Brooklynite has been all up in my shit and stuff over the naturalistic fallacy, particularly my claim that it characterizes Orthodox Jewish arguments over how the law of Jewish identity by matrilineal descent should be understood in light of donor-egg technologies such as IVF or surrogate pregnancy. I perceived that attempting to resolve that question by reference to biological facts – as it seemed to me some Orthodox scholars are doing – is a case of the naturalistic fallacy, to which Brooklynite responds:

I disagree. To say that the original Talmudic distinctions are arbitrary does not imply that they are therefore no longer binding, any more than a demonstration that a secular law relies on an arbitrary distinction necessarily renders that law invalid. One may reject the original basis for a ruling and still argue that the ruling must be followed.

Think of it as religious stare decisis.

This prompted me to think about legal stare decisis, and what could be called “the anti-naturalistic fallacy”. I’ve been increasingly frustrated by attempts to create a legal standing for unborn fetuses that they have never previously had, and which fly in the face of both a reasonable understanding of moral personhood and traditional jurisprudence about standing before the law. These are certainly arbitrary category assignments, ones that rest on a refusal to take biological facts into account. Are they legally invalid for that reason?

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