Abortion: Legal Theory v Ethics?

room, on the assumption that teenagers can make up their minds on matters which even adults find difficult to deal with? Good citizens need to know the law, not to learn how to be critical of and circumvent it, but because they are “great men”, because their conscience – Raskolnikov-like – tells them they may, and can, and should.

On top of that, abortion is, to my mind, a matter of legal theory. Frankly, I cannot see how metaethics, normative ethics, and applied ethics are actually relevant to the discussion on abortion. If women lived in a social vacuum, I would understand. But given that it takes two people to create a new life, and a new life has an effect on the community, the reproductive act necessarily produces the quintessential legal, rather than strictly ethical, situation.

I claim that the situation created by the successful reproductive act implies rights and obligations. In other words, the fertilisation of an ovum gives rise to a number of (implicit) contractual obligations.

First, with the father. Secondly, with the offspring. Thirdly, with the community.

None of these obligations can be satisfactorily addressed by ethics.

Before I continue with this train of thought, I must raise two points. One: this article is necessarily a simplistic version of a longer argument, because it is meant for a newspaper and there is a word limit. In other words, I am consciously avoiding many different aspects of the discussion, not because I am not aware of them, but because of the limitations mentioned. Two: I build my argument on the presumption that the entire legal system is built on the principle that promises must be kept.

This principle (pacta sunt servanda) allows exceptions, but it is usually the rule. Or, one assumes/used to assume it is/was the rule. I qualify it thus because whereas it is obvious to some of us that promises should be kept, the dominant ideology of our times seems to point the other way: promises do not necessarily need to be kept if it is not useful and/or pleasurable to keep them.

This is one of the basic tenets, if not even the basic tenet par excellence of liberalism. The liberal theory of doing things is that if you offer compensation, you can be freed of your obligations. (In a certain way, it is a perversion of a religious practice.)

The erstwhile perpetual and indissoluble contract seems to no longer exist under liberalism. “Men are born and remain free and equal in rights,” declared Revolutionary France, and the West embraced those portentous words and extrapolated them from the probable original meaning. This belief in the non-perpetuity of the contract might explain the logic behind divorce, for instance. And also the logic behind most commercial contracts.

So, to return to abortion, the questions are two: (a) does the fertilisation of an ovum give rise to (implicit) contractual obligations, and (b) if yes, are such contractual obligations dissoluble?

Is there a contractual obligation with the father that his right to have offspring will be respected?

Is there a contractual obligation with the new being that its right to life will be respected? (That the offspring exists in the eyes of the law is confirmed by the Civil Code.)

Is there a contractual obligation with the community that new members will not be elimi- nated before birth? (I am avoiding the word “State” on purpose, because of the problem with the beginning of citizenship and the legal protection citizenship implies – the argument (in)famously invoked by Hillary Clinton during the electoral campaign, i.e., that people have constitutional rights only from the moment of their birth.)

Clearly, these questions belong to legal theory and refer to the most basic of problems: is the legal system built on the principle that promises should be kept or on the principle of expediency?

So, the questions to be asked are: (a) Are there (implicit) legal promises in the reproductive act? (b) Should these promises (if they exist) be kept?

With all due respect, the role of ethicians is clearly secondary in such a debate. The primary debate should be between legal theorists.

And the very first question they would want to start with is this; can there be a legal system without a State?