Sufficient Scruples

Bioethics, healthcare policy, and related issues.

July 5, 2006

Do Moral Facts Trump Positive Law?

by @ 3:22 PM. Filed under Autonomy, General, Healthcare Politics, Medical Science, Personhood, Reproductive Ethics, Sex, Theory, Women's Issues

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?


The trend I am referring to includes things like the “Unborn Victims of Violence Acts”, which allow a charge of murder for the death of a fetus as a separate crime from the killing of its mother (opponents offered to simply double the penalty for killings where a woman was pregnant, but supporters went ballistic, insisting that it had to be a separate crime), and attempts to file various lawsuits in the name of an unborn fetus. Legal tradition holds that the fetus is not a “legal person” – it has no independent rights or standing before the law – which accords well with a reasonable understanding of what kind of entity the fetus is in moral terms. The attempts to grant a legal standing that currently doesn’t exist are obviously attempts to undermine abortion and contraception rights: they are thus a danger to women’s autonomy and make no sense from a moral or moral-psychology perspective. But they are increasingly popular with conservative legislatures and overlooked by conservative judges.

It has long seemed to me that the obvious counter to such attempts, aside from whatever legal arguments could be brought, was simply to point out that the fetus cannot be a full legal person (there is the separate category of “juridical person”, which is what, say, corporations are, but that is different) because it is not a person to begin with. It may be that these new laws will force a legal showdown over the meaning of “personhood” (as distinct from “human being”), but I say “Bring it on!” – that’s a fight that shouldn’t be necessary, but if necessary is long overdue and that can only turn out, on the merits, against personhood for fetuses and other cognitively barren individuals.

That is to say, I think an airtight case can be made that fetuses and other non-conscious, non-self-aware, cognitively non-functional human beings are not “persons” in a manner that matters morally. This fact provides strong (but not necessarily the sole) support for robust abortion rights throughout a pregnancy, as well as support for such practices as ending life support for “brain dead” or persistently vegetative patients, anencephalics, and others with similarly impaired cognition. It is relevant to other ethical issues as well. (The arguments for this claim are well-known, and I won’t make an extensive case for it here. In brief, they hinge on the fact that what is of value to a person – that person’s interests – can only be known and experienced through fairly extensive cognitive capacities, including at least awareness of oneself as a distinct individual, conscious participation in one’s own experiences, and possibly the formation of desires, goals, and values. Only an individual with such capacities can experience good or bad – lacking those capacities, one cannot consciously experience the impact of events or be aware of one’s desires and interests being fulfilled or frustrated. Thus, only an individual with those capacities can live a life that includes moral content in an objective sense.)

What is important is that the argument above rests on objective observations of natural fact. It is not a mere value statement to say that consciousness is necessary for a moral life; it is a simple factual observation that those without consciousness cannot be aware of harms or benefits, and cannot make moral decisions, and thus cannot participate in the moral life. One can assert the value of lives that do not include conscious participation in the moral realm, but only arbitrarily; it is not self-contradictory for religious conservatives to insist that all human beings are moral persons, they just have no grounds for saying so other than the religious beliefs they happen, personally, to hold, and which offer no reason for anyone else to agree. One may choose to regard the moral community as being inclusive of more than just those beings who participate in moral life, but one cannot prove that it should be so. Likewise, there is no non-arbitrary argument that will restrict that community to only some moral persons (leaving out, say, intelligent animals, aliens, or what have you).

So, as I say, taking that description of moral personhood to be both true and rationally defensible, in a way that the moral personhood of early fetuses, say, is not, it seems obvious that that ought to be decisive of the question of legal personhood as well, does it not? If fetuses are not moral persons – if they do not have moral interests or moral rights, and do not stand in relations of moral obligation to other people – they can hardly have legal rights, can they? It’s not a question of whether we care about them; they simply are not the sorts of things that have moral rights, which their legal rights are intended to protect. And so it makes no more sense to talk about the legal rights of fetuses than about the legal rights of dogs, or trees – and it is no more sensible to pass laws granting moral rights to any of those entities than to pass laws repealing the law of gravity.

At least, that’s the sort of perspective moral philosophers often take – and that I take. But that’s not the way the law works. There is a longstanding debate among legal theorists, at least as abstract and contentious as the moral debate among ethicists over personhood, which asks whether laws, to be legitimate, must conform to some universal moral code, or are simply expressions of arbitrary choices made by lawmakers. “Legal positivism” is the position that law is not dictated by morality, and that valid law consists in whatever the sovereign power validly (in keeping with that power’s procedural duties) erects as law.

It is trivial to show that some laws – like which side of the road to drive on – have no moral content in and of themselves (though having a law to regulate the matter may itself be a moral necessity, as is obeying that law when it is made). But it is also a commonplace that some laws derive their legitimacy from their conformity to morality. Almost anyone today would hold that slaves had a perfect right to run away and demand their freedom, even though slavery was legal in a positivist sense. Few would argue it was wrong for those on the Underground Railroad to assist them in doing so, again notwithstanding that the Fugitive Slave Act was upheld as valid law. If so, then positive law alone – whatever else it may do – cannot specify the legal status of persons irrespective of their moral status. Presumably this prinicple would be accepted in the broad sense by many religious conservatives, who not only hold a notion of a “higher law”, but often appeal to their own (erroneous) notions of moral personhood to justify opposition to laws they currently don’t like.

That anti-positivist principle should go both ways, however. If it is enough to establish that some persons must be granted the protections of law because of their moral status, it ought to be enough also to show that other (putative) persons cannot be granted that protection, because of their lack of such status. (Or at least, it is enough to show that they are not entitled to such status. This point, in conjunction with the fact that legal personhood for such entities conflicts with the rights of actual persons, should be enough to deny it to them.)

So it seems to me. I’m not up on the minutiae of the legal positivism debate, and don’t know how fully this issue has been discussed. It simply seems to me flatly absurd on its face to assign legal personhood to entities that are patently not persons – and the more so when the entire purpose of doing so is to use that status as leverage to constrain the liberty and autonomy of actual persons. And it seems to me as well that merely pointing out that this is nonsense ought to be reason enough to put a stop to it, whatever the intricacies of the legal arguments may be. So why isn’t it?

One Response to “Do Moral Facts Trump Positive Law?”

  1. Val Says:

    Great posts! I read your comment @ JivinJehosophat, the anti-choicer who thinks he’s making sense by throwing a lot of embryology jargon about… I surf by his blog when I need a break from logic & reality. Thanks for picking up the standard when I lack the time or patience to argue w/these wingnuts…

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