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Published online by Cambridge University Press: 09 September 2014
This essay claims that some recent discussions of moral positions based on a principle of innocents' immunity, “The direct killing of an innocent person is never morally justifiable,” ignore two different meanings of “innocence”: “innocence” as applied to agents and “innocence” as applied to those upon whom the agents act (“patients”). It shows how neglecting this distinction distorts some discussions about abortion and justifiable war. Some recent philosophical analyses are used and developed (1) to argue that “patient innocence” is not dependent on “agent innocence,” but on how the role of “;patients” relates those “patients” to prospective or actual agents, and (2) to show the theoretical importance of distinguishing “excuses” from “justifications” of actions. This approach provides an alternative to traditionalist and revisionist accounts by suggesting how Catholicism's “inconsistent ethic” might be developed into a more coherent, multifaceted vision.
1 For a brief overview of this debate, see McCormick, Richard A. S.J., , How Brave a New World? Dilemmas in Bioethics (Garden City, NY: Doubleday, 1981), pp. 413–29Google Scholar.
2 The apparent exception is debates over capital punishment. But these neither discuss nor analyze, but presume, the legal (and usually moral) guilt of the criminals, the patients in this situation. One key issue in such discussions is whether they deserve the proposed punishment, not what it means for these sorts of moral patients to be guilty or innocent. So this is hardly an exception to the rule that the innocence of moral patients is neglected in contemporary discussions.
3 This neglect can be seen from an examination of McCormick, Richard A. S.J., , Notes on Moral Theology: 1965 through 1980 (Lanham, MD: University Press of America, 1981)Google Scholar, Notes on Moral Theology: 1981 through 1984 (Lanham, MD: University Press of America, 1984)Google Scholar. Although (1) or similar principles are often discussed as steps in arguments on just war or abortion, nowhere is the sense of “innocence” analyzed. Nor does McCormick give any indication that the literature he surveys contains any analysis of “innocence.” At one point, a cited author declines to give an analysis, at a crucial point in his argument, and McCormick suggests that such an analysis would have to be “consequentialist” (p. 506). The position represented in the present essay attempts to offer an alternative to untenable forms of “consequentialist reasoning.”
Because of the neglect, it is not surprising that a helpful commentator on an earlier version of this paper was confused on this issue in writing that “the central distinction between material and formal guilt has been applied to abortion before, and, of course, rejected by the ‘official’ Church.” The commentator evidently meant to refer to material and formal cooperation with an agent who performs an abortion and the cooperator's consequent guilt or innocence of the act. But this comment on the guilt or innocence of agents is irrelevant to a discussion of the meaning of the guilt or innocence of the patient on whom the abortion is performed, which is the question here!
4 Johnson, Allen Griswold, “On the Prevalence of Rape in the United States,” Signs 6 (Autumn 1980), 145CrossRefGoogle Scholar, and Russell, Diane, Rape in Marriage (New York: Macmillan, 1983), pp. 64 and 67Google Scholar, as cited by Gudorf, Christine E., “To Make a Seamless Garment, Use a Single Piece of Cloth,” Cross Currents 34/4 (Winter 1984–1985), 483Google Scholar.
5 Gudorf, p. 478. An earlier analysis by Overberg, Kenneth R., An Inconsistent Ethic-Teachings of the American Catholic Bishops (Lanham, MD: University Press of America, 1980)Google Scholar argues that the inconsistency is one between personal and social morality which is due to “the weight of traditional teachings and the methodologies contained within the separate traditions” (179). Hartigan, Richard Shelly, “Saint Augustine on War and Killing: The Problem of the Innocent,” Journal of the History of Ideas 7 (1966), 195–204CrossRefGoogle Scholar, found a similar inconsistency in Augustine's separation of public and private morality. This has repercussions for just war theory (see note 14 below).
6 Gudorf, p. 490.
7 Gudorf, p. 475; emphasis added.
8 For present purposes, it is assumed that abortion is not indirect killing, although arguments that certain procedures are not direct attacks on fetal life have been mounted. See, inter alia, Bok, Sissela, “Ethical Problems of Abortion,” Hastings Center Studies 2/1 (January 1974)CrossRefGoogle ScholarPubMed; reprinted in Shannon, Thomas A., ed., Bioethics (New York: Paulist, 1976)Google Scholar.
To make this argument tight, the modal qualifier for (3) must be “all,” i.e., (3) must be read as (3′) “all concepti are innocent.” Then (1) and (3′) entail (5). But one could construe the argument of Section III below, as showing this qualifier unwarranted and the proper reading of (3) to be (3″) “some concepti are innocent.” (1) and (3″) do not entail that no abortion is morally justifiable.
9 Thomson, Judith Jarvis, “A Defense of Abortion,” Philosophy and Public Affairs, 1971Google Scholar; reprinted in Arras, John and Hunt, Robert, eds., Ethical Issues in Modern Medicine, (2nd ed. Palo Alto, CA: Mayfield, 1983), pp. 153–54Google Scholar. I have quoted this summary at length because its point is not merely to make a “strained” analogy from pregnancy and its cause to other features of human existence, as Werpehowski, William suggests in “The Pathos and Promise of Christian Ethics: A Study of the Abortion Debate,” Horizons 12/2 (Fall 1985), 290CrossRefGoogle Scholar, but to offer an alternative vision of a situation of unintended pregnancy.
10 Thomson, p. 157.
11 Ibid., p. 158.
12 Cahill, Lisa Sowle, “Abortion and Argument by Analogy,” Horizons 9/2 (Fall 1985), 274–78Google Scholar makes a similar point, but highlights the lack of analogy in the relationships portrayed.
13 What an “indirect attack” is in this context need not concern us here; see pars. 104, 105, 148, 149 of “The Challenge of Peace.”
14 “Conventions and the Morality of War” in Sterba, James P., ed., The Ethics of War and Nuclear Deterrence (Belmont, CA: Wadsworth, 1985), pp. 54–55Google Scholar. Hartigan, , “Saint Augustine,” p. 203Google Scholar, claims that “Augustine presented no clear-cut argument for the protection of the innocent, especially for the civilian innocent or noncombatant, in time of war.” This suggests the lack of clear moral reasoning about the immunity of the innocent/noncombatant lies deep within the Western Christian traditions.
15 The conventionalist move is hardly new or unique to Mavrodes. But what it produces is not a moral justification of a war, but a legal and prudential one. A relevant comment is made by Russell, Frederick H., The Just War in the Middle Ages (Cambridge: Cambridge University Press, 1975), p. 302Google Scholar: “What with Augustine had started out as a problem of morality and scriptural exegesis ended up as a tool of statecraft in the hands of the secular monarchs…. The just war had become the bellum legale [of Cicero], a war waged in defense of legality rather than morality.” Russell cites Kunz, J.,”‘Bellum Justum’ and ‘Bellum Legale,’” American Journal of International Law 45 (1951), 520–23CrossRefGoogle Scholar. This also applies to the proposals of Walzer, Michael, Just and Unjust Wars (New York: Basic Books, 1977)Google Scholar.
16 Mavrodes, p. 57.
17 Jeffrie G. Murphy, “The Killing of the Innocent” in Sterba, The Ethics of War. A similar account is offered by Walzer, , Just and Unjust Wars, pp. 138–59Google Scholar.
18 Murphy, p. 66.
19 Ibid.
20 The crucial distinction of justifications and excuses is often overlooked. See Austin, John L., “A Plea for Excuses,” Philosophical Papers (Oxford: Clarendon, 1961), p. 124Google Scholar et passim. The distinction between formal and material consent, discussed above, to exonerate the coerced person from guilt for a coerced act should not be construed as a justification of the action or participation in it (it could still be intrinsically wrong), but as one type of valid excuse. However, there are other sorts of excuses, as indicated below.
21 Walzer, , Just and Unjust Wars, pp. 139–40, 143Google Scholar.
22 In what follows I focus on the multiple uses of “innocent.” This does not imply a denial that there is a real quality or property as “innocence” to which “innocent” refers. If there is such a property, then “innocent” may only be properly applied to a person with the property “innocence.” But a person having or not having that property is no criterion by which we can determine whether finding or calling someone “innocent” is correct. Rather, justifying applying “innocent” to a person provides the warrant for saying that a person has the real property “innocence.” Hence, the following argument relies neither on a nominalistic nor a realistic account of “innocence.”
23 What follows is indebted to John L. Austin's discussion of “trouser words.” See Sense and Sensibilia, reconstructed from the manuscript notes by Warnock, G. J. (Oxford: Clarendon, 1962), pp. 70ff.Google Scholar, and “A Plea for Excuses,” pp. 140ff.
24 Austin, , Sense and Sensibilia, p. 70Google Scholar. Austin goes on to argue that “real” does not denote some specific quality, but that argument is not relevant to the present case.
25 Austin, Compare, Sense and Sensibilia, pp. 68–69Google Scholar.
26 Cahill's, Compare comment on Casti Connubii, “Abortion and Argument by Analogy,” p. 281Google Scholar.
27 See Werpehowski, , “The Pathos and Promise,” p. 298Google Scholar.
28 Bok, , “Ethical Problems of Abortion,” p. 36Google Scholar.
29 See McCormick, , How Brave, pp. 421–24Google Scholar, and McCormick, Richard A. S.J., , and Ramsey, Paul, eds., Doing Evil to Achieve Good (Chicago: Loyola University Press, 1978)Google Scholar.
30 McCormick, , Notes: 1965-1980, p. 515Google Scholar; see How Brave a New World?, pp. 425ff.
31 McCormick, , Notes: 1965-1980, p. 501Google Scholar, discussing a position of Gustafson and Hauerwas, seems to separate moral positions from pastoral care. But see pp. 515-17 for a more nuanced statement. Nonetheless, McCormick seems to collapse excuse, forgiveness, and pardon into a single “pastoral” category. If the argument here Is correct, “excuses” are significantly different enough from forgiveness and pardon so that they belong not to pastoral care, but to moral philosophy and theology.
32 “A Religious Pacifist Looks at Abortion,” Commonweal, May 28, 1971, p. 281Google Scholar.
33 Ibid., p. 282.
34 While it is not clear how such a position could be effectively advocated as public policy in our present society, the nonviolent active witness consistent with Zahn's position surely can challenge those who hold the prevailing liberal mores to see their implications.
35 Unfortunately, earlier Catholic moral argument offers little help on these points. It blurred the distinction between justifications of performing a prima facie immoral, but actually tolerable, act and acceptable excuses for performing immoral acts. It did not examine the concept of the innocence of patients. Although considering the fetus an unjust aggressor was debated in the tradition, the discussion assumed outmoded biological concepts. More recently, the debate centered on performing a craniotomy on a term or near-term fetus to save the mother's life or on the justifiability of surgery in the case of ectopic pregnancy. The former debate has generally become academic, and the latter settled in favor of performing surgery, despite a 1902 Holy Office response to a question concerning the surgical removal of an ectopic fetus before the sixth month “that direct removal of a nonviable fetus was no more acceptable when the pregnancy was ectopic than when it was uterine” (Connery, John R. S.J., , Abortion: The Development of the Catholic Perspective [Chicago: Loyola University Press, 1977], p. 302Google Scholar; see especially chapters 12-15 for these debates).
36 I am deeply indebted to Maureen Tilley, Joseph Kroger, Elizabeth Clark, Stanley Hauerwas, Caroline Tanguay, William Werpehowski, and two gracious and patient (anonymous) referees for Horizons, all of whom helped me clarify the arguments of this essay.