Friday, July 17, 2009

Getting away with murder

Is there anything more than intuition in support of the idea that you cannot hold the following two positions.

1) Abortion is murder.
2) Abortion should not be criminalized.

Most advocates of abortion laws oppose prosecuting the mothers, which means that they believe that some people should be allowed to get away with murder.


Dan Lower said...

That said the persons I know tend to advocate a lesser punishment for the woman involved than the doctor. Given the nature of the procedure and what are at least the claims of the pro-life movement if not the reality of the situation (that abortion is inherent traumatic for the woman involved) this does make some degree of sense. It is, then, possible to my mind that some of those same people see the abortion process itself as being a sort of natural punishment that should be taken into account.

Victor Reppert said...

The proposed South Dakota law didn't penalize the women at all.

Ilíon said...

I think the discrepant logic you’re noticing falls under the umbrella-term "reconciliation."

You know, as South Africa attempted after the end of the apartheid regime.

Unknown said...


Are you addressing D.J. Lower or Victor?

Ilíon said...

Sorry about that; I was addressing Mr Reppert's OP.

Ilíon said...

'Mercy' is both destructive of and parasitical upon 'Justice.' We limited beings cannot dispense mercy without simultaneously increasing injustice; and so we must constantly choose how we will balance these two opposing Goods.

Do you understand the first sentence of this post?

This post brought to you by "salic" which is slightly amusing, given the content of the post.

Mike Darus said...

You left out the first premise, "Murder is a criminal act." There is a lot of wiggle room. Not every type of murder is criminal to the same extent. If murder is defined simply as "killing a human", not every act of murder is even crimiinal. If you define murder as "unlawfully killing a human", you get the same nebulous result. Am I the only one who wants Victor to define his terms when he introduces a new OP?

Victor Reppert said...

From the Wikipedia

Murder, as defined in common law countries, is the unlawful killing of another human being with intent (or malice aforethought), and generally this state of mind distinguishes murder from other forms of unlawful homicide. All jurisdictions, ancient and modern, consider it a most serious crime and therefore impose severe penalty on its commission. The word murder is related, in old
English, to the French word mordre (bite) in reference to the heavy compensation one must pay for causing an unjust death.[1] A person who commits murder is called a murderer;[2] the term murderess, meaning a woman who murders, has largely fallen into disuse.[3]

The problem is the malice aforethought. People who perform abortions may not consider their victims to be persons.

Hey, sometimes my commenters can help work on these definitions.

Ilíon said...

Mr Darus,
Definitionally, "Murder is a criminal act."

There is no wiggle room at all.

Murder is not *simply* "killing a human [being]" -- it cannot be defined that way, except dishonestly and tendentiously.

Murder isn't even "unlawfully killing a human [being];" rather, murder is the unjust and deliberate or intentional killing of a human being.

Victor Reppert said...

Does it remain murder if the person falselly believes that they are taking the life of a non-person?

Ilíon said...

There's belief and there's "belief" -- there is false belief, honestly entered, and there is deliberate refusal to acknowledge truth.

Anonymous said...

Mr. Illion:

Is your theory on "mercy" exhaustive or limited to the discussion at bar?


Victor Reppert said...

There's that issue again, of the detectability of intellectual dishonesty. I guess you can argue that all the frightened girls going to the abortion clinic know, deep down, that they are committing murder. But you can prove this beyond a reasonable doubt in a court of law? Good luck.

Ilíon said...

When the man who killed the mass-murder George Tiller comes to trial, will the State be required to prove that George Tiller was indeed a person and that, deep down in his heart, the outraged killer knew it?

Victor Reppert said...

Does the killer think he didn't kill a person?

Victor Reppert said...

Is it logically possible for a group of people to not criminalize the unjust and deliberate killing of a human being? I can imagine a society not doing that.

I don't even think it's a foregone conclusion that such a society would collapse.

I'm trying to fill in the gaps in an argument, instead of just saying "obviously."

Ilíon said...

Victor Reppert: "Does the killer think he didn't kill a person?"

This theoretical issue is going to matter when the matter comes to trial, how?

Apropos of the procurement of abortions, you asked: "Does it remain murder if the person falselly believes that they are taking the life of a non-person?"

I pointed out that we have a moral responsibility to have honestly held beliefs (even if the particular beliefs happen to be objectively false).

You objected that it's exceeding difficult to determine whether someone's false belief is held honestly or dishonestly.

Using a current event which is linked but to abortion (murder which is denied to be murder) and to a slaying which is commonly regarded as being a murder, I pointed out that neither the State -- the definer of and enforcer of the laws against murder -- nor the society which that State rules care about that objection nor about your original question.

And you respond by re-asking the original question.

Both the State and the society that State rules respond to the (alleged) murder of the (legally approved) mass-murdered George Tiller: "It is your responsibility to *know* that George Tiller was a person (who is a member of this society, and for whom the State will exact vengeance) and that you can never have the right to murder him."

Ilíon said...

Victor Reppert: "I don't even think it's a foregone conclusion that such a society [one which does not negatively sanction murder] would collapse."

A state and a society are two different things, though all states reflect *some* society or other. So in that respect, the two can seem inseparable and become difficult to distinguish. That is, while a society can exist independently of a state, or even in direct opposition to the state which rules it, a state requires *some* society or other to support it and give it life.

Now, a state has "legitimacy" (and can continue to exist) only so long as the society which the state reflects and from which it draws its support and power continues to view the state as furthering the society's ends. When the society<-->State equation is perceived as being broken, then either a new equilibrium must straight away be found, or a civil war within the controlling society must ensue to determine which faction of that society is "legitimate."

When a society (or the State which ostensibly reflects that society) *will not* avenge injustices, and especially murder, committed against some members of that society, then such a civil war has already begun; for the elites have declared that some heretofore members of the society no longer count as members. If the now-excluded are numerous enough, then the civil war will become open warfare between the factions. It cannot be otherwise -- except in the quite unbelievable circumstance that the now-excluded members of the society are willing to accept a lower moral-status than they previously held.

Most states in history have ruled over multiple societies, and thus the State amounted to the means by which one society subjugated and used to its own ends the other society or societies ruled by the State. In such a state, one stands before the power of the State not as an individual, but as a member of this or that society: the "justice" one can expect from the State depends entirely upon one's standing within one's own society and the standing of one's society with respect to the society which controls the State.

Our modern, western "democratic" ideal is that the state *not* be the means by which one society subjugates and uses to its own ends the other society or societies ruled by the state; we do not deem such a state to be just. Our ideal is that all individuals stand before the power of the State as equal persons, not as members of this or that society. Our ideal is that an individual's moral-worth adheres to the person, not to his standing in this or that society.

Or, to put it another way, *our* ideal is that all subjects of the State are members of a common meta-society.

A society certainly *may* decide that not all actual/moral murders count as legally punishable murders, and such a society may persist as such for many hundreds of years, especially if it controls a state (cf: Sparta with respect to the Pelasgians and Messenians; Moslems with respect to non-Moslems). However, this can be done only with respect to members of *other* societies; no society can do this with respect to its own members -- such a move always means "You are not a member of *this* society;" it's impossible to be a non-member member of a society (or any other set).

But note, such a society (and the State which it controls) must be forever in a state of low-level warfare with some of its subjects and subject societies, specifically those whom it is "legal" to treat unjustly.

Victor Reppert said...

Ilion: So, it looks as if the following is true: If the evidence is such that all reasonable person would conclude that X is a person, and you kill X, then you should be up for murder regardless of whether you think that you killed a non-person, on the basis of irrational considerations.

I think that's fair enough. So the argument for criminalizing abortion goes through if the pro-lifer can establish beyond reasonable doubt that the fetus is a person from conception.

As I see it, however, there are two competing conceptions of personhood, one centered around mental states, the other around object continuity and genetic code. If we go with object continuity and genetic code, we have a "sameness" that goes back to conception, if we go with a mental state criterion then you get a later onset of personhood Though, contrary to Roe, the late-term fetus has to be treated as a person, I actually think that is beyond reasonable doubt.

If the situation is that we are in a situation of reasonable doubt with respect to the personhood of the fetus, it looks to me as if we have some moral reasons to offer people not to get abortions (the deer hunter argument), but also reasons for some reluctance to use the long arm of the criminal law with respect to abortion if the criminalization of abortion is going to inflict a lot of "collateral damage" to society.

Those who are concerned about life in utero need to look primarily for means other than the criminal law to discourage abortion.