Fall 1996, Volume XII, Number 1 Family Law Philosophical Commitments, Public Policy, and Family Law by Francis J. Beckwith One cannot discuss the topic of the family in society and law without at the same time recognizing the inexorable link between certain controversial social issues and certain philosophical assumptions about what it means to be a human person in a community of other persons. Too often in public discourse, discussions of controversial issues which touch on family law (e.g., the debates over gay marriage, abortion rights) ignore the philosophical presuppositions which undergird opposing viewpoints, though the partisans on all sides may be blissfully unaware of their a priori commitments. Whenever I teach courses which touch on social issues (e.g., "Contemporary Moral Issues," "Contemporary Social Philosophy") I stress the importance of detecting, articulating, and critiquing these philosophical presuppositions. Consider just two examples. Gay Marriage. Although its original mission called for social tolerance rather than social approval, the gay rights movement now seems to be asking whether the state's partiality toward heterosexual monogamy is consistent with our intuitions about justice, fairness, and personal autonomy. In fact, some of the changes in family law called for by the gay rights movement, such as the permission of gay marriage, assume that the moral intuitions along with mere individual consent are sufficient to invalidate as unjust the state's preference for heterosexual monogamy. But, as I stress to my students, careful reflection on the question of gay rights may reveal two issues undergirding the popular debate. And these two issues carry with them certain philosophical presuppositions about the nature of society and its relation to the individual. The first issue is whether the state should be forbidden to interfere with the private consensual sex of adults, if no one outside the circle of consenters "gets hurt," even though such behavior may violate the sensibilities of most people. The second issue is much more complex and is really at the heart of the debate over gay marriage: Should the state be forbidden to give legal and social preference to heterosexual monogamy while denying such to alternative lifestyles, including homosexuality, polygamy, or adult incest? The first issue is not the same as the second. In fact, one can say "yes" to the privacy rights and call to tolerance implied in the first issue and "no" to the sexual egalitarianism and social construction theory of human relationships implied in the second. That is to say, the proponents of gay marriage who cling to the second issue assume, oftentimes without argument, that sexual activities between adults cannot be judged by normative criteria by those outside the circle of consenters, so long as the consenters do not include outsiders by coercion. Therefore, the state has no right to make judgments about which lifestyle orientation is best and ought to be encouraged and for which the state should provide economic and social incentives. Consequently, any state preference violates the sexual egalitarianism presupposed by proponents of gay marriage. In addition, they also assume that traditional notions about gender, marriage, and family are phenomena which are the result of artificial social institutions rather than the result of an immutable human nature endowed to us by either God or Nature. Of course, opponents of gay marriage presuppose, oftentimes without argument, that sexual egalitarianism is false, informed consent is not a necessary condition for an act to be legally permissible, and traditional notions of gender, marriage, and family, however differently expressed throughout human history, are part of the furniture of the universe and whose continued existence are essential to maintaining the moral ecology of human society. So, the debate over gay marriage, and gay rights in general, cannot be reduced to a simple dispute between the "tolerant" and the "intolerant" or "the sinners" and "the saints," but rather it can best be described as a culture war between two world views whose proponents each believe their world view provides the most accurate description of reality as well as what is normative for human society. Once students understand this, then they can come to grips with what is philosophically at stake by the law's embracing of either position. Abortion Rights. Although there is a consensus by legal scholars that the U.S. Supreme Court in Planned Parenthood v. Casey, 505 U.S. 833 (1992) has settled for the time being the constitutional issue of abortion rights, there is no doubt that the issue will continue to be a controversial one over which people will debate, argue, and pass and veto legislation (e.g., the attempt by Congress to ban "partial-birth abortions" and President Clinton's subsequent veto). It seems, however, that despite the enormous amount of energy put into debating abortion, there does not seem to be a clear understanding of the philosophical assumptions of the debate's partisans. These assumptions are the focus of my lectures, assigned readings, and classroom discussions. Those who support abortion rights (pro-choicers) maintain for the most part that the issue is one of privacy and/or autonomy rights. Opponents of abortion rights (pro-lifers) charge that abortion cannot be a privacy or autonomy right, since the fetus is an innocent human person and no one has a right to kill an innocent human person. Pro-choicers usually reply to this argument in at least one of three ways: (1) the fetus is not a human person, (2) the fetus, though it may be a human person, has no right to use another's body against that person's will, and (3) since experts disagree about what constitutes human personhood, the state should stay out of the matter. Each one of these arguments assumes a certain philosophical perspective regarding what it means to be a person in the human community, as well as what is the appropriate relationship between the individual and the state. First, the claim that the fetus is not a human person is usually defended by pointing out that the fetus does not possess certain attributes that we ordinarily associate with personhood, e.g., self-consciousness, the ability to reason, concept of a continuing self (for a defense of this position, see Warren, 1996; for a critique, see Schwarz, 1996). This assumes that human personhood is a matter of function rather than a matter of nature. That is to say, the defender of this perspective maintains that a human person comes into being when the physical structures of the human body in the course of human development reach a certain level of complexity such that certain functions can occur. This view, among other things, assumes a certain metaphysical position about human nature -- physicalism, the view that the human person is merely a physical brain with no underlying non-physical substance or human nature. Although this is a widely held viewpoint, it is certainly disputed by many scholars (e.g., see Moreland, 1987). Second, many claim that the fetus, though it may be a human person, has no right to use another's body against that person's will (e.g., see Thomson, 1996; Tribe, 1990; Carter, 1993; Regan, 1979; for a critique, see Beckwith, 1996). This claim assumes that the sole basis for moral obligation, even a parent's obligation to her child, is voluntary consent. That is to say, a parent, in this case the pregnant woman, has no natural obligation to her child, but rather, any obligation she may have results exclusively from her informed and voluntary consent. If she does not want to be a mother, it is her right to refuse, even if it results in the death of the fetus and even if the fetus is a human person. Proponents of this view see nothing special about family obligations. For example, just as I am not morally obligated to donate a kidney to Fred, my next-door neighbor who is a fully human person, simply because he needs a kidney in order to live, the pregnant woman is not obligated to take care of her fetus even if it is a fully human person. It seems, however, that many people will find as counterintuitive the philosophical assumption undergirding this argument, since, for most people, there are special moral obligations that one has to family members, especially one's children, that one does not have to strangers or next-door neighbors. This, of course, does not make the pro-choice supporter incorrect. It just means that her philosophical assumption is not as intuitively obvious as she presumes. The third argument -- since experts disagree about what constitutes human personhood, the state should stay out of the matter -- assumes a political and social philosophy that maintains that the state should remain neutral on ultimate or metaphysical questions over which reasonable people disagree (Rawls, 1993; for a critique, see Sandel, 1996). However, some have argued that such a posture is impossible to sustain in practice (Beckwith, 1996). For in the case of abortion, the state, by leaving the choice of pregnancy termination solely to the discretion of pregnant women, is taking a definitive position on fetal personhood. It is affirming by its permission that the fetus is not worthy of state protection and therefore can be discarded without requiring any public justification whatsoever. Whatever one may think of this public policy, it is certainly not a neutral one, though it is one defended by numerous adherents who support abortion rights on grounds apart from an appeal to state neutrality (see the pro-choice essays in Pojman and Beckwith, 1994). In summary, the discussion of family law and the social issues surrounding it cannot be philosophically separated from the presuppositions entailed by the world views of partisans on all sides. Once students understand why a certain public policy, piece of legislation, or judicial decision logically follows from a prior philosophical commitment (even if the commitment is unconscious), they can better understand those with whom they disagree as well as why they hold the views they do. Francis J. Beckwith is Assistant Professor of Philosophy at Whittier College, Whittier, CA 90608, as well as Senior Research Fellow at the Nevada Policy Research Institute. Bibliography Beckwith, Francis J. (1996) Ignorance of Fetal Status as a Justification of Abortion: A Critical Analysis. The Silent Subject: Reflections on the Unborn in American Culture, ed. Brad Stetson. Westport, CT: Praeger. _________(1996) Arguments from Bodily Rights. In Do the Right Thing: A Philosophical Dialogue on the Moral and Social Issues of Our Time, ed. Francis J. Beckwith. Boston: Jones & Bartlett. Carter, Stephen (1993) The Culture of Disbelief. New York: HarperCollins. Moreland, J.P. (1987) Scaling the Secular City. Grand Rapids: Baker Book House. Pojman, Louis P. and Francis J. Beckwith, eds. (1994) The Abortion Controversy: A Reader. Boston: Jones & Bartlett. Rawls, John (1993) Political Liberalism. New York: Columbia University Press. Regan, Donald (1979) Rewriting Roe v. Wade. 77 Michigan Law Review. Sandel, Michael (1996) Democracy's Discontent. Cambridge, MA: Harvard University Press. Schwarz (1996) Personhood Begins at Conception. In Do the Right Thing, ed. Francis J. Beckwith. Thomson, Judith Jarvis. A Defense of Abortion. In Do the Right Thing, ed. Francis J. Beckwith. Tribe, Laurence (1990) Abortion: The Clash of Absolutes. New York: W.W. Norton. Warren, Mary Anne (1996) On the Moral and Legal Status of Abortion. In Do the Right Thing, ed. Francis J. Beckwith. Fall 1996 Issue Home | At Century's End | Philosophy & Family Law | Family Law & Policy Transracial Adoption | Transracial Adoption: Conversation | Book Review | Family Violence Teaching Gender Issues | Domestic Violence | Mini-Grant Awards Focus on Law Studies Home | Subscribe to Focus | Questions/Ordering Back Issues