Groundhog Day: The Movie as Metaphysics

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A Notice Theory of Just Punishment

Here is a draft of a long simmering paper examining the circumstances in which the offender's knowing that he would be subject to a severe penalty before electing to commit a crime makes just the imposition of that penalty.

A Textualist Approach to Legal Interpretation

Here is a draft of a paper on legal interpretation that is similar to origanilism in emphasizing the meaning of the text as enacted, but differs from standard forms of originalism, especially with respect to normative words and phrases in the text and in disavowing as determinative drafter and legislative or ratifier expectation and intent. The first section by itself might be of interest if you are a little uncertain about the difference between ambiguity and vagueness, or types of ambiguity, or what problems of interpretation there are beyond ambiguity and vagueness.

A Short Story, Philosophical Only at the Edges

This represents most of the fiction, at least what I knew at the time to be fiction, that I have authored.  Comments appreciated, including where, if anywhere, I might get it into print.

Is the Moving Now an Illusion if God is Omniscient?

Could it be that what is, for better or worse, called “the moving now” is an illusion, or, to put it a little more cautiously, could it be that at the deepest level description of reality there is no point in time that has the special status that we think this very moment has?

One widely held form of theism is committed to the  proposition. It is a usually unnoticed corollary of the combination of two widely held theological positions.

The Moving Now

It seems significant that the present moment in time is not known to physics. There is t and there is Δt, but there is no “the present t” in any equation. 

Life at Conception Argument

A recent news report in which Rand Paul insisted that he was squarely in the camp of those who would prohibit abortion, set out a version of the popular "Life Begins at Conception" argument. Click on "read more" to see a draft of a paper on that argument. I will be grateful for comments.

Examining the “Life at Conception” Argument

Lawrence Crocker Draft 6/3/14

Senator Rand Paul’s webpage contains the following position statement on abortion: 

I am 100% pro-life. I believe life begins at conception and that abortion takes the life of an innocent human being. It is the duty of our government to protect this life as a right guaranteed under the Constitution. For this reason, I introduced S. 583, the Life at Conception Act on March 14, 2013. This bill would extend the Constitutional protection of life to the unborn from the time of conception.

1. Policies and Rhetoric

My chief concern is the argument that this statement suggests, but leaves unelaborated. Producing a coherent and plausible version of that argument turns out to be more difficult than the senator may suspect (if he cared). Before turning to the argument itself, however, I want to take a quick look at the policy position that it is intended to support. The phrase “pro-life” has often and rightly been criticized as a particularly misleading piece of rhetoric. A perfectly fluent, but politically naïve, speaker of English might expect that one who is 100% pro-life would be a vegetarian, or at least a pacifist, certainly anti-death penalty, and doubtless a partisan of heavy funding for medical research and universal healthcare. As it turns out, however, that is an imperfect description of Senator Paul’s politics.

Those who are “100% pro-life” often publicize the enormity of the evil they condemn by citing the total number of abortions nationwide or worldwide. These advocates, however, are usually unmoved by data showing that ready availability of birth control reduces the number of abortions more effectively than do strict abortion prohibitions. (The closing of Planned Parenthood Clinics very well increases the total number of abortions. It certainly decreases the number of medically safe abortions.)

Misleading emotionally charged rhetoric is one part of the way that political argument descends towards political propaganda. “Pro-abortion” is, in this respect, even worse than “pro-life” as it is very hard to find anyone who really thinks that abortion is a good thing or who would like to increase the world’s total number of abortions. Rhetorical excess comes inevitably with free speech, but that is not a reason to cave into it without objection.

I do not want to suggest that partisan terminology is a disease that infects only one part of the political spectrum. “Pro-choice” is not itself a perfect term. It is not so very bad, however, because, faced with the issue, those embracing this position do, in all or a very wide range of circumstances, want the ultimate decision whether a pregnancy is to be terminated to lie in the choice of the pregnant woman, not the will of the legislature, prosecutor, or police. Yet few want to increase the number of occasions on which this choice arises. No one is thinking, “Let us hope that the number of problem pregnancies will increase so that there will be more concrete circumstances in which women will deliberate about terminating their pregnancies.” Choosing is not the good. Legally preventing choice is the evil. 

“Prohibitionist” and “anti-prohibitionist” are inelegant terms, and are certainly not going to catch on, but they are more nearly accurate ways of characterizing the parties to this debate and I will use them here for that reason, if quixotically. “Anti-prohibitionist” is, I admit, not so apt on the moral (as opposed to the legal) component of the debate. What the choice side tends to believe is that abortion, at least in many instances, is not immoral or not so seriously immoral as the prohibitionists believe. “Morally prohibited” may fit the views of many on one side of the debate, but “not morally prohibited” grossly underdescribes the views on the other side.

There is even conceptual space for anti-abortion anti-prohibitionists. There are those who believe that the choice of an abortion in a very wide range of circumstances is morally the wrong choice, but that coercing a woman into continuing her pregnancy against her will is the greater moral evil. Perhaps this is where Senator Paul would end up if he were more a libertarian and less a politician. It is possible to imagine anti-abortion anti-prohibitionists who devoted their lives to preventing abortions by increasing the availability of birth control or developing an artificial womb, and at the same time stoutly opposed all legal restrictions on abortion, even of late term. 

2. Life at Conception Act

This brings us up to the Life at Conception Act. Paul’s S. 583 is something of a legal oddity. It is denominated a “declaration,” yet its sponsor asserts that it would have the effect of extending the constitutional protection of life to the unborn, all the way back to the fertilized egg. You may detect some wavering in Paul's position as to whether the Constitution already so protects the fertilized egg or whether legislation is required for it to do so. There is a corresponding unclarity with respect to how the legislation is expected to work. It might work indirectly by providing a congressional finding of fact that would encourage the Supreme Court to substitute conception for viability as the point at which the state’s interest in protecting the fetus becomes strong enough to permit prohibition of abortion. Viability is currently the threshold in Supreme Court doctrine via the plurality opinion of Planned Parenthood v. Casey. The result of this change, of course, would be the effective elimination of Roe v Wade. This is presumably something for which Paul hopes, despite his denial that the bill constitutes an interpretation of the Constitution.

What the Life at Conception Act might be argued to do directly and of its own force is to redefine “human person” and “human being” wherever those terms appear in federal law. For example, the federal murder statute begins: “Murder is the unlawful killing of a human being . . .” 18 U.S.C § 1111a. It is presumably with this in mind that the bill carves out its one explicit exception: “Nothing in this Act shall be construed to require the prosecution of any woman for the death of her unborn child.” (There is no exemption for prosecution of the doctor for murder or of the mother for attempted murder or conspiracy to murder. A civil action against the mother enjoining her from procuring an abortion would also fall outside the statute’s exemption, as would a civil action enjoining mothers not to breast feed – the basis for such injunctive action under the proposed Act I will touch on below.)

In the end, of course, and despite Senator Paul’s reputation as a libertarian, “pro-life” politics, as supporters will admit if pushed only a little, really are in the end prohibition politics, whether the prohibition is codified as a homicide statute or in some other form. The idea is to make abortions illegal by federal law if possible, and by state law otherwise. (The preference for federal prohibition ought to be uncomfortable for the many prohibitionist politicians who are otherwise strong states righters, but social issues often seem to trump constitutional principles otherwise advertised as fundamental.) All this should be, rhetorical trappings aside, uncontroversial: The protection of these alleged rights of the conceptus strictly implies prohibitions on the conduct of pregnant woman and medical providers.

3. Outline of the Conception Argument

Let me now turn to the main task, examination of Senator Paul’s implicit argument. I am not going to start with the premise that life begins at conception or even that human life does. These phrases, though popular, hide important ambiguities. The unfertilized egg was alive; otherwise there would have been no conception. Moreover for there to be human conception, the sperm had to be both alive and human. It could not be mouse sperm. Despite enjoying some ill-gotten advantage from the looser way of putting things, I am confident that Paul would accept the following formulation:

    A fertilized human egg is a human being.

    Every human being has an equal moral right not to be killed.

    Therefore the fertilized egg has the same moral right not to be killed as you or I

    Your right not to be killed, and mine, are protected, inter alia, by the 5th            Amendment, 14th Amendment, and state and, sometimes, federal homicide        statutes.

    Therefore the right of the fertilized egg not to be killed ought to be protected,        inter alia, by the 5th Amendment, 14th Amendment, and state and federal            homicide statutes.


4. Merits of the Argument

Before we get into the criticism of the argument, let us step back to look at some of its merits. First, the argument does not make any facial appeal to God, revelation, or specifically religious morality or metaphysics. Those who put forward arguments of this sort purport to rely upon nothing more than science and uncontroversial reasoning. In this respect the argument seems to be an attempt to come within what Rawls called “public reason,” or “public discourse.” It is designed to exceed high standards for civil argumentation before an audience of diverse religious, metaphysical, and moral commitments.

Second, the argument has the virtue, historically celebrated in the philosophical tradition, of proceeding from innocuous looking premises to a surprising and dramatic conclusion. It is worth pausing for a moment to consider just how surprising is a claim of the sort that a fertilized egg shares rights with you and me. Zygotes really are very different from us. A fertilized egg weighs less than 4 micrograms. We are 10 orders of magnitude heavier. A fertilized egg can do nothing more than divide. A human zygote has no immediate capabilities not shared with a salmon zygote. You and I can do a good deal more, at least on a good day. To call a single cell an “unborn child” is quite an extension of the term “child.”

Senator Paul says of a fertilized egg that it is an “innocent human being.” Putting aside “human being” for now, a zygote is no more innocent than is a skin cell or a rock for that matter. It is not innocent because, not being able to act, it could not possibly be guilty of anything.

Were we the ethics officers of an exploration of an alien planet charged with the tasks of deciding whether any of the entities found there were bearers of rights or otherwise worthy of moral respect, something that had the capabilities that a zygote has while still a zygote would not make it onto the candidates list. So the Conception Argument, if successful, really does do some heavy lifting.

5. The Science Behind the Argument

The chief question in examining the soundness of the argument (valid form plus true premises) is whether the first premise is true, or to get beyond mere terminology, whether it is true in the same sense of “human being” that plausibly makes the second premise true.

At its heart the argument assumes a radical discontinuity between egg and fertilized egg on the one hand and asserts the existence of a strong and morally salient continuity between the fertilized egg and you and me on the other.

It is sometimes pretended that the first premise is true as a matter of scientific fact. Paul’s colleague, the junior senator from Florida, Marco Rubio, recently declared that premise to be scientifically uncontroversial. “Science is settled. It’s not even a consensus, it a unanimity that human life begins at conception.” Rubio was here contending that liberals are hypocritical in upbraiding him for disagreeing with the vast majority of the relevant scientific community on climate change while failing to embrace the prohibitionist position on abortion. In so saying, of course, Rubio was implicitly declaring that the rest of the argument is uncontroversially sound– else there might be some way a liberal could accept (1) but stop short of concluding (5). So we have the senator’s unstinting endorsement of the whole argument as well as his survey of all scientists in favor of its first premise.

I am unsure of biological usage on the point, but it is, perhaps, conceivable that we could get biologists to consent to apply a carefully denatured definition of the term “human being” to a fertilized egg. “Human” is part of their working vocabulary, and it is a human fertilized egg as it was a human unfertilized egg and human sperm, and as your skin cells are human. Although not all fertilized eggs will develop into human infants, many will. So let us take the biologist out of her normal way of talking, and get her to agree that a fertilized egg is a “human being.”

What she is very unlikely to do, wearing her biologist's hat, is assert that the fertilized egg is a “human being” in the sense in which “human being” entails a right not to be killed. Interviews with biologists conducted the day after Rubio's declaration about scientific unanimity made this perfectly clear. In that respect the senator's appeal to scientific authority was a flat failure.

We know, however, that neither Paul nor Rubio would give up the argument because they got terminological resistance from biologists. What the senators would say, I think, is that we can start with scientifically non-controversial facts about the fertilized egg, and then reason, in what should be uncontroversial (but for prejudice) moral reasoning, to the conclusion that moral rights do and legal rights should attach to the fertilized egg – including the same right not to be killed that you and I have.

So what are the scientifically uncontroversial facts about the difference between unfertilized and fertilized eggs that are supposed to make all the moral difference? You might initially be tempted to say that the scientific difference is that the unfertilized egg is haploid and the fertilized diploid. The fertilized egg probably will have the same number of chromosomes as you and I have in most of our cells (not gametes, not red blood cells). It is only probably the same because there are 47 chromosome human zygotes and even very rare cases of 44 chromosomes.

Chromosome count, however, cannot be the crucial property that brings with it the radical elevation in moral standing. You had no compunction about getting that blood count finger poke, despite the thousands of 46 chromosome, distinctively human, white blood cells that met immediate death thereby.

It has to be something forward looking that conveys moral status – the possibility of having a valuable future something like yours and mine, to use a phrase introduced into the abortion debate by Don Marquis. Your white blood cell cannot, given current technology, become anything like us. It might conceivably become like us, though, through some future cloning process. A stem cell might make this transition with a less futuristic cloning technique. So the development into human beings like you and I may be part of their potential for many cells, in one way of understanding their potential. “Potential,” however, is a tricky concept, historically given to very different treatments by different metaphysical systems. It is better to see if the supporters of the Conception Argument can avoid relying upon potential in argumentation that aspires to be uncontroversial.

6. Individuals, Twinning, and Chimeric Merger

It might seem that we could lessen our reliance upon any special metaphysical notion of potential by looking, not at the properties of cells in general, but at the specifics of actual reproductive history. Isn’t it safe to say that before there was a fertilized egg, there was nothing that had the possibility of becoming you as you are now; after fertilization there was. Well, what about the egg-sperm pair pre-fertilization? It must have had the potential, because it became actual. Why did this pair not have moral status? Had the sperm been killed, you would not have been, after all. The answer has to be that the egg-sperm pair was not one distinct, physical individual. Perhaps the right not to be killed applies to a distinct physical individual, but does not apply to its precursors. (Just why this might be so, I will skip here, noting only that the familiar language of “individual rights” suggests that these rights arise with individuality.)

The problem with this response is that the fertilized egg is sometimes not what we would normally count as a distinct human individual, but instead one of two precursors of a distinct human individual or the sole precursor of two distinct human individuals. Two zygotes can fuse to produce a single zygote in tetragametic chimerism, and a single zygote can split, producing monozygotic (identical) twins.

This leaves the argument's supporters with three choices:

    1. The fertilized egg is the same human individual as the resulting twins or                chimera.
    2. The twins or chimera were the first human individuals; the prior zygotes,               were not human beings.
    3. In both the twins case and chimera case, there are three human individuals,         the precursor and both the identical twins, or the two precursors and single         chimera.

We can dispose pretty quickly of (1) and (2). (1) is logically impossible. Take identical twins b, and c, and their zygotic predecessor a. If a is the same human being as b, and a is the same human being as c, then by the transitivity of identity, b is the same human being as c, which will appear an inconvenient allocation of the concept of personal identity when b looks back on her life as an airline pilot and the supposedly identical individual c reminisces about hers as an opera star.

(2) might have been acceptable to many traditional prohibitionists, because abortions were rarely performed within those first few days of zygothood during which twining and tetragametic absorption can take place. Yet the position that the identical twins or chimera are the first human beings in the process is so completely contrary to the “life at conception” theory that it is unavailable to the senators and the other supporters of this argument. If the argument were to be modified along the lines of (2), it would not support a chief corollary political demand: prohibition of the morning after pill.

On (3) the precursor of twins and precursors of a chimera are accepted as human individuals, and have a right not to be killed attendant upon that status. These purported individuals have one property not shared with other human individuals – the can go out of existence without dying. If he adopted this alternative Senator Paul would have to say that an “unborn child” ceased being with no loss of life. These very brief human careers fail to achieve any of the capabilities or experiences that separate humans from fleas. They have no futures like ours. What is the argument that would require us to accord to these supposed human beings the same right not to be killed as you or I have?

One way forward seems to me a bit of a cheat, but let us take a look at it anyway. We might say that the right not to be killed of these organisms, consisting of a single cell or small bundle of cells, is derivative upon the rights of their successors, the twins or chimera. Let us suppose, for the moment, that these successors are human beings without any asterisks. Their futures might well resemble yours or mine. If their precursor or precursors were killed, however, they would never have existed to have those futures. So we prohibit the killing of the predecessor human being, despite its short and limited existence, to protect the twins.

I regard this argument as a cheat because it grounds the right not in the individual, but in the individual's relation to others – the successors. Its fatal problem, however, is that the argument proves too much. If the right of the successor is passed upstream to the precursor, then it will be passed from zygote to unfertilized egg. Had the unfertilized egg been killed, there would have been no zygote, no fetus, no infant, no adult. Successor-derivative rights cannot be the correct principle here.

A second way to establish a right not to be killed in the transitory individuals of option (3) founds that right in the nature of the individuals themselves, and has the advantage of not necessarily extending rights to the unfertilized egg. This alternative would have it that the properties that the purported individuals we are considering, pre-division or pre-merger, are already sufficient to establish a full right to life.

We will have to find a basis for rights without looking to the properties that we usually think of as giving human life its special value. Single cells do not choose, love, reason, create, or appreciate beauty. They do not even have the properties that we look to in giving some, often minimal, protection to non-human animals – the ability to experience pain, pleasure, fear. They are many developmental stages away from any of these – developmental stages that these individuals, by hypothesis, will never go through.

7. Into the Metaphysics

The crucial move that the argument must make is counterfactual. It looks not to the actual (all but non-existent) future of these supposed individuals, but to the future they might have had if they had not split or merged. Wasn't it, after all, a mere accident that splitting or merging befell them?

As is doubtless already clear to you, taking this path will draw us into metaphysically deep waters. We have given up the hoped for advantage of avoiding the metaphysics of potentiality because we have now entered upon the closely related metaphysics of essence and accident.

Where within the whole physical description of the reproduction process are we to draw the line between what is a property of the zygote and properties accidental to it? One easy answer would be to draw the line at the cell membrane. What is outside that membrane, the chemistry of the fluid, the presence of another zygote appropriately placed for merger, is accident; everything inside is a property of the zygote. We then can project a long possible future for the zygote even if that future is not realized because of the accidental merger or twining.

However, the mechanisms of merger and twining are not well understood. They might well be a function of something within the cell, especially in the case of twining One could reply that even if the twinning disposition were within the cell, even within the genes, that would still be an accidental property and not an essential human one. With this response, however, a candid proponent of the argument must concede that we will be up to our ears in matters metaphysically controversial.

It might conceivably be, as Aristotle and Aquinas thought, that good sense can be made of the idea of a human essence, properties that all and only human beings share and that are, as a matter of the nature of being, both necessary and sufficient to constitute something a human being. On this metaphysics, whatever it is that causes monozygotic twining or tetragametic chimerism can be declared accidental rather than essential. The human individual that disappeared in twining had the potential to become like you and I. It was physically impossible that it should do so, but not metaphysically impossible. Do not expect biologists to endorse this view, however, as it does not fit at all well with our current understanding of evolution, and can be made to fit with genetics only by application of brute intellectual force.

Could the senators avoid this descent into highly controversial metaphysics with an argument along the following lines? “Yes, unusual circumstances, such as twinning and merger, may be in the offing for any given fertilized egg, but we do not now have any way of detecting that fact in real time, and probably never will. Therefore, not being able to tell otherwise, we ought in caution to assume that all fertilized eggs are unproblematically human individuals.”

There may be a momentary appeal to a move of this sort. On reflection, however, it should be clear that those who, with Senators Paul and Rubio, propound the Conception Argument would want nothing of it. It is not, for them, a matter of ignorance, probabilities or statistics that the fertilized egg has the moral status of a human being demanding constitutional protection. Life does not probably begin at conception; it begins at conception – full stop. It really is a matter of the moral dignity of the fertilized egg – every fertilized egg of a human female.


8. The Trisomy-16 Zygote

The essential role of the underlying, and controversial, metaphysics, and the inutility of retreat to probabilities is illustrated by a different kind of case, the trisomy-16 zygote. If you encounter a Conception Argument proponent, and are somewhat pressed for time, the trisomy-16 case might be a good place to start. No full trisomy-16 fetus (all cells affected) has ever survived to live birth. Most miscarry in the first trimester; a few survive to later miscarriages with increased risks for the pregnant woman. Some fertilized eggs with full trisomy-16 may develop to the point of feeling pain; none will get much beyond that marker. None has a future like yours or mine.

If we had a good very early test for this condition, how much inconvenience, pain, and risk to health would it be moral coercively to impose upon the pregnant woman in legally prohibiting her from an early medication abortion? The Conception Argument would lead to the conclusion that this hopeless pregnancy should, from conception on, be regulated in defense of the rights of a “human being” that can never, as a matter of medical facts, reach live birth. To say that a trisomy-16 fertilized egg is only accidentally debarred by its genetics from having any possible future like ours, is to put all one's chips on a strong theory of metaphysical human essences.

Obviously metaphysics that can so overpower common moral sense and relegate scientific fact to insignificance is far from an uncontroversial metaphysics. Yet adoption of some such metaphysics is the only way to understand “human being” so as to make both the first two premises of the argument true.

9. Some Consequences of Rights at Conception

It should not be surprising that an argument based on such a strong and controversial metaphysics and reaching so uncompromising a conclusion is liable to unintuitive consequences. Some endorsers of the argument will be comfortable with prohibiting ordinary hormonal birth control, which, although not its ordinary mode, will, from time to time, prevent implantation of a fertilized egg in the uterus, This, of course, would violate the egg's right to live on the most extreme version of the position. Some might even regard this as an intentional homicide. After all, most women using birth control would want the fertilized egg not to implant if it comes to that.

Probably more troubling for all proponents of the argument is the established medical fact that breast feeding often has exactly the same effect. For many generations the birth control effects of breast feeding have been recognized by folk medicine. Some women have this in mind at least as a factor in breast feeding.

I think we can anticipate that the defenders of the argument will not want to criminalize "homicide by breast feeding." I expect that some variant of a theme that “natural” acts are to be distinguished from “non-natural” ones when it comes to the intentional homicide of human beings. The metaphysics will get heavier, and the moral argumentation will become ever more obviously controversial.

Even if the argument worked so far as to give the fertilized egg some rights of a human being, the rights of human beings are limited by the rights of other human beings. One who substantially affects the life of another human being may lose rights that she or he would otherwise have. Common morality as well as tort and criminal law recognize that there are boundaries beyond which others cannot require us to sacrifice our interests and our autonomy. Consider the right of self defense against innocent (for example insane) aggressors. Judith Thomson and Jane English years ago developed this line of argument against prohibitionism cogently and in detail. See Thomson, “A Defense of Abortion,”Philosophy & Public Affairs, Vol. 1, no. 1 (Fall 1971). English, “Abortion and the Concept of a Person,” Canadian Journal of Philosophy, Vol. 5, no. 2 (1975).