Morality, Religion & Philosophy: June 2004 Archives

Consider the following scenario.

A man and a woman have sex, and the woman gets pregnant. There are four possiblities.

1. Both the father and the mother want to abort the baby.
2. Both the father and the mother want to keep the baby.
3. The father wants to abort the baby, but the mother refuses.
4. The mother wants to abort the baby, but the father refuses.

Cases 1 and 2 present no problems. If both parents are in agreement, then they both get what they want.

Cases 3 and 4 are more interesting. Under the existing legal system, the mother gets her way, no matter what -- but is this just? (Setting aside the injustice of abortion itself. I want to focus, rather, on the numerous legal inequalities between men and women, which generally turn in womens' favor.)

Abortion is different from adoption, because if the mother wants to carry the baby to term but doesn't want to care for the baby the father has the legal right to take sole custody. But before the baby is born, he or she is entirely in the mother's power. What this means is that once the woman is pregnant she has many different ways to sever her legal obligations to the baby, but the father has none. If the mother chooses to give birth and the father doesn't want to be involved society will still force him to pay child support.

It's easy enough to say that the man made his choice when he decided to have sex with the woman (and, being opposed to abortion, that's my stance), but if you're in favor of abortion rights is it fair that only the mother has the ability to disentangle herself from the unwanted baby?

What alternatives are there? I don't think many people would be in favor of giving the father an equal voice in the decision to have an abortion. Should the father have the right to force the mother to have an abortion, or the power to prevent her from having one? Certainly not the former. Being opposed to abortion, I'd be happy to support the latter, but I doubt many who support abortion would agree.

So what then? I think that the father should have the right to insist that the mother make another choice. Either she has an abortion, or she relinquishs all claims to future financial support for the child. If the mother chooses not to have an abortion, she should bear the full responsibility for her decision. Once pregnant, women have all the "choice" and men have none.

What say you? I'm particularly interested in how a libertarian would view this topic. For myself, I think this horrible dilemma is an indication of the problems with abortion itself -- the difficulty only arises because of the twisted rationalizations required to justify killing babies.

My friend Nathan pointed out an interesting factoid to me last week at dinner. Although the Pharisees were the weakest of the three major (and innumerable minor) Jewish sects in the first century, most of Jesus' instructions and admonitions are framed using their views as a point of reference. The other two groups, the Essenes and the Saducees are only briefly mentioned in the New Testament. This is even more curious because the Pharisees eventually gained prominence after the destruction of the Second Temple in 70 AD, and modern rabbinic Judaism is entirely descended from their teachings. It's almost as if Jesus knew who his future audience would be.

It makes sense for other reasons, as well. Jesus' own teachings most closely related to those of the Pharisees, and he rarely disagreed with their positions except to accuse their leadership of hypocrisy for not following the spirit behind their rules and regulations.

Reading the Wikipedia entry for Pharisees (and another, strangely, here) is an interesting endeavor in its own right because of the way the author presents the conflict between Jesus Christ and his primary political and religious opponents. The author portrays the Pharisees as a more "liberal" sect of Judaism, which is an interesting characterization considering that their prime organizaing principle was that the laws God had laid down should be applied strictly and in great detail to every Jew, rather than, as was often intended, just to the priesthood or under certain circumstances. To the Pharisees, the law itself supplanted the Temple as the means by which man related to God, particularly after the Temple's destruction. The Pharisees created their own, more restrictive, views of God's laws. As the author writes:

The idea of the priestly sanctity of the whole people of Israel in many directions found its expression in the Torah as, for instance, when the precepts concerning unclean meat, intended originally for the priests only were extended to the whole people (Lev. xi.; Deut. xiv. 3-21); or when the prohibition of cutting the flesh in mourning for the dead was extended to all the people as "a holy nation" (Deut. xiv. 1-2; Lev. xix. 28; comp. Lev. xxi. 5); or when the Law itself was transferred from the sphere of the priesthood to every man in Israel (Ex. xix. 29-24; Deut. vi. 7, xi. 19; comp. xxxi. 9; Jer. ii. 8, xviii. 18). ...

The same sanctity that the priests in the Temple in Jerusalem claimed for their meals, at which they gathered with the recitation of benedictions and after ablutions, the Pharisees established for their meals, which were partaken of in holy assemblies after purifications and amidst benedictions . Especially were the Sabbath and holy days made the means of sanctification,

From Temple practise were adopted the mode of slaughtering and the rules concerning "ta'aruvot" (the mingling of different kinds of food) and the "shi'urim" (the quantities constituting a prohibition of the Law). Though derived from Deut. vi. 7, the daily recital of the "Shema'," as well as the other parts of the divine service, is a Pharisaic institution, the Pharisees having established their Chavurah, or league, in each city to conduct the service.

Likewise, the author's characterization of Jesus' opinion of the Pharisees seems a bit off.

Only in regard to intercourse with the unclean and "unwashed" multitude, with the 'am ha-areẓ, the publican, and the sinner, did Jesus differ widely from the Pharisees (Mark ii. 16; Luke v. 30, vii. 39, xi. 38, xv. 2, xix. 7). In regard to the main doctrine he fully agreed with them, as the old version (Mark xii. 28-34) still has it. Owing, however, to the hostile attitude taken toward the Pharisaic schools by Pauline Christianity, especially in the time of the emperor Hadrian, "Pharisees" was inserted in the Gospels wherever the high priests and Sadducees or Herodians were originally mentioned as the persecutors of Jesus (see New Testament), and a false impression, which still prevails in Christian circles and among all Christian writers, was created concerning the Pharisees.

That's an interesting allegation that I've never heard before, but then considering that I'm included in "all Christian writers" I suppose that's to be expected. I'm incredibly skeptical. Matthew 23 is particularly instructive.

Matthew 23, selections:

1 Then Jesus said to the crowds and to his disciples: 2 "The teachers of the law and the Pharisees sit in Moses' seat. 3So you must obey them and do everything they tell you. But do not do what they do, for they do not practice what they preach. 4 They tie up heavy loads and put them on men's shoulders, but they themselves are not willing to lift a finger to move them.

5 "Everything they do is done for men to see: They make their phylacteries wide and the tassels on their garments long; 6 they love the place of honor at banquets and the most important seats in the synagogues; 7 they love to be greeted in the marketplaces and to have men call them 'Rabbi.'

8 "But you are not to be called 'Rabbi,' for you have only one Master and you are all brothers. 9 And do not call anyone on earth 'father,' for you have one Father, and he is in heaven. 10 Nor are you to be called 'teacher,' for you have one Teacher, the Christ. 11 The greatest among you will be your servant. 12 For whoever exalts himself will be humbled, and whoever humbles himself will be exalted. ...

23 "Woe to you, teachers of the law and Pharisees, you hypocrites! You give a tenth of your spices--mint, dill and cummin. But you have neglected the more important matters of the law--justice, mercy and faithfulness. You should have practiced the latter, without neglecting the former. 24 You blind guides! You strain out a gnat but swallow a camel.

25 "Woe to you, teachers of the law and Pharisees, you hypocrites! You clean the outside of the cup and dish, but inside they are full of greed and self-indulgence. 26 Blind Pharisee! First clean the inside of the cup and dish, and then the outside also will be clean.

27 "Woe to you, teachers of the law and Pharisees, you hypocrites! You are like whitewashed tombs, which look beautiful on the outside but on the inside are full of dead men's bones and everything unclean. 28 In the same way, on the outside you appear to people as righteous but on the inside you are full of hypocrisy and wickedness. ...

33 "You snakes! You brood of vipers! How will you escape being condemned to hell? 34 Therefore I am sending you prophets and wise men and teachers. Some of them you will kill and crucify; others you will flog in your synagogues and pursue from town to town. 35 And so upon you will come all the righteous blood that has been shed on earth, from the blood of righteous Abel to the blood of Zechariah son of Berekiah, whom you murdered between the temple and the altar. 36 I tell you the truth, all this will come upon this generation.

37 "O Jerusalem, Jerusalem, you who kill the prophets and stone those sent to you, how often I have longed to gather your children together, as a hen gathers her chicks under her wings, but you were not willing. 38 Look, your house is left to you desolate. 39 For I tell you, you will not see me again until you say, 'Blessed is he who comes in the name of the Lord.'"

That's pretty strong and thorough condemnation, not just of the Pharisees, but of all the Israelites who believed and followed them. God's love and passion for his people, the Jews, is magnificently displayed near the end of the passage, and it's clear that Jesus' rejection of their legalism is rooted in his desire for them to be truly holy.

I think Cass Sunstein is missing an important aspect of property rights when he claims that they can't exist without the rule of law. He writes:

What Holmes is saying here is that even though property is exchangeable, it doesn't arise from value; it's a creation of law. And that's simply a matter of fact. With these sixteen words, Holmes captured much of the legal realist critique of laissez-faire -- and a key part of legal thinking between 1890 and 1930. A system of free markets isn't law-free; it depends on law. Property rights, as we enjoy and live them, are a creation of law; they don't predate law. ...

Roosevelt insisted that no one is really opposed to "government intervention." Those who complain about "government" depend on it every day of every year. Their "property rights could not exist" without its assistance (which costs a lot of money). And he believed that further "intervention," designed to protect decent opportunities (recall the right to education and the right to be free from monopoly) and minimal security, could be necessary to protect not equality but "individualism."

Do property rights not exist without laws and government to enforce them? Not at all. A "right" is, after all, something that I myself, as an individual, am morally entitled to defend using physical violence. The world is certainly a more peaceful and pleasant place to live if we all agree to solve disagreements and to respect each others' rights without the use of violence, and laws and government are established to facilitate that. But the rights themselves are endowed to humanity by our Creator, and do in fact predate any institutions we build to aid in protecting them.

Even if you believe that morality is a purely human construct, it still makes much more sense to say that the desire to more easily defend fundamental "natural" rights led to the creation of government, rather than vice versa. It is nonsensical to argue that laws predate rights; even anarchists believe in morality, and rights flow from morality.

Update:
Clayton Cramer has some further thoughts. I'm not a libertarian either (although I also have libertarian sympathies), but I think that Mr. Cramer and Mr. Sunstein both miss the point that governments with the power to redistribute wealth will always degenerate into doing it poorly, to the detriment of all, no matter how well the system works at its inception. That's just a function of bureaucracy, and of the fact that there are only so many high-quality individuals available to put into government jobs. It's impossible to design a system so well that it can efficiently govern a huge number of people with only mediocre civil servants. And, given the evidence, it's apparently not efficient to pay bureaucrats in such a way so as to attract the best among us.

Update 2:
Iain Murray agrees that Mr. Sunstein has it backwards.