But Waldron thinks that in neither case are we drawing fundamental distinctions of kind between humans: being a child or an alien is (in principle) a contingent condition, one that justifies different forms of moral treatment, but that does not speak of fundamental differences in moral worth. Or, to put it another way, insofar as our differential treatment of children and adults, or citizens and aliens, is justified, it is only because we can show how it is mandated by a principle that applies equally to everyone, including children and aliens. [...]
Waldron is insistent that basic equality, despite its status as a second-order principle, is morally demanding. It requires us, he writes, to “insist unflinchingly that the benefit of basic principles of human worth and human dignity accrues equally to every human being.” His central example is a decision made by the Israeli Supreme Court in 2005 on targeted killings of Palestinians, including those not directly involved in terrorist activities. In his opinion, Supreme Court President Emeritus Aharon Barak argued that a ruling on the question had to respect the fact that “unlawful combatants are not beyond the law. They are not ‘outlaws.’ God created them as well in his image. Their human dignity as well is to be honored.” Barak went on to argue for an expanded notion of what counts as “direct participation” in terrorist activity, so as to make Israel’s killings compatible with international customary law. The other justices concurred. Waldron finds Barak’s invocation of basic equality moving, a sign of “the hard and desperately difficult work” that the principle does. A skeptic might think it a prime example of how talk of basic human equality can be used to dignify profound inhumanity. [...]
In offering his account of what makes profoundly disabled humans our equals, Waldron also means to “confront and refute” an argument famously made by the philosopher Peter Singer. Singer notes that most of us would be instinctively horrified by the idea of treating a human with severe cognitive impairments in the ways we routinely treat animals with similar cognitive capacities. But this, Singer says, is inconsistent; if profoundly disabled humans are our equals, then surely chimps, dolphins, pigs, and elephants are too. As a believer in distinctive equality—the idea that humans have significantly more worth than animals—Waldron must resist Singer’s conclusion. This is why Waldron does not simply expand what counts as the “ordinary” range of human capacities to include those capacities actually possessed by profoundly disabled humans. By instead locating the grounds of equality in a profoundly disabled human’s potential capacities, he hopes to defend the thesis of basic human equality without granting equality to non-human animals.
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