Sunday, November 8, 2009


So a guy who has no off-switch just started talking about a controversial subject -- no context, no antecedent conversations -- just launching himself on the topic. First he said that it was a principle of law, not of morality or ethics, but of law, that there is no right without ability. Well, that's sort of a shorthand way of saying it. I've looked at Blackstone, and I know something about natural law, so the idea that there should be a principle behind a law is not foreign to me.

But from this rather abrupt starting point he immediately declared that, because of this principle, abortion was supported in principle under law. Because a fetus does not have the ability to live on its own, it does not have a right to life. The mother suffers its existence, at will. All of this came as a flurry at me, and I was actually engaged in some things that pressed me for time, but I did have to stop.

Usually I simply don't engage people, in public. But it was so clear. I said, "Here's the flaw in your reasoning." And he made an excited face, as if it would be a delight to encounter such a rare thing. "An infant, a babe-in-arms, doesn't have the ability to live on its own. It has to be cared for or it will die. Therefore, what ... it can be killed?" "The difference" said he, "is that anyone can care for an infant, but a fetus depends on the mother." I replied, "You've just changed the principle of law that was the foundation of your argument. First it was lack of inherent ability, now it's who provides ability."

I just didn't have the time, and this is a guy who can talk for hours. He's very bright. You see it though. If the principle is that ability is necessary for a right, it is irrelevant as to who provides that ability. If it is the mother, to an in utero child, or a stranger, for a foundling -- either both, or neither, have the right to terminate the life. If someone provides the means, the receiver is without rights? It seems like an unprincipled sort of reasoning.

What about easement? The fact that a practice -- say, crossing a field, or being alive -- has been tolerated, allowed to continue, establishes its right before law. Ergo, a fetus has a right to life, by the fact that it was not terminated at the earliest convenient moment. A partial vindication of life. For those mothers and socially-aware activists who are in principle for early termination, some other equally subtle and principled counter must be found. Like, um, fetuses are alive, human, and should not be killed -- you know, like the eggs of endangered species. Protected.

Wise fools. It comes, in part, from imagining that principles have meaning in themselves. Principles are axioms. For numerous generations some part of the law was founded on the principle that people could own other people. They had after all the ability, and the effectively universal backing of their society. They had the law.

The law is an ass. There is no principle outside of ethics and morality. Thinking otherwise leads us to the pristine logic of death camps. Rational, indeed, given the precepts of the syllogism. Evil is often quite logical. But formal logic can be valid without being true. That's elementary. The fellow of whom I have spoken is very bright. Why doesn't he know this?


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