Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, May 31, 2010

O'Callaghan on the Arizona case, Anscombe, and abortion

Prof. John O'Callaghan, a philosopher at the University of Notre Dame, kindly sent in his thoughts concerning the Arizona case that we have been discussing here at MOJ (here, here, here, etc.)  In particular, he responds to my colleague Cathy Kaveny's post about the case, which Michael P. noted -- and, I gather, endorsed -- here

I should note that I am not endorsing -- because I do not feel like I have done sufficient reading to be qualified to endorse -- what John writes.  I look forward to the responses of those who have (e.g., Robby).  Also, because the post is long, I have used the split-entry feature.  By all means, though, read the whole thing.  Here is O'Callaghan:  

I think there are a number of difficulties with Cathy’s analysis.  In the first place, if she is correct then it would seem that almost no “medical” abortion would count as an abortion from a “moral” point of view.  Presumably all medical abortions can be described as separating the fetus from its mother.  But in that case, in terms of the way Cathy seems to think about this, all the doctor has to do to avoid performing an abortion from a “moral” point of view is refrain from performing the act under the description “directly killing an innocent” while directing his will to and thus performing it under the description “separating the fetus from its mother.”  (Cathy seems to want to say that it is the seriousness of the situation--threat to the life of the mother--that ought to allow us to analyze the act in this way.  But that can’t be right from the perspective of action theory, namely, that very serious circumstances allow an analysis of intention in action that less serious circumstances would not allow.  Action theory could not care less about the seriousness of the circumstances for the point about the nature of intention in action.)  Thus there would be next to no abortions in this country from a “moral” point of view—a rather different reduction in the number of abortions than even President Obama contemplates.

I think this peculiar result arises from the rather odd use to which Cathy puts Anscombe’s remarks on intentionality.  Just a quick personal reflection: it is nearly inconceivable to me that Anscombe would agree with Kathy’s claim that “There are some rare situations, however, where [an abortion does not involve the intent to kill the baby].” Anscombe is the woman who almost alone opposed the granting of an honorary degree to Truman at Oxford because he dropped the atomic bomb on Hiroshima and Nagasaki and thus directly targeted civilians.  This is the woman who was arrested in the English equivalent of Operation Rescue protests outside of English abortion clinics—I’ve seen the pictures of English bobbies dragging her away on her knees in her 70s.  But that personal reflection doesn’t get at the heart of the philosophical matter.  The heart of it seems to be that in order to know what an agent is doing we have to be told by the agent from his or her first person perspective what his or her intention is.  It is difficult to know what KIND of act is performed because an activity physically described may fall under many descriptions morally described, and the agent may not be choosing it under a particular moral description, but, rather, some other, which is why we must ask him or her, as we don’t know what’s going through his or her mind.  And the description the agent chooses establishes what KIND of act it is.

This all suggests that there is some difficulty a third person has in knowing what a first person agent is doing.  That is certainly true of certain features of an individual action.  It may be difficult for me to know why you drove the car to the store—pick up your medication or pick up your mother or listen to the engine to figure out why it is knocking.  These are intentions of a sort, intentions as purposes, intentions as purposes that may be difficult for me to discern without you telling me.  But, on the contrary, I have no difficulty determining that you are driving a car.  I know that as well as you, and you have no privileged epistemic access to that act.  Nor can it be said that driving a car is not yet a human act analyzable morally, awaiting your determination of purposes.  A human act can be analyzed from its object (what is it?  Driving a car.) and the intentions as purposes for which it is done (why did you do it?  To pick up my medication.)  Both may be wrong (although in fact driving a car is not wrong in its kind), or one may be right and the other wrong, or both may be good. (See Veritatis Splendor, etc..)

But Cathy seems to suggest Anscombe believed that we cannot know what an agent does until we ask him or her what description he or she has in view in doing it.  This isn’t “intentions as purposes.”  This is knowing the object of the act—what KIND of act it is.  And Anscombe does talk about the act in this sense of object.  But again, and on the contrary, it is usually false that I can’t know what you are doing unless you tell me.  I know you are driving.  I know you are teaching.  I know you are singing.  I know you are running a race.  I know you are cooking.  I know these things by watching what you do.  I’m not infallible in these judgments, since you might be faking in some of them, although to suppose that you are faking in these acts comes close to science fiction or fairy tales.  But of course your ability to fake them presupposes that you are aping the publically knowable characteristics of actions that allow us to identify them for the KINDS they ordinarily are—faking is parasitic upon knowing.

Anscombe would view the position that third persons cannot know what someone is doing without knowing the agent’s state of mind as reported by the first person perspective, as displaying a false Cartesian philosophy of mind.  (See her essay “War and Murder”)   As a follower of Wittgenstein on these features of action, she would say that if you want to know WHAT someone is doing watch, observe, look to see how it is embedded in the contexts and practices within which it takes place and is defined.  The ability to make something look like running a race when it isn’t--it is in a play or cheating--relies upon the manipulation of the capacities of observers to actually know WHAT someone is doing.

But it seems that according to Cathy we cannot know WHAT the serial killer is doing in removing the heart of the human being until we ask him under what description he is removing the heart—under the description “killing the human being” or under the description “removing it to replace it with a healthy one.”  Now the reason this case seems at all plausible is because there are surgeons who do remove hearts and replace them with healthy hearts.  So it seems that I may have a difficulty in determining what it is the serial killer is doing because there is some level of similarity in observation to what the surgeon is doing.  But in fact it isn’t that difficult if we watch what he does, unless the serial killer happens to engage in his serial killing close to the way a surgeon engages in his heart surgery.  Heart surgery is embedded within the discipline of medicine with all the standards of that discipline that pertain to it.  The serial killer might be in a hospital, with a heart lung machine standing by, and the transplant heart on ice while being flown in by chopper, the patient having been on a list for several years, and all the skin and blood typing having been done, etc., etc., etc.. All of this to fake a heart transplant as the way of killing the human being.  He might be very good at this; and it might be very difficult for me to tell.  But I don’t have to ask him whether he’s removing the heart under the description “killing a human being” in order to determine that he’s chosen to kill a human being.  I just have to be as intelligent in examining the evidence of his action as he is in concealing it.

But again, that he must conceal it in this way presupposes that it is knowable to a third person.  [The legal profession], in its criminal aspects, would be impossible if we could not know what people do until we ask them the descriptions under which they act.  And what are we to do when they tell us?  “I’m telling you the truth—I changed the figures in the ledger under the description saving the company, not the description concealing from the auditors.”  Think of the worries of the poor patient who is apparently giving his surgeon the benefit of the doubt that he is not a serial killer when he refrains from asking him which description he intends to take his heart out under—“killing me” or “replacing my heart.”

In Intention  Anscombe was actually opposed to the view that we could not know what people are doing unless we ask them—that there was some sort of first person epistemic privilege when it comes to the NATURE or KIND of act chosen--WHAT one is doing.  She rejects that view(#4 in Intention) as a preamble to the discussion of the importance of “why” questions.(#5 in Intention)  She does not say that it is the answer to the “why” question that constitutes WHAT the action is.  She says intentional actions “are the actions to which a certain sense of the ‘Why?’ is given an application; the sense is of course that in which the answer, if positive, gives a reason for acting.”(#5) That doesn’t mean that the answer to that WHY question establishes WHAT KIND of action it is.  It means that your doing of that KIND of action was intentional as opposed to non-intentional because it makes sense to ask you why you did it, and have you respond with a reason for choosing that KIND of act—the KIND of action you chose will, one hopes, make sense given the reason you had, but it may not.

But the very idea that you have a reason for acting that makes sense of what you did presupposes that you chose a KIND of action for that reason, not that your reason establishes its KIND.  And she says of the statement by someone of what he or she is doing that “we do not appeal to the presence of intention to justify the description ‘He is Y-ing’; though in some cases his own statement that he is Y-ing MAY, AT A CERTAIN STAGE of the proceedings, be needed for anybody else to be able to say he is Y-ing, since NOT ENOUGH has gone on FOR THAT TO BE EVIDENT.” (#23 My emphasis.)  So it isn’t true, as Cathy says, indeed it isn’t even necessary to ask someone “what are you doing” to know what he or she is doing; one only has to wait long enough for it to be evident.

Anscombe is also clearly opposed to the position that it is a matter of the agent, by some sort of internal psychological movement looking over the possible descriptions of an act and directing his or her “intention” to one of the descriptions and not the others, that establishes what KIND of act an agent does.  “For after all we can FORM intentions; now if intention is an interior movement, it would appear that we can choose to have a certain intention and not another, just by e.g. saying within ourselves: ‘What I MEAN to be doing is earning my living, and NOT poisoning the household….I withhold my intention from the act of poisoning the household, which I prefer to think goes on without my intention being in it’.  The idea that one can determine one’s intentions by making such a little speech to oneself is obvious bosh.”(#25.)

If you take a hammer to the head of an intruder pummeling it until it lies in a heap of brain tissue on your carpet, you may well be separating the intruder from your wife whom he is attacking; but there is no doubt that you chose to kill the intruder, unless you are insane.  If Gianciotto runs his rapier through Paolo’s heart he may well be separating Paolo from Francesca.  But there is no doubt he has chosen to kill Paolo, even though he hasn’t chosen to kill Francesca.  Some may think it a virtue of a theory of agency that it has the result that one can pummel the head of someone leaving the brain matter in a heap on the carpet and not have it count as an act of directly intending to kill that human being.  But there is such a thing as Reductio ad Absurdam.  So others, yours truly, as well as Anscombe I think, would take such a result to be evidence that the theory has gone badly off the rails somewhere, and ought to be rethought.  So if you dismember a fetus in the womb of his or her mother, your action may certainly be described as separating the fetus from his or her mother.  But of course WHAT you DID was kill the fetus as the WAY to separate him or her from his or her mother.  And you performed an abortion from a moral point of view.



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