Justice and the Coercive Taking of Cadaveric Organs

British Journal of Political Science

Volumn 34, Issue 1, 2004, Pages 69-86

  Fabre, Cécile ^a  

^a LONDON SCHOOL OF ECONOMICS   (United Kingdom)

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EID: 0347931988     PISSN: 00071234     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0007123403000358     Document Type: Article

References (45)

1. Sources: for Britain, United Kingdom Transplant Support Service Authority (http://www.uktransplant.org.uk); for the United States, United Network for Organ Sharing (http://www.unos.org).
2. Sources: for Britain, United Kingdom Transplant Support Service Authority (http://www.uktransplant.org.uk); for the United States, United Network for Organ Sharing (http://www.unos.org).
3. For useful reviews of those arguments, see, e.g., Paula Boddington, 'Organ Donation After Death - Should I Decide, or Should My Family?' Journal of Applied Philosophy, 15 (1998), 69-81; James Muyskens, 'An Alternative Policy for Obtaining Cadaver Organs for Transplantation', Philosophy and Public Affairs, 8 (1978), 88-99.
4. For useful reviews of those arguments, see, e.g., Paula Boddington, 'Organ Donation After Death - Should I Decide, or Should My Family?' Journal of Applied Philosophy, 15 (1998), 69-81; James Muyskens, 'An Alternative Policy for Obtaining Cadaver Organs for Transplantation', Philosophy and Public Affairs, 8 (1978), 88-99.
5. A few clarificatory points. First, not all of those who pay taxes are actually well off. For the sake of stylistic convenience, I shall use the term 'well off to mean 'those who have sufficient resources that they can be expected to help the poor by way of taxation'. Secondly, by 'organs' I mean internal organs and corneas. Thirdly, throughout this article, I adopt the interest theory of rights, whereby to have a right means that an interest one has is important enough to hold some other person(s) under a duty. (The locus classicus for the interest theory of rights is Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), p. 166.) Fourthly, I do not, here, take a stance on the legitimacy of routinely taking organs from the dead for research purposes. Arguing for it would require another paper.
6. This restriction on redistribution is lexically prior to the duty to help. Thus, if Peter has a 110 per cent PMFL (prospects for a minimally flourishing life), whilst Paul has a 20 per cent PMFL, justice would only require that Peter transfer 10 per cent to Paul. I am grateful to Hillel Steiner for helpful clarification of this issue. The view that individuals have welfare rights to what they need to lead a minimally flourishing or autonomous life is articulated (with variations that need not detain us here) in, e.g., Elizabeth Anderson, 'What is the Point of Equality?' Ethics, 109 (1999), 287-337; Cécile Fabre, Social Rights Under the Constitution: Government and the Decent Life (Oxford: Oxford University Press, 2000), chap. 1; Harry Frankfurt, 'Equality as a Moral Idea', Ethics, 98 (1987), 21-43; Alan Gewirth, The Community of Rights (Chicago: Chicago University Press, 1996); David Harris, Justifying State Welfare (Oxford: Blackwell, 1987); Lesley Jacobs, Rights and Deprivation (Oxford: Oxford University Press, 1993); Martha Nussbaum, Women and Human Development - The Capabilities Approach (Cambridge and New York: Cambridge University Press, 2000).
7. This restriction on redistribution is lexically prior to the duty to help. Thus, if Peter has a 110 per cent PMFL (prospects for a minimally flourishing life), whilst Paul has a 20 per cent PMFL, justice would only require that Peter transfer 10 per cent to Paul. I am grateful to Hillel Steiner for helpful clarification of this issue. The view that individuals have welfare rights to what they need to lead a minimally flourishing or autonomous life is articulated (with variations that need not detain us here) in, e.g., Elizabeth Anderson, 'What is the Point of Equality?' Ethics, 109 (1999), 287-337; Cécile Fabre, Social Rights Under the Constitution: Government and the Decent Life (Oxford: Oxford University Press, 2000), chap. 1; Harry Frankfurt, 'Equality as a Moral Idea', Ethics, 98 (1987), 21-43; Alan Gewirth, The Community of Rights (Chicago: Chicago University Press, 1996); David Harris, Justifying State Welfare (Oxford: Blackwell, 1987); Lesley Jacobs, Rights and Deprivation (Oxford: Oxford University Press, 1993); Martha Nussbaum, Women and Human Development - The Capabilities Approach (Cambridge and New York: Cambridge University Press, 2000).
8. This restriction on redistribution is lexically prior to the duty to help. Thus, if Peter has a 110 per cent PMFL (prospects for a minimally flourishing life), whilst Paul has a 20 per cent PMFL, justice would only require that Peter transfer 10 per cent to Paul. I am grateful to Hillel Steiner for helpful clarification of this issue. The view that individuals have welfare rights to what they need to lead a minimally flourishing or autonomous life is articulated (with variations that need not detain us here) in, e.g., Elizabeth Anderson, 'What is the Point of Equality?' Ethics, 109 (1999), 287-337; Cécile Fabre, Social Rights Under the Constitution: Government and the Decent Life (Oxford: Oxford University Press, 2000), chap. 1; Harry Frankfurt, 'Equality as a Moral Idea', Ethics, 98 (1987), 21-43; Alan Gewirth, The Community of Rights (Chicago: Chicago University Press, 1996); David Harris, Justifying State Welfare (Oxford: Blackwell, 1987); Lesley Jacobs, Rights and Deprivation (Oxford: Oxford University Press, 1993); Martha Nussbaum, Women and Human Development - The Capabilities Approach (Cambridge and New York: Cambridge University Press, 2000).
9. This restriction on redistribution is lexically prior to the duty to help. Thus, if Peter has a 110 per cent PMFL (prospects for a minimally flourishing life), whilst Paul has a 20 per cent PMFL, justice would only require that Peter transfer 10 per cent to Paul. I am grateful to Hillel Steiner for helpful clarification of this issue. The view that individuals have welfare rights to what they need to lead a minimally flourishing or autonomous life is articulated (with variations that need not detain us here) in, e.g., Elizabeth Anderson, 'What is the Point of Equality?' Ethics, 109 (1999), 287-337; Cécile Fabre, Social Rights Under the Constitution: Government and the Decent Life (Oxford: Oxford University Press, 2000), chap. 1; Harry Frankfurt, 'Equality as a Moral Idea', Ethics, 98 (1987), 21-43; Alan Gewirth, The Community of Rights (Chicago: Chicago University Press, 1996); David Harris, Justifying State Welfare (Oxford: Blackwell, 1987); Lesley Jacobs, Rights and Deprivation (Oxford: Oxford University Press, 1993); Martha Nussbaum, Women and Human Development - The Capabilities Approach (Cambridge and New York: Cambridge University Press, 2000).
10. This restriction on redistribution is lexically prior to the duty to help. Thus, if Peter has a 110 per cent PMFL (prospects for a minimally flourishing life), whilst Paul has a 20 per cent PMFL, justice would only require that Peter transfer 10 per cent to Paul. I am grateful to Hillel Steiner for helpful clarification of this issue. The view that individuals have welfare rights to what they need to lead a minimally flourishing or autonomous life is articulated (with variations that need not detain us here) in, e.g., Elizabeth Anderson, 'What is the Point of Equality?' Ethics, 109 (1999), 287-337; Cécile Fabre, Social Rights Under the Constitution: Government and the Decent Life (Oxford: Oxford University Press, 2000), chap. 1; Harry Frankfurt, 'Equality as a Moral Idea', Ethics, 98 (1987), 21-43; Alan Gewirth, The Community of Rights (Chicago: Chicago University Press, 1996); David Harris, Justifying State Welfare (Oxford: Blackwell, 1987); Lesley Jacobs, Rights and Deprivation (Oxford: Oxford University Press, 1993); Martha Nussbaum, Women and Human Development - The Capabilities Approach (Cambridge and New York: Cambridge University Press, 2000).
11. This restriction on redistribution is lexically prior to the duty to help. Thus, if Peter has a 110 per cent PMFL (prospects for a minimally flourishing life), whilst Paul has a 20 per cent PMFL, justice would only require that Peter transfer 10 per cent to Paul. I am grateful to Hillel Steiner for helpful clarification of this issue. The view that individuals have welfare rights to what they need to lead a minimally flourishing or autonomous life is articulated (with variations that need not detain us here) in, e.g., Elizabeth Anderson, 'What is the Point of Equality?' Ethics, 109 (1999), 287-337; Cécile Fabre, Social Rights Under the Constitution: Government and the Decent Life (Oxford: Oxford University Press, 2000), chap. 1; Harry Frankfurt, 'Equality as a Moral Idea', Ethics, 98 (1987), 21-43; Alan Gewirth, The Community of Rights (Chicago: Chicago University Press, 1996); David Harris, Justifying State Welfare (Oxford: Blackwell, 1987); Lesley Jacobs, Rights and Deprivation (Oxford: Oxford University Press, 1993); Martha Nussbaum, Women and Human Development - The Capabilities Approach (Cambridge and New York: Cambridge University Press, 2000).
12. This restriction on redistribution is lexically prior to the duty to help. Thus, if Peter has a 110 per cent PMFL (prospects for a minimally flourishing life), whilst Paul has a 20 per cent PMFL, justice would only require that Peter transfer 10 per cent to Paul. I am grateful to Hillel Steiner for helpful clarification of this issue. The view that individuals have welfare rights to what they need to lead a minimally flourishing or autonomous life is articulated (with variations that need not detain us here) in, e.g., Elizabeth Anderson, 'What is the Point of Equality?' Ethics, 109 (1999), 287-337; Cécile Fabre, Social Rights Under the Constitution: Government and the Decent Life (Oxford: Oxford University Press, 2000), chap. 1; Harry Frankfurt, 'Equality as a Moral Idea', Ethics, 98 (1987), 21-43; Alan Gewirth, The Community of Rights (Chicago: Chicago University Press, 1996); David Harris, Justifying State Welfare (Oxford: Blackwell, 1987); Lesley Jacobs, Rights and Deprivation (Oxford: Oxford University Press, 1993); Martha Nussbaum, Women and Human Development - The Capabilities Approach (Cambridge and New York: Cambridge University Press, 2000).
13. I am grateful to Albert Weale for insisting that I elaborate on this point. Incidentally, it pays to note that a reciprocal approach to justice, whereby we undertake to help one another meet our needs, up to a certain level, is compatible with the claim I make here. That is, justice so understood may well require that we undertake to devote some material resources to meeting the needs of transplant patients, although not all of them as and when they arise (precisely because resources are scarce, or because we might have to give some priority to the less urgent needs of a greater number of individuals, etc.). If so, then justice so understood would require of us that in some cases at least we undertake to transfer our body parts, posthumously, to those who need them.
14. Note that I only argue for a prima facie right to the organs of the dead: the facts that someone needs an organ and is not responsible for his condition may not suffice to confer on him a right to it. Other considerations, such as his prospects for recovery, can be brought to bear on a decision to give him, or as the case may be, deny him, the organ.
15. For the claim that inheritance should be subject to a specific tax, see, e.g., Bruce Ackerman and Anne Alstott, The Stakeholder Society (New Haven, Conn.: Yale University Press, 1999); David Haslett, 'Is Inheritance Justified?' Philosophy and Public Affairs, 15 (1986), 122-55; Mark L. Ascher, 'Curtailing Inherited Wealth', Michigan Law Review, 86 (1990), 69-151; Julian Le Grand, 'Markets, Welfare and Equality', in Julian Le Grand and Saul Estrin, eds, Market Socialism (Oxford: Oxford University Press, 1989); Julian Le Grand and David Nissan, A Capital Idea: Start-Up Grants for Young People (London: Fabian Society, 2000); Michael B. Levy, 'Liberal Equality and Inherited Wealth', Political Theory, 11 (1983), 545-64. For the view that inheritance should not be subject to a specific tax, see Liam Murphy and Thomas Nagel, The Myth of Ownership: Taxes and Justice (Oxford: Oxford University Press, 2002), chap. 7. In the remainder of this article, I use the phrase 'having a right to inherit' to mean that someone has a right to inherit an estate, or, so to speak, the care of a dead body, irrespective of the wishes of the deceased. The right to inherit so defined is thus different from the right to receive bequests, which is conferred on the heir in virtue of the wishes of the deceased. I use the word 'inheritance' to denote both ways of transferring rights over estates and bodies. Note, finally, that I am committed neither to the claim that taxing inheritance is the only way in which we can bring about economic justice nor to the claim that taxing inheritance should only serve to achieve that end.
16. For the claim that inheritance should be subject to a specific tax, see, e.g., Bruce Ackerman and Anne Alstott, The Stakeholder Society (New Haven, Conn.: Yale University Press, 1999); David Haslett, 'Is Inheritance Justified?' Philosophy and Public Affairs, 15 (1986), 122-55; Mark L. Ascher, 'Curtailing Inherited Wealth', Michigan Law Review, 86 (1990), 69-151; Julian Le Grand, 'Markets, Welfare and Equality', in Julian Le Grand and Saul Estrin, eds, Market Socialism (Oxford: Oxford University Press, 1989); Julian Le Grand and David Nissan, A Capital Idea: Start-Up Grants for Young People (London: Fabian Society, 2000); Michael B. Levy, 'Liberal Equality and Inherited Wealth', Political Theory, 11 (1983), 545-64. For the view that inheritance should not be subject to a specific tax, see Liam Murphy and Thomas Nagel, The Myth of Ownership: Taxes and Justice (Oxford: Oxford University Press, 2002), chap. 7. In the remainder of this article, I use the phrase 'having a right to inherit' to mean that someone has a right to inherit an estate, or, so to speak, the care of a dead body, irrespective of the wishes of the deceased. The right to inherit so defined is thus different from the right to receive bequests, which is conferred on the heir in virtue of the wishes of the deceased. I use the word 'inheritance' to denote both ways of transferring rights over estates and bodies. Note, finally, that I am committed neither to the claim that taxing inheritance is the only way in which we can bring about economic justice nor to the claim that taxing inheritance should only serve to achieve that end.
17. For the claim that inheritance should be subject to a specific tax, see, e.g., Bruce Ackerman and Anne Alstott, The Stakeholder Society (New Haven, Conn.: Yale University Press, 1999); David Haslett, 'Is Inheritance Justified?' Philosophy and Public Affairs, 15 (1986), 122-55; Mark L. Ascher, 'Curtailing Inherited Wealth', Michigan Law Review, 86 (1990), 69-151; Julian Le Grand, 'Markets, Welfare and Equality', in Julian Le Grand and Saul Estrin, eds, Market Socialism (Oxford: Oxford University Press, 1989); Julian Le Grand and David Nissan, A Capital Idea: Start-Up Grants for Young People (London: Fabian Society, 2000); Michael B. Levy, 'Liberal Equality and Inherited Wealth', Political Theory, 11 (1983), 545-64. For the view that inheritance should not be subject to a specific tax, see Liam Murphy and Thomas Nagel, The Myth of Ownership: Taxes and Justice (Oxford: Oxford University Press, 2002), chap. 7. In the remainder of this article, I use the phrase 'having a right to inherit' to mean that someone has a right to inherit an estate, or, so to speak, the care of a dead body, irrespective of the wishes of the deceased. The right to inherit so defined is thus different from the right to receive bequests, which is conferred on the heir in virtue of the wishes of the deceased. I use the word 'inheritance' to denote both ways of transferring rights over estates and bodies. Note, finally, that I am committed neither to the claim that taxing inheritance is the only way in which we can bring about economic justice nor to the claim that taxing inheritance should only serve to achieve that end.
18. For the claim that inheritance should be subject to a specific tax, see, e.g., Bruce Ackerman and Anne Alstott, The Stakeholder Society (New Haven, Conn.: Yale University Press, 1999); David Haslett, 'Is Inheritance Justified?' Philosophy and Public Affairs, 15 (1986), 122-55; Mark L. Ascher, 'Curtailing Inherited Wealth', Michigan Law Review, 86 (1990), 69-151; Julian Le Grand, 'Markets, Welfare and Equality', in Julian Le Grand and Saul Estrin, eds, Market Socialism (Oxford: Oxford University Press, 1989); Julian Le Grand and David Nissan, A Capital Idea: Start-Up Grants for Young People (London: Fabian Society, 2000); Michael B. Levy, 'Liberal Equality and Inherited Wealth', Political Theory, 11 (1983), 545-64. For the view that inheritance should not be subject to a specific tax, see Liam Murphy and Thomas Nagel, The Myth of Ownership: Taxes and Justice (Oxford: Oxford University Press, 2002), chap. 7. In the remainder of this article, I use the phrase 'having a right to inherit' to mean that someone has a right to inherit an estate, or, so to speak, the care of a dead body, irrespective of the wishes of the deceased. The right to inherit so defined is thus different from the right to receive bequests, which is conferred on the heir in virtue of the wishes of the deceased. I use the word 'inheritance' to denote both ways of transferring rights over estates and bodies. Note, finally, that I am committed neither to the claim that taxing inheritance is the only way in which we can bring about economic justice nor to the claim that taxing inheritance should only serve to achieve that end.
19. For the claim that inheritance should be subject to a specific tax, see, e.g., Bruce Ackerman and Anne Alstott, The Stakeholder Society (New Haven, Conn.: Yale University Press, 1999); David Haslett, 'Is Inheritance Justified?' Philosophy and Public Affairs, 15 (1986), 122-55; Mark L. Ascher, 'Curtailing Inherited Wealth', Michigan Law Review, 86 (1990), 69-151; Julian Le Grand, 'Markets, Welfare and Equality', in Julian Le Grand and Saul Estrin, eds, Market Socialism (Oxford: Oxford University Press, 1989); Julian Le Grand and David Nissan, A Capital Idea: Start-Up Grants for Young People (London: Fabian Society, 2000); Michael B. Levy, 'Liberal Equality and Inherited Wealth', Political Theory, 11 (1983), 545-64. For the view that inheritance should not be subject to a specific tax, see Liam Murphy and Thomas Nagel, The Myth of Ownership: Taxes and Justice (Oxford: Oxford University Press, 2002), chap. 7. In the remainder of this article, I use the phrase 'having a right to inherit' to mean that someone has a right to inherit an estate, or, so to speak, the care of a dead body, irrespective of the wishes of the deceased. The right to inherit so defined is thus different from the right to receive bequests, which is conferred on the heir in virtue of the wishes of the deceased. I use the word 'inheritance' to denote both ways of transferring rights over estates and bodies. Note, finally, that I am committed neither to the claim that taxing inheritance is the only way in which we can bring about economic justice nor to the claim that taxing inheritance should only serve to achieve that end.
20. For the claim that inheritance should be subject to a specific tax, see, e.g., Bruce Ackerman and Anne Alstott, The Stakeholder Society (New Haven, Conn.: Yale University Press, 1999); David Haslett, 'Is Inheritance Justified?' Philosophy and Public Affairs, 15 (1986), 122-55; Mark L. Ascher, 'Curtailing Inherited Wealth', Michigan Law Review, 86 (1990), 69-151; Julian Le Grand, 'Markets, Welfare and Equality', in Julian Le Grand and Saul Estrin, eds, Market Socialism (Oxford: Oxford University Press, 1989); Julian Le Grand and David Nissan, A Capital Idea: Start-Up Grants for Young People (London: Fabian Society, 2000); Michael B. Levy, 'Liberal Equality and Inherited Wealth', Political Theory, 11 (1983), 545-64. For the view that inheritance should not be subject to a specific tax, see Liam Murphy and Thomas Nagel, The Myth of Ownership: Taxes and Justice (Oxford: Oxford University Press, 2002), chap. 7. In the remainder of this article, I use the phrase 'having a right to inherit' to mean that someone has a right to inherit an estate, or, so to speak, the care of a dead body, irrespective of the wishes of the deceased. The right to inherit so defined is thus different from the right to receive bequests, which is conferred on the heir in virtue of the wishes of the deceased. I use the word 'inheritance' to denote both ways of transferring rights over estates and bodies. Note, finally, that I am committed neither to the claim that taxing inheritance is the only way in which we can bring about economic justice nor to the claim that taxing inheritance should only serve to achieve that end.
21. For the claim that inheritance should be subject to a specific tax, see, e.g., Bruce Ackerman and Anne Alstott, The Stakeholder Society (New Haven, Conn.: Yale University Press, 1999); David Haslett, 'Is Inheritance Justified?' Philosophy and Public Affairs, 15 (1986), 122-55; Mark L. Ascher, 'Curtailing Inherited Wealth', Michigan Law Review, 86 (1990), 69-151; Julian Le Grand, 'Markets, Welfare and Equality', in Julian Le Grand and Saul Estrin, eds, Market Socialism (Oxford: Oxford University Press, 1989); Julian Le Grand and David Nissan, A Capital Idea: Start-Up Grants for Young People (London: Fabian Society, 2000); Michael B. Levy, 'Liberal Equality and Inherited Wealth', Political Theory, 11 (1983), 545-64. For the view that inheritance should not be subject to a specific tax, see Liam Murphy and Thomas Nagel, The Myth of Ownership: Taxes and Justice (Oxford: Oxford University Press, 2002), chap. 7. In the remainder of this article, I use the phrase 'having a right to inherit' to mean that someone has a right to inherit an estate, or, so to speak, the care of a dead body, irrespective of the wishes of the deceased. The right to inherit so defined is thus different from the right to receive bequests, which is conferred on the heir in virtue of the wishes of the deceased. I use the word 'inheritance' to denote both ways of transferring rights over estates and bodies. Note, finally, that I am committed neither to the claim that taxing inheritance is the only way in which we can bring about economic justice nor to the claim that taxing inheritance should only serve to achieve that end.
22. The political philosophical literature on inheritance taxes clearly focuses on their beneficiaries, that is, on those who are worse off, or needy, simply because they were born in a poor family. By contrast, in our public culture, such taxes are understood as a way to prevent the already well off from acquiring even more advantages. Indeed, their revenues are channelled to the state's overall budget, not to welfare programmes. But the reason why it is legitimate to prevent the well off from becoming even richer is precisely that others suffer the bad luck of being born in poverty; accordingly, there are good reasons to earmark inheritance taxes towards helping the needy, along the lines suggested by Ackerman and Alstott in The Stakeholder Society.
23. Incidentally, the analogy I draw here between the posthumous disposal of wealth and that of body parts applies, mutatis mutandis, to theories of justice which regard transfers, not as a duty the wealthy have to the poor, but as an insurance system whereby we all undertake to help meet one another's needs. On that view, estate duties are one way to fulfil that contract; by analogy, or so I would claim, so is the coercive transfer of body parts.
24. See, e.g. Robert M. Veatch, Transplantation Ethics (Washington, D.C.: Georgetown University Press, 2000), 144-46. For the view that the organs of the dead should be considered as state property, see John Harris, Clones, Genes, and Immortality (Oxford: Oxford University Press, 1992), p. 125; and Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994), p. 273.
25. See, e.g. Robert M. Veatch, Transplantation Ethics (Washington, D.C.: Georgetown University Press, 2000), 144-46. For the view that the organs of the dead should be considered as state property, see John Harris, Clones, Genes, and Immortality (Oxford: Oxford University Press, 1992), p. 125; and Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994), p. 273.
26. See, e.g. Robert M. Veatch, Transplantation Ethics (Washington, D.C.: Georgetown University Press, 2000), 144-46. For the view that the organs of the dead should be considered as state property, see John Harris, Clones, Genes, and Immortality (Oxford: Oxford University Press, 1992), p. 125; and Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994), p. 273.
27. Thus, whilst Ackerman and Alstott claim, in The Stakeholder Society, that inheritance taxes should serve to bring about equality of opportunity, in fact they are mostly concerned with ensuring that every single American be able to implement a meaningful conception of a good life, irrespective of his or her social and familial background. If all Americans were able to do so, Ackerman's and Alstott's proposal for restrictions on inheritance would lose much of its force.
28. For the distinction between comparative and non-comparative distributive principles, see Joel Feinberg, 'Noncomparative Justice', Philosophical Review, 83 (1974), 297-338.
29. I defend this claim in my 'Good Samaritanism and Justice', Critical Review of International Social and Political Philosophy, 5 (2004), forthcoming. Of course, as Sue Mendus pointed out to me, if one takes the view that, if we have a claim to anything, it must be a claim to the disposal of our own body, such that we are not under a duty to come to someone else's rescue, then one will disagree with everything I have said so far. As I have argued elsewhere, such a view is implausible. See my 'Justice and the Compulsory Taking of Live Body Parts', Utilitas, 15 (2003), 127-50.
30. I defend this claim in my 'Good Samaritanism and Justice', Critical Review of International Social and Political Philosophy, 5 (2004), forthcoming. Of course, as Sue Mendus pointed out to me, if one takes the view that, if we have a claim to anything, it must be a claim to the disposal of our own body, such that we are not under a duty to come to someone else's rescue, then one will disagree with everything I have said so far. As I have argued elsewhere, such a view is implausible. See my 'Justice and the Compulsory Taking of Live Body Parts', Utilitas, 15 (2003), 127-50.
31. There are various ways of setting up the scheme: the state could, for example, relax financial restrictions on testators and/or heir if the former do not turn out to be eligible donors; if they turn out to be eligible donors, one could deduct the compensation from taxes on inheritance, etc. I need not go into details here.
32. It is important to bear in mind that I have in mind expropriation for the sake, not of securing a public good, but of helping some needy individuals. In the former case, property-owners can be said to benefit, in some way, from being expropriated; in the latter case they cannot, which strengthens (but does not render bullet-proof) their complaint that the compensation they receive does not really make up for their loss. (For the view that expropriation can be used by the state to realize any goal on which the legislative has authority to legislate, which may include bringing about distributive justice, see Bruce Ackerman, Private Property and the Constitution (New Haven, Conn.: Yale University Press, 1977).)
33. A similar problem bedevils another proposal for the procurement of organs, to wit, the proposal that individuals who express the wish to be buried or cremated intact will not have their organs taken away from them posthumously, but thereby forgo any claim to receiving an organ transplant should they need one. Such a proposal would work well within the framework of justice as reciprocity: if I decide to opt out of the mutual aid contract, I forfeit my right to receive help. And this would apply both to tax and organ transfers. However, on that proposal too, a patient in need of an organ will not receive a transplant if the only eligible donor had indicated that he wanted to be buried or cremated intact.
34. For an excellent account of the challenges posed to liberalism by the view that the dead have that kind of status, see Tim Mulgan, 'The Place of the Dead in Liberal Political Philosophy', Journal of Political Philosophy, 7 (1999), 52-70.
35. See, e. g., Veatch, Transplantation Ethics, chap. 9, esp. p. 160. That view, note, is compatible with the claim that autopsies can be carried out without the antemortem consent of the deceased if it holds that actual consent is not required for a mutilation to be legitimate. Hypothetical consent, together with the existence of a good reason for carrying out an autopsy, may suffice, for one may plausibly think that the deceased, when alive, would have agreed to be autopsied in the event of a suspicious death. Notice, moreover, that if the objection under study holds that tacit consent, together with a good reason for taking organs, suffices to render a mutilation legitimate, then it is compatible with opt-out schemes whereby organs are taken from the deceased unless she has explicitly expressed the wish to be buried or cremated intact.
36. For a defence of that view, see, e.g., Joel Feinberg, Harm to Others (Oxford: Clarendon Press, 1984); Barbara Levenbook, 'Harming the Dead, Once Again', Ethics, 95 (1985), 162-4.
37. For a defence of that view, see, e.g., Joel Feinberg, Harm to Others (Oxford: Clarendon Press, 1984); Barbara Levenbook, 'Harming the Dead, Once Again', Ethics, 95 (1985), 162-4.
38. This objection was put to me at a seminar in Bristol.
39. It has been objected to me that non-conscientious objections may carry more weight than I give them here, even though they are neither moral nor religious. And indeed, there are non-moral or non-religious things the loss of which would make our life go badly. However, it strikes me that, when it comes to the posthumous disposal of their body, most opponents of confiscation press the kind of reasons which I study in the text here. These reasons, I maintain, are not strong enough in the face of the needs of transplant patients. I am grateful to Sue Mendus for pressing me on that point.
40. I am grateful to David Miller for pressing that objection. For accounts of the Alder Hey hospital scandal, to which I am referring here, see The Guardian, 30 January 2001.
41. I owe this point to G. A. Cohen.
42. I am not suggesting that we can take organs from such a person once he is dead. Indeed, the knowledge that he will not die in a condition such as to be resurrected might aggravate his mental illness, and this is a good reason for exempting him from a duty to donate. Rather, I am claiming that his would not be a conscientious objection to the confiscation of cadaveric organs.
43. I am assuming there that to deny an organ to someone who needs it through no fault of his own does not constitute a violation of the requirement that we should treat one another as having equal moral status. Some radical egalitarians would take the opposite view; it pays to note, incidentally, that they have not, on the whole, successfully defended it.
44. Not in all cases though: it is perfectly conceivable to think that donating a liver lobe is less burdensome whilst alive than once dead. Suppose that you very strongly believe that you must be buried intact in order to be resurrected by God, and that such belief is central to your life. If a liver lobe is taken from you whilst you are alive, you liver will have (in all likelihood) regenerated itself before you die. But if a liver lobe is taken from you once you are dead, your liver will not regenerate itself. In the light of your religious beliefs, having to donate a liver lobe once you are dead will indeed blight your life, whilst having to do so whilst you are alive will not.
45. See my 'Justice and the Compulsory Taking of Live Body Parts'.