Groping Toward Utopia

GROPING TOWARDS UTOPIA (II): SPECULATIONS
ON LAW, POLICY, AND HUMAN LIFE
JAMES OTTAVIO CASTAGNERA*
Table of Contents
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. WHAT DOES IT MEAN TO BE – AND NOT TO BE –
HUMAN IN AMERICAN LAW? . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. The Race Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Legal Status of the Fetus . . . . . . . . . . . . . . . . . . . . . . . . . 6
C. Cloning and Stem Cells . . . . . . . . . . . . . . . . . . . . . . . . . . 8
III. WHAT IS A HUMAN’S VALUE IN AMERICAN LAW? . . . . . . . . . 10
A. Wrongful Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
B. Wrongful Birth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
IV. ANOTHER MODEST PROPOSAL . . . . . . . . . . . . . . . . . . . . . . . 13
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
I. INTRODUCTION
This essay takes as its starting point the proposition that we
are too many.1
How many are too many? Despite the Green Revolution,
which began in the early 1970s, an estimated 786 million people on
this planet are still going hungry.2 One might counter that the
2 J. TRANSNATIONAL LAW & POLICY [Vol. 12:1
3. Id. See also T.R. Reid, Feeding the Planet, NATIONAL GEOGRAPHIC, Oct. 1998, at 65.
Just three crops — wheat, rice, and corn — dominate grain production.
This specialization has helped drive the agricultural boom of the past 30
years. . . . Relying so heavily on such a narrow genetic base is risky,
however. One virulent disease could cause crop failure and famine. Even
if crops stay healthy and cereal grain production continues to climb as
projected . . . the global food supply may ultimately fall short.
Id.
problem is not insufficient productivity but, rather, poor
distribution. But,
[t]here is also growing evidence that Green
Revolution-style farming is not ecologically
sustainable, even for large farmers. In the 1990s,
Green Revolution researchers themselves sounded
the alarm about a disturbing trend that had only just
come to light. After achieving dramatic increases in
the early stages of the technological transformation,
yields began falling in a number of Green Revolution
areas. . . . The causes of this phenomenon have to do
with forms of long-term soil degradation that are still
poorly understood by scientists. . . . Where yields are
not actually declining, the rate of growth is slowing
. . . or leveling off, as has now been documented in
China, North Korea, Indonesia, Myanmar, the
Philippines, Thailand, Pakistan, and Sri Lanka.3
If the race between population growth and food supply cannot
be won by the farmers and the chemical companies that supply their
fertilizers, then we must either control, and presumably reverse,
population growth of our species or leave it to the Four Horsemen
of the Apocalypse — war, pestilence, famine and disease — to
perform their age-old roles.
Even if sufficient food can somehow be produced to feed the
ever-increasing numbers of human mouths, a second question
immediately forces itself upon our attention: what prices in
environmental degradation and loss of other species are we
prepared to pay for the ability to feed today’s six billion and the
billions more our population projections anticipate for this new
century? Put another way,
[h]ow many cell phones is a gorilla worth? In the
Democratic Republic of the Congo, eastern lowland
gorillas are being killed for food by miners searching
Fall, 2002] GROPING TOWARDS UTOPIA (II) 3
4. Valuing the Invaluable, NATIONAL GEOGRAPHIC, Nov. 2001, at 10.
5. Laura Sass, Peter Singer Imparts Philosophy at Rider, THE RIDER NEWS, Apr. 12, 2002,
at 1.
6. Id. See also Animal Freedom, Factory farm animals and people from the third world
are modern slaves, at http://www.animalfreedom.org/english/opinion/slavery.html (last visited
Sept. 9, 2002) (“In countries with factory farms animals are exploited as modern slaves, just
as inhuman as the ‘old’ human slaves were treated and just as invisible.”).
for coltan, a mineral in demand for making capacitors
used in high-tech electronics. . . .
The gorillas’ forest habitat is not the only ecosystem
taking a beating. With globalization, humans are
increasingly mismanaging such ecosystems, from
prairies to forests to oceans. This abuse harms not
only wildlife but also our own economic interests.4
Some intellectuals have had the temerity to question the
assumption that a just and “humane” society must value human
life, without qualification, above all else on the planet. Most notable
in this camp is Princeton philosopher Peter Singer. Singer stirs
controversy wherever he speaks because he does not shrink from the
tough questions, such as: “The rights we endow humans with,
moral rights if you will, would not justify treating them as we do
animals. . . . Why is it that all humans have this moral standing
that protects them from being treated cruelly, but animals don’t?
Why are other species outside this sphere of equality?”5
The way Singer answers his own questions is what gets folks
riled up.
According to Singer, there are some humans, those
with severe disabilities for example, who cannot
really be called rational beings, and who are in fact
less rational than non-human animals.
Inferiority of animals can be taken for granted by
philosophers because they are humans writing for
other humans. . . . The fact that they are not the
same species is no more reason to keep them from
equality than is race or sex. . . .
‘I couldn’t say that the lives of humans who do not
have self-awareness are more precious than a
thinking, conscious animal,’ said Singer.6
4 J. TRANSNATIONAL LAW & POLICY [Vol. 12:1
7. See Africa Today, NATIONAL GEOGRAPHIC, Sept. 2001, Map Section.
As devastating as war, AIDS is tearing into the heart of African societies.
It has killed more than 16 million people; 25 million more are infected
with HIV. . . . Some 20 percent of adults are infected in South Africa, 36
percent in Botswana. The epidemic is fueled by taboos against discussing
sex, lack of education about the transmission of HIV, women’s secondclass
status, and the high cost of treatment.
Id.
8. See JIM JUBAK, IN THE IMAGE OF THE BRAIN: BREAKING THE BARRIER BETWEEN THE
HUMAN MIND AND INTELLIGENT MACHINES ix (1992) (“Machines that incorporate some
principles of the physical brain challenge our understanding of what a human being is all
about.”); ROBERT L. NADEAU, MIND, MACHINES, AND HUMAN CONSCIOUSNESS 43 (1991) (“The
fundamental breakthrough that now seems required in order to accomplish this technological
feat is a theoretical model that describes the global aspects of brain function in mathematical,
or full scientific, detail.”).
The fact is that at the dawn of this new century, we are
confronted with two related, compelling questions which may be
more fundamental than any others currently facing us:
• What does it mean to be “human”; and
• What is the value of a human life?
These questions are begged by the new technologies which will soon
enable human cloning. They are begged by the bitter struggle
between the right-to-life and the right-to-choose camps in the
abortion debate. They are begged by the pharmaceutical industry
and the medical profession, which together can cure many forms of
cancer, eradicate small pox, and control HIV . . . but which cannot
adequately serve the millions of Americans who have no health
insurance, and which cannot help the tens of millions of HIVpositive
Africans who cannot afford the expensive chemical
cocktails.7 And they are begged by the challenge posed to our
carbon-based intelligent species by the silicon-based artificial
intelligence of computing machines.8
Of course, while these questions may be far more compelling
now, as we approach the shore of a Brave New World, they are
questions with which the American law has always had to grapple.
And so this discussion will commence with a look backward, before
attempting to look ahead.
II. WHAT DOES IT MEAN TO BE--AND NOT TO BE--HUMAN IN
AMERICAN LAW?
A. The Race Question
As Judge A. Leon Higginbotham has pointed out, the white
American colonists did not immediately declare Africans to be subFall,
2002] GROPING TOWARDS UTOPIA (II) 5
9. A. LEON HIGGINBOTHAM, JR., SHADES OF FREEDOM: RACIAL POLITICS AND PRESUMPTIONS
OF THE AMERICAN LEGAL PROCESS 18 (1996).
10. Id. at 51.
11. Id.
12. Dred Scott v. Sandford, 60 U.S. 393, 407 (1856).
13. FRANCIS JENNINGS, THE INVASION OF AMERICA: INDIANS, COLONIALISM, AND THE CANT
OF CONQUEST 15 (1976).
human. Taking the Commonwealth of Virginia as his case study,
Judge Higginbotham discovered that “[w]hen the first Africans
arrived at Virginia in August 1619, they were initially accorded an
indentured servant status similar to that of most Virginia
colonists.”9 But by 1669 Virginia common law and social attitudes
had evolved to the point where the colony’s lawmakers enacted “the
first legislative pronouncement in Virginia that blacks were not
fully human.”10
Higginbotham continues, “[b]y 1705 the precept was even more
deeply embedded in the minds and laws of white Virginians. The
1705 statute stated that if a master killed his slave, the law would
treat the killing ‘as if such accident had never happened.’”11
Once one has been educated about this early Virginian history,
duplicated throughout the American south, the Dred Scott decision
seems almost inevitable. In the key passage of the opinion Chief
Justice Taney wrote of the Africans,
They had for more than a century before [the
Declaration of Independence and the Constitution]
been regarded as beings of an inferior order, and
altogether unfit to associate with the white race,
either in social or political relations; and so far
inferior, that they had no rights which the white man
was bound to respect; and that the negro might justly
and lawfully be reduced to slavery for his benefit. He
was bought and sold, and treated as an ordinary
article of merchandise and traffic, whenever a profit
could be made by it.12
Much the same conclusions were drawn by the white colonizers
with regard to the Native Americans. “The basic conquest myth
postulates that America was virgin land, or wilderness, inhabited
by nonpeople called savages; that these savages were creatures
sometimes defined as demons, sometimes as beasts ‘in the shape of
men.’”13
Following the Civil War and the passage of the Thirteenth
Amendment, no one could deny the legal status of African-
Americans as fellow human beings, however second-class might be
6 J. TRANSNATIONAL LAW & POLICY [Vol. 12:1
14. TED MORGAN, A SHOVEL OF STARS: THE MAKING OF THE AMERICAN WEST 1800 TO THE
PRESENT 404 (1995).
15. Id. at 369. (“The reformers assumed that progress depended on turning the Indians
into farmers. Education and religion, they believed, would facilitate the transition. . . .
Essentially, the peace policy--known at the time as ‘piety or bullets’--aimed to move the
Indians onto reservations under religious supervision. Congress wanted them to be selfsufficient.
. . .”); JENNINGS, supra note 13, at 15.
16. 410 U.S. 113 (1973). See also SARAH WEDDINGTON, A QUESTION OF CHOICE 97-98
(1992).
17. WEDDINGTON, supra note 16.
the citizenship they were accorded. As for the Native Americans,
prior to the Civil War, the largest enclave, known as the Five Tribes
— Choctaws, Chickasaws, Cherokees, Creeks and Seminoles —
which occupied most of modern Oklahoma, not only had their own
governments, constitutions, court systems and schools; they even
owned some 7,500 Black slaves.14 “After the Civil War came the era
of Christian reformers in Indian Affairs,” and while surely viewed
by whites as inferior humans — much like African-Americans —
they were no longer considered to be “beasts in the shape of men.”15
In sum, while African Americans and Native Americans might
remain second-class citizens and non-citizens, respectively, for many
decades to come, their fundamental “humanness” was no longer
denied by the American legal system.
Still, it is my argument that this nation’s history of
mistreatment of people of color established a line of thought in
American law to the effect that some among us are not merely less
equal, but are actually less than truly human. This might at first
blush appear to be the antithesis of liberalism. Ironically, the view
reemerged in the late twentieth century as the most radical and
inflammatory of liberal views.
B. Legal Status of the Fetus
The legal category which I will label “non-human” did not
disappear with the adoption of the Thirteenth, Fourteenth and
Fifteenth Amendments and the enactment of enabling legislation.
The category remained in American law, as it does today. One
notable occupant of this category is the human fetus. The nonhuman
status of the fetus under Texas law comprised a significant
part of the plaintiff’s argument in Roe v. Wade.16 This argument
included the following legal propositions:17
• The killing of a fetus was not considered in Texas to be murder
or any other form of homicide;
Fall, 2002] GROPING TOWARDS UTOPIA (II) 7
18. Id. at 97.
19. Roe, 410 U.S. at 113. Interestingly, in light of the topic of this essay, it has been said
that no case “except the Dred Scott case has aroused as intense popular emotion.” ARCHIBALD
COX, THE COURT AND THE CONSTITUTION 322 (1987).
20. WEDDINGTON, supra note 16, at 135.
• A pregnant woman engaging in conduct which was
inadvertently fatal to the fetus was not guilty of negligent
homicide;
• “No legal formalities [regarding] death were observed with
respect to a fetus;”18
• Most property rights were contingent upon the fetus being
born alive;
• Tort recovery was confined to babies who were born alive;
• No benefits, such as under workers’ compensation statutes,
were awarded to children unless they had been born.
This theme was pressed by plaintiff’s counsel both in their initial
briefs and in their supplemental briefs after the Court ordered reargument
of the case.19 Furthermore, the plaintiffs contended that
Texas law was typical of American law in the aggregate.
[A] section of the brief stressed, yet again, the fact
that Texas had never treated the fetus as having the
rights and dignity of a person. We cited an 1889
decision which held that in order to obtain a murder
conviction, the State must prove “that the child was
born alive.” We mentioned that under the rules of
the Texas Welfare Department, a needy pregnant
woman could not get welfare payments for her
unborn child; that a federal court in Pennsylvania
had held that the embryo or fetus is not a person or
citizen within the meaning of the Fourteenth
Amendment or the Civil Rights Act; and that a New
York state court had concluded that the Constitution
does not confer or require legal personality for the
unborn.20
The second oral argument reflected the concern of at least
some members of the Court about this issue of a fetus’s humanness,
or lack thereof.
Justice Stewart asked, ‘If it were established that
the fetus were a life, you would have a difficult case,
wouldn’t you?’ . . . .
8 J. TRANSNATIONAL LAW & POLICY [Vol. 12:1
21. Id. at 139.
22. Roe, 410 U.S. at 158-59.
23. Obviously, I understand that the law recognizes that business entities, notably
corporations, are “persons” under the Fourteenth Amendment, but this point does not affect
the fundamental thrust of my argument, since it is only as incorporations of people that
corporations enjoy this status. See COX, supra note 19, at 121.
Stewart then asked, ‘Do you know of any case
anywhere that [has] held that an unborn fetus is a
person within the meaning of the Fourteenth
Amendment?’
‘No,’ [counsel for the State of Texas] responded,
‘we can only go back to what the framers of our
Constitution had in mind.’21
Ultimately, the majority opinion embraced the principle that
a fetus is a not a person for purposes of the Fourteenth
Amendment.22 As noted above, I see some irony here: while, no
doubt, all my readers abhor slavery, it seems equally certain that
many support a woman’s right to an abortion; both Dred Scott and
Roe arguably spring from a fundamental cultural or legal tradition
that accepts the proposition that not all who share the genetic
make-up of homo sapiens are truly “human.”23
C. Cloning and Stem Cells
The debate, which has swirled around Roe v. Wade for some
three decades, has spilled over into the bio-tech laboratories where
stem cell research and cloning are science’s concerns. President
George W. Bush’s bioethics panel recently favored a four-year
moratorium on stem cell research, reasoning that
[a] moratorium . . . would allow for a broader public
debate about [stem cells’] moral status. Like human
embryos, cloned cells have the potential to become a
normal human baby. Scientists propose to destroy
cloned cells to yield undifferentiated stem cells, which
they hope to grow into replacement tissue for a
variety of diseased and damaged organs.
The report questions the ethics of creating cloned
cells solely for medical experiments and therapies.
‘There’s an important moral boundary here, and we
Fall, 2002] GROPING TOWARDS UTOPIA (II) 9
24. Jeffrey Brainard, Presidential Bioethics Panel Recommends Moratorium on Research
Cloning, THE CHRONICLE OF HIGHER EDUCATION, July 12, 2002, available at
chronicle.com/daily/2002/07/2002071201n.htm.
25. FRANCIS FUKUYAMA, OUR POSTHUMAN FUTURE 149 (2002) (“What the demand for
equality of recognition implies is that when we strip all of a person’s contingent and accidental
characteristics away, there remains some essential human quality underneath that is worthy
of a certain minimal level of respect — call it Factor X.”).
26. Id. at 150.
27. Id.
28. Id. at 176.
need time to discuss the costs of crossing it and not
crossing it.’24
No less an academic light than Francis Fukuyama has
weighed in, postulating a “Factor X.”25 According to Fukuyama, it
is this human essence that, contrary to Peter Singer’s view, accords
us rights to which other species are not entitled. “You can cook, eat,
torture, enslave, or render the carcass of any creature lacking
Factor X, but if you do the same thing to a human being, you are
guilty of a ‘crime against humanity.’”26 Fukuyama then
acknowledges the point made above, namely that
[t]he circle of beings to whom we attribute Factor X
has been one of the most contested issues throughout
human history. For many societies, including most
democratic societies in earlier periods of history,
Factor X belonged to a significant subset of the
human race, excluding people of certain sexes,
economic classes, races, and tribes and people with
low intelligence, disabilities, birth defects, and the
like.27
Arguing that Factor X is more than the sum of its parts--
consciousness, intelligence, ability to make moral choices--
Fukuyama concludes that
[a]n embryo may be lacking in some of the basic
human characteristics possessed by an infant, but it
is also not just another group of cells or tissue,
because it has the potential to become a full human
being. . . . It is therefore reasonable . . . to question
whether researchers should be free to create, clone,
and destroy human embryos at will.28
10 J. TRANSNATIONAL LAW & POLICY [Vol. 12:1
29. Id. at 177.
30. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (1972).
Fukuyama fully appreciates the irony that the stem cell debate
holds the potential to rip apart traditional political coalitions. In
the United States, for example, the Right includes economic
libertarians who prize business entrepreneurship and social
conservatives who abhor abortion. The former should favor stem
cell research, which holds the promise of new bio-technology
industries, while the latter should condemn it, if they are to be
consistent.29 As for the American law, Roe v. Wade would seem to
compel the conclusion that embryos, destroyed to produce stem cells,
are not “persons” under the Fourteenth Amendment . . . in other
words, not “human” because they lack Factor X.
But what then of clones; should we actually create such
creatures some day soon? Will my clone be accorded the same rights
that I enjoy under the United States Constitution? Or will the clone
be my property, its status as a person or non-person, human or nonhuman,
dictated by legal principles drawn from the ancient
American legal tradition which culminated in the Dred Scott
decision?
III. WHAT IS A HUMAN’S VALUE IN AMERICAN LAW?
A. Wrongful Death
Certainly the most famous and influential consideration of the
value of human life in American tort law was undertaken in the
1970s by Richard A. Posner, now chief judge for the United States
Court of Appeals for the Seventh Circuit and an author of
considerable renown. In his groundbreaking study,30 Posner posited
the following proposition concerning the valuation of a human life:
[s]ince the loss of vision or limbs reduces the amount
of pleasure that can be purchased with a dollar, a
very large amount of money will frequently be
necessary to place the victim in the same position of
relative satisfaction that he occupied before the
accident. This factor is most pronounced in a death
case. Most people would not exchange their life for
anything less than an infinite sum of money, if the
exchange were to take place immediately, since they
would have so little time in which to enjoy the
proceeds of the sale. Yet it cannot be correct that the
proper award of damages in a death case is infinity.
Fall, 2002] GROPING TOWARDS UTOPIA (II) 11
31. Id. at 82-83.
32. Id. at 83.
33. Id.
34. See id. at 82-83.
35. The Constitution itself counted slaves as three-fifths of free citizens. Frederick Douglas
is said to have purchased his freedom (his life, if you will) for $600. GEOFFREY C. WARD, THE
CIVIL WAR 8, 16 (1990).
36. See, e.g., Ricco Villanueva Siasoco, Modern Slavery: Human bondage in Africa, Asia,
and the Dominican Republic, at http://www.infoplease.com/spot/slavery1.html (Apr. 18, 2001)
(“According to 1993 U.S. State Department estimates, up to 90,000 blacks are owned by North
African Arabs, and often sold as property in a thriving slave trade for as little as $15 per
human being.”).
This would imply that the optimum rate of fatal
accidents was zero, or very close to it, and it is plain
that people are unwilling individually or collectively
to incur the costs necessary to reduce the rate of fatal
accidents so drastically.31
The courts, Posner continues, solved this problem “by ignoring
it.”32 In other words, the value of the life lost is equated to the
pecuniary loss that will be endured by the survivors, plus pain and
suffering endured by the decedent prior to death.33 A particularly
difficult problem is posed by the death of a child. The loss felt by
the parents is incalculable. Yet from a purely pecuniary posture,
the child’s future earning capacity cannot be calculated; therefore,
the only reliable measure is the investment made in the child to the
date of death by the parents.34
These sorts of valuations might strike one as disturbingly
similar to the values placed upon slaves in the antebellum American
South.35 The practice of slavery persists in parts of the world today,
and where it is still practiced, continues to place a value on human
— including children’s — lives.36 What seems to be the most
significant distinction between tort valuations determined by juries
and the price of slaves — either in the antebellum American South
or in twenty-first century Africa — is the ability of the former to
include an award for pain and suffering, at least in cases where the
plaintiffs can bear their burden of proving that the decedent
survived long enough to sustain such injuries. Otherwise, the
parallel between valuing a life in a wrongful death action and
valuing a slave in the antebellum southern marketplace would be
as disturbing as is that between the de-humanizing of a fetus and
the de-humanizing of a person of color at separate times under
American law.
12 J. TRANSNATIONAL LAW & POLICY [Vol. 12:1
37. 450 So.2d 822 (Fla. 1984).
38. Id. at 822.
39. Id.
40. Id.
41. Id.
42. Id. at 823.
43. Id.
44. Id.
45. Id.
B. Wrongful Birth
An interesting twist on the law’s approach to wrongful death
is its treatment of wrongful birth. A seminal case is Fassoulas v.
Ramey.37 Plaintiffs were married with two children, “both of whom
had been born with severe congenital abnormalities.”38 Plaintiff
John Fassoulas engaged the defendant, Dr. Ramey, to give him a
vasectomy.39 Despite John’s operation, Edith Fassoulas became
pregnant twice thereafter.40 The first post-vasectomy child was, like
her older siblings, deformed.41 The second post-vasectomy child was
only slightly deformed and the deformity was surgically corrected so
that he grew to be a normal, healthy child.42
The plaintiffs sued Dr. Ramey and his clinic, claiming
“wrongful births.”43 They sought damages, inter alia, the cost of
raising the two children to adulthood.44 The case was allowed to go
to trial and a jury awarded the plaintiffs some $300,000, after
making a deduction for the plaintiffs’ comparative negligence in
conceiving the second post-surgery child.45
The Florida Supreme Court reversed in part, reasoning that
[t]he rule in Florida is that ‘a parent cannot be said
to have been damaged by the birth and rearing of a
normal, healthy child.’ . . . ‘[I]t has been imbedded in
our law for centuries that the father and now both
parents or legal guardians of a child have the sole
obligation of providing the necessaries in raising the
child, whether the child be wanted or unwanted.’
‘The child is still the child of the parents, not the
physician, and it is the parents’ legal obligation, not
the physician’s, to support the child.’ . . . For public
policy reasons, we decline to allow rearing damages
for the birth of a healthy child. . . .
The same reasoning forcefully and correctly
applies to the ordinary, everyday expenses associated
with the care and upbringing of a physically or
Fall, 2002] GROPING TOWARDS UTOPIA (II) 13
46. Id. at 823-24 (citations omitted).
47. Id.
48. Id. at 824.
49. KURT VONNEGUT, THE SIRENS OF TITAN 12 (1959).
mentally deformed child. We likewise hold as a
matter of law that ordinary rearing expenses for a
defective child are not recoverable as damages in
Florida.46
However, the court did allow the award of damages for
“extraordinary” expenses associated with rearing the first postvasectomy
child, who was severely deformed.47 It allowed no such
damages for the second, healthy sibling.48
Clearly, under the holdings of cases such as this, a healthy
human life is valuable. The law will not hear from the parents of
such a human life that they have suffered a loss because the child
was unwanted and visited upon them due to a doctor’s negligence.
With regard to a severely handicapped human, the court set a lower
value upon that human life, the difference in value between her and
her healthy sibling being the cost to be incurred by the parents in
rearing her, over and above the cost of rearing her healthy brother.
By requiring the negligent defendant to compensate the
parents for the extraordinary costs of rearing the deformed child,
the court has in essence equated the deformed daughter’s value to
the parents with the inherent value of the healthy child. This
willingness of American law to equalize the value of a disabled
human being with that of a normal, healthy human might be
carried over into American society at large.
IV. ANOTHER MODEST PROPOSAL
In his 1959 science fiction novel, The Sirens of Titan, Kurt
Vonnegut early on observed of a main character,
[b]ut, well-endowed as Mrs. Rumfoord was, she still
did troubled things like chaining a dog’s skeleton to
the wall, like having the gates of the estate bricked
up, like letting the famous formal gardens turn into
New England jungle. The moral: Money, position,
health, handsomeness, and talent aren’t everything.49
But, of course, in determining the relative positions of people on the
socio-political ladder of life they can be worth a lot. In other words,
those who possess one or more of these attributes enjoys a
14 J. TRANSNATIONAL LAW & POLICY [Vol. 12:1
50. Id. at 216.
51. See James Ottavio Castagnera, Groping Toward Utopia: Capitalism, Public Policy, and
Rawls’ Theory of Justice, 11 FLA. ST. J. TRANSNAT’L L. & POL’Y 297 (2002).
52. See VONNEGUT, supra note 49, at 224.
statistically-significant superior chance of success in our society over
others who lack any or all of these advantages.
Later in the story, Vonnegut invents the Church of God the
Utterly Indifferent.50 Embraced by most of the human race, the new
religion teaches that God is too great and too busy to worry about
lowly homo sapiens, and therefore we must all learn to take care of
ourselves. More to the point of this sequential essay51 is one of the
church’s central tenets, namely that members purposely handicap
themselves for the sake of creating equality.
Everyone wore handicaps of some sort. Most
handicaps were of an obvious sort — sashweights,
bags of shot, old furnace grates — meant to hamper
physical advantages. But there were . . . several true
believers who had chosen handicaps of a subtler and
more telling kind.
There were women who had received by dint of dumb
luck the terrific advantage of beauty. They had
annihilated that unfair advantage with frumpish
clothes, bad posture, chewing gum, and ghoulish use
of cosmetics.
One old man, whose only advantage was excellent
eyesight, had spoiled that eyesight by wearing his
wife’s spectacles.
A dark young man, whose lithe, predaceous sex
appeal could not be spoiled by bad clothes and bad
manners, had handicapped himself with a wife who
was nauseated by sex.
The dark young man’s wife, who had reason to be
vain about her Phi Beta Kappa key, had handicapped
herself with a husband who read nothing but comic
books.52
This is good satire. And like all good satire, it hits its mark.
A more serious proposal aimed at the same mark asserts:
Fall, 2002] GROPING TOWARDS UTOPIA (II) 15
53. ALLEN BUCHANAN ET AL., FROM CHANCE TO CHOICE: GENETICS AND JUSTICE 65 (2000).
54. Id. at 68.
55. See Sass, supra note 5 and accompanying text.
Equal opportunity requires not only the elimination
of legal and informal barriers of discrimination, but
also efforts to eliminate the effects of bad luck in the
social lottery on the opportunities of those with
similar talents and abilities. (The ‘social lottery’ here
refers to the ways in which one’s initial social
starting place — family, social class, etc. — affect
one’s opportunities. . . .)53
A question worth considering is whether John Rawls, whose
theory of justice was a theme of the prequel to this article, would
endorse this “bad luck” standard for measuring equal opportunity.
It is worth noting that there are passages in Rawl’s
much-cited discussion in his book A Theory of Justice
of how his Principle of Fair Equality of Opportunity
and his Difference Principle fit together that might
be interpreted as endorsing the [bad] luck view. . . .
[However] Rawls may be merely saying that it would
be impermissible to base a person’s entitlement to a
share of social goods on the mere fact that he
happens to have been more fortunate in the genetic
lottery. That view does not commit him to the [bad]
luck thesis that all natural inequalities require
redress or compensation as a matter of justice.54
If, indeed, Rawls is ambivalent about what I shall now call the
“bad luck view” of justice, others of equal stature are up front in
espousing the contrary opinion.
If I understand Dr. Singer’s argument, then his thesis is the
very opposite of the “bad luck view” of justice: he seems to say that
those who have suffered bad luck may have forfeited their right to
equal justice. The rights of a fully-conscious animal may trump
those of a comatose human.55
Closely allied to the “bad luck view” is the “rescue principle.”
Lawyer-philosopher Ronald Dworkin writes,
[f]or millennia doctors have paid lip service, at least,
to an ideal of justice in medicine which I shall call the
rescue principle. It has two connected parts. The
first holds that life and health are, as Rene Descartes
16 J. TRANSNATIONAL LAW & POLICY [Vol. 12:1
56. RONALD DWORKIN, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY 309
(2000).
57. BUCHANAN, supra note 53, at 63.
58. See, e.g., EDMUND MORRIS, THEODORE REX 450 (2001) (Concerning Theodore Roosevelt’s
wife, Edith, Morris observes, “Mediocrity bored her, as did class resentment. ‘If they had our
brains,’ she was wont to say of servants, ‘they’d have our place.’”).
59. See COX, supra note 19, at 274-287.
put it, chief among all goods: everything else is of
lesser importance and must be sacrificed for them.
The second insists that health care must be
distributed on grounds of equality: that even in a
society in which wealth is very unequal and equality
is otherwise scorned, no one must be denied the
medical care he needs just because he is too poor to
afford it.56
Thus is the issue joined. At one end of the spectrum of views
are those, symbolized by the parishioners of Vonnegut’s Church of
God the Utterly Indifferent, who believe that even natural
inequalities must be compensated, and at the other are those — e.g.,
most advantaged classes throughout all of human history — who
accept, and perhaps even praise, political and economic inequalities
as part of the natural order of things. Somewhere in the middle are
those who would correct political and economic inequalities, by
enacting anti-discrimination laws and affirmative action programs,
but who are willing, like Plato, to accept natural inequalities as . .
. well, natural, and therefore not offensive to our sense of justice.57
Let me suggest that implicitly fundamental to these views of
equality and justice are differing notions of the value of individual
human beings. Those who believe that even natural inequalities
must be corrected or compensated must necessarily value all human
lives equally. Those who favor class distinctions believe —
implicitly, if not expressly — that some human beings are more
valuable than others.58
The forces of history seem to favor this latter group. If the
population pressures noted in Part I, above, increase, as I am
predicting they will, the relative value of the lumpen proletariat will
necessarily decline in the eyes of this group. Even those who favor
affirmative action presumably will be content to provide those
members of disadvantaged groups, who enjoy the requisite
intelligence and talents, with a leg up over their majority-group
competitors.59
Only under the “bad luck view” of justice and equality would
fundamental physical disadvantages have to be remedied in order
for a truly just society — a Utopia — to be achieved. The
Fall, 2002] GROPING TOWARDS UTOPIA (II) 17
60. See Castagnera, supra note 51, at 307.
impracticality of this approach is implicit in Vonnegut’s satire: the
bad luck of some in society is satirically overcome by the selfimposed,
artificial disabilities of all the others. As Posner might be
quick to point out, this is a highly inefficient way to achieve justice,
albeit it could be accomplished tomorrow if suddenly somehow we
all voluntarily embraced Vonnegut’s concept.
V. CONCLUSION
What then might we do if we wish to grope toward this Utopia?
In my prequel, I suggested that “improving the lot of the lowest
common denominator of our sisters and brothers . . . will improve
life for us all by replacing handouts with disposable income.”60
Extending this notion a single step farther, let me now suggest
that as we strive to achieve this material goal we concurrently must
come to a consensus on what it means to be human and what is the
value of a human life--even a severely damaged life in being. For
my part, I favor a consensus which embraces Fukuyama’s Factor X
as the baseline for being human. The right to continued existence
and to the resources that make such survival possible seem to me
to be the minimum entitlements of all such “Factor X” lives in being.
These are, in my view, “bottom line” requirements, the floors or
foundations of a just society . . . as we continue to grope toward
Utopia.