1 I am grateful to Bernard Baertschi, Dan Brock, Cécile Fabre, Kasper Lippert-Rasmussen, David Weinstein and Martin Wilkinson for helpful comments.
2 Dworkin R., ‘Comment on Narveson: In Defence of Equality’, Social Philosophy and Policy 1 (1983), p. 39 (quoted on p. 3).
3 You can function normally with just one kidney. Properly performed kidney extraction (in hygienic conditions, with long-term follow-up, etc.) carries a low .03 per cent risk of death, mainly from the general anaesthesic. The risks of injury and of losing one's other kidney (in an accident, say) are also very low.
4 Thus, in prevalent perception, there is not one prophylactic membrane, but many concentric ones around the ‘core’ (or the several cores); the deeper the membrane, the more inviolable it is, in the sense that it takes more to justify its transgression. There are perceived reasons against trespassing into someone's apartment, stronger perceived reasons against trespassing into his bedroom, stronger ones against trespassing the rim of his body, and so forth. Judith Thomson suggests that the (admittedly rather weak) constraint against touching someone's shoes without permission is stronger when one wears them (The Realm of Rights (Cambridge, Mass., 1990), pp. 207–8).
5 I defend these empirical claims in a draft paper on markets in organs.
6 See, e.g., her ‘Justice and the Compulsory Taking of Live Body Parts’, Utilitas 15.2 (2003), p. 145.
7 For Warren Quinn, ‘A person is constituted by his body and mind. They are parts or aspects of him. For that very reason, it is fitting that he have primary say over what may be done to them – not because such an arrangement best promotes overall human welfare, but because any arrangement that denied him a say would be a grave indignity’ (Morality and Action, ed. P. Foot (Cambridge, 1993), pp. 170–1). Hans Jonas describes all human experimentation, and not just harmful experimentation, as an ‘invasion of private sacrosanctities’ that always ‘involves ultimate questions of personal dignity and sacrosanctity’ and that, without ‘genuine authenticity of volunteering’ to participate, ‘make[es] a person . . . a thing’ (‘Philosophical Reflections on Experimenting with Human Subjects’, in his Philosophical Essays: From Current Creed to Technological Man (Chicago, 1980), pp. 105ff.). Robert Nozick describes all coercion, battery included, as violating Kant's injunction against treating persons as mere means, without making exceptions for paternalistic coercion (Anarchy, State, and Utopia (Oxford, 1986), e.g., pp. 30–4, 48–51). Thanks to Kasper Lippert-Rasmussen and Dave Wendler for some of these references.
8 However, see Timothy Wilkinson's criticism: ‘as Fabre herself stresses, the sense that the body is special is . . . firmly rooted in our intuitions . . . The problem faced by Fabre is that if the confiscation of live body parts really does follow from her principles of justice, we might well think “so much the worse for her principles”.’ (‘The Confiscation and Sale of Organs’, Res Publica online edition (2007).)
9 See especially her ‘Justice and the Compulsory Taking of Live Body Parts’, p. 130.
10 To state just one qualm, I believe that Fabre is too quick to reject equality as a component of justice. Her sole argument against equality is that ‘it is an extraordinarily demanding requirement, for it . . . prevents [the well-off] from giving priority to many of their most cherished projects, goals and attachments. For example, it disallows transfers of resources from parents to children, for such transfers produce inequality between children’ (p. 30). That argument is unfair. Ensuring that all children enjoy sufficiency would also disallow unregulated transfers. In that sense, strict sufficiency is similarly demanding. The solution, it seems to me, is to say that equality, desert, and perhaps sufficiency or priority are components of justice, but that these components must be balanced against each other and against extra-justicial normative considerations (such as, conceivably, promoting general utility or avoiding cruelty). Justice and its different components are not what people and the state must always pursue all things considered.