an appeal to how one has been (or stands to be)made worse-off than one otherwise would have been. Rather, a claim tohave been wronged requires that certain legitimate expectations, to whichone is entitled in virtue of a valid moral principle, have been violated.

The interpersonal role of moral principles, as contractualism charac-terizes it, is analogous to that of laws in a legal system: they fix what thegeneral terms are for relating to one another on a basis of mutual respectfor one another’s value as persons, by establishing certain legitimate ex-pectations concerning consideration and conduct between persons.7

What can be legitimately expected of one varies, of course, according tothe character of the relationship one stands in with respect to anotherperson. A relationship of a particular kind can, in fact, be distinguishedfrom others on the basis of the distinctive cluster of legitimate expecta-tions that is characteristic of that kind of relationship, the regulation ofone’s conduct in light of which is at least partially constitutive of whatit is to stand in a relationship of that particular kind with respect toanother.8

The appeal to “persons” here should be understood to be an appeal toa specific normative ideal of the person, the salient characteristic ofwhich is the capacity for rational self-governance in pursuit of a mean-ingful life. Following Scanlon, this normative ideal of the rational self-governor should be understood to comprise two distinct claims: First,that persons are creatures capable of recognizing, and acting upon, rea-sons. This places them amongst a select group of those animals capableof intentional action. Second, that persons “have the capacity to selectamong the various ways there is reason to want a life to go, and thereforeto govern and live that life in an active sense.”9 The capacity to selectamong reasons is a specific way of exercising a general capacity to


7. “Legitimate expectations” is used here as a term of art, insofar as the expectationsare normative, not psychological.

8. On this point, see my “Defending the Moral Moderate: Contractualism and Com-monsense,” Philosophy & Public Affairs 28 (2000): 275–309.

9. Scanlon, p. 105.

reflect upon one’s reasons, often referred to as the capacity to form second-order beliefs, or rational attitudes, about one’s beliefs and atti-tudes. In other words, a person has the capacity not only to be guided byher beliefs about reasons, but also to reflect upon whether her beliefsare correct, select among her beliefs in ways that allow her to shape herlife in distinctive ways, and reflect upon the quality of her selections. It isthis general capacity, without which self-knowledge would not be pos-sible, which distinguishes persons from other animals capable of inten-tional behavior. More importantly, it is in virtue of this capacity thatthere is the possibility of what Philippa Foot refers to as “second-orderevil” in human life, which has to do with “the consciousness of being dis-regarded, lonely or oppressed.”10 The capacity to be conscious of reasonsresults, then, in a distinct kind of vulnerability, a vulnerability to whatanother’s reasons, or reasoning, concerning how it is appropriate to re-late to oneself, says about oneself.

One person wronging another, then, requires that the wrongdoer has,without adequate excuse or justification, violated certain legitimate ex-pectations with which the wronged party was entitled, in virtue of hervalue as a person, to have expected her to comply. Returning to the pre-vious example, a rough account of why the drunk driver has wrongedthe pedestrian ought to appeal to the failure to comply with the pedes-trian’s legitimate expectation of the driver that she operate her vehicle ina manner conducive to keeping the risk at which others are put as a re-sult of her activity within certain acceptable limits.

Note that to have “not complied” with certain legitimate expectationsshould be read broadly in this context: it is not just a matter of havingfailed to conduct oneself in a certain way. It can also be understood as afailure to have been responsive to certain considerations that it was le-gitimate to expect one to have been responsive, or to have taken into ac-count considerations that it was reasonable to have expected one tohave disregarded as irrelevant for one’s deliberations at that time. For ex-ample, your best friend may be the person best qualified for a position,and that is a good reason to hire her; to hire her because she is your bestfriend, however, is to wrong her. She may be your friend, but where pro-fessional matters are concerned, she is entitled to expect you to relate to


10. Philippa Foot, “Rationality and Virtue” in Norms, Values, and Society, ed. HerlindePauer-Studer (Netherlands: Kluwer, 1994), p. 210.

her as a fellow professional, assessing her on the basis of her qualifica-tions as a professional.

This is only to gesture at the possibilities that might count as ways ofculpably failing to comply with the legitimate expectations that anothermay be entitled to have of one, and in so failing, of wronging her. The es-sential point to note here is that the contractualist characterization ofbeing wronged emphasizes the culpable failure of the wrongdoer, ratherthan how the wrongdoer has left the wronged worse-off than she other-wise would have been. A claim to have been wronged, then, does not re-quire making the kind of counter-factual appeal that would leave it vul-nerable to the challenge of the non-identity problem.

The contractualist account is not, however, insensitive to the import-ance of the intuitions that underwrite the appeal of analyzing wrongingin terms of counter-factual claims. Recall that the intuition is that for aperson to have been wronged, the grounds for the complaint against thewrongdoer must appeal to how the wrong in question has resulted in thewronged being made worse-off than she otherwise would have been. Inmore general terms, the idea is that a formal characterization of claim-ing to have been wronged ought to restrict the range of considerationsthat might be appealed to as the basis for a particular claim of havingwronged another to those that concern the negative implications for thevictim of the wrongdoing.

This thought finds expression in the contractualist analysis of wrong-ing through its individual reasons restriction, which isolates as morallyrelevant for the justification of principles that regulate individual rela-tions only those considerations that have a bearing upon the recognitionof the status of a person as one capable of rational self-government.11 Therestriction should be read broadly enough to encompass considerationsthat anyone has reason to care about in the early stages of the develop-mental path that generally results in the realization of the capacity forrational self-governance.

Some such relevant considerations will not relate to an individual’scurrent or future welfare. Rather, they may concern the requisites for


11. In What We Owe to Each Other, Scanlon puts forward a restriction of this kind. Hecalls it the “personal reasons restriction.” Though I agree with the substance of the restric-tion, I worry that his term can be very misleading. I discuss this in “Reasonable Reasons inContractualist Moral Argument” (manuscript).

interpersonal relations on terms of mutual respect. This is important forcontractualism’s claim to be able to account for how it is that a personcan be wronged without being harmed. One person may wrong anotherwithout leaving that person worse-off through such things as insults, hu-miliations, intentional slights, “looking through a person,” expressionsof a lack of trust, many kinds of paternalism, and, in general, interferingwith an aspect of a person’s life over which she rightly has sole sover-eignty. For though one may not have made the other worse-off, the wayin which one has related to the other may still express a failure to haveappropriately recognized and taken account of a person’s value as ca-pable of rational self-governance. A person can be wronged, then, sim-ply in virtue of how she figures, or does not figure, in how one is ration-ally disposed to relate to her.

The denial of the value of one’s humanity may sound abstract. But, infact, we see its effects every day: the way in which some are treated orseen by others can undermine a person’s sense of her own worth, dig-nity, self-confidence, and so forth, resulting in inferiority complexes, asense of worthlessness, abasement, despair, and other kinds of generaldiminution of a person’s capacity for independent agency. Note, though,that these are only common consequences of having been wronged, notthe grounds for claiming to have been wronged. Harm, then, may resultfrom being wronged without being the basis of a claim to have beenwronged. A wrongdoing need not, in fact, have any consequences of thiskind for it to be true that a wronging has transpired, and for the wrong-ing in question to be one that is seriously objectionable.

The individual reasons restriction is essential for contractualism’sbeing able to do justice to the initial intuition that a person’s beingwronged consists in something having been done to her, the force ofwhich needs to be accounted for in light of the implications for her life.It does so by securing the connection between culpably failing to com-ply with the legitimate expectations of another—or wronging another—and a failure to have appropriately recognized her status as a person inone’s understanding of how it is appropriate to relate to her. While re-jecting the idea that having been wronged has to do with having beenleft worse-off, then, contractualism can be understood as recognizingthe importance of the intuition to which this idea appeals, namely thatto be an instance of a wronging, an action must be such that it can make


the kind of difference to a person that can be appealed to as a basis of aclaim to have been wronged.

III. THE NON-IDENTITY PROBLEM?

In directing attention to the violation of legitimate expectations as thebasis of a claim to have been wronged, contractualism implicitly shiftsthe focus from what has happened to the person wronged to what wasdone. The shift in focus is the crucial move that makes it possible to thendeclare contractualism to be immune to the non-identity problem.

A declaration of immunity may, however, be thought to be somewhathasty. Contractualism claims that being wronged has to do with the cul-pable violation of certain legitimate expectations, compliance withwhich was owed to one in virtue of one’s status as a person. But in therelevant kind of case, i.e., pre-conception negligence cases, it is not obvi-ous that it makes sense to speak of a child having been wronged by aculpable failure to comply with certain legitimate expectations. How canthere be an issue concerning one’s failure to have complied with the le-gitimate expectations of a person if, at the time of acting, there was nodeterminate person to whom compliance with those expectations wasowed? Insofar as a particular person did not exist at the time of the rele-vant conduct, she cannot claim to have been wronged by that conduct,especially in light of the fact that, had it not been for the course of con-duct about which she believes she has a legitimate complaint, she wouldnever have even come into being. The challenge of the non-identityproblem has not, it appears, been evaded, as it is easily recast in con-tractualist terms: how can one have wronged another when there wasno “other” who stood to be wronged by one’s conduct at the time of thatconduct, and who is now the particular person she is because of theconduct in virtue of which she takes herself to have been wronged?

To see how the resources of contractualism may be marshaled to re-spond to this challenge, start by considering a quite ordinary case ofthinking about what one owes another. Say, for instance, that it has beena long day, and you are feeling tired and would like to go home. Whatstops you from doing so is that a student has made an appointment tocome and see you about some difficulties writing a term paper that issoon due. You know that waiting to see the student and properly work-ing through her problems will keep you at your desk for at least another


two hours. You begin to wonder whether there are any steps you cantake that would make it morally permissible for you to go home and seethe student tomorrow.

Your thinking about what it may be permissible to do can be charac-terized in contractualist terms as reflecting upon the principles that arerelevant for the regulation of promises between teachers and students.Principles, in contractualism, roughly fix what a person, understoodhere as a type, is entitled to expect of another person, in certain types ofsituation, as a matter of respect for her status as a person. Your conclu-sions, then, concerning what may be legitimately expected of you, un-der the circumstances, are not specific to yourself as a teacher and theparticular student who is coming to see you. Rather, they are conclu-sions concerning what, in a certain type of situation, a student may le-gitimately expect of a teacher.

A “type” of person is not, of course, a substantive individual, any morethan a “type” of situation is an actual situation.12 Rather, the “types” inquestion are simply normatively significant sets of characteristics,whose instantiation together may be found in actual, substantial, indi-viduals, and in the actual situations in which individuals find them-selves. An individual, for instance, is a token of the basic type “person”insofar as those facts that are picked out by the type description “per-son” are true of her.13 Other type descriptions will be applicable to an in-dividual insofar as that individual exemplifies those characteristicsidentified as relevant by a different type descriptions, e.g., an individualwill count as a student insofar as the kinds of facts isolated as relevant bythe type description “student” are true of her. What an individual maylegitimately expect of others, and what may be legitimately demandedof her, at a given time turns on both (a) what expectations can in fact bedefended on the basis of the relevant principle, and (b) the relevant typedescriptions that happen to fit her and her circumstances at that time.

The basic “type” description in contractualism can be understood to bethat of the “person,” as an individual capable of rational self-governancein pursuit of a meaningful life. Many principles, however, will be concerned


12. In general, I take talk of “types” in this discussion to be a convenient way of makingsingular reference without reference to particulars.

13. The appeal to “facts” here should be broadly construed, so as to include facts aboutthe kinds of relationships one stands in with respect to others.

with the regulation of specific forms of relationship that persons canstand in with respect to one another. Consider, for example,

M: Those individuals responsible for a child’s, or other dependentperson’s, welfare are morally required not to let her suffer a seriousharm or disability or a serious loss of happiness or good, that theycould have prevented without imposing substantial burdens or costsor loss of benefits on themselves or others.14

Principle M concerns the regulation of the relationship that caretakersand their dependents stand in with respect to one another. To the extentthat the facts justify taking one to stand in such a relationship to anotherin, e.g., the role of caretaker, one has reason to take oneself to be boundto comply with certain legitimate expectations to which the relevantdependent is entitled. The expectations established on the basis of Principle M do not, of course, hold between persons generally, but onlybetween those whom it is appropriate to take as standing in a relation-ship of caretaker and dependent with respect to one another.

Now, in the most familiar situations, one knows the others with re-spect to whom one stands in a certain kind of normatively significant relation, e.g., those who stand in a relation as dependents, as particularpersons. For purposes of thinking about what one is entitled to expect ofanother, however, knowledge of the particular identity of the other is notessential. What is essential is that one has reason to take the other to beof a certain type. Facts concerning the identity of the other in virtue ofwhich she is a particular token of a certain type may be helpful for refin-ing one’s understanding of what one owes the other, but are not essen-tial. One has reason, then, to take another to be bound to one as adependent just in case the relevant facts support one standing in such arelationship with respect to the other. The only knowledge of the otherthat is necessary here is that of it being reasonable to take her to be acertain type, whatever else may turn out to be true of her in virtue ofwhich she is a particular token of the relevant type.

There is nothing mysterious about “taking another to be of a certaintype.” To do so amounts to nothing more than the reasonable attribu-tion to another of the kinds of interests and legitimate concerns thatcharacterize the concerns and interests that one capable of rational


14. Buchanan et al., p. 226.

self-government might have in a relation of that kind. For example, tak-ing another to be of the type “child” is to have reason to attribute to theother the legitimate concerns of one who is at least potentially capableof rational self-government, concerning how she is related to by othersin the early stages of development towards the realization of a capacityfor rational self-government. Reflection, then, concerning what, by wayof consideration and conduct, one is entitled to expect of another requires only that the other be identifiable in normative terms—thoseappealed to in certain type descriptions. That the particular psycho-physical identity of the person in question, at the point in time at whichcompliance with the duty is required, may still be an indeterminatematter turns out to be of no consequence, as the other retains her stand-ing as a certain type to whom certain duties are owed regardless of whather token identity turns out to be.15

Consider, for example, a couple thinking about what steps they wouldhave to pursue if they decide to go ahead and conceive a child. At thispoint, what they know is that if they decide to pursue having a child,their relation to the intended child will be that of caretakers to a depen-dent.16 They will stand in such a relation to the child in virtue of the influence that it will be reasonable to take their decisions and attentive-ness to the interests of the child to have in determining the extent towhich the child is at risk of being born with severely limiting disabilities,diseases, etc. Having a ready grasp of the legitimate expectations that at-tach to role of caretaker of a child, as roughly articulated by Principle M,they see that one thing that can be legitimately expected of them is thatthey undergo various pre-conception tests, in order to minimize the riskof their child being born with limiting disabilities or diseases. The justifi-cation for requiring risk-minimizing measures of this kind appeals tothe relevant concerns of the normative ideal of persons presupposed bythe contractualist framework of reasoning. Culpably failing to complete


15. Assuming, of course, that at some point in the developmental process there will be ametaphysical fact of the matter concerning identity.

16. Although the example is one that concerns the wronging of a victim who stands in aspecial relationship to the wrongdoer, standing in a particular, or special kind, of relation-ship to another is not fundamental, on this view, for the possibility of being wronged byanother. What is fundamental is that one is entitled to certain legitimate expectations con-cerning consideration and conduct in one’s relations with other persons, in virtue of one’sstatus as a person.

the required pre-conception testing would be to wrong their child, for itis their child whom they would be putting at risk by their failure. Notethat nothing in this line of reasoning relies on specific considerationsthat are sensitive to variations in the particular psycho-physical identityof the child.

The initial challenge questioned the sense of holding a person ac-countable for having culpably failed to comply with the legitimate ex-pectations of another, and who is, in a significant sense, the person sheis now as a consequence of the alleged wrongdoing. The challengeproves, however, to be illusory, as it relies on a crucial misunderstandingof the character of legitimate expectations in contractualism. Legitimateexpectations are expectations to which a person is entitled; a violationof legitimate expectations, then, is a violation of entitlement.

What is important for concluding that a person has wronged another,then, is that the wrongdoer have been in a position to understand whatother persons are entitled (in virtue of the principles that constitute themoral system) to expect of her in terms of respectful conduct and con-sideration. There may be, therefore, a considerable temporal gap be-tween the time when the entitlement to a claim to have been wronged iscreated (by the failure of the wrongdoer to comply with legitimate ex-pectations) and there being a particular person entitled to make theclaim, insofar as she is a token of the relevant type.17

There is no special problem for contractualism, then, concerning howone can have wronged one’s child as a result of a culpable failure to pur-sue appropriate pre-conception testing. To be so bound to one’s child, ascaretaker to dependent, it need only be true that (a) one intends to con-ceive a child, and (b) one has reason to take it to be the case that the in-tended, but yet to be conceived, child will be of the type required for herto owe it to the child to take appropriate measures to protect its welfare,regardless of what its particular token identity turns out to be.

This last point should not be taken to be one that has straightforwardimplications for, say, the moral permissibility of abortion; e.g., it does


17. It is possible, of course, that no such particular individual ever does come into exis-tence. This, however, does not change the fact that the culpable negligence created an en-titlement, such that, had there been a relevant particular individual, she would have beenjustified in claiming herself to have been wronged.

not follow that the abortion of a fetus in cases where conception was notinvoluntary is morally prohibited. Relating to a child on terms of respectfor the child includes being accountable for taking appropriate accountof its legitimate concerns even at a stage where ‘the child’ is only the po-tential for the coming into being of one who has the potential to developinto a rational self-governor. The principle of due care that is relevanthere, though, is only one of a system of moral principles. It is not incom-patible with other principles that concern the contours of a caretaker’sentitlement to take steps to terminate the caretaker–dependent rela-tionship. How the entitlement to terminate is to be justified, as well asthe kinds of considerations that are relevant for the appropriate exerciseof the entitlement, is a matter that requires investigation into the rele-vant principles governing the justifiable termination of a fetus, as well asattention to other questions of value that are not primarily of concernbecause of their bearing on interpersonal relations.

What the discussion does suggest, however, is that it is reasonable tothink that there will be important constraints on how one relates to one’schild even at the early stage of the developmental process where thechild has only the potential to develop a capacity for rational self-government. One may, therefore, be entitled to terminate the caretaker–dependent relationship with one’s child, but as long as one allows the relationship to continue, it may be that one is not entitled to interfere incertain ways with the child’s development. It is certainly plausible tothink, for instance, that deliberately circumventing a developmentalprocess that there is reason to think will result in a being with a potentialfor developing a capacity for rational self-governance, such that the being continues to develop, but along lines that will not result in the development of a potential for a capacity for self-governance, wouldcount, on the basis of the relevant principle, as an instance of wrongingone’s child.18 Nothing said in this discussion can be taken to settle thismatter; all it does is suggest that there are interpersonal moral standardsthat require articulation in order to better illuminate, and perhaps settle,questions concerning, e.g., how it is permissible to relate to one’s childin the very early, embryonic stages of the development process.


18. Thanks are owed here to a reader for Philosophy & Public Affairs who pressed me onthe questions addressed in this paragraph.

IV. WRONGDOING AS IRRESPONSIBILITY

On the proposed view, a child’s claim to have been wronged owing topre-conception negligence, for example, should focus on the way inwhich the alleged wrongdoers risked the child’s health by culpably fail-ing to comply with standards of due care which the child, whose devel-opment was under their control, was entitled to have expected them tosuccessfully comply. A great deal depends here, of course, upon the de-mand, given the circumstances and the importance of compliance forthe health of the child, having been a reasonable one. It is also crucial tothe case that failure to comply with the relevant standards be a culpablefailure, e.g., a consequence of their negligence.

No doubt determining whether or not a failure counts as a morallyculpable failure is a difficult judgment to make. What the present line ofanalysis clarifies is that what makes such cases hard to assess is the diffi-culty inherent in making subtle assessments concerning whether or nota person’s failure to comply with a certain standard of due care was aculpable, or blameworthy, failure, or whether there are exculpatory con-siderations that tell against culpability. The challenge they present hasnothing to do with a variance in psycho-physical identity that renderscertain counter-factual claims as unavailable.

One important implication of this approach for thinking about how achild can be wronged by pre-conception negligence is that a child’sclaim to have been wronged could be valid whether or not she has beenborn worse-off than she otherwise would have been. If, for instance, acase can be made against a child’s parents that they culpably failed topursue pre-conception testing, then they have wronged their child byexposing the child to avoidable risk, whether or not the risk ends up ma-terializing as harm. Exposing the child to such risks involved an exerciseof authority with respect to the child’s interests to which the parentswere not entitled.

It does seem, though, that both the fact of negligence, and the child’sbeing badly off, are relevant to commonsense intuitions about this kindof case. There are at least two reasons why this is not surprising. First,that a child has been born in a badly off state is often an important ele-ment in the evidentiary basis for there having been pre-conception neg-ligence. Second, the association of this kind of case with civil lawsuitscan mislead, insofar as it invites one to think about questions of liability,


and how liability is to be fixed, if at all, in such a case. The contractualistanalysis of wrongdoing, however, is in the first instance only concernedwith questions of culpability for having wronged another, not liability.That is, the kinds of considerations whose identification as relevant formoral assessment with which contractualism is primarily concerned arethose having to do with whether or not one has in fact wronged another,an issue of culpability. These considerations are, in principle, distinctfrom those it might identify as relevant for fixing issues of liability, whichconcern the kinds of burdens that a wrongdoer can justifiably be askedto bear because of her wrongdoing. Contractualism’s denial of the rele-vance of facts concerning harm for determining whether or not a personhas been wronged should not, therefore, be taken to be a rejection of therelevance of such considerations for thinking about the costs the wrong-doer must bear as a consequence of her wrongdoing.

The last point makes explicit that the analysis of wronging offeredhere aims to illuminate only a certain class of claims that a wrongedparty may be entitled to press against a wrongdoer. These are claimsby the wronged for acknowledgment of the wrong done to her by thewrongdoer. This may make the analysis of less interest for thinkingabout wronging in legal contexts, but does not diminish its importancefor the illumination of issues concerning the morality of interpersonalrelations, where the value of acknowledgment has an intuitively naturalhome.19

V. CONCLUSION

The non-identity problem only poses a threat to commonsense moralconvictions concerning who can, in principle, be wronged, if the basis ofan individual’s claim to have been wronged is understood to be rootedin what has happened to her as a result of how a wrongdoer has relatedto her. To side-step the problem, I have suggested, one must fully embrace the non-consequentialist commitment to the maxim that the focus of an investigation into a claim of having been wronged should be


19. For some discussion of the moral importance of the acknowledgment of wrong-doing, see Rahul Kumar and David Silver, “The Legacy of Injustice: Wronging the Future,Responsibility for the Past” in Historical Justice, ed. Lukas H. Meyer (Baden-Baden:Nomos, 2003).

put squarely on the character of the wrongdoer’s conduct, rather thanthe consequences for the wronged of that conduct. In particular, thewrongdoer’s conduct needs to be assessed as a failure to live up to herresponsibilities with respect to the wronged. The relevant questions,then, should concern whether or not the failure was indeed a culpablefailure, how best to characterize the failure, and what the justificationmight be for holding the wrongdoer to be accountable.

Questions concerning who can be wronged are not in any way beingdismissed here as somehow misconceived, or absurd. Such questionsare clearly of great moral importance. What is being suggested is thatthey should be approached as questions that concern the scope, and thejustification for the scope, of interpersonal accountability. Thinkingabout who can be wronged should direct us, then, not towards a discus-sion of the metaphysics of identity and the theory of counter-factuals,but towards the theory of responsibility.


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