Jürgen Habermas has recently confirmed his status as Germany’s preeminent public philosopher by entering the debate over human cloning; 1 his passionate opposition to this practice is structured around replies to three other German intellectuals who either condone cloning or do not oppose it on moral grounds. The statement comes in a very short essay, “An Argument Against Human Cloning: Three Replies,” originally published in the January 17-18, 1998 Süddeutsche Zeitung and reprinted in his collection The Postnational Constellation; here, Habermas replies to Elizabeth Beck Gernsheim, Dieter E. Zimmer, and Reinhard Merkel on what he sees as mainly at stake in the debate over whether cloning is morally acceptable or not. “The main issue,” he writes, “is the question of what the significance is for a person—whether it makes a morally relevant difference for her self-understanding—‘in what manner she has come to receiver her own genome’: through accident, or through a determined or arbitrary act”. 2 In what follows, I present a critique of Habermas’s position on pragmatist lines—and specifically, lines which follow Dewey’s pragmatism, or what he called in Experience and Nature “empirical naturalism.” First, I detail Habermas’s argument, reconstructing it with support from other of his writings; my goal here will be to show that Habermas offers three separate but overlapping arguments against cloning from (a) a constructivist perspective on human rights, (b) the moral stance based on mutual perspective-taking, and (c) the possibility of moral reciprocity between the cloned and those who clone, or indeed, any human conceived in the traditional way. The latter two of these arguments are similar in significant ways, and both depend on a view of human rights which Habermas has recently expanded in his Between Facts and Norms.
1. Against Human Cloning: Replies concerning rights
While rights are central to Habermas’s account of the relationship of politics and freedom, rights can only be understood as they stand in relation to the roles of discourse and democratic legitimacy in his account. Besides defining what constitutes a legal person, Habermas also accepts that rights have the typical liberal function of securing “the most extensive basic liberty compatible with a similar liberty for others.” 3 As Bartlett points out, this central role for rights also requires two corollaries: that rights delimit the status of their holders as members “in a voluntary association of consociates under law” and that they specify their own “actionability,” that is, the legal protection they promise for persons by the authorization of coercion. 4 Legal rights, as rooted in a specific legal community, protect their holders via an artificial status created as the result of intersubjective agreement and negotiation; 5 they can thus be distinguished, for Habermas and indeed virtually all Kantians, from the rights generated via moral duties and obligations, which are best conceived of as “reciprocal duties” and not constraints, and which are not spatially and historically tied to a particular community. 6
If human rights are grounded in norms which are discursively valid given (D) and its application to issues of democratic legitimacy, then they cannot be restricted from broader application than to a specific state, Habermas says. “Basic rights are equipped with a universal validity claim because they can be justified exclusively from the moral point of view.” 22 A Kantian view of the place of legitimate rights in a egalitarian democracy where the rule of law allows for certain decisions to be made through a representative judiciary will then hold that “the universalistic principles of an egalitarian legal order permit only those decision competencies that are capable of harmonizing with the mutual respect for the equal autonomy of each citizen.” 23
Replies involving perspective-taking and reciprocity
With the aid of this background regarding the place of human rights in a discursive democracy, let us examine the specific arguments that Habermas makes in “Against Human Cloning.” In his consideration of the preferability of a legitimate legal-political mandate regarding this issue, Habermas seems to imply that we will ultimately need to rely on an argument based on the application of the constraints dictated by human rights in deciding “the question of whether a society ought to refrain from doing something that it has the power to do….”24 Habermas sees this as fundamentally a question of constitutional, rather than juridical law, since it is notoriously difficult to adjudicate rights claims which have an addressee but no subject, that is, no one whose rights have been injured. Habermas himself points this out in his response to Reinhard Merkel, who in turn maintains that an existing cloned human could not make a claim to injury of their rights based merely on their creation. Indeed, their creation would in many (but not all) ways be dependent on the action of the creator; 25 any rights claims submitted for adjudication from a cloned human depend at least on the fact that they are a living human. Jurisprudence would logically demand that an action—the creation of a cloned human—cannot at the same time be both culpable, as well as the only grounds for imputing that culpability, namely the beginning of the clone’s life.
This part of Habermas’s argument is extremely important for understanding how he interprets human rights in terms of a moral stance based on perspective-taking, and the possibility of reciprocity between all those whom human rights apply to.
The “me” of this complex of the self reflects what Mead calls the “attitudes” of others, what Habermas would want to refer to as “shared norms.” In highly articulated social groups which are differentiated by practices funded by varying norms and values, the “me” reflects an abstracted sample of “attitudes” common to the group as a whole; this is the “generalized other.” 30 For Habermas, the ethical significance of autonomy also attaches to this process of socialization:
What is important in this view of the impact of taking the attitude of the generalized other is how autonomous we conceive the “internalizing processing” of conflicts of “diversified and tension-filled normative expecations,” in turn, to be. While this question cannot be pursued in this paper, what Habermas’s appropriation of Mead does reflect is that our individual self-understandings are ineliminably social in character. 32 They are, as it were, formed of pieces of the imaginative cloth that we take others to be woven out of, and the “me” of the self-complex represents the supreme values of the society that we have been socialized into, regardless of its geographical or cultural extent. 33 Equally, the “I” must mediate its relationship with the seemingly necessary presuppositions of living and communicating in such a society: it will, as Mead says, refuse to commit “suicide of the self” in following a course of realization which stands in opposition to many of its strongly-held beliefs. The values of the “I” are those “which are found in the attitude of the artists, the inventor, the scientist in his discovery, in general in the action of the ‘I’ which cannot be calculated and which involves of reconstruction of society, and so of the ‘me’ which belongs to that society.” 34
While, he admits, “one’s genome certainly fixes the conditions for identity formation,” one’s existential and cultural matrix, especially during the pre-adult years forming the crucible of identity, impacts on even similar genomes in vastly different ways, 38 perhaps even in ways too diverse to predict. However, it seems uncontestable that, for “an actor who wishes to know who he is and how he should live his life,” the fact of one’s origin has significance for one’s very basic “consciousness of freedom with which persons will perform their routine actions.” 39 We should read here that for a clone, there would be some, and perhaps disastrous peril to the autonomization process that Habermas described in his interpretation of Mead’s “I-me.” This failure can, in turn, be described as a gap in the normal process of attitude-internalization leading to the adoption of the attitude of the generalized other; in other words, it is a failure of perspective-taking for which the cloned human cannot be held responsible:
A cloned human’s “encounter [with] a foreign intention in the mirror image of her own predispositions” 41 produces a double effect: it irretrievably disrupts the ability of the clone to see herself as autonomously shaping her own self-understanding as well as putting the clone’s creator in a position of power over the clone. Typically, contingencies in the life of a non-genetically or -reproductively-engineered human can be taken as either the “givens of birth,” the inherent arbitrariness of living in the world, or the interaction of both. With the intentions of a creator standing in the place of the first of these kinds of contingencies, a typical “zone of inaccessibility” has been accessed, and this constitutes the “morally and legally relevant difference” in the two births. 42 “Inaccessibility” as used by Habermas is a reference to areas of our historical life which have not, and indeed (heretofore, anyway) could not be explained by reference to the intentions of others having lasting causal impact on us. Another way of putting this is that part of our autonomy, as human, is that significant portions of our life history are “removed from the grasp of another person with whom we are, normatively regarded, on an equal footing.” 43 Following this train of thought to argue that the moral and legal relationship of reciprocity between creator and clone cannot come into being, Habermas makes an analogy between the cloner and the clone and the master-slave relationship. 44 Clearly, if cloning, like“slavery is a legal relationship signifying that one person disposes over another as property,” then, “it therefore cannot be harmonized with the currently valid concepts of constitutional law: human rights and human dignity.” 45 If this analogy holds true for creator and clone, there is a fundamental disproportion in their significant relationships which deny the basic intersubjective premise of a unversal morality; for Kant, this premise is the possibility of reciprocal recognition. 46 In turn, reciprocity is unlimited by specific historical communities: its logic inevitably leads us to positing an “unlimited communication community” to which our our claims for recognition are addressed, and which, in turn, demands recognition from us, if in no other way that the mutual acknowledgment of certain universally binding norms. “Because of [the] intersubjective relations inscribed in moral norms,” Habermas tells us, “no norm, regardless of whether it involves negative or positive rights and duties, can be justified or applied privately in the solitary monologue of the soul with itself.” 47
2. Pragmatic Considerations about Cloning
Perhaps one place for such a response to start is in the consideration that pragmatic philosophy, as practiced by Dewey at least, embraces a working method which bridges critical first- and third-person perspectives by offering a critique of traditions of thinking as well as contemporary ideas that is both immanent and transcendent at the same time. Admittedly, Dewey’s idea of philosophical critique—“immanent” or “transcendent”—is throughgoingly instrumentalist in nature, as ideas are conceived by him as tools which do either a worse or a better job of fulfilling the tasks they were set out to help accomplish. And indeed, it must be philosophy as method, rather than as system of logical truths that Dewey advocates, since the former will give us “a philosophy which shall be instrumental rather than final, and instrumental not to establishing and warranting any particular set of truths, but instrumental in furnishing points of view and working ideas which may clarify and illuminate the actual and concrete course of life.” 55 Dewey closely follows James in holding that this method is the best one for philosophy’s melioristic function of mediating the weight of tradition in its friction with the need for change. 56
He is also quite clear in these lectures about the interpenetration of personal, or private rights and political rights. 63 The only reason to believe that the latter are actually subordinate to the former, he says, would be as a corollary to the Enlightenment idea that individuals had an existence separate from, and often in opposition to, all of society; of course, Dewey rejects this view in many of his works. However, the American political experience, in which Dewey grounds much of his theory of democracy, illustrates how influential the norms of discussion, publicity, and communication that emerged from the eighteenth-century public sphere were to the creation of modern regimes of rights. The founding fathers of America were convinced, Dewey says in a 1952 contribution to a UNESCO symposium on democracy, that the value of free and open communication was “so basic and so intrinsic that political activity must not be allowed to infringe upon them.” 64 Such rights are, despite the fact of being prepolitical, not an inherent limitation of democratic political action, because their special status should be conceived of as “a determination of the conditions under which and of the way in which genuinely democratic activity might best be assured.” 65
Because rights help define what it is to be a legally unimpugnable individual, and (for the social pragmatist) the individual is always an individual-in-association, the mere fact of the living individual human person demands certain other “sociability” rights which partially define the structure of contemporary Western societies—property, contract, and the like. 68 From this we may correctly deduce that the cross-dependency of personal and political rights and historical political and social structures means, for the pragmatist, that transcendental arguments for justification of rights may indeed weaken, rather than strengthen the rights cause. The social nature of rights is not inherently a limitation, as James Tufts, Dewey’s collaborator on the widely successful Ethics textbook (1908, revised 1932) says:
This point is in no way lost on Habermas, who claims, for example, that both liberal and communitarian/republican approaches to the concept of rights “fail to grasp the intersubjective meaning of a system of rights that citizens mutually accord one another.” 70 However this is only decisive for Habermas in the case of civil rights—classed by him as those rights which ensure opportunity of participation and communication. This separation seems to be a logical application of Habermas’s “two-track” view of institutional procedures in a democracy: “they must be open to inputs from an informal public sphere, and, at the same time, be structured to provide reasonable discursive criteria.” 71 David Ingram puts this in a different but enlightening way when he states that:
Which is more primary, then, on Habermas’s view of human rights: their quasi-transcendental character, grounded in a universal morality as presuppositions of a ever-broadening legal order, or their intersubjective roots, and thus changeable character? Are these two characters compatible with one another? While investigating possible answers to these questions falls outside the scope of this paper, it seems clear that in the case of human cloning, where rights are not assignable to a living subject before an actual cloning operation, the source of justification of rights claims is extraordinarily important. If we privilege the transcendental character of the human right to fundamentally determine one’s own ethical self-understanding73 and also agree with Habermas that cloning violates that right by definition, then we will a solid case against cloning. If, however, we take the pragmatist stance that any right regarding ethical self-understanding is, at least to a degree, “open-ended” not only because we have no intersubjective consensus on all that constitutes or is even universally relevant to one’s ethical self-understanding, but also that such a consensus does not appear to be in sight, then we would not consider the invocation of a human right forbidding the creation of clones to be the proper argument against this procedure. Another way of putting this latter point is that if we can conceive of situations in which certain genetic determinations made on behalf of the cloned humans would not substantially affect the clone’s self-understanding, or would affect him or her in a positive way , then the worries which motivate the leap to human rights seem, if not to dissolve, to at least be mitigated by empirically feasible future scenarios. I consider several of these scenarios below in trying to assess whether or not the creation of a clone would imperil perspective-taking and reciprocity, two of the ethically relevant aspects of our self-understanding.
One problem with constitutional courts, like courts deeply affected by shifts to welfare-state law in liberal countries, is that they appear to run the risk of decreasing the total freedom of individual citizens because individual cases before such judiciaries would be decided in their normative relation to the whole of the constitution, rather than to contemporary values attaching to democratic legitimation. Dewey would agree with this, but would not see the necessity of the materialization of the positive effects that Habermas says such courts also entail, namely that, “the context-dependence of a norm application oriented by the whole of the constitution can reinforce the freedom and responsibility of communicatively acting subjects in nonformalized spheres of action.” 76 Instead, Dewey would suggest that reliance on lower-level juridical interpretation of basic rights in contextually-bounded cases, while perhaps less efficient for binding the legal code overall over time, simulates deliberation better in its restricted and formal sphere through allowing for frequent challenges to the established normative order. Often, these challenges are motivated by difficulties in reconciling important and widespread schemes of value with certain normative presuppositions of the law; indeed, legal challenges to existing bans on human cloning will take just this perspective in terms of the defense of, among other values, the positive “genetic enhancement” of families and the securing of the ability to reproduce.
The “me” can only be considered static without the “I,” and indeed, the “I” is required in its ability to transcend and critique the presuppositions of the self’s current social situation in the service of self-realization in general. 79 If we re-interpret this fundamental point back into the juridical metaphor, as Habermas has chosen to do in his debate with Brandom, we would find that a legitimate judiciary based on an appropriate theory of perspective-taking would be one which would accept, and indeed welcome all formally ordered challenges to the existing legal order; combined with Dewey’s instrumental view of constitutions80 (and indeed, all law, even that which guarantees rights, as Seigfried’s points above show), this illustrates that even quasi-transcendental bases for particular legal guarantees must themselves be questioned from a variety of standpoints in the public sphere. This view also gives us the advantage of being able to avoid, in principle as well as securely in practice, that reification of human rights and the legal documents in which they are embedded which Ignatieff has recently called “human rights as idolatry.” 81 The potential for this kind of reification is no less for the fact that it may be couched in performative presuppositions rather than in some “natural” property common to all humans, as Locke and others might have had it.
Pragmatic considerations for continuing the cloning debate
A common characterization of deontological moral and political theory is that it is an exercise in overcoming, if not history, at least the arbitrariness or randomness of history. In Rawls’s theory of justice, for example, this takes the form of the decision procedure called by him the Original Position, a procedure which employs the veil of ignorance to disregard as irrelevant to our choice of principles of justice a variety of truths about each of us outside of our status as rational and self-interested agents. 82 These kind of procedures have a turn of fortune in Habermas’s position on cloning, because the invocation of universal human rights is used as an argument against not arbitrariness, but against determination. This is vaguely ironic, but philosophically sound because in both Rawls and Habermas, the intent is to secure the agent’s position as a rational chooser apart from coercive or irrelevant (those we cannot all share) influences. An argument that the standard procedure for cloning—that is, the transplantation of nuclear material with certain known genetic characteristics into an egg, followed by the enculturation of the egg so as to start cell division and eventual transplantation to a woman’s womb83 —determines the eventual cloned human produced so as to obviate their autonomy will have to show how their self-understanding, powers of rational choice, or both, will be significantly impaired by being created via this procedure. I want to maintain that Habermas has given us good reasons to think that this might be so, but failed to consider a whole host of other reasons as to why the the moral status of the agency of the cloned human might be little worse than any non-cloned human.
To be fair to Habermas, however, it may seem that this balancing act of growth through interaction with the environment versus nascent “given” misses the point; indeed, Habermas himself, in his reply to Merkel, emphasizes that his argument is not centered on the “composition of inherited predispositions,” but rather on the self-understanding of the cloned human who “encounters a foreign intention in the mirror image of her own predispositions.” 92 If we are to take the role of perspective-taking in socialization seriously, we will recognize that the cloned human’s reaction to her encounter with a “foreign intention” will be strongly conditioned by society’s attitude toward clones and cloning procedures. Because, as I have already mentioned, the possibility of clones being created outside the ban is a very real one, it seems to me that societal attitudes, particularly our ethical ones, need to take into consideration not only our principles about the rights of all humans, but also the consequences of actual creation of clones. I doubt that we will produce a flexible and satisfactory ethical view if we adhere to rather rigid principles which assume that the ban on the creation of cloned humans itself creates such a force of obligation that no clones would ever be born. Dewey seems to be quite clear that new developments in science and technology are themselves capable of changing our interests and desires; otherwise, “desire and knowledge exist in separate non-communicating compartments.” 93 If there is no ultimate disconnect between our desires and our moral sense, then these considerations ask us to consider, at the very least, that we be open to new evidence which would change our minds about the feasibility of controversial procedures such as cloning. This is one pragmatist response to what I have been calling Habermas’s “soft case.”
Conclusion
A positive pragmatist position in regard to the admissibility of human cloning must, as in every other area in which practical decisions with far-reaching public consequences are made, take its support from a plurality of norms embedded in diverse areas of knowledge, both expert and non-expert. In general, I think that Saatkamp has provided pragmatists considering difficult issues in the areas of genetic engineering with four excellent guidelines for focusing deliberation:
These guidelines allow us to see the benefits of various cloning technologies and to envision potential applications of reproductive cloning which would, if balanced by juridical consideration of the interests of the cloned child, expand reproductive rights as well. However, Saatkamp’s advice also entails that we currently weigh the arguments for and against reproductive cloning, a work of deliberation that would, I suspect, produce the recommendation of an indefinite moratorium on reproductive cloning. Considerations that currently mitigate against this practice include: perils to the safety of the cloned child and its birth mother (primarily), the incompleteness of basic knowledge of genome location/functions (which will be filled out by the completion of the Human Genome Project), the cost of the procedure, the general problem of world overpopulation (to which successful human cloning indirectly adds), and the lack of reconciliation between differing ethical and religious views on this issue. To this list, we might add the conclusion of this paper that we are still in a debate about a very basic aspect of how we consider clones legally, and that is, what relationship potential cloned humans would have to human rights. As we have seen, Habermas thinks that the presuppositions of our human rights regime forbid the creation of clones, while the Deweyan pragmatist considers that a wide range of normative appeals currently do not support deploying the technology, and so a moratorium rather than a ban is what is called for.
Kevin Decker
St. Louis University
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