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According to Antonio Cassese, the crime of Aggression includes other so-called core-crimes” or “Crimes Against the Peace.” What are the objective and the subjective elements of the Crime of Aggression? IMT IMTFE UNGA Res. 3314 Article VII UN Charter “Criminal Intent” “Special Intent” Torture The Red Crescent The Red Cross Article 5 Geneva Convention 19491 | P a g e Lecture #2: Abortion (Warren) While studying this topic, we will ask whether it is morally permissible to intentionally terminate a pregnancy and, if so, whether certain restrictions should be placed upon such practices. Even though we will most often be speaking of terminating a fetus, biologists make further classifications: the zygote is the single cell resulting from the fusion of the egg and the sperm; the morula is the cluster of cells that travels through the fallopian tubes; the blastocyte exists once an outer shell of cells has formed around an inner group of cells; the embryo exists once the cells begin to take on specific functions (around the 15th day); the fetus comes into existence in the 8th week when the embryo gains a basic structural resemblance to the adult. Given these distinctions, there are certain kinds of non-fetal abortion—such as usage of RU-486 (the morning-after “abortion pill”)—though most of the writers we will study refer to fetal abortions. So now let us consider the “Classical Argument against Abortion”, which has been very influential: P1) It is wrong to kill innocent persons. P2) A fetus is an innocent person. C) It is wrong to kill a fetus. (Note that this argument has received various formulations, including those from Warren and Thomson which differ from the above. For this course, we will refer to the above formulation as the “Classical Argument”.) Before evaluating this argument, we should talk about terminology: A person is a member of the moral community; i.e., someone who has rights and/or duties. ‘Persons’ is the plural of ‘person’. ‘Person’ can be contrasted with ‘human being’; a human being is anyone who is genetically human (i.e., a member of Homo sapiens). ‘People’ (or ‘human beings’) is the plural of ‘human being’. Why does this matter? First, not all persons are human beings. For example, consider an alien from another planet who mentally resembled us. If he were to visit Earth, it would be morally reprehensible to kick him or to set him on fire because of the pain and suffering that these acts would cause. And, similarly, the alien would be morally condemnable if he were to propagate such acts on us; he has a moral duty not to act in those ways (again, assuming a certain mental resemblance to us). So, even though this alien is not a human being, he is nevertheless a person with the associative rights and/or duties. 2 | P a g e And, more controversially, maybe not all human beings are persons. For example, anencephalic infants—i.e., ones born without cerebral cortexes and therefore with severely limited cognitive abilities—certainly do not have duties since they are not capable of rational thought and autonomous action. Some philosophers have even argued that they do not have rights. Now let us return to the Classical Argument. It is valid insofar as, if the premises are true, then the conclusion has to be true. But maybe it commits equivocation, which is to say that it uses the same word in multiple senses; equivocation is an informal fallacy (i.e., attaches to arguments that are formally valid but otherwise fallacious). Consider the following: P1) I put my money in the bank. P2) The bank borders the river. C) I put my money somewhere that borders the river. This argument equivocates since ‘bank’ is being used in two different senses: in P1 it is used to represent a financial institution and, in P2, it is used to represent a geological feature. Returning to the classical argument, it could be argued that ‘person’ is being used in two different senses: in P1 it is used in its appropriate moral sense and, in P2, it is inappropriately used instead of ‘human being’. The critic might suggest that a more accurate way to represent the argument would be as follows: P1) It is wrong to kill innocent persons. P2) A fetus is a human being. C) It is wrong to kill a fetus. This argument is obviously invalid. So one way to criticize the Classical Argument is to say that it conflates two different concepts—viz., ‘person’ and ‘human being’—and therefore commits equivocation. However, the more straightforward way to attack the Classical Argument is just to deny its second premise and thus contend that the argument is unsound. This is the approach that Mary Anne Warren takes in “On the Moral and Legal Status of Abortion”. Why does Warren think that the second premise is false? Remember that we defined a person as “a member of the moral community.” And we said that an alien, for example, could be afforded moral status even though it is not a human being. Why do we think that this alien should not be tortured or set on fire? Warren thinks that, intuitively, we think that membership in the moral community is based upon possession of the following traits: 3 | P a g e 1. Consciousness of objects and events external and/or internal to the being and especially the capacity to feel pain; 2. Reasoning or rationality (i.e., the developed capacity to solve new and relatively complex problems); 3. Self-motivated activity (i.e., activity which is relatively independent of either genetic or direct external control); 4. Capacity to communicate (not necessarily verbal or linguistic); and 5. Possession of self-concepts and self-awareness. Warren then admits that, though all of the items on this list look promising, we need not require that a person have all of the items on this list. (4) is perhaps the most expendable: imagine someone who is fully paralyzed as well as deaf, these incapacities, which preclude communication, are not sufficient to justify torture. Similarly, we might be able to imagine certain psychological afflictions that negate (5) without compromising personhood. Warren suspects that (1) and (2) are might be sufficient to confer personhood, and thinks that (1)-(3) “quite probably” are sufficient. Note that, if she is right, we would not be able to torture chimps, let us say, but we could set plants on fire (and most likely ants as well). However, given Warren’s aims, she does not need to specify which of these traits are necessary or sufficient for personhood; all that she wants to observe is that the fetus has none of them! Therefore, regardless of which traits we want to require, Warren thinks that the fetus is not a person. Therefore she thinks that the Classical Argument is unsound and should be rejected. Even if we accept Warren’s refutation of the second premise, we might be inclined to say that, while the fetus is not (now) a person, it is a potential person: the fetus will hopefully mature into a being that possesses all five of the traits on Warren’s list. We might then propose the following adjustment to the Classical Argument: P1) It is wrong to kill all innocent persons. P2) A fetus is a potential person. C) It is wrong to kill a fetus. However, this argument is invalid. Warren grants that potentiality might serve as a prima facie reason (i.e., a reason that has some moral weight but which might be outweighed by other considerations) not to abort a fetus, but potentiality alone is insufficient to grant the fetus a moral right against being terminated. By analogy, consider the following argument: 4 | P a g e P1) The President has the right to declare war. P2) Mary is a potential President. C) Mary has the right to declare war. This argument is invalid since the premises are both true and the conclusion is false. By parity, the following argument is also invalid: P1) A person has a right to life. P2) A fetus is a potential person. C) A fetus has a right to life. Thus Warren thinks that considerations of potentiality are insufficient to undermine her argument that fetuses—which are potential persons but, she thinks, not persons—do not have a right to life.