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The non-identity problem of professional philosophers

By Charles Foster

Philosophers have a non-identity problem. It is that they are not identified as relevant by the courts. This, in an age where funding and preferment are often linked to engagement with the non-academic world, is a worry.

This irrelevance was brutally demonstrated in an English Court of Appeal case,  (‘the CICA case’) the facts of which were a tragic illustration of the non-identity problem.

M (‘the mother’) was raped repeatedly by her father. She gave birth to Y, who, because of the incest, suffered from a serious genetic disorder. Y claimed compensation under the Criminal Injuries Compensation Scheme. She was not entitled to compensation, said the Court of Appeal.


The President of the Queen’s Bench Division, Sir Brian Leveson said:

I would construe the 2008 Scheme to mean that the victim of the crime of violence in this case could only be M (with the result that she was entitled to receive compensation for the personal consequences to her of her father’s actions). To suggest that Y, who had not been conceived at the time of the crime, was himself a victim of crime (the nature of the crime involved being difficult to discern) or that it is possible to assess compensation on the postulate that Y would otherwise have been born without disability and so should be compensated for the genetic disorder from which he suffers is to go beyond that which the Scheme was seeking to cover.’1

He cited with approval2 the following passage from a Scottish case (Millar (Curator Bonis to AP) v Criminal Injuries Compensation Board)3, which was concerned with materially identical facts:

‘It appears to me that the concept of injury, in the context of a situation in which compensation for it must be assessed, presupposes a pre-injury state which is capable of assessment and comparison with the post-injury state. It is obvious from the circumstances of this case that the child concerned never had, nor could have, any existence save in a defective state. Accordingly, in my opinion, it is inevitable that her plight, grievous though it may be, cannot be seen as ‘personal injury’, within the meaning of para. 5 of the revised 1969 Scheme.’

 Henderson LJ, in the CICA case, observed that:

‘…Y is a person who, of necessity, has never had any existence except as the genetic product of the union between his mother, M, and her father. This union involved the commission of a crime of violence, of which M was undoubtedly a victim, and in respect of which she has claimed and been awarded compensation in 1994 under an earlier version of the Scheme. But Y cannot claim to have sustained a personal injury in and directly attributable to that same crime of violence, within the meaning of “criminal injury” in paragraph 8 of the 2008 Scheme, because he had no prior existence when the crime was committed. The injury of which he complains is, in truth, a complaint about the genetic inheritance which made him the unique person who he is. That is not a complaint of an injury sustained by him, because he, the person allegedly injured, has never existed in an uninjured state. On analysis, his real complaint would have to be that he should never have been conceived at all. A complaint of that nature, however, is not a claim for personal injury, but a claim for wrongful existence, which as this court explained in McKay v Essex Area Health Authority is not one which the law can recognise, or for which compensation could be assessed.’ 4

 (The core of McKay, the cornerstone authority on ‘wrongful life’, is Ackner LJ’s famous observation: “But how can a court begin to evaluate non-existence, ‘the undiscovered country from whose bourn no traveller returns’? No comparison is possible and therefore no damage can be established which a court could recognise.”5)

 And that, so far as discussion of the non-identity problem is concerned, is it. The entire judgment, containing the reasoned conclusions of three senior judges, is composed of 31 terse paragraphs and runs to fewer than 4500 words.

The judgment will be interesting to philosophers for what it does not say. The term ‘non-identity problem’ is never used, and none of the attempted answers to the problem, so laboriously articulated in philosophy departments6, is ever mentioned. The court (taking its cue from McKay) seems primarily concerned with the difficulty of assessing damages (of comparing a compromised life with no life at all), rather than with the logically prior question of whether there is a life at all which can coherently be said to have suffered harm.

The Court of Appeal, note, is the second highest court in the land. It determines repercussive questions of principle, and binds lower courts. It is populated by (invariably) clever judges who are (at least notionally) assisted by (often) clever barristers who (always) take their submissions seriously and (always) purport to have researched exhaustively. The Supreme Court has the time and the inclination to be more philosophically sophisticated, but though Parfit (invisible to the Court of Appeal), might get a footnote in the Supreme Court, he’s unlikely to get a full and sympathetic hearing there.

This is all very depressing for professional philosophers. They have only themselves to talk to.


  1. Paragraph 26
  2. At paragraph 9
  3. (1996) 197 SLT 1180
  4. Paragraph 31
  5. McKay v Essex Area Health Authority [1982] QB 1166, at 1189
  6. Summarised in the Stanford Encylopaedia of Philosophy (see link above), paragraph 3.
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3 Comment on this post

  1. As a professional philosopher in strong favour of rule of law (a principle for which I believe there to be several good philosophical arguments), I rather find this example reassuring. Clearly the law (by statute and case praxis) applies a historical comparative sense of “injury” in the context of damage suits. A professional philosopher might believe that it should instead apply a counterfactual sense (in which a non-identity problem may ensue), but that’s an argument to make to parliament (no?), judges should apply the law as it stands at the time of judgment. For my own part, I cannot but think that past lawmakers had more wisdom than what they possibly might have understood – to design a statute so that dodges one of the most tricky problems in normative theory; my, that’s clever!

  2. Nice post Charles. I wrote a piece in the Lancet on the Gard case, opposing the decision of Judge Francis, that, as far as I can tell, had zero impact. I raised legitimate questions about how you judge a life worth living and the role of uncertainty in such decisions. What do you think we should do about it?

    1. Many thanks, Julian.
      There is, of course, no quick fix. I’m afraid that we have to recognise (cue allegations of self-hating, racism etc), that the UK is constitutionally and stridently anti-intellectual. In slapping itself on the back for its common-sense/pragmatism/refusal to fall for namely-pamby, high-falutin-ness, it has impoverished its own discourse in all arenas and at all levels. I suspect that in refusing to take Parfit seriously the Supreme Court would, similarly, congratulate itself for its canniness in not being hoodwinked by the Academy.
      I’ve spent a lot of the last few months talking to print and broadcast journalists from a number of jurisdictions about (broadly) some epistemological issues. The degree of interest and understanding was very conspicuously higher amongst non-UK journalists. And no, they weren’t all from high-brow broadsheets or earnest late-night philosophical talk shows.
      We can speculate (and I hope we will one day) about the reasons for all this. It is not under-discussed.
      Can anything be done?
      Well: I’m not as pessimistic as I was. The manifest, internationally embarrassing poverty of our national political culture has, I think, made people realise that they’ve got to start thinking more seriously, and from first principles, about why they believe what they do. The unexamined life is the life we’re living, and it’s not great, we’re now noticing. There’s a new hunger for meaningful conversation. The shocks of the last year have created spaces in the media for exposition rather than sound-bite. We’ve realised that we don’t know who or what or why we are, and that that’s worrying.
      If anything can be done, what is it? Mainly, I think, what you at Uehiro are already doing. If there’s a hunger, people will go in search of food.
      Specifically within the law, there are real issues with legal education, which is, by and large (and with many honourable exceptions) philosophically philistinic, and proud of it. Once lawyers leave university they won’t have time for the sort of reflection that, decades later, will be expressed in Supreme Court judgments. But perhaps that’s a subject for another post.

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