Legal Issues Journal 7(1): Legal Issues Journal, #8

By United Kingdom Law & Society Association

Legal Issues is an interdisciplinary journal publishing original research on all legal issues affecting society, including: law and genetics/biosciences; law and justice; law and philosophy; law and medicine; law and business; and law and equality.

 

IN THIS ISSUE:

• What makes abortion morally impermissible? A Dworkinian perspective on abortion rights and the intrinsic value of life. By Neeva Desai
• The Issue of Mens Rea in the Crime of Genocide and Why It Needs to be Amended. By Chanthima Neth
• Forcible Acts by States towards Non-State Actors Operating in Disputed Waters: Beyond the Limits of International Law? By Marianthi Pappa
• Genetic Data Misuse: Risk to Fundamental Human Rights in Developed Economies. By Fatos Selita
• CASE NOTE: Turkish Courts and the Recognition and Enforcement of Foreign Arbitral Awards. By Oya Dirim
• BOOK REVIEW: Trends in Climate Change Legislation. Review by Ş. Bayram
• BOOK REVIEW: The Foundations of the EU as a Polity. Review by Janet Furness

• Language: English
• Publisher: Sulis Academic
• Release date: Mar 2, 2023
• ISBN: 9798215401873

United Kingdom Law & Society Association

Legal Issues Journal (LIJ) publishes original research on all legal matters affecting justice, equality and other pressing issues for societies. The journal welcomes interdisciplinary work at the intersection of law and other disciplines, such as genetics, biosciences, philosophy, linguistics, neuroscience, medicine, and business. The Journal publishes original papers, case comments, short reports, debates and book reviews. The Journal also provides important news and interpretation on changes in the legal world and coming trends affecting law, lawyers, and society. Contribution to society, nationally and internationally, is the focus of LIJ. LIJ uses double-blind peer review process where both the reviewer(s) and the author(s) are anonymous.

Book preview

The United Kingdom Law and Society Association

www.uklsa.co.uk

PATRONS

Lord Neuberger of Abbotsbury

Former President of the Supreme Court

Lord Phillips of Worth Matravers

Former President of the Supreme Court

HONORARY BOARD

His Hon Judge Dight, Chancery Specialist Circuit Judge

Professor David Feldman, Rouse Ball Professor of English Law at the University of Cambridge, 39 Essex Street

Andrew Caldecott QC, Barrister, Head of One Brick Court Chambers

Stephen Rubin QC, Barrister, Fountain Court Chambers

Tim Ludbrook, Barrister, 13 Old Square Chambers

Fergus Randolph QC, Barrister at Brick Court Chambers

 BOARD OF GOVERNORS

Iman Fadaei, Founder of CrowdSkills Ltd., Aha Design, and The Positive Ideas Company Ltd.

Alex Matheson, Barrister of England and Wales.

Dr. Markus McDowell, Executive Publisher, Sulis International; author and editor; legal research consultant.

Fatos Selita, Founder of the UKLSA; Barrister of England and Wales; Attorney and Counselor at Law of the State of New York, USA; Lecturer, Goldsmiths, University of London and Tomsk State University (TSU); Visiting Lecturer, Higher School of Economics; Head, Institute of Law and Ethics, TSU; Founding Member, The Accessible Genetics Consortium (TAGC).

Table of Contents

What makes abortion morally impermissible?

A Dworkinian perspective on

abortion rights and the intrinsic value of life1

Neeva Desai

The Issue of Mens Rea in the Crime of Genocide and

Why It Needs to be Amended15

Chanthima Neth

Forcible Acts by States towards Non-State Actors Operating in

Disputed Waters: Beyond the Limits of International Law?29

Marianthi Pappa

Genetic Data Misuse: Risk to Fundamental Human Rights in

Developed Economies53

Fatos Selita

CASE NOTE

Turkish Courts and the Recognition and Enforcement of

Foreign Arbitral Awards 97

Oya Dirim

BOOK REVIEW

Trends in Climate Change Legislation105

Review by Ş. Bayram

BOOK REVIEW

The Foundations of the EU as a Polity 109

Review by Janet Furness

What makes abortion morally impermissible?

A Dworkinian perspective on

abortion rights and the intrinsic value of life

Neeva Desai*

University College London, London, UK

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Summary. Ronald Dworkin’s Life’s Dominion has set the tone of jurisprudential discourse on the ethics of abortion. Dworkin addresses the basis of the debate over the morality of abortion. However, he does so from an uncommon lens. He is not concerned with whether abortion should be morally permissible or not. Instead, he asks, ‘Why does a large section of society vehemently oppose abortion?’ Dworkin claims that abortion is opposed because it violates the intrinsic value or ‘sacredness’ bestowed in any living being, whether fetus or adult. This is significant because our understanding of the moral-ethical basis of the abortion debate greatly influences abortion laws all over the world. In this context, I deconstruct Dworkin’s theory. His account of what makes things sacred fails to explain why human life is special. He fails to distinguish the sacredness of human life as something more than the life of a tree or caterpillar. Specifically, I propose that a better way of understanding opposition to abortion is to acknowledge the potential personhood of the fetus, which elicits strong protective sentiments in individuals, who then go on to oppose abortion.

INTRODUCTION

Life’s Dominion¹ grapples with the debate over the morality of abortion and seeks to convince its audience that opposition to abortion is based on a debate over the ‘intrinsic value of life’, and not whether the foetus is a ‘person’ or not. In this essay, I will argue that Dworkin’s account of what makes things ‘sacred’ does not adequately explain why human life is special, as his underlying thesis that humans have intrinsic value is incomplete, often self-contradictory, and untenable.

In Part I, I clarify Dworkin’s use of terms that are fundamental to his thesis, such as ‘intrinsic value of life’, ‘sacredness’, ‘inviolability’, and ‘instrumentality’, critiquing Dworkin’s misuse of these terms. In Part II, I examine issues with Dworkin’s claim that intrinsic value of life is the reason life is considered ‘sacred’. I argue that Dworkin uses the term intrinsic value when he actually means value yielding from the history of the object. Further, Dworkin’s claim that the intrinsic value of an entity changes according to its history is incoherent and his ‘investment metaphor’ leads to absurd practical consequences. As a result, Dworkin fails to account adequately for liberal or conservative beliefs in the intrinsic value of life. In Part III, I conclude that the fatal flaw in Dworkin’s thesis is his segregation of the notion of ‘personhood’ from ‘intrinsic value’ at the very outset of his essay. By casting out the personhood argument on the basis of empirical statistics, Dworkin fails to address the proposition that it is the foetus’s possible personhood that objectors of abortion are concerned with, and it may be true that the reason why personhood is significant is because it, as a quality in itself, has an intrinsic value. Therefore, an approach that merges the apparently contradicting theories of personhood and intrinsic value provides a more comprehensive thesis.

It is proposed that there are more appropriate factors to judge the morality of a woman’s decision to abort, excluding her calculation of whether her life has more intrinsic value than her foetus’s; one such factor is ‘personhood’. Greasley argues that Dworkin does not manage to displace the legal primacy of the personhood question² in the abortion debate. I argue for a theory that favours the personhood reasoning, however, taking Greasley’s argument regarding personhood further, the basis of personhood importance is that personhood itself has an intrinsic value. The merit of the personhood reasoning also helps explain why entities such as non-humans (animals) are not equated to human foetuses in spite of their life-possessing intrinsic value. I examine potential criticisms against my proposition and explore how these criticisms do not stand up to scrutiny. I conclude that understanding personhood at the root of the abortion argument is a better thesis, as it then follows that the reason personhood is so valued is because there is something genuinely and intrinsically valuable about it.

PART I: CONTEXT - DWORKIN’S PROBLEMATIC TERMINOLOGY

‘Intrinsic’

Dworkin conflates intrinsic value with ‘sacredness’ and ‘inviolability’ which complicates his notion of intrinsic value. This is seen in his assertion that, human life has an intrinsic, innate value; that human life is sacred just in itself.³ He explains that the notion of intrinsic value of life provides a strong justification to oppose abortion because the important idea we share is that human life has not just intrinsic but sacred value.⁴ Hence, abortion should be disallowed because it disregards and insults the intrinsic value, the sacred character, of any stage or form of human life.⁵

Dworkin then segregates intrinsic value from subjective and instrumental value. An entity has subjective value only to those who like or desire it,⁶ whereas an entity has instrumental value if its value is contingent on its usefulness i.e. its capacity to get an individual his objects of desire.⁷ The difference is that intrinsic value means the object possesses value irrespective of whether it enables a person to fulfil his desires.

The issue with Dworkin’s intrinsic value is that he explains it via processes that went into the creation of the entity that possesses intrinsic value, i.e., a sacred object is sacred due to its history. This flaw is apparent when Dworkin writes, the nerve of the sacred lies in the value we attach to a process⁸ by which the entity was created. The nexus drawn between intrinsic value and the entity’s history is confusing because it fails to be intrinsic in the inherent sense of the word. This means that sacredness of human life, then, is contingent on an extrinsic quality, i.e., a historical process, which directly contrads the meaning of intrinsic.

‘Instrumental’

Another inadequacy with the theory of intrinsic value is its failure to emphasise the utility of life to the world at large. We, as a society, value lives not only because of their intrinsic value, but also because of their usefulness to society; i.e., what Dworkin would term ‘instrumental’ value. Practically, instrumental value explains why we prevent an individual’s life from flourishing⁹, by imprisoning him/her (as a criminal) or detaining him/her in a mental facility (if he or she is psychiatrically ill). This is because the ‘use’ and hence ‘value’ of their lives is outweighed by the harm they cause. This could be dismissed as a utilitarian approach, however, it has found favour among several commentators¹⁰, and provides an explanation that is in touch with reality.

‘Sacredness’

Dworkin seems to classify sacred value as a sub-category of intrinsic value. He does so by distinguishing intrinsic and incremental values in that, incremental value suggests the more we have the better.¹¹ Sacred value is non-incremental. Dworkin explains the difference that the hallmark of sacred as distinct from incrementally valuable is that the sacred is intrinsically valuable because and therefore only once—it exists¹². According to Dworkin, human life and art work have sacred (as opposed to incremental) value because we do not consider a larger number of Van Gogh paintings as ‘better’ than just one, just as we do not consider a greater number of people to be better than a smaller population¹³.

‘Inviolability’

Dworkin’s conflation of inviolability with sacredness is equally problematic.¹⁴ While the common usage of ‘inviolable’ is with reference to something that cannot, under any circumstances and for no good decision, be violated,¹⁵ Dworkin’s treatment of inviolable and sacred as interchangeable¹⁶ is problematic because Dworkin’s thesis seems to suggest a pro-choice position. Although Dworkin asserts that the secular term ‘inviolability’ depicts the idea of sacredness, Kamm claims that Dworkin’s notion of sacred does not really involve inviolability as commonly understood,¹⁷ implying a strong impermissibility of destructive attacks on an entity,¹⁸ For example, it is regrettable that a puppy has to be killed for scientific research, but the puppy is not inviolable.¹⁹ Dworkin’s idea of inviolability is that it is bad for something to die or be destroyed, not that it is difficult to morally disregard a restriction causing this death.²⁰

Human being versus Personhood

‘Human being’ refers to a biological characterization, which encompasses the living creature’s genetic makeup as opposed to the makeup of another animal like a cow or fish.

Alternatively, personhood refers to a being which possesses a particular moral status.²¹ A restriction to harm or kill such persons stems from the rights and interests it possesses. The personhood status entails strict rules about the permissibility of killing beings who have that status. The same is not true about non-persons like apes.

For Dworkin, this personhood argument does not capture the real essence of the abortion debate. He explains this by favouring the detached obligation over the derivative obligation. The ‘detached’ obligation claims that all human life is sacred, i.e., it has intrinsic value. The ‘derivative’ obligation claims that a foetus has rights and interests of its own, which should not be violated by aborting it.

PART II: ISSUES WITH DWORKIN’S CLAIM THAT ‘INTRINSIC VALUE’ IS THE REASON HUMAN LIFE IS CONSIDERED ‘SACRED’

Dworkin’s claim that the intrinsic value of life changes according to its history is incoherent.

In Part I, I contended that Dworkin’s ‘historical’ conception of intrinsic value is problematic. A further extension of this problem is that if intrinsic value of human life is based on historical processes, then a variation in the historical processes would result in a variation of the subsequent intrinsic value attached to the human life. Dworkin’s explanation is that a foetus which is a product of incest or rape is less intrinsically valuable because its existence began with a terrible desecration of its [mother’s] investment in her own life²², and thus Dworkin claims that abortion of such foetuses is permissible.²³ However, it seems that Dworkin would have desired to reflect this view in any case as it would be politically favorable. This view gains the support of Rabbi Feldman, who states that an involuntary implantation of the seed imposes no duty to nourish the alien seed²⁴. I argue that Dworkin would have been unable to make space for this exception if his theory of intrinsic value was truly independent of the foetus’ history. Dworkin is charged with being inconsistent in his thesis if this exception does not fit comfortably with the ‘historical process’ view.

However, even if we afforded Dworkin latitude in that this exception does fit into his general reasoning, it would lead to absurd and undesirable results. We examine the example of Monet’s ‘Waterlilies’. In Dworkin’s account, the painting is intrinsically valuable because its history indicates that it is a product of Monet’s creative process. However, hypothetically if Monet was forced to create the painting with a gun to his head, arguably, the painting itself would be no less valuable.²⁵ Monet himself might consider it to be less valuable personally, however this is irrelevant since Dworkin submits that subjective and sacred value are different. Analogously, the question arises as to whether Dworkin’s claim that a foetus conceived by rape is less intrinsically valuable because it has been created by the frustration of its mother’s autonomy. If historical context does not affect the art’s value as seen in Monet’s ‘Waterlilies’, then a specific