Saturday, September 13, 2008

Of corals, fetuses and the law

My three-year-old son wanted a bunch of books about sea creatures from the library. One of these was a pretty children's book about corals and what lives among them. The book contains a thorough description of coral reproduction. After talking of the sperm and egg uniting, the book says: "With fertilization, a new life begins." This, I take it, is a quite uncontroversial claim. That is precisely when a new coral's life begins.

And there does not seem to be very good reason why there should be any more controversy in the case of humans. Corals reproduce sexually, and typically[note 1] so do we. Sperm and egg unite in very much the same way. It seems that if the new coral comes into existence at fertilization, we should say exactly the same thing about a new human, without any controversy.

Of course, I know about the alleged distinctions between being a human organism and being a human person, and all that. But these seem both implausible and not scientifically grounded.

Here is something more like a policy argument, albeit a conditional one. If we do not wish our jurisprudence to rest on controversial "comprehensive" philosophical or religious views (not that there is anything wrong it resting on such a basis, but a lot of people don't like it), we should have a strong preference for formulating our laws in terms of concepts derived from science. Thus, our laws should not make reference to race, if it turns out that race is not a scientifically respectable category. (But note that it could be that although race is not a respectable category of any natural science, being socially classified as a member of race R could still be a respectable category of a social science, and could function as a concept in a law.) As much as we can, then, our laws should understand death in whatever way biologists do, with whatever fuzziness biologists see in death. Similarly, we should not use the non-scientific concept of a "person", since that is a concept tied to controversial metaphysical or ethical views, but in our formulations should divide things up scientifically, presumably using the fairly respectable concept of a "human being" or "human organism" instead. To draw a line between those human organisms who are persons and those who are not would, then, be something we should avoid. Presumably, then, we should legally protect the life of all human organisms (or at least the innocent ones). At least if we don't want the law to rest on controversial "comprehensive" philosophical or religious views.


Enigman said...

For what it's worth, I think this is a very good argument. (We may even want to extend such rights to the other apes, on scientific grounds.) One problem may be that the concept of personal responsibility crops up in law. Parents have to make choices for their child, and an extremtiy of that is a mother deciding about her fetus. Of course, parents cannot choose to kill their child (unless the Bible says they can?) but a fetus is off at an extremity; and another extremity is where especially responsible people decide that innocent people can be legally killed, for some greater good (e.g. in wartime). Just wondering what you think of those points...

Alexander R Pruss said...

It's wrong to intentionally kill innocent people for a greater good, even in wartime.

Enigman said...

Would you count conscripted soldiers (who may have chosen not to fire accurately, but have families to worry about) as innocent or guilty?

Alexander R Pruss said...

I might argue that at least some of these conscripts as wrongdoers (perhaps non-culpable ones; but I don't know that self-defense requires culpability on the part of the aggressor).

Here is why the conscripts seem to be wrongdoers (this came out of discussion a while back on this blog). Let's call soldiers who try not to harm the enemy "non-belligerent". Even non-belligerent soldiers present in combat support the war effort. They do so in at least three different ways:
- They boost the morale of their belligerent comrades. Let's say that 70% of the soldiers are non-belligerent. Well, if they all deserted, the remaining 30% would feel really outnumbered and would be not unlikely to run away.
- The lessen the morale of their opponents. Again, if a non-belligerent 70% deserted, the morale of the opponents would be boosted heavily.
- They make it more difficult for the enemy to hit the belligerent soldiers--in other words, they provide a certain kind of cover for the belligerent soldiers. This is a genuine war aim.

In doing all of these things, the non-belligerent soldiers are cooperating in something that results in enemy deaths.

But what if we argue as follows. I am, let us say, conscripted on the side of injustice. If I do not cooperate, ten family members will be killed. I think to myself: There is nothing intrinsically wrong about marching in uniform and shooting in the air. Moreover, I think that while I will be unintentionally contributing to the unjust war effort (my only intention is to march around wearing a uniform and to shoot guns into the air, and not to contribute to the war effort), it is unlikely that my individual non-belligerent contribution will result in more than one or two lives lost among the enemy, if that. So I make the prudent decision to agree to sign up, because overall nine or ten innocent lives will be spared. (This is not a utilitarian calculation, because the enemy lives are not intentionally destroyed by me--double effect is available.)

In such a case, it looks like I cannot call the conscript a wrongdoer. Is this case realistic? I don't know. Some totalitarian regimes might imprison one's family, but wouldn't kill them--they would only kill the conscientious objector himself. (But what if the conscientious objector computes that probably his presence won't actually cost any enemy lives?)

Another complicating issue is that typically the conscript has to swear an oath of obedience. If he does not intend to obey orders to be belligerent, he may be swearing falsely, and so he is a wrong-doer. Moreover, it seems fair to presume those who have sworn an oath to fight us (even indirectly, by swearing an oath to obey orders, and then being ordered to fight us) are in fact fighting us.

This argument does not work for all military oaths. For instance, US military oaths only require obedience to lawful orders, and one might be able to argue that an order to fight in unjust war is unlawful. And it could also be the case that one joined the military back when a regime was not expected to fight an unjust war.

So it's hard to argue that in all cases the conscript is a wrongdoer.

Maybe a better move is to use double effect. One's intention in shooting at the enemy is to kill only the belligerent soldiers. (This is not a big stretch. If one knew for sure that some soldiers were non-belligerent, it might be a waste of ammunition, on purely consequentialist grounds, to shoot at them.) One realizes that some non-belligerent ones will die with them.

Enigman said...

Nonetheless it is the mother who is responsible for her fetus, and there are reasonable doubts about it being always wrong for her to kill her fetus (whatever her reasons for doing so).

Enigman said...

Incidentally I was wondering, is it alright to intentionally kill guilty people (e.g. those guilty of making a false promise to their evil owners) for a greater good in wartime?

(Re wasting ammunition, I learned recently that soldiers have to be encouraged to waste ammunition, as a rule.)