Diversity Reading List

Abstract: In 1934, Karl N. Llewellyn published a lively essay trumpeting the dawn of legal realism, "On Philosophy in American Law." The charm of his defective little piece is its style and audacity. A philosopher might be seduced into reading Llewellyn’s essay by its title; but one soon learns that by "philosophy" Llewellyn only meant "atmosphere". His concerns were the "general approaches" taken by practitioners, who may not even be aware of having general approaches. Llewellyn paired an anemic concept of philosophy with a pumped-up conception of law. Llewellyn’s "law" included anything that reflects the "ways of the law guild at large" - judges, legislators, regulators, and enforcers. Llewellyn argued that the legal philosophies implicit in American legal practice had been natural law, positivism and realism, each adopted in response to felt needs of a time. We must reckon with many other implicit "philosophies" to understand the workings of the law guild, not the least of which has been racism. Others, maternalism and paternalism, my foci here, persist in American law, despite women’s progress toward equality. Both maternalism and paternalism were strikingly present in a recent decision of the U.S. Supreme Court, Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act.

Introduction: The abortion debate rages on. Yet the two most popular positions seem to be clearly mistaken. Conservatives maintain that a human life begins at conception and that therefore abortion must be wrong because it is murder. But not all killings of humans are murders. Most notably, self defense may justify even the killing of an innocent per- son.

Liberals, on the other hand, are just as mistaken in their argument that since a fetus does not become a person until birth, a woman may do whatever she pleases in and to her own body. First, you cannot do as you please with your own body if it affects other people adversely. Second, if a fetus is not a person, that does not imply that you can do to it anything you wish. Animals, for example, are not persons, yet to kill or torture them for no reason at all is wrong.

At the center of the storm has been the issue of just when it is between ovulation and adulthood that a person appears on the scene. Conservatives draw the line at conception, liberals at birth. In this paper I first examine our concept of a person and conclude that no single criterion can capture the concept of a person and no sharp line can be drawn. Next I argue that if a fetus is a person, abortion is still justifiable in many cases; and if a fetus is not a person, killing it is still wrong in many cases. To a large extent, these two solutions are in agreement. I conclude that our concept of a person cannot and need not bear the weight that the abortion controversy has thrust upon it.

Introduction: One of the reasons why most of us feel puzzled about the problem of abortion is that we want, and do not want, to allow to the unborn child the rights that belong to adults and children. When we think of a baby about to be born it seems absurd to think that the next few minutes or even hours could make so radical a difference to its status; yet as we go back in the life of the foetus we are more and more reluctant to say that this is a human being and must be treated as such. No doubt this is the deepest source of our dilemma, but it is not the only one. For we are also confused about the general question of what we may and may not do where the interests of human beings conflict. We have strong intuitions about certain cases; saying, for instance, that it is all right to raise the level of education in our country, though statistics allow us to predict that a rise in the suicide rate will follow, while it is not all right to kill the feeble-minded to aid cancer research. It is not easy, however, to see the principles involved, and one way of throwing light on the abortion issue will be by setting up parallels involving adults or children once born. So we will be able to isolate the ‘equal rights’ issue and should be able to make some advance.

Publisher's Note: This collection of essays, written between 1957 and 1977, contains discussions of the moral philosophy of David Hume, Immanuel Kant, Friedrich Nietzsche, and some modern philosophers. It presents virtues and vices rather than rights and duties as the central concepts in moral philosophy. Throughout, the author rejects contemporary anti? naturalistic moral philosophies such as emotivism and prescriptivism, but defends the view that moral judgements may be hypothetical rather than (as Kant thought) categorical imperatives. The author also applies her moral philosophy to the current debates on euthanasia and abortion, the latter discussed in relation to the doctrine of the double effect. She argues against the suggestion, on the part of A. J. Ayer and others, that free will actually requires determinism. In a final essay, she asks whether the concept of moral approval can be understood except against a particular background of social practices.

Introduction: There has been considerable discussion of the moral status of early fetuses and the ethics of the choice whether to abort a pregnancy. But one tenable view about the moral status of early fetuses has been regularly ignored. As a consequence, a very liberal view about the ethics of abortion is more attractive than has previously been thought. Let us use the term 'early fetus' as follows: (1) 'early fetus': a fetus before it has any intrinsic properties that themselves confer moral status on the fetus. I assume that there is a nonnegligible period of time in which fetuses are early fetuses in my sense; it may be as short as a few weeks or as long as several months, depending on which intrinsic properties can them- selves confer moral status. One plausible view says that an early fetus is a fetus before it has any conscious experience and before it can properly be described as the subject of experience.

Back matter: In this text book Rosalind Hursthouse examines the complex questions surrounding the morality of abortion. Beginning by discussing the moral status of the foetus, she outlines and criticizes the main philosophical liberal positions on abortion, discussing alsl their bearing on the related issues of ifanticide, foetal research, surrogacy, murder and our treatment of animals. In place of the currently prevailing positions, the author offers a novel approach to these issues based on the recently revived theory of neo–Aristotelianism which emphasizes moral virtues and vices. A central element of Beginning Lives is its emphasis on the special nature of abortion: its unique relation to the facts of women′s pregnancies and hence to our attitudes to childbearing, motherhood, maturity and sexual relations.

Abstract: The sort of ethical theory derived from Aristotle, variously described as virtue ethics, virtue-based ethics, or neo-Aristotelianism, is becoming better known, and is now quite widely recognized as at least a possible rival to deontological and utilitarian theories. With recognition has come criticism, of varying quality. In this article I shall discuss nine separate criticisms that I have frequently encountered, most of which seem to me to betray an inadequate grasp either of the structure of virtue theory or of what would be involved in thinking about a real moral issue in its terms. In the first half I aim particularly to secure an understanding that will reveal that many of these criticisms are simply misplaced, and to articulate what I take to be the major criticism of virtue theory. I reject this criticism, but do not claim that it is necessarily misplaced. In the second half I aim to deepen that understanding and highlight the issues raised by the criticisms by illustrating what the theory looks like when it is applied to a particular issue, in this case, abortion.

Abstract: What methods, what strategies, is it defensible for us to employ when campaigning on a contentious moral issue? What kinds of intolerance may we legitimately manifest towards the opposition in our endeavour to win converts and influence opinion? Could we be justified in refusing on principle even to engage with the opposition in public debate? And what of the legitimacy of 'playing' on people's emotions, or of not correcting misinformation put about by some of our supporters which helps our cause? Or, in making use of premises in argument that our opponents accept but we do not or, of appealing to arguments that we know to be invalid but by which the opposition may be taken in?

Abstract: This essay explicates and evaluates the roles that fetal metaphysics and moral status play in Rosalind Hursthouse's abortion ethics. It is motivated by Hursthouse's puzzling claim in her widely anthologized paper Virtue Ethics and Abortion that fetal moral status and (by implication) its underlying metaphysics are in a way, fundamentally irrelevant to her position. The essay clarifies the roles that fetal ontology and moral status do in fact play in her abortion ethics. To this end, it presents and then develops her fetal metaphysics of the potential and actual human being, which she merely adumbrates in her more extensive treatment of abortion ethics in her book Beginning Lives. The essay then evaluates her fetal ontology in light of relevant research on fetal neural and psychological development. It concludes that her implied view that the late-stage fetus is an actual human being is defensible. The essay then turns to the analysis of late-stage abortions in her paper and argues that it is importantly incomplete.

Summary: Lambert-Beatty explores the limits of art activism through a detailed account of Rebecca Gomperts' Women on Waves project. Starting in 2001, Gomperts - a physician with a background in art - sailed a customized maritime gynecological clinic with a crew from the Netherlands to the coastal areas of countries where abortion had been outlawed. The clinic would dock far enough from the shore (twelve miles being the limit of states' naval jurisdictions) to offer healthcare to local women undisturbed. Lambert-Beatty notes that for all of its political import, the project retains a radical imagination of the poetic kind. Considering its enthusiastic reception by the international artworld, and inclusion in major art exhibitions, it is also clear that Gomperts intended the work at least partially as art. And, yet, Women on Waves challenges notions of the aesthetic as the "retreat from the real" that it is so often seen as. Lambert-Beatty sees the pragmatic aspect of the work as an integral part of its beauty, and vice versa. This symbiotic balance seems to resolve the tension Ranciere finds "between the logic of art that becomes life at the price of abolishing itself as art, and the logic of art that does politics on the explicit condition of not doing it at all."

Introduction: It is often noted that public discussion of the moral status of abortion is disappointingly crude. The positions staked out and the reasoning proffered seem to reflect little of the subtlety and nuance - not to mention ambivalence - that mark more private reflections on the subject. Despite attempts by various parties to find middle ground, the debate remains largely polarized: at its most dramatic, with extreme conservatives claiming abortion to be the moral equivalent of murder, even as extreme liberals think it devoid of moral import.To some extent, this polarization is due to the legal battle that continues to shadow moral discussions. Admission of ethical nuance, it is feared, will play as concession on the deeply contested question of whether abortion should be a legally protected option for women. But, to some extent, blame for the continued crudeness can be laid at the doorstep of moral theory itself.

Publisher's Note: When a woman is pregnant, how should we understand the moral status of the life within her? How should we understand its status as conceptus, as embryo, when an early or again matured fetus? According to some, human life in all of these forms is inviolable: early human life has a moral status equivalent to a person from the moment of conception. According to others, such life has no intrinsic status, even late in pregnancy. According to still others, moral status emerges when sentience does. Until the fetus is conscious - a point somewhere at the end of the second trimester, it has no moral status at all; after it is conscious, it does.

Abstract: In this article, I urge that mainstream discussions of abortion are dissatisfying in large part because they proceed in polite abstraction from the distinctive circumstances and meanings of gestation. Such discussions, in fact, apply to abortion conceptual tools that were designed on the premiss that people are physically demarcated, even as gestation is marked by a thorough-going intertwinement. We cannot fully appreciate what is normatively at stake with legally forcing continued gestation, or again how to discuss moral responsibilities to continue gestating, until we appreciate in their own terms the goods and evils distinctive of gestational connection. To underscore the need to explore further the meanings of gestation, I provide two examples of the difference it might make to legal and moral discussions of abortion if we appreciate more fully that gestation is an intimacy.

Abstract: When a woman or girl finds herself pregnant, is it morally permissible for her to end that pregnancy? One dominant tradition says 'no'; its close cousin says 'rarely' - exceptions may be made where the burdens on the individual girl or woman are exceptionally dire, or, for some, when the pregnancy results from rape. On both views, though, there is an enormous presumption against aborting, for abortion involves the destruction of something we have no right to destroy. Those who reject this claim, it is said, do so by denying the dignity of early human life - and imperiling their own. I think these views are deeply flawed. They are, I believe, based on a problematic conception of how we should value early human life; more than that, they are based on a profoundly misleading view of gestation and a deontically crude picture of morality. I believe that early abortion is fully permissible, widely decent, and, indeed, can be honorable. This is not, though, because I regard burgeoning human life as 'mere tissue': on the contrary, I think it has a value worthy of special respect. It is, rather, because I believe that the right way to value early human life, and the right way to value what is involved in and at stake with its development, lead to a view that regards abortion as both morally sober and morally permissible. Abortion at later stages of pregnancy becomes, for reasons I shall outline, multiply more complicated; but it is early abortions - say, abortions in the first half of pregnancy - that are most at stake for women.

Abstract: Confucian resources for moral discourse and public policy concerning abortion have potential to broaden the prevailing forms of debate in Western societies. However, what form a Confucian contribution might take is itself debatable. This essay provides a critique of Philip J. Ivanhoe's recent proposal for a Confucian account of abortion. I contend that Ivanhoe's approach is neither particularly Confucian, nor viable as effective and humane public policy. Affirmatively, I argue that a Confucian approach to abortion will assiduously root moral consideration and public policy in evidence-based strategies that recognize the complexity of the phenomena of unplanned pregnancy and abortion. What most distinguishes a Confucian approach, I argue, is a refusal to treat abortion as a moral dilemma that stands free of the myriad social conditions and societal inequities in which empirical evidence shows it situates.