It is a human being (Homo sapiens) but it is not a person (in the intellectual sense of that word).
> Few supporters of legal abortion, even those who set no limit on how late in the pregnancy it should be permitted, are willing to support infanticide
And that is an error: infanticide does not kill a person. But then we do not need to draw a line for when an infant becomes a person because we do not initiate an imposition on it by allowing it to die. Unfortunately, this “double argument” is more complicated than most academic philosophers can easily understand. https://jclester.substack.com/p/abortion-and-infanticide
“At what point does it become an assault, a rights violation? …one ends up picking some arbitrary line…”
“A 50% chance of guilt means a 50% chance of innocence; scaling criminal punishment as described above would mean that half the time we are putting an innocent man in jail.”
But if the accused has a prior fully voluntary (no fraud or duress was involved) contract to accept some free-market system of arbitration and “punishment” (restitution seems more likely and desirable), then 1) he is contractually bound to accept any mistaken guilty verdict, and 2) he has judged that process to be the best one for himself (out of the competing options, at least).
“Taken to its limit, the implication is that punishment requires certainty of guilt.”
There is at least one major difference between the nine month fetus and the neonate: the presence of the fetus interferes with the functioning of the pregnant woman's body, both physically and biochemically; the neonate can be taken away to a different location where it has no such effect. Drawing a line exactly at birth may not be the uniquely right answer, but it's about as far from arbitrary as you can get.
Few supporters are willing to support infanticide, even though many are willing to support very late term abortions that are the moral equivalent of infanticide, because they are mapping the continuum to a binary judgement, and the two cases are just barely on opposite sides of the decision rule they are using.
I should probably add, although it wasn't important for the post, that I am not unambiguously opposed to infanticide. I think it is wrong to kill an infant just because taking care of it is more trouble than you want to go to but not clearly wrong to kill an infant who has something so seriously wrong with it that the best you can do will be to give it a very unpleasant life and even doing that will be an immense burden on you.
I think the traditional system was for the doctor to kill the baby in that case and never make it explicit that that was what happened — it isn't that surprising, after all, if a seriously defective newborn doesn't survive.
I think judges are unhappy with any move away from a binary determination of truth and liability in part because most of them aren't scientifically minded, and they're rightly suspicious that it would all get very mathematical.
There's a judge here in the UK who tries to move in a probabilistic direction every now and then, and he's always violently slapped down by the appeal courts. He's right - a system in which he could have five unconnected facts to determine, find them all a bit more likely than not to be true, and as a result remove someone's children, when if just one of the facts were false then the removal would have been unjustified, is in theory patently unjust. I'm not sure he'll ever get a fair hearing, though.
There's lots more out there - Mostyn's judgements are (or rather were) often worth reading. he was a very successful barrister who seems to have seen being a judge as (amongst other things) an opportunity to point out to more senior judges that they were wrong, and to interpret their judgements to mean the opposite of what they were supposed to mean. This was understandably resented. I don't know whether it did more harm than good - precedents are there to be followed, and the system would collapse if every judge was a Mostyn. The downside of his approach is evident from the outcome of the case discussed in the attached blog post. On the other hand every system also requires a certain amount of shaking up if it is to function optimally, and I think the English courts are in general under than over carbonated.
Whether justified or not, it was entertaining, and often illuminating.
I'm a bit surprised the sorites paradox didn't get mentioned here. A lot of these cases, such as the gradually intensifying light beam shined into another person's house, are equivalent - a satisfactory solution to the sorites paradox would also satisfactorily solve the legal conundrum.
My usual intuition here is to start by recognizing clear cases, with clear verdicts. Suppose a case turns on whether a particular light is red or green, but that light naturally grades continuously between them.
Red ----------------------- Green
Where do we draw the mark between guilt and innocence?
We can start by hopefully agreeing on the clear cases, and declare a "gray zone" where, even if people disagree on whether the light is red or green, they can at least agree that there exist people who think it is red, and people who think it is green:
DEFINITELY RED --------|---------- Gray Zone ----------|-------- DEFINITELY GREEN
And the Gray Zone is where the court case is expected to take longer, to turn on lesser details, and be more susceptible to plea bargaining.
The problem with this is that it just moves the fighting around without really reducing it. People who fight hard for the difference between "red" and "green", will now fight just as hard for the difference between "red" and "gray zone" or "green" and "gray zone":
DEFINITELY RED -------!!fight!!------- Gray Zone -------!!fight!!------ DEFINITELY GREEN
And if we try the same trick above of recognizing clear cases where "definitely gray" is now one more, then the same thing will happen on a smaller scale.
My next intuition there is to not only define gray zones, but also lower the stakes. Suppose the difference between red and green is a million dollars in penalty assessed or bonus awarded. One could spend almost a million dollars fighting over the difference, and still make money in the end. But if red is a million, green is zero, and gray is $500k, then the fight over "red" and "gray" is only worth up to $500k worth of fighting. Now, if we do the clear-cases rule, we can break up the fighting further:
This could be defeated by anyone who realizes this framework is being erected, and spends their $1M tilting the "definite" cases. But this only works if they know they'll always lean toward one of the extremes.
I notice this is basically like the "continuous solution for continuous situations" approach above, so it has the same drawbacks - we might not trust a jury to correctly categorize a case between red, green, or in between, and we might still be uncomfortable with the final assessment. On the other hand, if the stakes between any two borderline cases is low enough, we might not feel that strongly.
I could carry this analysis further, but I'm currently low on coffee.
“A one week old embryo is not a human being.”
It is a human being (Homo sapiens) but it is not a person (in the intellectual sense of that word).
> Few supporters of legal abortion, even those who set no limit on how late in the pregnancy it should be permitted, are willing to support infanticide
And that is an error: infanticide does not kill a person. But then we do not need to draw a line for when an infant becomes a person because we do not initiate an imposition on it by allowing it to die. Unfortunately, this “double argument” is more complicated than most academic philosophers can easily understand. https://jclester.substack.com/p/abortion-and-infanticide
“At what point does it become an assault, a rights violation? …one ends up picking some arbitrary line…”
At the point at which most reasonable people would usually deem it to be so if it were done to themselves. That does not strike me as arbitrary. https://jclester.substack.com/p/avoiding-interpersonal-utility-comparisons
“A 50% chance of guilt means a 50% chance of innocence; scaling criminal punishment as described above would mean that half the time we are putting an innocent man in jail.”
But if the accused has a prior fully voluntary (no fraud or duress was involved) contract to accept some free-market system of arbitration and “punishment” (restitution seems more likely and desirable), then 1) he is contractually bound to accept any mistaken guilty verdict, and 2) he has judged that process to be the best one for himself (out of the competing options, at least).
“Taken to its limit, the implication is that punishment requires certainty of guilt.”
And as that is not a safe requirement it is not the one into which most people would contract. https://jclester.substack.com/p/libertarian-rectification
There is at least one major difference between the nine month fetus and the neonate: the presence of the fetus interferes with the functioning of the pregnant woman's body, both physically and biochemically; the neonate can be taken away to a different location where it has no such effect. Drawing a line exactly at birth may not be the uniquely right answer, but it's about as far from arbitrary as you can get.
"A lot of problems, in both law and moral philosophy, come from the attempt to map a continuous variable to a binary response"
This is a really good point.
Do you see good and evil as binary, or as a spectrum?
I see them as a continuum, but we frequently think and speak of them as a binary.
"are willing to support infanticide"
Is that missing a "not"?
It all boils down to definitions of good and evil
No. No words missing.
Few supporters are willing to support infanticide, even though many are willing to support very late term abortions that are the moral equivalent of infanticide, because they are mapping the continuum to a binary judgement, and the two cases are just barely on opposite sides of the decision rule they are using.
I should probably add, although it wasn't important for the post, that I am not unambiguously opposed to infanticide. I think it is wrong to kill an infant just because taking care of it is more trouble than you want to go to but not clearly wrong to kill an infant who has something so seriously wrong with it that the best you can do will be to give it a very unpleasant life and even doing that will be an immense burden on you.
I think the traditional system was for the doctor to kill the baby in that case and never make it explicit that that was what happened — it isn't that surprising, after all, if a seriously defective newborn doesn't survive.
Apologies. I will try to be more humble next time and ask if I misunderstood.
"A one week old embryo is not a human being."
Sure, if words don't mean things and the entire history of biological science is just a fairy tale.
Otherwise, it is indeed a "being" of species homo sapiens ("human").
Whether it's a "person" or not is a different question.
Abortion has three correct answers:
Convenience (the important kind)- Yes
Moral - no (except to save the mother's life or if the fetus isn't viable)
Legal: Yes, fetuses are not citizens and birth is an excellent Schelling Point.
Virtue ethics questions are not legal questions are not personal choices, though they influence each other.
I think judges are unhappy with any move away from a binary determination of truth and liability in part because most of them aren't scientifically minded, and they're rightly suspicious that it would all get very mathematical.
There's a judge here in the UK who tries to move in a probabilistic direction every now and then, and he's always violently slapped down by the appeal courts. He's right - a system in which he could have five unconnected facts to determine, find them all a bit more likely than not to be true, and as a result remove someone's children, when if just one of the facts were false then the removal would have been unjustified, is in theory patently unjust. I'm not sure he'll ever get a fair hearing, though.
This sounds very interesting. Do you know where I can read more about this?
With the proviso that I'm not a lawyer, at your own risk, etc., the standard binary approach is set out clearly by Lord Hoffmann here: https://www.bailii.org/uk/cases/UKHL/2008/35.html
Sir Nicholas Mostyn (who I see actually retired this summer) used elementary probability theory in judgements quite often, for example, here:
https://www.bailii.org/ew/cases/EWHC/Fam/2014/121.html.
And some of the history of Mostyn's heroic attempts to smuggle percentages into English law is set out here (wonderful blog, terrible formatting, should be on Substack): https://suesspiciousminds.com/2018/07/26/mostyn-j-gets-dissed-by-court-of-appeal-despite-not-being-the-judge-in-the-case-being-appealed/.
There's lots more out there - Mostyn's judgements are (or rather were) often worth reading. he was a very successful barrister who seems to have seen being a judge as (amongst other things) an opportunity to point out to more senior judges that they were wrong, and to interpret their judgements to mean the opposite of what they were supposed to mean. This was understandably resented. I don't know whether it did more harm than good - precedents are there to be followed, and the system would collapse if every judge was a Mostyn. The downside of his approach is evident from the outcome of the case discussed in the attached blog post. On the other hand every system also requires a certain amount of shaking up if it is to function optimally, and I think the English courts are in general under than over carbonated.
Whether justified or not, it was entertaining, and often illuminating.
I'm a bit surprised the sorites paradox didn't get mentioned here. A lot of these cases, such as the gradually intensifying light beam shined into another person's house, are equivalent - a satisfactory solution to the sorites paradox would also satisfactorily solve the legal conundrum.
My usual intuition here is to start by recognizing clear cases, with clear verdicts. Suppose a case turns on whether a particular light is red or green, but that light naturally grades continuously between them.
Red ----------------------- Green
Where do we draw the mark between guilt and innocence?
We can start by hopefully agreeing on the clear cases, and declare a "gray zone" where, even if people disagree on whether the light is red or green, they can at least agree that there exist people who think it is red, and people who think it is green:
DEFINITELY RED --------|---------- Gray Zone ----------|-------- DEFINITELY GREEN
And the Gray Zone is where the court case is expected to take longer, to turn on lesser details, and be more susceptible to plea bargaining.
The problem with this is that it just moves the fighting around without really reducing it. People who fight hard for the difference between "red" and "green", will now fight just as hard for the difference between "red" and "gray zone" or "green" and "gray zone":
DEFINITELY RED -------!!fight!!------- Gray Zone -------!!fight!!------ DEFINITELY GREEN
And if we try the same trick above of recognizing clear cases where "definitely gray" is now one more, then the same thing will happen on a smaller scale.
My next intuition there is to not only define gray zones, but also lower the stakes. Suppose the difference between red and green is a million dollars in penalty assessed or bonus awarded. One could spend almost a million dollars fighting over the difference, and still make money in the end. But if red is a million, green is zero, and gray is $500k, then the fight over "red" and "gray" is only worth up to $500k worth of fighting. Now, if we do the clear-cases rule, we can break up the fighting further:
DEFINITELY RED: $1M ------ Maybe red? grey? $750k ----- def.gray; $500k ----- maybe grey/green; $250k ----- DEFINITELY GREEN; $0
And so on, breaking it up more and more.
This could be defeated by anyone who realizes this framework is being erected, and spends their $1M tilting the "definite" cases. But this only works if they know they'll always lean toward one of the extremes.
I notice this is basically like the "continuous solution for continuous situations" approach above, so it has the same drawbacks - we might not trust a jury to correctly categorize a case between red, green, or in between, and we might still be uncomfortable with the final assessment. On the other hand, if the stakes between any two borderline cases is low enough, we might not feel that strongly.
I could carry this analysis further, but I'm currently low on coffee.