An hypothetical, on the same dull contention
A hypothetical law case for all you students of morality out there: the case of the Three Blind Sons.
You are a judge. Before you is brought a woman who is accused of blinding and castrating her three sons. The controlling law is Anglo-American common law: so the crime is battery, which is also sometimes called maiming.
Of the three sons, all are now of the age of majority, and ruefully lament being eyeless eunuchs. They would weep, but they cannot.
The first son is named Oedipus: he was blinded and castrated at the age of fourteen years, which is below the age of consent in this jurisdiction.
The defense counsel argues that, since the child did not, at fourteen years, have the legal ability to use his sexual organs for marital congress (he being below the age when marriage is allowed) the mother’s action did not deprive him of anything he actually possessed at the time of the cutting. He argues that a trespass is only committed if a right in being at the time of the act was violated. He asks for a summary dismissal on this count.
How do you rule?
The second son is named Teresias: he was blinded and castrated at the age of fourteen weeks, when still a newborn, long before he could walk or talk.
The defense counsel argues that, since the child did not, at fourteen weeks, have organs that can properly be called sexual organs, since they did not at that time have the biological ability to produce sperm, the mother’s action was not legally castration since it did not cut off functioning testes, but merely masses of tissue that might one day become testes. He argues that a trespass must show real damages, not merely potential or speculative damages. What was cut off this child was merely excess tissue of no particular meaning. The baby did not even know what a peepee was at the time. The defense counsel asks for a summary dismissal on this count.
How do you rule?
The third son is named Sampson: he was blinded and castrated at the age of fourteen hours before he was born, before he even emerged from the womb. A surgeon introduce a probe into the womb and damaged the organs of sight and reproduction before they developed.
The defense counsel argues that, since the child did not, before birth, have any recognized rights as a human being, he certain had no right to be left in a particular state of health by his mother. He can only be called a potential being at the time of the act, one with no rights. Indeed, since his mother had the full legal right to kill him in the womb, and prevent his emergence into birth and into humanity, he should be grateful that she did not cut off his legs also, or abort him altogether. The argument here is that the mother did not damage the child’s eyes and testicles, but merely prevented the eyes and testicles from coming into being, while allowing the rest of the organism to come into being. The counsel for the defense asks for a summary dismissal on the count of castration, and also on the count of blinding, since these acts did not deprive a human being of any organs or tissues recognized as having real existence at the time of the act.
How to do you rule?
More importantly, if you rule against the defense counsel in the first two cases, on what possible grounds in law or logic can you rule in favor of the defense counsel in the third case?
A fourth son, who is not a party to this case, is dead. When the surgeon was trying to put out the fourth baby’s eyes in the womb, the probe slipped and entered the baby’s brain pan and killed him. He was stillborn. The holding in Roe v. Wade (which is controlling) is that this action was lawful.
The defense counsel argues that since it is lawful to kill a child in the womb, it must therefore be lawful to maim a child in the womb, since maiming is a lesser and included offense to killing. One cannot possibly kill a child without maiming him, because the legal definition of maiming is a battery that leaves a wound, and the legal definition of battery is unlawful touching; and no one can kill another without touching him, directly or by an instrumentality; therefore if killing the child is legal, maiming must also be legal.
The defense counsel says that the right of a mother to maim her children obviously should cover the periods when the child is in the womb, out of the womb, before he learns to talk, and before he reaches the age of majority, because what happens in the womb controls all the outcomes of what happens thereafter. By the simple law of cause and effect, a child blinded in the womb will be blind when born and all the years of his life thereafter; so that if the act of blinding a baby is legal in the womb, the anticipated, natural and inevitable consequences of the act, years after, cannot retroactively call into question the legality of the act.
If it is lawful to kill or blind a child in the womb, that fact that the child after birth has eyes and testicles at all is due to the grace and permission of the mother, so that if she blinds him at fourteen years of age, she has not deprived him of anything she had no right to take from him: indeed, he should regard his fourteen years of eyesight as a free gift, and be grateful. The defense asks for a dismissal of all charges on these grounds.
If the offspring has no right to life before he is legally-recognized human being, on what grounds can he have a right to be free from maiming, being blinded, being castrated, provided the battery takes placed before he is a legally recognized human being? If he has no such right, then the prosecution has not stated a cause of action.
How to you rule?
The counsel for the prosecution argues as follows: A child in the womb imposes on his mother the duty to love and protect him, and blinding or castrating him abrogates that duty. The counsel argues that this duty obtains from the first moment her actions have the ability to effect the health and wellbeing of her child, whether that child is human or not, whether that child is a mass of tissue or not.
The counsel for the defense (the prosecutor argues) seems to want to find some other property, aside from child-ness, that grants the child a right to be free from mutilation, so that, upon finding this property, whatever it is, is one that the child lacks, the defendant may deprive it of eyes and limbs and members without further scruples, and therefore abrogate the duty.
The problem with this approach is that children, since they develop from single-celled fertilized eggs, have no other properties of any kind whatsoever except child-ness. They are pure potential: no actual developments develop before development, by definition.
The only difference between the three cases, is the degree of the development of the child on his way from pure potential to actual adulthood. Since at every moment of time while the child exists there is a previous moment when the child can be maimed, it does not make any sense in law or logic to forbid maiming children after and only after a given point in time or a given stage of development.
If the child has any right to life and limb, organs of sex and organs of sight, that right must exist from the very moment when the child can first be deprived of life and limb. The State’s Attorney calls for the case to go to the jury, where he will argue for the strongest possible penalty, since the mother is utterly unrepentant, and regards it as her innate, God-given right to maim and kill any child of hers.
How do you rule? Has the State stated a cause of action? Do you allow the case to go to the jury?
About John C Wright
John C. Wright is a practicing philosopher, a retired attorney, newspaperman, and newspaper editor, and a published author of science fiction. Once a Houyhnhnm, he was expelled from the august ranks of purely rational beings when he fell in love; but retains an honorary title.
