GEORGIA LAW REVIEW - StephanKinsella.com

GEORGIA LAW REVIEW [Vol. 13: 1395
point when he argued that the "essential difference between persons
and other creatures is to be found in the structure of a person's
will."61 Frankfurt correctly argued that contemporary discussions of
personal identity are not properly discussio,ns of the concept of a
person at all, for many animals of lower species can have both
predicates ascribing corporeal characteristics and states of con-
sciousness whose unity is the problem of personal identity. Such
animals are not, however, persons. The difference between persons,
who happen to be also human, and animals is, Frankfurt argued,
neither having desires or motives, nor engaging in deliberation and
making decisions based on prior thought, for certain lower animals
may have these properties. Rather, besides wanting and choosing
and being moved to do this or that, persons, as such, also may want
to have or not to have certain desires. As Frankfurt put it, persons
are capable of wanting to be different, in their preferences and
purposes, from what they are. Many animals appear to have
the capacity for . . . "first-order desires" or "desires of the first
order," which are simply desires to do or not to do one thing or
another. No animal other than man, however, appears to have
the capacity for reflective self-evaluation that is manifested in
the formation of second-order desiresep2
The second-order desires and plans of action, constitutive of
autonomy, mark the capacity of a person, as such, to develop, want
to act on, and to act on plans of action that take as their object
changes in the way one lives one's life. For example, persons estab-
lish various kinds of priorities and schedules for the satisfaction of
first-order desires. The satisfaction of certain wants (for example,
hunger) is regularized; the satisfaction of others is sometimes post-
poned (for example, delays in sexual gratification in order to de-
velop and educate certain competences). Indeed, persons sometimes
gradually eliminate certain self-criticized desires (smoking) or over
time encourage the development of others (cultivating one's still
undeveloped capacities for love and tender mutual response) .63
Sometimes, the exercise of such capacities of autonomy is irrational
@' Frankfurt, Freedom of the Will and the Concept of a Person, 68 J. OF PHIL. 5, 6 (1971).
For a related account, see Dworkin, Autonomy and Behavior Control, THE HASTINGS CENTER
REPORT, vol. 6, no. 1, at 23-28; Acting Freely, 4 Nous 367 (1970).
O2 Frankfurt, supra note 61, at 7.
63 On the relation of the person to rational choice, including choices of these kinds, see D.
RICHARDS, supra note 60, ch. 3.