About Me
- Russell Blackford
- Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).
Thursday, December 23, 2010
More on whether the folk are objectivists
My previous post was prompted by an article in the new edition of The Philosophers' Magazine. In this piece by Joshua Knobe, entitled "Is morality relative? Depends on your personality", the author cites empirical research that casts doubt on whether the folk are simply objectivists, as many philosophers tend to assume (hey, even I tend to assume this).
The research relied upon by Knobe suggests that some people are more inclined to objectivism than others. It also finds that we tend to start out as objectivists but to shift away from it towards some more relativist understanding as we mature - though we tend to shift back towards objectivism in middle age. Interestingly, relativism tends to correlate with the psychological trait of openness to experience. You can, predictably enough, also get different intuitions from people depending on what questions you ask them, with radical scenarios involving space aliens proving more effective in eliciting relativist intutions than scenarios involving differences in opinion among people of the same society or different human societies.
The article is only a summary of an interesting line of research that is going on in experimental philosophy, but I'd be interested to see more of the results and to watch how this area develops.
If the research continues to paint a picture of mixed and rather volatile perceptions on the part of the folk, it will not invalidate sophisticated relativisms and sophisticated versions of error theory, to the extent that they agree with each other. In other words, it won't invalidate any reasonably sophisticated anti-realism. But it will seem to indicate that neither error theory of the usual kind nor the kind of sophisticated relativism that has been influenced by Gilbert Harman is quite right. Both kinds of theory would need some revision to their moral semantics, and would need to head in each other's direction.
I think the result would still, arguably, be an error theory, but not as radical in that respect as some of what is said in the name of error theory. I don't think it should necessarily bother J.L. Mackie - if he were still alive - because Mackie was pretty alert to the messiness of moral semantics.
The research relied upon by Knobe suggests that some people are more inclined to objectivism than others. It also finds that we tend to start out as objectivists but to shift away from it towards some more relativist understanding as we mature - though we tend to shift back towards objectivism in middle age. Interestingly, relativism tends to correlate with the psychological trait of openness to experience. You can, predictably enough, also get different intuitions from people depending on what questions you ask them, with radical scenarios involving space aliens proving more effective in eliciting relativist intutions than scenarios involving differences in opinion among people of the same society or different human societies.
The article is only a summary of an interesting line of research that is going on in experimental philosophy, but I'd be interested to see more of the results and to watch how this area develops.
If the research continues to paint a picture of mixed and rather volatile perceptions on the part of the folk, it will not invalidate sophisticated relativisms and sophisticated versions of error theory, to the extent that they agree with each other. In other words, it won't invalidate any reasonably sophisticated anti-realism. But it will seem to indicate that neither error theory of the usual kind nor the kind of sophisticated relativism that has been influenced by Gilbert Harman is quite right. Both kinds of theory would need some revision to their moral semantics, and would need to head in each other's direction.
I think the result would still, arguably, be an error theory, but not as radical in that respect as some of what is said in the name of error theory. I don't think it should necessarily bother J.L. Mackie - if he were still alive - because Mackie was pretty alert to the messiness of moral semantics.
Are the folk objectivists about ethics?
We usually assume that the folk are objectivists about ethics, i.e. that they think that a question such as "Is incest (of a certain kind) morally wrong?" has a determinate and more-or-less factual answer ... in much the same way as a question like "Does 2 + 2 sum to 4?" or "How high is the Empire State Building?" The latter question might be ambiguous in certain ways, of course, but assuming we can specify more precisely what is meant, such as the height from street level on a particular side to the top of the tower, or whatever else we need to avoid any ambiguity, there is an answer that is independent of our tastes, desires, or anything else about us that we tend to think might legitimately vary. (I'll set aside any possible ambiguities in the arithmetical question.)
Conversely, answers to questions such as "Was Cleopatra beautiful?" or "Which taste nicer, cashews or maccadamias?" or "What is the best way to understand Hamlet?" seem rather different. Even if all human beings could agree that Cleopatra was beautiful (if we could reconstruct an accurate and precise image of what we looked like), there could be plenty of other intelligent beings in the universe that quite legitimately don't agree, even if they have similar senses to ours. And the likelihood is that even human beings could disagree about it quite reasonably. There is not an answer that is governed by facts that are independent of our standards of beauty, and there is nothing about reality that compels all rational beings to adopt the same standards on pain of being simply wrong.
Clearly, many questions do not have objectively correct answers. There are facts in the vicinity, but these facts will include the fact that someone with such and such standards of beauty will see Cleopatra as beautiful and someone with different standards will not. Even if human standards of beauty are genetically encoded to some extent, that does not make them objective in the sense under discussion, as there could be other rational beings that do not have the same genetic coding.
If the folk believe that there are objective answers to moral questions - moral facts that are somehow Out There to be discovered, and inescapably binding on all rational beings - then they are very likely wrong. It is difficult to see what these answers could be.
One can, of course, attempt to make morality objective by definition, such as by defining "is morally wrong" to mean "fails to maximise overall happiness". But that is hopeless. If that is all "is morally wrong" means, then there is a further question as to whether I should refrain from performing acts that are "morally wrong". Perhaps, for example, there are acts that fail to maximise overall happiness but are effective in saving my loved ones from danger; surely it makes perfectly good sense sense to ask whether I should perform the latter acts or not.
Similarly, someone can,in a moment of desperation, define "A should do X" to mean "of the acts available to A, X is the one that will produce most overall happiness." But if we start defining "should" in that way we are now stuck with someone being able to say "I should, by your definition of 'should', do X, but is it really what I ought to do?"
We can then redefine "ought"! But this still won't solve the problem. Our interlocutor will need to use new terminology, but it still remains open to her to convey that she is not going to do X, even though she "ought" to do so by a stipulated definition of "ought" and she can feel comfortable that she is not breaching any standard that binds her inescapably.
The lesson is that we can go on redefining "good", "should", "ought", or any other words we like, and it accomplishes nothing. These words have something extra that won't be captured by such definitions, the something extra being this component of a standard that is binding on the agent concerned. The person who wants to try to solve the problem can go on forever defining more and more words and expressions, but she will never be able to show that some standard of conduct is binding on me in a way similar to the way an empirical fact is binding on me (the Empire State Building just is a certain number of feet high, and there's nothing I can do to change it short of physically altering the building).
(Of course, a standard of conduct might be applied to me by others, such as the police. There are social facts about what standards of conduct people actually do apply to each other. I might not be able to escape the fact that the police apply a standard of a certain kind to my conduct. But what if I am in a position to escape detection by them? Am I still somehow inescapably bound to act in accordance with the standard on pain of being just mistaken, as if I think the Empire State Building is 2100 feet tall? Surely not!)
In the past, I've defended moral error theory: the idea that (1) moral judgments such as "Incest (of a certain kind) is morally wrong" are understood in our ordinary language to make objective claims, essentially because that's how the folk use words in their thought and speech ... but (2) there are no objective truths here. Taken literally, "Incest (of a certain kind) is morally wrong" might mean something like "Incest (of a certain kind) is forbidden by a standard that is inescapably binding on all rational creatures." In that case, such a claim will always end up being literally false. There are no such standards.
It's as if someone said: "Cashews are tastier than maccadamias by a standard that all rational creatures must accept" and hence that anyone who prefers maccadamias is objectively mistaken about the world.
In more recent times, though, I've come to think that error theory needs some extra work. In its usual formulations it may not be the whole story.
In particular, I've come to think that there is at least some merit in sophisticated relativist theories. Sophisticated relativists agree with error theorists that there are no objective moral truths in the sense that I've been attempting to describe, but they say that this does not render first-order thin moral claims simply false. These theories vary, but one way a sophsticated relativist theory might work is if it takes a claim such as "Incest (of a certain kind) is morally wrong" to mean "Incest (of a certain kind) is forbidden by a standard of conduct that is shared, or in question, in the context of our conversation." Other sophisticated relativists might try different tacks, but the overall approach is to offer a translation that could well be true. Spoken in a particular context, "Incest (of a certain kind) is morally wrong" might well be a true, if it conveys that incest of the kind in question is forbidden by a standard that the speaker and listener(s) share.
It seems that error theorists, at least as I'm characterising them, might disagree with sophisticated relativists, at least as I'm characterising them, only on an empirical matter: what do the folk actually have in mind when they make first-order thin moral judgments? What do the folk mean? Sounds simple enough, doesn't it? The problem, I think, is that the folk may be quite confused and inconsistent when it comes to points like this. Perhaps they don't really know what they mean, if asked to choose between the meaning given to moral language by an error theorist or by various kinds of sophisticated relativists.
Time for some empirical research, don't you think? We can maybe survey the folk about what they think they're saying. Maybe that will nail down which metaethical position is best, yes?
Alas, it might not be so simple. But that's a subject for another post.
Conversely, answers to questions such as "Was Cleopatra beautiful?" or "Which taste nicer, cashews or maccadamias?" or "What is the best way to understand Hamlet?" seem rather different. Even if all human beings could agree that Cleopatra was beautiful (if we could reconstruct an accurate and precise image of what we looked like), there could be plenty of other intelligent beings in the universe that quite legitimately don't agree, even if they have similar senses to ours. And the likelihood is that even human beings could disagree about it quite reasonably. There is not an answer that is governed by facts that are independent of our standards of beauty, and there is nothing about reality that compels all rational beings to adopt the same standards on pain of being simply wrong.
Clearly, many questions do not have objectively correct answers. There are facts in the vicinity, but these facts will include the fact that someone with such and such standards of beauty will see Cleopatra as beautiful and someone with different standards will not. Even if human standards of beauty are genetically encoded to some extent, that does not make them objective in the sense under discussion, as there could be other rational beings that do not have the same genetic coding.
If the folk believe that there are objective answers to moral questions - moral facts that are somehow Out There to be discovered, and inescapably binding on all rational beings - then they are very likely wrong. It is difficult to see what these answers could be.
One can, of course, attempt to make morality objective by definition, such as by defining "is morally wrong" to mean "fails to maximise overall happiness". But that is hopeless. If that is all "is morally wrong" means, then there is a further question as to whether I should refrain from performing acts that are "morally wrong". Perhaps, for example, there are acts that fail to maximise overall happiness but are effective in saving my loved ones from danger; surely it makes perfectly good sense sense to ask whether I should perform the latter acts or not.
Similarly, someone can,in a moment of desperation, define "A should do X" to mean "of the acts available to A, X is the one that will produce most overall happiness." But if we start defining "should" in that way we are now stuck with someone being able to say "I should, by your definition of 'should', do X, but is it really what I ought to do?"
We can then redefine "ought"! But this still won't solve the problem. Our interlocutor will need to use new terminology, but it still remains open to her to convey that she is not going to do X, even though she "ought" to do so by a stipulated definition of "ought" and she can feel comfortable that she is not breaching any standard that binds her inescapably.
The lesson is that we can go on redefining "good", "should", "ought", or any other words we like, and it accomplishes nothing. These words have something extra that won't be captured by such definitions, the something extra being this component of a standard that is binding on the agent concerned. The person who wants to try to solve the problem can go on forever defining more and more words and expressions, but she will never be able to show that some standard of conduct is binding on me in a way similar to the way an empirical fact is binding on me (the Empire State Building just is a certain number of feet high, and there's nothing I can do to change it short of physically altering the building).
(Of course, a standard of conduct might be applied to me by others, such as the police. There are social facts about what standards of conduct people actually do apply to each other. I might not be able to escape the fact that the police apply a standard of a certain kind to my conduct. But what if I am in a position to escape detection by them? Am I still somehow inescapably bound to act in accordance with the standard on pain of being just mistaken, as if I think the Empire State Building is 2100 feet tall? Surely not!)
In the past, I've defended moral error theory: the idea that (1) moral judgments such as "Incest (of a certain kind) is morally wrong" are understood in our ordinary language to make objective claims, essentially because that's how the folk use words in their thought and speech ... but (2) there are no objective truths here. Taken literally, "Incest (of a certain kind) is morally wrong" might mean something like "Incest (of a certain kind) is forbidden by a standard that is inescapably binding on all rational creatures." In that case, such a claim will always end up being literally false. There are no such standards.
It's as if someone said: "Cashews are tastier than maccadamias by a standard that all rational creatures must accept" and hence that anyone who prefers maccadamias is objectively mistaken about the world.
In more recent times, though, I've come to think that error theory needs some extra work. In its usual formulations it may not be the whole story.
In particular, I've come to think that there is at least some merit in sophisticated relativist theories. Sophisticated relativists agree with error theorists that there are no objective moral truths in the sense that I've been attempting to describe, but they say that this does not render first-order thin moral claims simply false. These theories vary, but one way a sophsticated relativist theory might work is if it takes a claim such as "Incest (of a certain kind) is morally wrong" to mean "Incest (of a certain kind) is forbidden by a standard of conduct that is shared, or in question, in the context of our conversation." Other sophisticated relativists might try different tacks, but the overall approach is to offer a translation that could well be true. Spoken in a particular context, "Incest (of a certain kind) is morally wrong" might well be a true, if it conveys that incest of the kind in question is forbidden by a standard that the speaker and listener(s) share.
It seems that error theorists, at least as I'm characterising them, might disagree with sophisticated relativists, at least as I'm characterising them, only on an empirical matter: what do the folk actually have in mind when they make first-order thin moral judgments? What do the folk mean? Sounds simple enough, doesn't it? The problem, I think, is that the folk may be quite confused and inconsistent when it comes to points like this. Perhaps they don't really know what they mean, if asked to choose between the meaning given to moral language by an error theorist or by various kinds of sophisticated relativists.
Time for some empirical research, don't you think? We can maybe survey the folk about what they think they're saying. Maybe that will nail down which metaethical position is best, yes?
Alas, it might not be so simple. But that's a subject for another post.
Tuesday, December 21, 2010
Tauriq Moosa's favourite blogs for 2010
This looks like a good list - not least because both Udo and I are on it.
Monday, December 20, 2010
CASE OF A, B AND C v. IRELAND (2)
Yesterday's post looked at the factual circumstances of the three women - applicants A, B, and C - in this case. Let's follow up today with a look at the legal situation that confronted them in Ireland.
First, the Irish Constitution contains this bizarre provision, which has taken the form it has from constitutional amendments.
Article 40.3
1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
3 The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
This subsection shall not limit freedom to travel between the State and another state.
This subsection shall not limit freedom to obtain or make available, in the State, subject to such
conditions as may be laid down by law, information relating to services lawfully available in
another state.
Thus, the constitution itself requires that "the unborn" be treated as having the same "right to life" as actual people: adults and children. Apart from that being ridiculous in itself, it is extraordinary that such a provision have constitutional status. Normally we'd hope that a constitution would define and restrict government power to protect us from overreaching laws, but here it actually requires that the government enact laws that give protection to "the unborn" and thus restrict the liberty of actual women with actual feelings, fears, problems, and life plans. It does the opposite of protecting women from state interference in such a personal matter.
I submit that this is not the constitution of a liberal society; it is the constitution of a country that is deeply influenced in legal matters by specifically religious morality, and to that extent shows theocratic tendencies.
Notice, however, the compromise, by which I mean the provisos in sub-section 3. Constitutional amendments have got around the problem to some extent by ensuring that the constitution does not act to restrict the ability of Irish citizens to travel to countries where abortion is legal. Nor does it limit the freedom of women to obtain information about legal abortions in other countries - though it does allow the state to enact legislation that restricts it, by imposing conditions on what can be said.
What of the legislation itself? There is an old Act of Parliament, dating from the nineteenth century, which remains in force under Ireland's constitutional arrangements. This contains sweeping anti-abortion provisions, most notably the following:
Offences Against the Person Act 1861, section 58
Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or not be with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of a felony, and being convicted thereof shall be liable to be kept in penal servitude for life.
Thus, if you have an abortion in Ireland you have committed a crime that attracts a life sentence (presumably this would be treated as a maximum sentence rather than a mandatory sentence). Again, I submit that this is not the law of a liberal society. Notice that even very early abortions are treated as if they are among the most serious criminal acts in the statute books.
However, note also the important word "unlawfully". In some other jurisdictions where the law uses similar language, this word has been interpreted by the courts so as provide a powerful let-out. As the word must be given some meaning, so the argument goes, it can be held that an "unlawful" abortion is one that has no medical purpose behind it. Once you go down that path, you can render such a law almost nugatory, since almost any abortion can have some purpose relating to the mother's physical or especially mental health. That, however, is not how the courts have construed the legislation in Ireland, and they probably can't be blamed for this given the social climate, the original purpose of the Act, and the wording of the Irish constitution.
Irish case law holds that an abortion is "unlawful" unless if "it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy". I don't like this outcome, but I think it's an honest, legally defensible interpretation of the legislative intention, given Irish (social, historical, and constitutional) circumstances.
Accordingly, applicant C (discussed yesterday) would have had a good defence against an abortion charge if she'd had an abortion in Ireland, but applicants A and B would have been stuck.
One other oddity is that the defence can be relied on if the mother is suicidal. That is especially important to doctors and others who provide abortions (who are covered by a separate section of the Act with closely analogous wording). If your patient makes suicide threats - "If I have to have the baby I'll kill myself!" - you probably have a defence if you carry out an abortion. Presumably the woman also has a defence, at least if she can prove on the balance of probabilities that the threats were sincere (I'm no expert on Irish law, but that's how I think it should operate on general legal principles).
But lawfulness is not established if an abortion is required for some medical reason where the mother's life is not a stake. Nothing less than that will provide a defence in Ireland.
Finally, I should mention that Ireland has actually enacted legislation to control what can be said to pregnant women about the possibility of getting an abortion overseas. The Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995 provides a code of what you can and can't say to a pregnant woman if, for example, you're her counsellor or a doctor. The main thing is that you can provide factual information, but you can't in any way advocate or promote an abortion or provide any assistance in arranging an abortion. As far as I can see, that is the case even if your patient or client would gain a medical benefit from getting an abortion.
From one viewpoint, it's rather shocking to see this theocratic legal scheme operating in what is supposed to be a Western liberal democracy, but there it is. From another viewpoint, it's probably not surprising at all, given the social and political authority wielded in Ireland by the Roman Catholic Church.
This, then, is what applicants A, B, and C were confronted with when they chose to have abortions in England, which is the common practice for women in Ireland who want abortions.
More to come.
First, the Irish Constitution contains this bizarre provision, which has taken the form it has from constitutional amendments.
Article 40.3
1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
3 The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
This subsection shall not limit freedom to travel between the State and another state.
This subsection shall not limit freedom to obtain or make available, in the State, subject to such
conditions as may be laid down by law, information relating to services lawfully available in
another state.
Thus, the constitution itself requires that "the unborn" be treated as having the same "right to life" as actual people: adults and children. Apart from that being ridiculous in itself, it is extraordinary that such a provision have constitutional status. Normally we'd hope that a constitution would define and restrict government power to protect us from overreaching laws, but here it actually requires that the government enact laws that give protection to "the unborn" and thus restrict the liberty of actual women with actual feelings, fears, problems, and life plans. It does the opposite of protecting women from state interference in such a personal matter.
I submit that this is not the constitution of a liberal society; it is the constitution of a country that is deeply influenced in legal matters by specifically religious morality, and to that extent shows theocratic tendencies.
Notice, however, the compromise, by which I mean the provisos in sub-section 3. Constitutional amendments have got around the problem to some extent by ensuring that the constitution does not act to restrict the ability of Irish citizens to travel to countries where abortion is legal. Nor does it limit the freedom of women to obtain information about legal abortions in other countries - though it does allow the state to enact legislation that restricts it, by imposing conditions on what can be said.
What of the legislation itself? There is an old Act of Parliament, dating from the nineteenth century, which remains in force under Ireland's constitutional arrangements. This contains sweeping anti-abortion provisions, most notably the following:
Offences Against the Person Act 1861, section 58
Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or not be with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of a felony, and being convicted thereof shall be liable to be kept in penal servitude for life.
Thus, if you have an abortion in Ireland you have committed a crime that attracts a life sentence (presumably this would be treated as a maximum sentence rather than a mandatory sentence). Again, I submit that this is not the law of a liberal society. Notice that even very early abortions are treated as if they are among the most serious criminal acts in the statute books.
However, note also the important word "unlawfully". In some other jurisdictions where the law uses similar language, this word has been interpreted by the courts so as provide a powerful let-out. As the word must be given some meaning, so the argument goes, it can be held that an "unlawful" abortion is one that has no medical purpose behind it. Once you go down that path, you can render such a law almost nugatory, since almost any abortion can have some purpose relating to the mother's physical or especially mental health. That, however, is not how the courts have construed the legislation in Ireland, and they probably can't be blamed for this given the social climate, the original purpose of the Act, and the wording of the Irish constitution.
Irish case law holds that an abortion is "unlawful" unless if "it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy". I don't like this outcome, but I think it's an honest, legally defensible interpretation of the legislative intention, given Irish (social, historical, and constitutional) circumstances.
Accordingly, applicant C (discussed yesterday) would have had a good defence against an abortion charge if she'd had an abortion in Ireland, but applicants A and B would have been stuck.
One other oddity is that the defence can be relied on if the mother is suicidal. That is especially important to doctors and others who provide abortions (who are covered by a separate section of the Act with closely analogous wording). If your patient makes suicide threats - "If I have to have the baby I'll kill myself!" - you probably have a defence if you carry out an abortion. Presumably the woman also has a defence, at least if she can prove on the balance of probabilities that the threats were sincere (I'm no expert on Irish law, but that's how I think it should operate on general legal principles).
But lawfulness is not established if an abortion is required for some medical reason where the mother's life is not a stake. Nothing less than that will provide a defence in Ireland.
Finally, I should mention that Ireland has actually enacted legislation to control what can be said to pregnant women about the possibility of getting an abortion overseas. The Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995 provides a code of what you can and can't say to a pregnant woman if, for example, you're her counsellor or a doctor. The main thing is that you can provide factual information, but you can't in any way advocate or promote an abortion or provide any assistance in arranging an abortion. As far as I can see, that is the case even if your patient or client would gain a medical benefit from getting an abortion.
From one viewpoint, it's rather shocking to see this theocratic legal scheme operating in what is supposed to be a Western liberal democracy, but there it is. From another viewpoint, it's probably not surprising at all, given the social and political authority wielded in Ireland by the Roman Catholic Church.
This, then, is what applicants A, B, and C were confronted with when they chose to have abortions in England, which is the common practice for women in Ireland who want abortions.
More to come.
Sunday, December 19, 2010
Malik on Assange and Wikileaks
This piece by Kenan Malik is so good that I think I can just rely on it and not say anything more, at least until we have further developments.
CASE OF A, B AND C v. IRELAND (1)
As promised, I'm going to discuss this case at greater length, but I won't be able to do so in one hit, simply because it's complicated. Here's a first instalment.
The case involved three women, known as A, B, and C (their identities have been withheld by the courts) who had all travelled from Ireland to the UK in order to have abortions. Only one woman, C, was ultimately successful, so it's worthwhile examining their different circumstances. It's also useful getting an idea of some of the circumstances of women who are unable to obtain abortions in Ireland because of its draconian anti-abortion laws (which carry a life sentence for a woman who has an abortion), and choose to travel to the UK. With these facts in front of us we can get to the messy legal (and the strange-seeming way it had to be resolved) in later posts.
One thing that should be made clear at this stage, however, is that the case was not really about the legality, under European human rights law, of Ireland's anti-abortion law. We'll get to the detail of that in a later post, but keep in mind that this case was about the treatment of the respective applicants rather than about any serious prospect of Ireland's prohibition of abortion being struck down. Note that C was ultimately successful because Ireland's practices frustrated her in obtaining what would actually have been a legal abortion, given that her life was in danger from the pregnancy. That is the only circumstance in Ireland in which abortion is legal.
The following are the facts of relating to the applicants, taken largely verbatim, but with some editing, from relevant paragraphs of the judgment.
Applicant A travelled to England for an abortion in 2005 at a point when she was 9½ weeks pregnant. She had become pregnant unintentionally, believing her partner to be infertile. At the time she was unmarried, unemployed and living in poverty. She had four young children. The youngest was disabled and all children were in foster care as a result of problems A had experienced as an alcoholic. She had a history of depression during her first four pregnancies, and was battling depression at the time of her fifth pregnancy. During the year preceding her fifth pregnancy, she had remained sober and had been in constant contact with social workers with a view to regaining custody of her children. She considered that a further child at that moment of her life would jeopardise her health and the successful reunification of her family.
Delaying the abortion for three weeks, she borrowed the minimum amount of money for treatment in a private clinic and travel from a money lender at a high interest rate. For someone in her position, travel to England created a significant financial burden. She felt she had to travel to England alone and in secrecy, without alerting the social workers and without missing a contact visit with her children. She travelled back to Ireland by plane the day after the abortion for her contact visit with her youngest child. While she had initially submitted that she was afraid to seek medical advice on return to Ireland, she subsequently clarified that, on the train returning from Dublin she began to bleed profusely, and an ambulance met the train. At a nearby hospital she underwent a dilation and curettage. She claimed she experienced pain, nausea and bleeding for weeks thereafter but did not seek further medical advice.
Applicant B travelled to England for an abortion in early 2005, at a time when she was 7 weeks pregnant. She had become pregnant unintentionally. She had taken the “morning-after pill” and been advised by two different doctors that there was a substantial risk of an ectopic pregnancy (a condition which cannot be diagnosed until 6-10 weeks of pregnancy). She decided to England for an abortion since she could not care for a child on her own at that time of her life. She waited for some weeks until the counselling centre in Dublin opened after Christmas. She had difficulty meeting the costs of the travel and, not having a credit card, used a friend’s credit card to book the flights. By the time she travelled to England, it had been confirmed that it was not an ectopic pregnancy. Once in England she did not list anyone as her next of kin or give an Irish address so as to be sure her family would not learn of the abortion.
She travelled alone and stayed in London the night before the procedure to avoid missing her appointment as well as the night of the procedure, as she would have arrived back in Dublin too late for public transport and the medication rendered her unfit to drive home from Dublin airport. The clinic advised her to inform Irish doctors that she had had a miscarriage. On her return to Ireland she started passing blood clots and two weeks later, being unsure of the legality of having travelled for an abortion, sought follow-up care in a clinic in Dublin affiliated to the English clinic.
Applicant C travelled to England to have an abortion in March 2005, believing she could not establish her right to an abortion in Ireland. She was in her first trimester of pregnancy at the time. Prior to that, she had been treated for 3 years with chemotherapy for a rare form of cancer. She had asked her doctor before the treatment about the implications of her illness as regards her desire to have children and was advised that it was not possible to predict the effect of pregnancy on her cancer and that, if she did become pregnant, it would be dangerous for the foetus if she were to have chemotherapy during the first trimester. The cancer went into remission and the applicant unintentionally became pregnant. She was unaware of this fact when she underwent a series of tests for cancer, contraindicated during pregnancy. When she discovered she was pregnant, she consulted her GP and several medical consultants. She alleged that, as a result of the chilling effect of the Irish legal famework, she received insufficient information as to the impact of the pregnancy on her health and life and of her prior tests for cancer on the foetus. She therefore researched the risks on the internet.
Given the uncertainty about the risks involved, she travelled to England for an abortion. She wanted a medical abortion (drugs to induce a miscarriage) as her pregnancy was at an early stage but that she could not find a clinic which would provide this treatment as she was a non-resident and because of the need for followup. She therefore alleged she had to wait a further 8 weeks until a surgical abortion was possible. On returning to Ireland after the abortion, she suffered complications of an incomplete abortion, including prolonged bleeding and infection. She alleged that doctors provided inadequate medical care, but this was not accepted by the court.
The court observed that A travelled for an abortion for reasons of health and well-being, B for "well-being reasons"; and C as she mainly feared her pregnancy constituted a risk to her life. The court concluded that each applicant felt the weight of a considerable stigma prior to, during and after their abortions: they travelled abroad to do something which (supposedly) "went against the profound moral values of the majority of the Irish people" and which was, or (in the case C) could have been, a serious criminal offence. In C's case, she could have obtained a lawful abortion in Ireland, but alleged that Irish law and regulatory practice created a chilling effect and pressured her to travel abroad. Obtaining an abortion abroad constituted a significant source of added anxiety. In general, travelling abroad for an abortion constituted a significant psychological burden on each applicant.
The court found that an abortion would have been physically a less arduous process without the need to travel, notably after the procedure. However, it did not accept various claims made by the applicants that they lacked access to necessary medical treatment in Ireland before or after their abortions.
The next post in this series will get to how Irish law and European human rights law was applied to these facts.
The case involved three women, known as A, B, and C (their identities have been withheld by the courts) who had all travelled from Ireland to the UK in order to have abortions. Only one woman, C, was ultimately successful, so it's worthwhile examining their different circumstances. It's also useful getting an idea of some of the circumstances of women who are unable to obtain abortions in Ireland because of its draconian anti-abortion laws (which carry a life sentence for a woman who has an abortion), and choose to travel to the UK. With these facts in front of us we can get to the messy legal (and the strange-seeming way it had to be resolved) in later posts.
One thing that should be made clear at this stage, however, is that the case was not really about the legality, under European human rights law, of Ireland's anti-abortion law. We'll get to the detail of that in a later post, but keep in mind that this case was about the treatment of the respective applicants rather than about any serious prospect of Ireland's prohibition of abortion being struck down. Note that C was ultimately successful because Ireland's practices frustrated her in obtaining what would actually have been a legal abortion, given that her life was in danger from the pregnancy. That is the only circumstance in Ireland in which abortion is legal.
The following are the facts of relating to the applicants, taken largely verbatim, but with some editing, from relevant paragraphs of the judgment.
Applicant A travelled to England for an abortion in 2005 at a point when she was 9½ weeks pregnant. She had become pregnant unintentionally, believing her partner to be infertile. At the time she was unmarried, unemployed and living in poverty. She had four young children. The youngest was disabled and all children were in foster care as a result of problems A had experienced as an alcoholic. She had a history of depression during her first four pregnancies, and was battling depression at the time of her fifth pregnancy. During the year preceding her fifth pregnancy, she had remained sober and had been in constant contact with social workers with a view to regaining custody of her children. She considered that a further child at that moment of her life would jeopardise her health and the successful reunification of her family.
Delaying the abortion for three weeks, she borrowed the minimum amount of money for treatment in a private clinic and travel from a money lender at a high interest rate. For someone in her position, travel to England created a significant financial burden. She felt she had to travel to England alone and in secrecy, without alerting the social workers and without missing a contact visit with her children. She travelled back to Ireland by plane the day after the abortion for her contact visit with her youngest child. While she had initially submitted that she was afraid to seek medical advice on return to Ireland, she subsequently clarified that, on the train returning from Dublin she began to bleed profusely, and an ambulance met the train. At a nearby hospital she underwent a dilation and curettage. She claimed she experienced pain, nausea and bleeding for weeks thereafter but did not seek further medical advice.
Applicant B travelled to England for an abortion in early 2005, at a time when she was 7 weeks pregnant. She had become pregnant unintentionally. She had taken the “morning-after pill” and been advised by two different doctors that there was a substantial risk of an ectopic pregnancy (a condition which cannot be diagnosed until 6-10 weeks of pregnancy). She decided to England for an abortion since she could not care for a child on her own at that time of her life. She waited for some weeks until the counselling centre in Dublin opened after Christmas. She had difficulty meeting the costs of the travel and, not having a credit card, used a friend’s credit card to book the flights. By the time she travelled to England, it had been confirmed that it was not an ectopic pregnancy. Once in England she did not list anyone as her next of kin or give an Irish address so as to be sure her family would not learn of the abortion.
She travelled alone and stayed in London the night before the procedure to avoid missing her appointment as well as the night of the procedure, as she would have arrived back in Dublin too late for public transport and the medication rendered her unfit to drive home from Dublin airport. The clinic advised her to inform Irish doctors that she had had a miscarriage. On her return to Ireland she started passing blood clots and two weeks later, being unsure of the legality of having travelled for an abortion, sought follow-up care in a clinic in Dublin affiliated to the English clinic.
Applicant C travelled to England to have an abortion in March 2005, believing she could not establish her right to an abortion in Ireland. She was in her first trimester of pregnancy at the time. Prior to that, she had been treated for 3 years with chemotherapy for a rare form of cancer. She had asked her doctor before the treatment about the implications of her illness as regards her desire to have children and was advised that it was not possible to predict the effect of pregnancy on her cancer and that, if she did become pregnant, it would be dangerous for the foetus if she were to have chemotherapy during the first trimester. The cancer went into remission and the applicant unintentionally became pregnant. She was unaware of this fact when she underwent a series of tests for cancer, contraindicated during pregnancy. When she discovered she was pregnant, she consulted her GP and several medical consultants. She alleged that, as a result of the chilling effect of the Irish legal famework, she received insufficient information as to the impact of the pregnancy on her health and life and of her prior tests for cancer on the foetus. She therefore researched the risks on the internet.
Given the uncertainty about the risks involved, she travelled to England for an abortion. She wanted a medical abortion (drugs to induce a miscarriage) as her pregnancy was at an early stage but that she could not find a clinic which would provide this treatment as she was a non-resident and because of the need for followup. She therefore alleged she had to wait a further 8 weeks until a surgical abortion was possible. On returning to Ireland after the abortion, she suffered complications of an incomplete abortion, including prolonged bleeding and infection. She alleged that doctors provided inadequate medical care, but this was not accepted by the court.
The court observed that A travelled for an abortion for reasons of health and well-being, B for "well-being reasons"; and C as she mainly feared her pregnancy constituted a risk to her life. The court concluded that each applicant felt the weight of a considerable stigma prior to, during and after their abortions: they travelled abroad to do something which (supposedly) "went against the profound moral values of the majority of the Irish people" and which was, or (in the case C) could have been, a serious criminal offence. In C's case, she could have obtained a lawful abortion in Ireland, but alleged that Irish law and regulatory practice created a chilling effect and pressured her to travel abroad. Obtaining an abortion abroad constituted a significant source of added anxiety. In general, travelling abroad for an abortion constituted a significant psychological burden on each applicant.
The court found that an abortion would have been physically a less arduous process without the need to travel, notably after the procedure. However, it did not accept various claims made by the applicants that they lacked access to necessary medical treatment in Ireland before or after their abortions.
The next post in this series will get to how Irish law and European human rights law was applied to these facts.
Saturday, December 18, 2010
An atheist on Christmas - Chrys Stevenson's take
I'll send you straight to Chrys Stevenson's essay over at On Line Opinion. I can get behind this one. The response to a rather mild-mannered essay is pretty heated - you need to go here. Maybe you'd like to add a comment.
Or feel free to discuss what Christmas means to you right here. As it happens, I do celebrate it as a secular festival in much the way that Chrys does, and in much the way that Richard Dawkins has described in the past. But there's a huge spectrum of attitudes to Christmas. Some people hate the commercialisation, some very religious folk despise it as a travesty, some atheists discourage celebrating it, and on and on.
For me, it's a secular occasion, as I said, but more specifically it's largely about family and loved ones. The other thing is that I live in a country where Christmas is the height of summer, so a lot of it is about sunshine, the beach, summer sports (especially cricket and sailing), outdoor barbecues, and a general celebration of summer life. In the northern hemisphere, of course, it's the dead of winter, but still a celebration of the rebirth of the sun. All hail Sol Invictus.
Anyway, what about you?
Or feel free to discuss what Christmas means to you right here. As it happens, I do celebrate it as a secular festival in much the way that Chrys does, and in much the way that Richard Dawkins has described in the past. But there's a huge spectrum of attitudes to Christmas. Some people hate the commercialisation, some very religious folk despise it as a travesty, some atheists discourage celebrating it, and on and on.
For me, it's a secular occasion, as I said, but more specifically it's largely about family and loved ones. The other thing is that I live in a country where Christmas is the height of summer, so a lot of it is about sunshine, the beach, summer sports (especially cricket and sailing), outdoor barbecues, and a general celebration of summer life. In the northern hemisphere, of course, it's the dead of winter, but still a celebration of the rebirth of the sun. All hail Sol Invictus.
Anyway, what about you?
Friday, December 17, 2010
Kenan Malik on the Stockholm bombing
Great essay by Kenan Malik, and I can get behind most of it.
I only object to the term "moral nihilist" being applied to al-Abdaly. I realise that it's not meant in the technical sense, but it's still misleading. More likely, the guy was the very opposite of a moral nihilist; he was a fanatical moral absolutist, and this is something well worth emphasising. Fanatical moral absolutism is a far greater danger to us than any sort of nihilism that deserves the name.
Genuine moral nihilists tend to pretty nice people, and morally good ones by any standard of morality that is likely to attract approval from me and my readers. In fact, the world might well be a kinder, gentler place if most of us were moral nihilists. Someone needs to write a book on the virtues of moral nihilism.
I only object to the term "moral nihilist" being applied to al-Abdaly. I realise that it's not meant in the technical sense, but it's still misleading. More likely, the guy was the very opposite of a moral nihilist; he was a fanatical moral absolutist, and this is something well worth emphasising. Fanatical moral absolutism is a far greater danger to us than any sort of nihilism that deserves the name.
Genuine moral nihilists tend to pretty nice people, and morally good ones by any standard of morality that is likely to attract approval from me and my readers. In fact, the world might well be a kinder, gentler place if most of us were moral nihilists. Someone needs to write a book on the virtues of moral nihilism.
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