Volume 3, Issue 2
2nd Quarter, 2008

A Proactive-Pragmatic Approach to the Legal Status of Cyberminds

Max More, Ph.D.

Page 3 of 3

We could look to a natural rights theory or deontology as been mentioned. Personally, I’d say don't go there, it's a big mess. I think it does capture our intuitions to a certain extent. There is an inherent dignity to human beings but I do not think it really provides some convincing argument that you can convey to somebody who does not have years of philosophy. Nor do I think the utilitarian approach is adequate. That approach is based on saying that the being is sentient or has feeling therefore has rights. I don't really think that's sufficient either.

Image 6: A Contractarian Foundation

I think the best approach is to have something that does not require you to make any metaphysical assumptions other than to have a good understanding what the elements of personhood are. The method of Contractarianism [1] is what two people would contract to do in relation to one another and that contact is made under conditions of perfect mutuality. That means, for instance, one does not dominate the other or threaten the other person. What they would then agree on would be morally acceptable to each of them. It is kind of like an ideal contract situation.

The parties to this contract would have to fully understand what the elements of personhood are. What is it that actually makes that person? They could not base their contract on some false understanding of what makes up a person. It is saying that to bestow a person with legal status should depend on what people would agree to in an idealized contract considering all of the costs and benefits to all the different parties. That is sort of a tradition in ethics. That has been around for a long time from Thomas Hobbes, [2] John Locke [3] —who had a religious foundation and believed that God gave us these rights—but they also essentially argued that we make a contract with each other. David Hume [4] was also a contractarian. More recently, John Rawls [5] put out an extensive political theory, a theory of justice based on a contractarian approach. David Gauthier [6] has done a similar kind of thing, better I think, in his book Morals by Agreement, where he attempted to do away with any kind of metaphysical presuppositions. In addition, Jan Narveson [7] developed an interesting angle on Gauthier’s work, constructing a libertarian approach based on a contractarian view.

Image 7: Contractarian History

The Turing Test [8] is not such a good way to go about deciding the legal status of someone who has the right and someone who does not. It is not adequate because it is based on a behaviorist view, according to which I should be looking at what are you doing—whether your responses to questions seem appropriate. That also overemphasizes externally observable behavior for one thing; it does not tell us what is going on inside. We have to have the right kind of internal states, and it over emphasizes social role identity. According to the Turing Test, if you give the right kind of answers, if you satisfy the interrogator, they will say, yes, you are a person. And there are people who you could put on one end of a teletype, or a telephone or internet connection, and have a bunch of questions and some people will say, well, this is not a person, this is a bot. Because they have Asperger’s syndrome or are not very friendly or have a varying set of interests perhaps. This is a good history to the contractarian approach and it is somewhat hard to apply to it briefly in this case, but essentially, you can think of the application to the case of a person who had been in a suspension and is now brought out, or someone who is being reconstructed or uploaded.

Image 8: Application

If they could take the contractarian approach, what kind of rights should we rationally agree to, given this person's costs and benefits and other people's costs and benefits—people who may have to take care of them, those who may benefit from them in the future or from their ideas? If you thought through that carefully, what kind of contract or what kind of agreement about rights and status would be in everybody's rationally considered interest?

The goal of this process is an arrangement of rights and obligations that best harmonizes everyone's interests. So we are not pushing one typical view saying that we think cyber humans will be especially valuable in the future, therefore everybody should grant them rights. We are trying to say everybody—if we think through this rationally, given adequate knowledge of the elements of personhood—what would they agree to? I think the contractarian approach would yield the right answers.

You are going to have to consider the effects of the transbeman person, those that may have to take care of them, those who may potentially benefit from them in the future. It includes a universal provision because everybody can be a contracting agent. You cannot exclude people with green skin or people of this gender or this country, that doesn't give them any kind of grip, so move to the liberal presuppositions.

What I am suggesting is that we take a very detailed view of personhood and its elements, to which the taxonomy project [9] could be a great contribution. Make sure we do not fall into the trap of overemphasizing memory or role identity and any of those single elements. Then I would suggest applying a contractarian approach to show why you would give these rights, rather than trying to say we have natural rights, which someone else does not want to believe, or that is a social imperative. Again, all of those other approaches require very special assumptions.

Obviously, in a contractarian approach it does not require those mental and physical presuppositions. If you want to follow that further, I would particularly suggest David Gautier's book Morals by Agreement. If you do not want to go through that in detail there is a book by Karen Gervais called Redefining Death,[10] where she actually applies the case of somebody who is in a persistent vegetative state (PVS) and she asked a question, "Should we consider them dead?" She examines the new cortical criteria and so on, and then applies it to that case as one of the specifications of whether we should have any protective obligations if someone is near cortically dead—without our assumptions about possible reconstruction or suspension—and should we have obligations to keep that person alive?


1. Contractarianism - names both a political theory of the legitimacy of political authority and a moral theory about the origin or legitimate content of moral norms. The political theory of authority claims that legitimate authority of government must derive from the consent of the governed, where the form and content of this consent derives from the idea of contract or mutual agreement. The moral theory of contractarianism claims that moral norms derive their normative force from the idea of contract or mutual agreement. http://plato.stanford.edu/entries/contractarianism/ April 29, 2008 10:02AM EST

2. Thomas Hobbes - (5 April 1588 – 4 December 1679) was an English philosopher, whose famous 1651 book Leviathan established the foundation for most of Western political philosophy. Hobbes is remembered today for his work on political philosophy, although he contributed to a diverse array of fields, including history, geometry, physics of gases, theology, ethics, general philosophy, and political science.
http://en.wikipedia.org/wiki/Thomas_Hobbes April 29, 2008 10:05AM EST

3. John Locke - (August 29, 1632 – October 28, 1704) was an English philosopher. Locke is considered the first of the British Empiricists, but is equally important to social contract theory. His ideas had enormous influence on the development of epistemology and political philosophy, and he is widely regarded as one of the most influential Enlightenment thinkers and contributors to liberal theory. His writings influenced Voltaire and Rousseau, many Scottish Enlightenment thinkers, as well as the American revolutionaries. This influence is reflected in the American Declaration of Independence.
http://en.wikipedia.org/wiki/John_Locke April 29, 2008 10:07AM EST

4. David Hume (April 26, 1711 – August 25, 1776) was an 18th-century Scottish philosopher, economist, and historian, considered among the most important figures in the history of Western philosophy and the Scottish Enlightenment. He first gained recognition and respect as a historian; but interest in Hume's work in academia has in recent years centered on his philosophical writing. His History of England was the standard work on English history for many years until Macaulay's.
http://en.wikipedia.org/wiki/David_Hume April 29, 2008 10:09AM EST

5. John Rawls (February 21, 1921– November 24, 2002) was an American philosopher, a professor of political philosophy at Harvard University and author of A Theory of Justice (1971), Political Liberalism (1993), The Law of Peoples (1999), and Justice as Fairness: A Restatement (2001). Rawls was a recipient of the Schock Prize for Logic and Philosophy and the National Humanities Medal in 1999, the latter presented by President Bill Clinton, in recognition of how Rawls's thought "helped a whole generation of learned Americans revive their faith in democracy itself."
http://en.wikipedia.org/wiki/John_Rawls April 29, 2008 10:11AM EST

6. David Gauthier - (born 1932) is a Canadian-American philosopher best known for his neo-Hobbesian social contract (contractarian) theory of morality, as laid out in his book Morals by Agreement -- a game-theoretic moral philosophy book written by David Gauthier and published in 1986 by Oxford University Press. He develops a conception of practical rationality that he takes to be "the only one capable of withstanding critical examination", and then proposes a moral theory that is "the only one compatible with that conception of rationality."
http://en.wikipedia.org/wiki/David_Gauthier April 29, 2008 10:13AM EST

7. Professor Jan Narveson – a native of Minnesota, U.S.A. and was educated at the University of Chicago (B.A. in Political Science, 1955, and in Philosophy, 1956); and earned the PhD at Harvard (1961) with a year at Oxford (1959-60) on a travelling Fellowship. He has taught at the University of New Hampshire, U.S.A., 1961-3, after which he taught at the University of Waterloo. He was Visiting Professor at Johns Hopkins (1967), Stanford (1968), and Calgary (1976), and was a Visiting Research Scholar at the Center for Philosophy and Public Affairs at Bowling Green State University, Ohio (Fall 1990). He taught at the University of Waterloo until his retirement in 2004 (and has continued in part-time teaching since). In 2006, Jan was designated a Distinguished Professor Emeritus.
http://www.arts.uwaterloo.ca/... April 29, 2008 10:17AM EST

8. Turing Test - a proposal for a test of a machine's capability to demonstrate intelligence. Described by Alan Turing in the 1950 paper "Computing Machinery and Intelligence," it proceeds as follows: a human judge engages in a natural language conversation with one human and one machine, each of which try to appear human; if the judge cannot reliably tell which is which, then the machine is said to pass the test.
http://en.wikipedia.org/wiki/Turing_test April 29, 2008 10:28AM EST

9. Taxonomy Project – In the year 2525 - Humans, after hundreds of years of constant effort, have successfully polluted all bodies of water on Earth. As a result, almost all previously known species of plant, animal, and other life have become extinct. Through natural selection, genetic engineering, and selective breeding programs, a portion of the Earth has been successfully repopulated.
http://www.biologycorner.com/... April 29, 2008 1:01PM EST

10. Dr. Karen G. Gervais - Minnesota Center for Healthcare Ethics. Karen Gervais, PhD, Director of the Minnesota Center for Health Care Ethics, received her BA from Oberlin College, and her doctorate in philosophy from the University of Minnesota. A philosophy professor for 18 years, in 1989 she transitioned her career into the field of health care ethics.
Redefining Death - This is the most important work yet written on what "death" means. Gervais penetratingly criticizes the Uniform Declaration of Death Act, the Report of the Ad Hoc Committee of the Harvard Medical School on Brain Death, and various biological, moral, and ontological theories of what death is. Her own view grows out of a theory of personal identity that requires us to say that the permanent cessation of consciousness is death.
http://www8.nationalacademies.org/... April 29, 2008 1:10PM EST


bio picDr. Max More is an internationally acclaimed strategic futurist who writes, speaks, and organizes events about the fundamental challenges of emerging technologies. Max is concerned that our rapidly developing technological capabilities are racing far ahead of our standard ways of thinking about future possibilities. His work aims to improve our ability to anticipate, adapt to, and shape the future for the better.

Dr. More has a degree in Philosophy, Politics, and Economics from St. Anne’s College, Oxford University (1984-87). He was awarded a Dean’s Fellowship in Philosophy in 1987 by the University of Southern California. Max studied and taught philosophy at USC with an emphasis on philosophy of mind, ethics, and personal identity, completing his Ph.D. in 1995, with a dissertation that examined issues including the nature of death, and what it is about each individual that continues despite great change over time.

http://www.maxmore.com/bio.htm April 30, 2008 1:57PM EST

1 2 3 <Back to Issue Contents