Who Can Be Wronged?
by Rahul Kumar
1. Introduction
(a) Imagine, for instance, that a child is born with severe restrictions on the quality of her life, and that her parents might have prevented such an outcome if they had taken certain precautions prior to conception. Does the child have a legitimate claim of wrongdoing against her parents? Can she make a legitimate claim for actions and decisions that had taken place before she existed? Many philosophical ethicists believe that if the alleged wrongdoing is relevant for fixing the psycho-physical identity of the complainant, such that her identity would not be what it is had it not taken place, her claim to have been wronged cannot be defended as even potentially legitimate.1
This is a very counter-intuitive position.2 Depending on how certain other relevant considerations are filled out, such as how reasonable it was to have expected the child’s parents to have taken into account the necessary preconception measures and what the circumstances were that resulted in their failure to do so, many are inclined to believe that it is at least arguable that the child has been wronged by her parent’s failure. Further, taking the appropriate precautions would have delayed conception by a certain amount of time. Though not prima facie relevant for assessing whether or not the child has been wronged, failing to recognize the significance of this fact, some would argue, ends up seriously misleading us. Drawing upon the lesson of what Derek Parfit has labeled the non-identity problem, the proponents of this line argue that the legitimacy of claims to wrongdoing in some way requires that one’s psycho-physical identity be fixed, at least with respect to the wrongdoing.3 This view presupposes a characterization of wronging on whose terms a person can only claim to have been wronged by the conduct or decision of another if she has been harmed as a result of the relevant conduct or decision, and that a person is harmed if and only if she is left worse-off than she otherwise would have been. The very possibility of being left worse-off than one otherwise would have been requires that the psycho-physical identity of the person on whose behalf the claim is being made remain fixed between the world as it is and the counter-factual world to which it is to be compared. For this reason, some have suggested, the fact that the taking of appropriate precautions would have significantly altered the timing of conception must be a morally relevant consideration, as the time at which conception took place is an identity-fixing consideration.
In this discussion, I defend the position that in principle skepticism about even the possibility of wronging in such cases is not warranted. Whether or not the child has in fact been wronged requires the filling in of further facts, which demand substantive moral argument and further deliberation. The matter cannot be settled by conceptual fiat.
For purposes of argument, I accept that the fact of the parent’s failure is a consideration that is relevant for fixing the child’s psycho-physical personal identity. What I take to be mistaken is the idea that the kinds of considerations identified by the non-identity problem, concerning the fixity of psycho-physical personal identity, are morally relevant for reasoning about whether or not one person has been wronged by another. The idea is mistaken, I suggest, irrespective of whether or not one also takes such considerations to be irrelevant for understanding what it is to have been harmed.
By accepting, for the sake of argument, the metaphysical presuppositions of the non-identity problem, I do not mean to suggest that they cannot be fruitfully challenged. Rather, I am suggesting that the moral relevance of the considerations to which the non-identity problem draws attention depend upon a broadly consequentialist account of wronging. I call this a consequentialist understanding because the fundamental kinds of considerations that are relevant for determining whether or not one has been wronged are taken to have to do with outcomes, or more generally, what has happened. As an implicit component of the argument, therefore, consequentialism is assumed but not defended. But, if we were to adopt instead a plausible, distinctively non-consequentialist characterization of reasoning about wronging, it turns out that considerations concerning the fixity of psycho-physical personal identity can be shown to be of no moral relevance. The alternative characterization can be used to develop a plausible rationale for how it is possible for the child to have been wronged by her parent’s failure to have pursued appropriate precautions. To the extent that what one is primarily interested in is illuminating moral reasoning concerning the wronging of one by another, there is no need to challenge the metaphysical presuppositions of the non-identity problem--it just need not be taken to pose a challenge to reasonably common convictions concerning who can be wronged.
(b) My suggestion, then, is that the non-identity problem only appears to present a serious challenge to common intuitions concerning who can be wronged when one accepts that a claim to have been wronged necessarily require a counter-factual appeal to how one has been left worse off than one otherwise would have been. It is the dependency on outcome as the fundamental consideration in this cluster of accounts which leads us to consider psycho-physical identity as relevant.
In particular, the standard consequentialist approach to the explication of objective moral wrongness takes the fundamental relevant considerations to be those that concern the aggregate value of the outcome that was brought about in comparison with that of others that could have been brought about. Moral wrongs in this sense are impersonal wrongs, insofar as having brought about a worse outcome is objectionable, regardless of whether or not it is worse for any particular individual.
Appeals to having been wronged, on the other hand, concern a distinct sense of moral wrongness, one at work in contexts where the claim is not impersonal, but is made by, or on behalf of, an individual who is the victim of the wrongdoing. The consequentialist approach to explicating wrongs in this sense takes the basis of the victim’s claim as fundamentally having to do with how the outcome that has been brought about is worse, not in impersonal or aggregative terms, but for her in particular. The intuitive appeal of this approach is often bolstered by presenting it as the view that a person has been wronged only if she has been harmed, and that a person is harmed if and only if she is left worse-off than she otherwise would have been. The characterization of ‘harm’ here takes it to be a necessarily comparative concept, but neither 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, is that the counterfactual judgment, that a person has been left worse off than she otherwise would have been had the wronging not occurred, be a plausible one.
As an approach to illuminating what it is to be wronged, this approach has its intuitive appeal. A claim to have been wronged suggests that something has been done to the claimant, such that it is appropriate to think of her as the victim of the wrongdoing. The suggestion that the claimant’s complaint 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 idea of being left ‘worse off in some morally significant way’ with the concept of harm further bolsters the conviction that there is something 'right' about the consequentialist approach.
On closer scrutiny, however, the consequentialist approach proves to be inadequate. The root of its inadequacy has to do with what makes it consequentialist to begin with, namely the accounting for what it is to be wronged in terms of what has happened to the victim. Can't a person be wronged without anything having happened to her? Isn't it conceivable that she may be left worse off as a result of having been wronged?
Consider, for example, the case of a drunk driver who comes swerving along the street where you happen to be taking a late evening stroll, thereby momentarily imperiling your life. Luckily, nothing happens to you; the whole incident takes place so quickly, you don’t even have time to be frightened. You are not, therefore, in any way worse off as a result of your life having been put at risk. As the risk did not in fact blossom into 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’s conduct would be, in this case, misplaced.
But there is nothing suspect about the claim that one has been wronged by the drunk driver (expressed, perhaps, as resentment of him or anger directed towards him), simply in virtue of his having, without justification, taken your life in his hands by exposing you, even briefly, to so serious a risk. An adequate analysis of being wronged ought to be able to make good sense of our intuitions in this kind of case, rather identify them as suspect because they do not involve anyone being left worse off, or harmed.
Being left worse off as a result of having been wronged is not, course, an unusual occurrence. It turns out, however, that the consequentialist analysis fares no better in making sense of claims to have been wronged in examples which do involve something happening to the victim. Such claims have a distinctive character that simply cannot be accounted for in terms of considerations having to do with what has happened to a person, such as having been harmed.
Take, for example, the case of the hiker who steps on animal trap lying on the trail, resulting in a serious injury to her foot. She has certainly been harmed, but it would be intuitively odd to assess the incident as one in which she has been wronged. Say, though, that it turns out that trap lying on the trail was not a fluke occurrence, but was in fact placed on the trail by the owner of the property that the trail traverses, as a way of discouraging hikers from venturing on to her land. This variation to the example makes no difference to what has happened to the hiker; her injury is no worse, nor is she generally worse off because the trap lying in the trail turned out to be the result of the property owner’s machinations. The difference such added information does make is that it justifies her claiming the incident to be one in which she was not only harmed, but one in which she has been wronged. Why this is so is difficult, if not impossible, to make good sense of using the resources of the consequentialist approach.
(c) The non-consequentialist conviction, broadly stated, is that what one does has a significance in moral reasoning that is independent of the relevance of what one does for what happens. It is to the moral significance of what the wrongdoer has done, or more precisely, how the wrongdoer has related to the wronged (quite apart from the consequences for the victim), that the non-consequentialist turns in order to account for the distinctive character of a claim to have been wronged.
The challenge for the non-consequentialist is two-fold. First, the precise characterization of the relation between wrongdoer and wronged needs to be one in which the former's offense is fundamentally an offense against the latter. This is to suggest that the basis of the offense should fundamentally focus on considerations that appeal to the implications (broadly construed) for the victim living her life. The consequentialist approach’s appeal to the victim having been made worse off as a result of having been wronged appears to satisfy this desideratum quite nicely, despite its dubious overall plausibility--quite apart from the problems the non-identity problem poses for it.
Second, to vindicate the claim that the non-identity problem is a problem for consequentialists but not for non-consequentialists, it is important that claiming to have been wronged be explicated in terms that do not include appealing to counterfactual analyses of claims concerning how one has been left worse off than one otherwise would have been. Admitting such appeals on the grounds that they are relevant results in a vulnerability to the challenge of the non-identity problem, the revisionist implications of which are difficult to deny once the legitimacy of the challenge has been conceded.
How the challenge of providing a plausible non-consequentialist account of what it is to be have been wronged, on whose terms commonsense convictions concerning who can be wronged can be shown not to be threatened by the non-identity problem, can, I believe, be nicely illustrated using the resources of Scanlonian contractualism.5 Note, however, that the proposal does not require acceptance of the entire contractualist account of wronging. Though the argument does have implications for how contractualism ought to be understood, its role here is primarily as a helpful vehicle for illustrating a general non-consequentialist strategy for deflating the challenge of the non-identity problem.
2. Reasoning about wronging: the contractualist approach
Contractualism aims to provide a plausible framework for explicating the rationales of the principles, or normative standards, of interpersonal conduct and consideration. The moral wrongs of this domain consist in one person having wronged another person by having related to her in a certain way. The contractualist characterization of the interpersonal role of moral principles is analogous to that of laws in a legal system: they establish certain legitimate expectations concerning consideration and conduct between persons in their interactions with one another.6 The role of these legitimate expectations is specifically to serve as a basis for interaction, on terms of mutual respect, between those who have the capacity for rational self-government in pursuit of a meaningful life. What can be legitimately expected of one differs, of course, according to the character of the relationship one stands in with respect to the other person. Different kinds of relationships one might stand in with respect to another are, in fact, to be distinguished on the basis of the distinctive clusters of legitimate expectations by which each can be characterized.7 The regulation of one’s conduct in light of these distinct legitimate expectations is at least partially constitutive of what it is to stand in a relationship to another.
The appeal to “persons” here should be understood to be an appeal to a specific normative ideal of the person, the salient characteristic of which is the capacity for rational self-governance in pursuit of a meaningful 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, reasons. This places them amongst a select group of those animals capable of intentional action. Second, that persons “have the capacity to select among the various ways there is reason to want a life to go, and therefore to govern and live that life in an active sense” (Scanlon 1998, pg. 105). The capacity to select among reasons is a specific way of exercising a general capacity to critically reflect upon one’s reasons, often referred to as the capacity to form second-order beliefs, or rational attitudes, about one’s beliefs and attitudes. In other words, a person has the capacity not only to be guided by her beliefs about reasons, but also to reflect upon whether her beliefs are correct, select among her beliefs in ways that allow her to shape her life in distinctive ways, and reflect upon the quality of her selections. It is this general capacity, without which self-knowledge would not be possible, which distinguishes persons from other animals capable of intentional behavior. More importantly, it is in virtue of this capacity that there is the possibility of what Philippa Foot refers to as “second-order evil” in human life, which has to do with “the consciousness of being disregarded, lonely or oppressed” (Foot 1996, pg. 210; italics added). The capacity to be conscious of reasons results, then, in a distinct kind of vulnerability, a vulnerability to what another’s reasons, or reasoning, concerning how it is appropriate to relate to oneself, says about oneself.
Though the kinds of wrongs which contractualism seeks to illumine are those associated with the wronging of one (the victim) by another (the wrongdoer), the view does not characterize a claim of having been wronged 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 to have been wronged requires that certain legitimate expectations, to which one is entitled in virtue of a valid moral principle, have been violated.
One person wronging another, then, requires that the wrongdoer has, without adequate excuse or justification, violated certain legitimate expectations with which the wronged party was entitled, in virtue of her status as a person, to have expected her to comply. Returning to the previous example, a rough account of why the drunk driver has wronged the pedestrian ought to appeal to the failure to comply with the pedestrian’s legitimate expectation of the driver that she operate her vehicle in a manner conducive to keeping the risk of her activity within certain acceptable limits.
Note that to have “not complied” with certain legitimate expectations should be read broadly in this context: it is not just a matter of having failed to conduct oneself in a certain way. It can also be understood as a failure to have been responsive to certain considerations which it was legitimate to expect one to have been responsive, or to have taken into account considerations that it was reasonable to have expected one to have disregarded as irrelevant for one’s deliberations at that time. For example, 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 best friend, however, is to wrong her. She may be your friend, but where professional matters are concerned, she is entitled to expect you to relate to her as a fellow professional, assessing her on the basis of her qualifications as a professional.
This is only to gesture at the possibilities that might count as ways of culpably failing to comply with the legitimate expectations that another may be entitled to have of one, and in so failing, of wronging her. The essential point to note here is that the contractualist characterization of being wronged emphasizes the culpable failure of the wrongdoer, rather than how the wrongdoer has left the wronged worse off than she otherwise would have been. A claim to have been wronged, then, does not require making the kind of counter-factual appeal that would leave it vulnerable to the challenge of the non-identity of problem.
The contractualist account is not insensitive to the importance of intuitions that drive the possible-outcomes approach. Recall that the intuition is that for a person to have been wronged something must have been done to her. A formal characterization of claiming to have been wronged, then, ought to restrict the range of considerations to those that concern the implications for the victim of having been wronged.
Contractualism incorporates this intuition into the theory via. its individual reasons restriction.8 A structural feature of the view, it characterizes the class of considerations that can, in principle, be appealed to as relevant for the justification of a principle for the general regulation of how individuals are to relate to one another in a certain kind of situation.
What the restriction claims is that the kinds of considerations that matter in moral argument concerning the validity of a proposed principle are those that a person has reason to care about insofar as they have a bearing upon a person being able to live a rationally self-governed life. This restriction should be read broadly enough to encompass considerations that anyone has reason to care about in the early stages of the developmental path that generally results in the realization of the capacity for rational self-governance.
Some relevant considerations will not relate to an individual’s current or future welfare. Rather, they may concern the requisites for interpersonal relations on terms of mutual respect. This is important for contractualism’s claim to be able to account for how it is that a person can be wronged without being harmed. Insults, humiliations, intentional slights, “looking through a person,” expressions of a lack of trust, many kinds of paternalism, and, in general, conducting oneself in one’s relations with another in a manner that has implications for matters over which there are good reasons that the other have sole authority (or that, perhaps, one lacks the authority to have acted unilaterally) are but a few of the ways in which a person may relate to another such that she is wronged without necessarily being left worse off. For though one may not have made the other worse off, the way in which one has related to the other may still express a failure to have appropriately recognized and taken account of, if not intentionally denied, a person’s value as capable of rational self-governance, in virtue of which she is entitled to certain legitimate expectations of others concerning conduct and consideration of her interests. A person can be wronged, then, simply in virtue of how she figures, or does not figure, in how one is rationally disposed to relate to her.9
The denial of one's humanity may sound abstract. But, in fact, we see its effects every day: in the undermining of a person’s sense of her own worth, dignity, self-confidence, etc., resulting in inferiority complexes, a sense of worthlessness, abasement, despair, and other kinds of general diminution of a person’s capacity for independent agency. Note that none of these are appealed to as grounds for a claim to have been wronged. Harm, then, may result from being wronged without being the basis of a claim to have been wronged.
The individual reasons restriction is essential for contractualism’s being able to do justice to the initial intuition that a person's being wronged consists in something having been done to her, the force of which needs to be accounted for in light of the implications for her life. It does so by securing the connection between culpably failing to comply with the legitimate expectations of another—or wronging another—and a failure to have appropriately recognized her status as a person in one’s understanding of how it is appropriate to relate to others. While rejecting the idea that having been wronged has to do with having been left worse off, contractualism can be understood to appropriately take into account an important intuition that underwrites this idea.
3. The non-identity problem?
In directing attention to the violation of legitimate expectations as the basis of a claim to have been wronged, contractualism implicitly shifts the focus from what has happened to the person wronged to what was done.10 The shift in focus is the crucial move that makes it possible to then declare contractualism to be immune to the non-identity problem.
A declaration of immunity may, however, be thought to be somewhat hasty. Contractualism claims that being wronged has to do with the culpable violation of certain legitimate expectations, compliance with which was owed to one in virtue of one’s status as a person. But in the relevant kind of cases, i.e., preconception negligence cases, it isn’t obvious that it makes sense to speak of a child having been wronged by a culpable failure to have complied with certain legitimate expectations. How can there be an issue concerning one’s failure to have complied with the legitimate expectations of a person if, at the time of acting, there was no determinate person to whom compliance with those expectations was owed? Insofar as a particular person did not exist at the time of the relevant 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 conduct about which she believes she has a legitimate complaint, she would never have even come into being. The challenge of the non-identity problem has not, it appears, been evaded. It just needed to be recast in contractualist terms: how can one have wronged another when there was no “other” who stood to be wronged by one’s conduct at the time of that conduct, and who is now the particular person she is because of the conduct in virtue of which she takes herself to have been wronged?
The contractualist response to this challenge starts with the fact that what particular persons are entitled to legitimately expect of one another, in the circumstances in which they find themselves, depends on a general understanding of what individuals who stand in certain kinds of relations with respect to one another may legitimately expect in specific contexts. The “general understanding” appealed to here is what a person has insofar as she has a grasp of the legitimate expectations to which individuals are entitled, under the circumstances, in virtue of the relevant principles. Principles play an important role here, insofar as they are understood as roughly setting out what a particular person, insofar as she is a token of a certain type, may legitimately expect of other persons, and what they are entitled to expect of her in different types of situation, out of respect for one another’s status as persons.
A “type” of person is not, of course, a substantive individual, any more than a “type” of situation is an actual situation.11 Rather, the “types” in question are simply normatively significant sets of characteristics, whose instantiation together is to be found in actual, substantial, persons, and in the actual situations that persons find themselves. A person is entitled to take herself to be a token of a type of person in a type of situation, then, insofar as a certain set of facts, picked out as relevant by the appropriate “type” descriptions, are true of her and circumstances in which she finds herself.12 What an individual may legitimately expect, and what may be legitimately demanded of her, then, turns on both (a) what expectations can in fact be defended on the basis of the relevant principle, and (b) the relevant type descriptions that happen to fit her and her circumstances at a given time.
The basic “type” description in contractualism can be understood to be that of the “person,” as an individual capable of rational self-governance in pursuit of a meaningful life. Many principles, however, will be concerned with the regulation of specific forms of relationship that persons can stand in with respect to one another. Consider, for example,
M: Those individuals responsible for a child’s, or other dependent person’s, welfare are morally required not to let her suffer a serious harm or disability or a serious loss of happiness or good, that they could have prevented without imposing substantial burdens or costs or loss of benefits on themselves or others (Buchanan et.al.,226)
Principle M concerns the regulation of the relationship that caretakers and their dependents stand in with respect to one another. To the extent that the facts justify taking one to stand in such a relationship to another in, e.g., the role of caretaker, one has reason to take oneself to be bound to comply with certain legitimate expectations to which the relevant dependent is entitled. The expectations established on the basis of Principle M do not, of course, hold between persons generally, but only between those whom it is appropriate to take as standing in a relationship of caretaker and dependent with respect to one another.
Now, in the most familiar situations, one thinks of the others with respect to whom one stands in a certain kind of normatively significant relation, e.g., those who stand in a relation as dependents, as particular persons, and not in terms of generic types. For purposes of thinking about what one may legitimately expect of another, or what one is entitled to expect of another, the identity of the other need not, however, be any more determinate than that of being of a certain type. One has reason, then, to take another to be bound as a dependent just in case the relevant facts support the standing in such a relationship with respect to the other. The only knowledge of the other that is necessary here is that of it being reasonable to take her to be a token of a certain type, whatever else may turn out to be true of her.
There is nothing mysterious about “taking another to be a token of a certain type.” To do so amounts to nothing more than the reasonable attribution to another of the kinds of interests and legitimate concerns that characterize the concerns and interests that one capable of rational self-government might have in a relation of that kind. Reflection, then, concerning what, by way of consideration and conduct, one is entitled to expect of another requires only that the other be identifiable in normative terms—those appealed to in certain type descriptions. That the particular psycho-physical identity of the person in question, at the point in time at which compliance with the duty is required, may still be an indeterminate matter turns out to be of no consequence, insofar as no particular psycho-physical identity is required to be a token of a certain type.13
Consider, for example, a couple thinking about what steps they would have to pursue if they decide to go ahead and conceive a child. At this point, 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 dependent.14 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 attentiveness to the interests of the child to have in determining the extent to which the child is at risk of being born with severely limiting disabilities, diseases, etc. Having a ready grasp of the legitimate expectations that attach 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 that they undergo various preconception tests, in order to minimize the risk of their child being born with limiting disabilities or diseases. The justification for requiring risk-minimizing measures of this kind appeals to the relevant concerns of the normative ideal of persons presupposed by the contractualist framework of reasoning. Culpably failing to complete the required preconception testing would be to wrong their child, for it is their child who they would be putting at risk by their failure. Note that nothing in this line of reasoning relies on specific considerations that are sensitive to variations in the particular psycho-physical identity of the child.
The initial challenge questioned the sense of holding a person accountable for having culpably failed to have complied with the legitimate expectations of another as a result of conduct that took place before the other even existed, and who is, in a significant sense, the person she is now as a consequence of the alleged wrongdoing. The challenge proves, however, to be illusory, as it relies on a crucial misunderstanding of the character of legitimate expectations in contractualism. Legitimate expectations are expectations to which a person is entitled; a violation of legitimate expectations, then, is a violation of entitlement. It need not be the case that there is a person who, psychologically, holds these expectations.
What the case of wronging requires, then, is not that the victim be able to appreciate that she has been wronged, but that the wrongdoer have been in a position to understand what other persons are entitled (in virtue of the principles that constitute the moral system) to expect of her in terms of respectful conduct and consideration. There may, therefore, be a considerable temporal gap between the time when the entitlement to a claim to have been wronged is created (by the failure of the wrongdoer to comply with legitimate expectations), and there being a particular person to make the claim, insofar as she is a token of a certain type.15
7. There is no special problem for contractualism, then, concerning how one can have wronged one’s child as a result of a culpable failure to pursue appropriate pre-conception testing. To be so bound to one’s child, as caretaker to dependent, it need only be true that (a) one intends to conceive a child, and (b) one has reason to take it to be the case that the intended, but yet to be conceived, child will be a token of the type required for her to owe it to the child to take appropriate preconception precautions.16
8. A great deal depends here, of course, upon the demand, given the circumstances and the importance of compliance for the health of the child, having been a reasonable one. It is also crucial to the case that failure to comply with the relevant standards be a culpable failure, a consequence of her, e.g., in cases of negligence.
No doubt determining whether or not a failure counts as a morally culpable failure is a difficult judgment to make. What this line of analysis clarifies is that what makes cases such as these hard to assess is the difficulty inherent in making subtle assessments concerning whether or not a person’s failure to comply with a certain standard of due care was a culpable, or blameworthy, failure, or whether there are exculpatory considerations that tell against culpability. The challenge they present has nothing to do with a variance in psycho-physical identity that renders certain counter-factual claims as unavailable.
One important implication of this approach for thinking about how a child can be wronged by pre-conception negligence is that a child’s claim to have been wronged could be valid whether or not she has been born worse of than she otherwise would have been. If, for instance, a case can be made against a child’s parents that they culpably failed to pursue preconception testing, then they have wronged their child by exposing the child to avoidable risk, whether or not the risk ends up materializing as harm. Exposing the child to such risks involved an exercise of authority with respect to the child’s interests to which the parents were not entitled.
It does seem, though, that both the fact of negligence, and the child’s being badly off, are relevant to commonsense intuitions about this kind of 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 element in the evidentiary basis for there having been pre-conception negligence. Second, the association of this kind of case with civil lawsuits can 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 contractualist analysis of wrongdoing, however, is in the first instance only concerned with questions of culpability for having wronged another, not liability. Its denial of the relevance of facts concerning harm for determining whether or not a person has been wronged should not, therefore, be taken to be a rejection of the relevance of such considerations for thinking about the costs the wrongdoer must bear as a consequence of her wrongdoing.
The last point makes explicit that the analysis of wronging offered here aims to illuminate only a certain class of claims that a wronged party may be entitled to press against a wrongdoer. These are claims by the wronged for acknowledgment of the wrong done to her by the wrongdoer (punitive claims, as opposed, say, to claims for compensation). This may make the analysis of less interest for thinking about wronging in legal contexts, but does not diminish its importance for the illumination of issues concerning the moral psychology of interpersonal relations, where the value of acknowledgment has an intuitively natural home.17
9. The non-identity problem only poses a threat to commonsense moral convictions concerning who can, in principle, be wronged, if the basis of an individual’s claim to have been wronged is understood to be rooted in what has happened to her as a result of how a wrongdoer has related to 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 squarely put on the character of the wrongdoer’s conduct, rather than the consequences for the wronged of that conduct. In particular, the wrongdoer’s conduct needs to be assessed as a failure to live up to her responsibilities with respect to the wronged. The relevant questions, then, should concern whether or not the failure was indeed a culpable failure, how best to characterize the failure, and what the justification might be for holding the wrongdoer to be accountable.
Questions concerning who can be wronged are not in any way being here dismissed as somehow misconceived, or absurd. Such questions are clearly of great moral importance. What is being suggested is that they should be approached as questions that concern the scope, and the justification for the scope, of interpersonal accountability. Thinking about who can be wronged should direct us, then, not towards a discussion of the metaphysics of identity and the theory of counterfactuals, but towards the theory of responsibility