Tribute to Moloch: Is Broca Only His Brain?

IN THE MUSÉE DE L'HOMME IN PARIS, atop the hill of Trocadéro overlooking the Seine valley and the Eiffel Tower can be found, Carl Sagan tells us though I have not seen it, in a jar of formalin, the brain of the French physician, anatomist, and anthropologist Pierre Paul Broca (1824-1880). How much of Paul Broca is left in this brain? Carl Sagan asks in his bestseller Broca's Brain.

Perhaps the better question is how much of Paul Broca, if any at all, was ever in his brain? Did Pierre Paul Broca exist before his brain existed?

Was there any of Paul Broca in his body? If Paul Broca's body sans his brain was preserved in a cask of Amontillado, sort of like Admiral Nelson's in a cask of brandy with traces of camphor and myrrh, how much of Paul Broca would have been left in that body without a brain? Would Paul Broca have been split into two: part of it at the Musée de l'Homme in the cask of formalin, part of it in a cask of Amontillado wherever stored? Would there be more of Paul Broca with us if we took the brain from the cask of formalin and incorporated it back into the skull preserved in the cask of Amontillado? The questions seem silly, because Paul Broca is dead, both in his brain and in his body. Taken out of the preservational fluids, the inanimate body and brain would soon spoil, putrefy, and disintegrate into its component elements.

How much of Broca is in his brain?

We cannot say the same thing in the beginning of Paul Broca's life. There was a time, in the beginning of his life, where Paul Broca had no brain, and only the rudiments of a body. He was found not preserved in a cask of formalin or of brandy, but living in an amniotic sack full of amniotic fluid. Was Paul Broca Paul Broca only when his brain waves could be detected at about six to eight weeks' gestation, and not Paul Broca before then? Was Paul Broca at six-weeks' gestation the same Paul Broca whose brain is now in formaldehyde? If not, then why would neither Paul Broca nor his brain have been here had he been aborted as a six-week-old fetus? Why would neither Paul Broca nor his brain have been here had he been aborted at the end of his third trimester? Either way, Paul Broca without a brain or with a brain would not have been, and we would be at the Musée de l'Homme looking at an empty jar that said "the Brain of Paul Broca that never was." We'd shrug our shoulders with little interest and move on to find Descartes's skull to see what we could learn from it. And Carl Sagan never would have written his book, and he would have enjoyed less royalties and less people would have been misinformed by his materialistic philosophy.

Descartes's Skull

Had we taken Paul Broca's one-celled zygote and, instead of putting it in a cask of formaldehyde, cryogenically preserved it for one hundred fifty years, and later implanted it in some willing French rent-a-womb, would we not have Pierre Paul Broca be with us today?

Pierre Paul Broca, though he had no brain, would be in the one cell of that zygote in a manner in which he never was, and never will be, in his separate brain in the Musée de l'Homme. This is because Pierre Paul Broca's zygote--without a brain, without any brain waves whatsoever--would be alive. And Broca's body and brain--without any brain waves whatsoever--is dead.

The absence of brain waves in the beginning of life is clearly different from the absence of brain waves at the end of life. Yet the vast difference between the lack of brain waves at the beginning, and the lack of brain waves at the end appears completely to elude those who suggest that human life really begins only when brain waves are detected. The absence of brain waves when a human being is alive and when their coming is foreseeable is world's apart from the absence of brain waves when a man is dead and their coming is unforeseeable, indeed, barring a miracle, physically impossible.

The brain looms large in the debate between abortionists and advocates of traditional morality. Like Carl Sagan, abortion advocates want to tag one's humanity to the presence of a brain, "brain birth" so to speak, and so they argue that since the fetus has no measurable brain activity for its first six weeks of life, it cannot be human life, and so may properly be snuffed out without qualms of conscience. Since a working brain is necessary for a normally functioning human life, the advocates of abortion argue that the absence of it allows the inference that we are not dealing with anything human. But this is to confuse categories.

While the brain is required for normal human life, and the complete absence of it spells death, the existence of a brain is not equivalent to human life.

We know this by observation: there are human beings that are profoundly and irreversibly mentally disabled: indeed there are infants who are tragically born anencephalic, without a brain, and yet what else are they but human beings? The defect from which they suffer is not unlike any other defect: of limbs, or organs, or anything else. Why should the child without a brain be treated any different from the child without legs? The child was genetically programmed to have a brain, and something has interfered with the normal progress through no fault of his own.

We also know this because a zygote without brain waves is something entirely different than a corpse without brain waves. So the analogy between "brain death" and "brain birth" fails for lack of parallelism. As Professor Raymond J. Devetterre* observes in his book Practical Decisions in Health Care Ethics: Cases and Concepts:

There is a significant difference between a fetus without brain life and a human being who has lost brain life and is brain dead. The fetus is alive and the brain-dead patient is dead. The brain-dad patient is dead because he has suffered the irreversible loss of all brain functions. The fetus has not suffered any such loss and therefore is not dead. A brain cannot be considered dead if it never lived--death always follows life. True, neither the six-week fetus nor the brain-dead individual has brain life, but the former is alive . . . and the latter is dead. The fundamental difference between life and death undermines the analogy between an early fetus and a brain-dead patient.

For these reasons, comparing an early fetus with a whole-brain-dead patient does not seem to be a bad idea. The early fetus is not dead but alive; it simply has not yet developed awareness. . . . A patient declared dead by the whole-brain-death criterion is dead; a developing fetus, or even an embryo for that matter, is living.

Deveterre, 145.

Brain activity it would seem is an inadequate measure of human life in its incipient stages of development. To recruit it in the abortion debate is to ignore the lack of parallelism between "brain death" and "brain birth." It is to ignore the difference between Pierre Paul Broca as a living zygote in his Huguenot mother Annette Broca née Thomas's womb in 1823 and Pierre Paul Broca as a lifeless brain in a jar at the Musée de l'Homme in Paris in 2010.

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*Raymond J. Devettere, Practical Decision Making in Health Care Ethics: Cases and Concepts (Washington, D.C.: Georgetown University Press, 2010) (3rd ed.). I disagree with Devettere's "one of us" test of human life, but his observations on the lack of parallelism between the lack of brain activity at the beginning of life and the lack of brain activity at the end seems accurate and concisely stated. That is the only reason for which he is cited, and no agreement with any of his other views ought to be inferred.

Tribute to Moloch: The Continuum of Human Life and Fetal Pain

THE ISSUE OF ABORTION WILL NOT GO AWAY. It will not go away because of the Christian witness against it; it is part of the Gospel, the Gospel of Life, and Christians, particularly Catholics, shall not tire of proclaiming the truth from the housetops, at curb sides, in politicians' office and chambers, through the internet, or from the Vatican.* But even if all Christian witness were effectively squelched, the issue will not go away because of the natural law's witness against it. Men and women of good will would, like so many stones, rise up and give witness if not as children of Abraham, at least as sons of Adam. (Cf. Matt. 3:9)

The issue of abortion cannot be easily discussed because of vested interests in the institution of abortion. There are--if the abortifacient qualities of modern contraceptive techniques are not considered--approximately 43-45 million abortions annually world-wide,** the actual number being obviously difficult to count. The sheer financial investment in the infrastructure of abortion facilities, the political favor the institution carries with modern media and liberal academia, not to mention the moral baggage and psychological and sociological defense mechanisms which grow out of jettisoned guilt in having justified the institution, all conspire to squelch rational discussion and move it into the realm of ideological fracas. Yet regardless of such powers, dominions, and principalities that jealously guard the heights, if abortion is a moral evil, then it follows we are dealing with a moral failure of massive, historically unparalleled proportion. We are dealing with what may be the most institutionalized evil in the history of mankind, and it may be placed at the foot of the Feminists and their followers or supporters.

[If abortion is morally wrong,] it would be a simple fact, however we dress it up, that homicides are and have for the last few decades been taking place on a scale unprecedented in human history, involving millions upon millions of innocent human beings.

Oderberg, 3. The horror of this brutality pales any form of genocide, mass murder, or institutionalized evil since the beginning of mankind. Since 1922, it is estimated that there have perhaps been as many as 850 million through 950 million abortions worldwide.**

The injustice done to these innocents is irreparable. What will man do if he ever recognizes the great evil he is wreaking and he has wrought? We speak of "German Guilt" for the atrocities of the Holocaust, but, as evil as the Nazi institutions were, and they ought never be minimized, they pale in number before the almost 1 billion killed through abortion. Shall we ever speak of a "Global Guilt" for the atrocities of the abortion Holocaust to Moloch? Under what sort of repression of conscience are we living now to accept this state of affairs with relative equanimity? What sorts of human beings flourish under such a repression of conscience? How shall we ever make amends to the future generations who have never seen light?

The basic argument against abortion--that the deliberate and direct killing of the fetus in his or her mother's womb is wicked and always wicked, indeed a crime against humanity not to mention humanity's God--is very simple. It rests upon two premises. The first, the major premise, is a moral principle: that directly taking an innocent human being's life is always wrong. The second, the minor premise, is a factual principle: the fetus is an innocent human being. "If the foetus is an innocent human being, and if it is always wrong deliberately to kill an innocent human being, then it must be wrong deliberately to kill a foetus." Oderberg, 4. If the major and minor premise are true, the conclusion is necessarily true. All the arguments in support of abortion attack one or both of these premises. We shall call this syllogism, the "Anti-Abortion Syllogism."

The humanity of the fetus, which is the minor premise of the Anti-Abortion Syllogism, is at the front and center of the abortion debate. The most significant feature of the fetus is the continuity of fetal development. No one can deny that there is continuity of development from fertilization or conception through birth. "[T]here is no metaphysically significant dividing line in embryonic and foetal development separating something that is a human being from something that is not." Oderberg, 8. After fertilization or conception (they are usually the same, but in the event of twinning, may not be), there is no dividing line between potential human life and actual human life. All human life after conception is actual, though like all human life it continues to have potentiality related to its development, and it goes through a continuum of phases. What this means, of course, is that any dividing line imposed by advocates of abortion is without any real basis: it is artificial, arbitrary, without grounding in reason. It divides some actual human life in one phase from other actual human life in another phase that is not discrete from the prior phase by nothing other than will, human fiat. It invents a border where there is none.

Try it. It cannot honestly be done. Try honestly to find a reasonable, meaningful boundary to distinguish why and when sometime between a zygote and a child born in full-term (or adult, for that matter) the "thing" is, on one side of the divide, something that can be destroyed, and on the other side of the divide, something that ought to have full protection of moral and positive law. It cannot be done because the process of fetal development, like human life generally, is a seamless continuum.

• The product of conception, the joinder of the gametes, of ovum and sperm, results in a zygote (from the Greek word ζυγωτός, zygōtos, meaning "joined" or "yoked") with a unique DNA formed from the contribution of the DNA of the father and the DNA of the mother. From the perspective of DNA, the zygote has the identical DNA makeup as the fetus, the child, and the adult. The DNA cannot serve as any basis for a dividing line once there is joinder of the gametes.
• As the zygote cleaves and then divides and grows, and there is nothing of any substantive significance between the phases through which it travels: morula (12-16 cells), blastocyst (100 cells), the implantation, embryo, fetus, new-born, where any reasonable dividing line can be drawn. Any dividing line is entirely arbitrary because of the continuity of development of human life.
  

The biological evidence of this continuity of development is so compelling that even the consequentialist and pro-abortion advocate Peter Singer admits two facts: he admits "there is no doubt that from the first moments of its existence an embryo [sic] conceived from human sperm and eggs [sic] is a human being." He also admits that the "liberal search for a morally crucial dividing line between the new born baby and the fetus has failed to yield any event or stage of development that can bear the weight of separating those with a right to life from those who lack such a right." Oderberg, 10 (quoting Singer, Practical Ethics, 86, 142-43). So compelling is the biological process, that Singer has to concoct a category entirely unrelated to the process of human life--his own concept of personhood--to try to build his justification of killing human life.

The proponents of abortion are fiendishly clever, however, as most humans are who want to get their way or rationalize their conduct. And a number of efforts are made by them to try to avoid the moral implication of the continuum of human life by focusing on other factors, such as feeling or sentience, or the existence brain activity, or viability outside the womb, or other more vague metaphysical concepts such as their conveniently vague concepts of personhood, or the false distinctions between potential humans and actual humans applied to actual humans. (Viability is a particularly important standard, from a practical perspective, since it is the legal standard around which Justice Blackmun's opinion in Roe v. Wade revolved and under which our law analyzes when the State may begin to prohibit the process.) Additionally, the proponents of abortion offer other arguments to try to avoid the consequence of that fact human life develops in seamless continuity from conception to natural death. We find such absurdities proposed as that of Stuart Derbyshire, a psychologist at the University of Birmingham in Britain: “A fetus is biologically human, of course,” he says. “It isn’t a cow. But it’s not yet psychologically human.”*** It is hard to believe that someone actually believes that human is a psychological category, and not a real one. But no one said the advocates of abortion are wise, they are just clever, and sometimes just clever fools.

Some advocates of abortion (as well as advocates against abortion) seize on the issue of fetal sentience or fetal pain as the basis for argument pro or con abortion. Fetal pain is what has been at the forefront of fetal pain laws, such as the recently-passed Pain Capable Unborn Child Protection Act (LB 1103) which was signed into law by Nebraska Governor Dave Heineman in April 2010, and which became effective October 15, 2010. That law aims to change the debate from a "viability" standard which generally drives the U.S. Supreme Court jurisprudence under the regime of Roe v. Wade to an earlier standard based upon fetal pain. Based upon scientific evidence that the fetus experiences something that could be characterized as pain as early as 20 weeks from gestation, the Nebraska law prohibits abortions after 20 weeks regardless of the viability of the fetus.

There is huge debate on the matter in terms of empirical evidence and what it shows with regard to fetal pain. A lot of it revolves around the definition one uses for the word pain, and that ends up being a vague standard, easily prone to manipulation and ideological capture, which is one of the problems with such a standard in using it for moral analysis. If pain is defined to require a conscious recognition or awareness to some sort of noxious stimulus, then the onset of fetal pain can arguably be extended as far as the third trimester (29-30 weeks) because it would require fully functional thalamocortical fibres and full cortical processing. (There is, contra, extensive debate as to whether the cortex is related to consciousness of pain, since hydranencephalytic children clearly experience pain, and their cortical development is extremely limited as a result of their condition.)

If pain is defined, however, more broadly to include more reflexive responses to invasive or noxious procedures (such as grimaces, recoiling, or flinching) or hormonal stress responses (e.g., increased levels of adrenaline or cortisol), then one can push back the boundary to as early as the seventh week of gestation. There is, however, vagueness even here, as avoidance responses begin around the area of the mouth of the fetus as early as five weeks and progress to the palms of the hands and the soles of the feet by the eighth and ninth week respectively. Oderberg, 6-7 (citing P. McCullagh). In response to the argument that the cortex must be developed before their is consciousness and therefore pain to be felt, some argue that the fetus's immature physiology means it has less of the mechanisms for inhibiting or reacting to pain and therefore may feel pain more intensely at earlier stages than later stages. These scientists point to the existence of a subplate zone which is fully functional at 17 weeks, and which they believe provides the capacity to process pain signals. For example, Dr. Kanwaljeet ("Sunny") Anand, a pediatrician who specializes in the the care of critically-ill newborns and children, and who has testified before Courts and legislative committees on the issue of fetal pain, is at the forefront of the controversy, and his view is that the fetus feels pain at 20 weeks gestation.****

The issue of fetal pain is naturally important to physicians who perform legitimate surgical procedures on the fetus in utero, and judge on the matter of the advisability of anesthesia. But the fetal pain issue has also been captured by the abortion controversy. Predictably, advocates of abortion generally try to extend out the time period, whereas opponents tend to point to evidence that the fetus feels pain earlier.

There is, perhaps, some value in letting people know that the fetus may feel pain, since it may trigger some feelings of human empathy for the fetus by someone otherwise completely insensitive to the fetus's plight. In other words, the issue of fetal pain, from a subjective standpoint (since objectively it is irrelevant morally) of the actor, humanizes the fetus. There is some value in making the fetus something different than the anonymous Balzacian mandarin whose death is of hardly any moment since it is so far removed from us, shrouded as it were, by time and place.***** It is the Jew Shylock's argument to his Gentile prosecutors:

I am a Jew. Hath
not a Jew eyes? hath not a Jew hands, organs,
dimensions, senses, affections, passions? fed with
the same food, hurt with the same weapons, subject
to the same diseases, healed by the same means,
warmed and cooled by the same winter and summer, as
a Christian is? If you prick us, do we not bleed?
if you tickle us, do we not laugh? if you poison
us, do we not die? and if you wrong us, shall we not
revenge? If we are like you in the rest, we will
resemble you in that.

Shakespeare, Merchant of Venice, III.1.58-68. If you prick a fetus, does he not bleed?

But even though we may think that the "evidence is overwhelming that the foetus displays at a very early age what would uncontroversially be called pain behaviour in you or me," and the fetus is in "the great chain of feeling" of sentient beings, as Martin Pernick described it in his history on anesthesia, A Calculus of Suffering: Pain, Professionalism, and Anesthesia in Nineteenth Century America, that fact's "moral worth is dubious," as important as it may be for other reasons. Oderberg, 7.

Why is fetal pain morally dubious when it comes to abortion? Why is "sentience, as such," "not the nub of the debate"? Oderberg, 7-8. The reason why the issue of fetal pain is of morally dubious value--in fact is irrelevant to the moral assessment of abortion--is because the moral issue is not whether pain ought to be avoided, but the moral issue is whether the intentional taking of the fetal life is morally licit. The two questions are distinct, and whether or not the fetus feels pain or does not feel pain has nothing to do with whether it can be directly and intentionally killed or not killed. If pain were the issue, then simple anesthetizing of the fetus (or for that matter, any human being, for example, the elderly or those in a persistent vegetative state) before killing it would remove any moral objection. It clearly does not. If pain were the issue, then we would prohibit the intentional slaughter of animals such as chickens, pigs, and cattle, since they are sentient beings who feel pain. Hunting or trapping would be off limits since animals probably feel pain at being shot at or trapped. Moreover, sometimes it is morally legitimate, in fact, morally compelled to inflict pain even on a fetus. Physicians may have to inflict some pain on a fetus to determine its response in order to judge whether certain medical procedures should be performed.

Whether or not the fetus feels pain, therefore, is not at the foundation of moral objection to abortion. While, in general, the deliberate infliction of pain should be avoided, suffering is not the criterion of morality as Bentham and classic utilitarians would suggest. Else, we could anesthetize a human being and justify enormities. Moreover, once we fall into the trap of measuring fetal pain as the foundation for justifying fetal protection, we are bound to measure maternal pain against which to weight it, and he have collapsed our moral foundation and fallen head long into an untenable utilitarianism or consequentialism. Moreover, the fact that human beings feel pain is not what gives us the right to life and the dignity of being human, since pain and the ability to suffer is something shared with brute animals and not something we share with the angels.

The issue of fetal pain or sentience ought not therefore to distract us from the exceptionless rule that the intentional direct killing of the fetus in his or her mother's womb is wrong and always wrong and always gravely so whether there is pain or there is not pain. It is, though the law may not classify it so, homicide. Morally, by the testimony of the natural law, it is murder.

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*Pope John Paul II effectively declared the grave immorality of direct abortion in his Evangelium Vitae, the Gospel of Life. The teaching is predicated upon the Church's teaching against murder in No. 57:

57. Therefore, by the authority which Christ conferred upon Peter and his Successors, and in communion with the Bishops of the Catholic Church, I confirm that the direct and voluntary killing of an innocent human being is always gravely immoral. This doctrine, based upon that unwritten law which man, in the light of reason, finds in his own heart (cf. Rom 2:14-15), is reaffirmed by Sacred Scripture, transmitted by the Tradition of the Church and taught by the ordinary and universal Magisterium.

Quapropter Nos auctoritate usi Petro eiusque Successoribus a Christo collata, coniuncti cum Ecclesiae catholicae Episcopis, confirmamus directam voluntariamque hominis innocentis interfectionem graviter inhonestam esse semper. Doctrina haec, cuius innituntur radices illa in non scripta lege quam, praeeunte rationis lumine, quivis homo suo reperit in animo (Cfr. Rom. 2, 14-15), inculcatur denuo Sacris in Litteris, Ecclesiae Traditione commendatur atque ordinario et universali Magisterio explanatur (Cfr. Lumen Gentium, 25).

Abortion is treated immediately after murder in the encyclical, indicating its direct link to the prohibition against murder, specifically in Nos. 58, and 61-62:

58. Among all the crimes which can be committed against life, procured abortion has characteristics making it particularly serious and deplorable. The Second Vatican Council defines abortion, together with infanticide, as an "unspeakable crime." . . .(Gaudium et Spes, No. 51: "Abortion and infanticide are nefarious crimes.")

58. Omnia inter ea scelera quae patrare homo contra vitam potest, notas quasdam prae se fert procuratus abortus quibus improbus insignite ac detestabilis evadit. Illum describit Concilium Vaticanum II, perinde atque infanticidium, “crimen nefandum” (Gaudium et Spes, 51: «Abortus necnon infanticidium nefanda sunt crimina»).

61. The texts of Sacred Scripture never address the question of deliberate abortion and so do not directly and specifically condemn it. But they show such great respect for the human being in the mother's womb that they require as a logical consequence that God's commandment "You shall not kill" be extended to the unborn child as well. . . . Christian Tradition -- as the Declaration issued by the Congregation for the Doctrine of the Faith points out so well -- is clear and unanimous, from the beginning up to our own day, in describing abortion as a particularly grave moral disorder. . . .

61. Litterarum Sacrarum loci, ubi de voluntario abortu numquam est sermo et propterea directis propriisque vocabulis abortus haud reicitur, talem tamen tantamque hominis ipsius exprimunt materno in sinu venerationem, ut tamquam necessariam conclusionem postulent ut erga illum etiam prorogetur Dei mandatum: “Non homicidium facies”. . . . Prout effert probe Declaratio de hoc argumento a Congregatione pro Doctrina Fidei edita (Cfr. CONGR. PRO DOCTRINA FIDEI Declaratio de abortu procurato), consona est atque illustris a principio ad nostros usque dies christiana Traditio, quae tenet ipsum abortum veluti morale quiddam unice inordinatum. . . .

62. . . . . Given such unanimity in the doctrinal and disciplinary tradition of the Church, Paul VI was able to declare that this tradition [regarding abortion] is unchanged and unchangeable. Therefore, by the authority which Christ conferred upon Peter and his Successors, in communion with the Bishops -- who on various occasions have condemned abortion and who in the aforementioned consultation, albeit dispersed throughout the world, have shown unanimous agreement concerning this doctrine--I declare that direct abortion, that is, abortion willed as an end or as a means, always constitutes a grave moral disorder, since it is the deliberate killing of an innocent human being. This doctrine is based upon the natural law and upon the written Word of God, is transmitted by the Church's Tradition and taught by the ordinary and universal Magisterium.

62. . . . . Coram simili consensione in tralaticia doctrina disciplinaque Ecclesiae, valuit pontifex Paulus VI adseverare idem magisterium nec esse mutatum nec posse mutari (Cfr. PAULI VI Allocutio ad Italicos Iuris peritos Catholicos, die 9 dec. 1972: Insegnamenti di Paolo VI, X (1972) 1260 ss.; EIUSDEM Humanae Vitae, 14). Auctoritate proinde utentes Nos a Christo Beato Petro eiusque Successoribus collata, consentientes cum Episcopis qui abortum crebrius respuerunt quique in superius memorata interrogatione licet per orbem disseminati una mente tamen de hac ipsa concinuerunt doctrina – declaramus abortum recta via procuratum, sive uti finem intentum seu ut instrumentum, semper gravem prae se ferre ordinis moralis turbationem, quippe qui deliberata exsistat innocentis hominis occisio. Haec doctrina naturali innititur lege Deique scripto Verbo, transmittitur Ecclesiae Traditione atque ab ordinario et universali Magisterio exponitur (Cfr. Lumen Gentium, 25).

Evangelium vitae, Nos. 57, 58, 61-62. The teaching would appear, at minimum, ordinary, if not extraordinary, infallible teaching of the Church. The Church expressly declares that abortion is against the natural law.
**See, e.g., Johnston's Archive: Abortion Statistics .
***As reported in Annie Murphy Paul, "The First Ache," in the New York Times, Feb. 10, 2008.
****See, e.g., his report on behalf of the U.S. Department of Justice on the matter of the Partial-Birth Abortion Ban Act of 2003.
*****

Tribute to Moloch: Abortion and the Natural Law

MOLOCH WAS A FALSE DEITY THAT HAD HIS DAY and wreaked havoc among the ancient Israelites by demanding child sacrifice, the abomination of the children of Ammon. 1 Kings 11:7. The chief feature of Moloch's cult was the sacrifice of children, which is described in the biblical texts as passing through fire, probably a reference to the holocaust effect of the sacrificial rites. The chief place of Moloch's cult was a place called Tophet. II Kings 23:10; Jer. 7:30-32. Throughout history in various cultures, child sacrifice has from time to time raised its monstrous head, and it has done so again in the form of abortion, what more than one proponent has religulously religiousized into a "sacrament"* of the new secular order, the novus ordo seclorum. That we sacrifice children in the name of convenience, or social utility, or to avoid expense or raising children, as a means to compensate for failed contraception, under government mandate (as in China), or other reason it matters not. These are just our new gods, our new divinities, intangible, yet every bit as tribute-demanding as the tangible idols of old. We sacrifice to a hidden, an invisible Moloch, but one nonetheless made with human hands or human minds.

Abortion was rampant in ancient Rome. It is rampant once again. The light of Christ, like the efforts of the Jewish Kings, for a time overcame the darkness.

His burning idol all of blackest hue;
In vain with cymbals' ring
They call the grisly king,
In dismal dance about the furnace blue . . . ."

(John Milton, "Ode on the Morning of Christ's Nativity")

William Blake's "Moloch" from the "Butts Set" Illustrations for
Milton's "On the Morning of Christ's Nativity"

But the light of Christ has been progressively squelched since at least the time of the so-called Enlightenment. The laws and mores of Christendom have been dismantled, and a resurgent paganism, this one materialistic, skeptic, and relativistic in ethos, has wafted in like Satan's smoke. Like the paganism of old, this one is both lusty and bloodthirsty. The worship of the true God does not require human sacrifice. The worship of anything other than the true God usually does require some sort of human sacrifice. The new religion's first aim was against the Innocents outside the womb: the Jews and other believers and supposed misfits who were sacrificed at the altars of nationalism and materialistic communism in Konzentrationslager, Gulags, Killing Fields, and sundry other Death Camps. The new religion's second aim is more insidiously Herodian: its second aim is against Innocents within the womb.

William Blake's "Moloch" from the "Thomas Set" Illustrations for
Milton's "On the Morning of Christ's Nativity"

Once again, we hear the drumbeat of Moloch:

. . . MOLOCH, horrid King besmear'd with blood
Of human sacrifice, and parents tears,
Though, for the noyse of Drums and Timbrels loud,
Their children's cries unheard that passed through fire
To his grim Idol. . . .

(John Milton, Paradise Lost, I.392-96.)

"Moloch's Law," which allows, even demands, the slaughter of innocents is on the rise. The practice of abortion, is a crime against the natural law of immense proportion. It is an assault against all reality, against the good of life. It is a crime against humanity. All men and women are bound morally to oppose it. Those who advance it with their fellows are conspiring to advance an unmentionable, intrinsic evil.

For the next series of blog postings, we shall tackle the issue of abortion from the perspective of natural law or traditional ethics. We will loosely rely as a sort of guide upon the treatment given this issue by David S. Oderberg in his book Applied Ethics: A Non-Consequentialist Approach (Oxford: Blackwell Press, 2000), 1-47.
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*See, e.g., Ginette Paris, The Sacrament of Abortion (Dallas: Spring Publications, 1992), where the author claims abortion is a sacred act, in fact a sacrifice to Artemis (known to the Romans as Diana). Ginette Paris is a Canadian psychologist, therapist and writer. She teaches at the Pacifica Graduate Institute in Santa Barbara, California. The feminist lawyer and activist Florynce Kennedy while peddling her book Abortion Rap (coauthored with Diane Schulder) was apparently told by her cab driver in one instance: "Honey, if men could get pregnant, abortion would be a sacrament." See Carolyn Evensen Lazo, Gloria Steinem: Feminist Extraordinaire (Lerner Publications, 1998), 67. Although I have not been able to confirm the quote, Carter Heyward, an Episcopal feminist and lesbian minister (anyone see any incongruity there?), and the Howard Chandler Robbins Professor of Theology at the Episcopal Divinity School in Cambridge, Massachusetts, is supposed to have said at the 1985 convention of the National Abortion Federation, "Abortion would be a sacrament if women were in charge. Abortion should be a sacrament even today. I suspect that for many women today, and for their spouses, lovers, families and communities, abortion is celebrated as such, an occasion of deep and serious and sacred meaning." In her recent book, Godless: The Church of Liberalism, Anne Coulter recapitulates the feminist and liberal psychobabble, pseudo-religiosity, and cab driver foolish sagacity: For the para-religions of liberalism and feminism, "Abortion is the sacrament and Roe v. Wade is Holy Writ." So it seems that the radicals and conservatives agree that modern liberalism and feminism demand tribute to a modern, resurgent atavism of Moloch. No longer in vain do "they call the grisly king," and the dance "about the furnace blue" is no longer dismal, but is, sadly, well-attended with highly-charged and highly-sexed ritual "dirty dancing" and with those in attendance wielding blood-wet scapels, flesh-flecked currettes, and boxes of RU-486.

Natural Law in Cicero's De legibus, Part 6

IN BOOK TWO OF CICERO'S DE LEGIBUS, Atticus, Quintus, and Cicero move to an small island in the Fibrenus river about the size of a small palaestra, or sports arena. Before Cicero gets into the specifics of law, he recapitulates. Like a poet, who invokes the Muses, or, even he behind the Muses, invokes "from Jupiter the beginnings of song," so a jurist must invoke "Jupiter" as the source of law. The gods, then, are in charge of poetry and law. This is because law is, at its source, divine:

[L]aw was not brought up by human minds; that it is not some piece of legislation by popular assemblies; but it is something eternal which rules the entire universe through the wisdom of its commands and prohibitions. Therefore, they said, that first and final law is the mind of God who compels or forbids all things by reason. From that cause, the law which the gods have given to the human race has rightly been praised: it is the reason and mind of a wise being, suited to command and prohibition.

Legem neque hominum ingeniis excogitatam, nec scitum aliquod esse populorum, sed aeternum quiddam, quod universum mundum regeret imperandi prohibendique sapientia. Ita principem legem illam et ultimam mentem esse dicebant omnia ratione aut cogentis aut vetantis dei. Ex quo illa lex, quam di humano generi dederunt, recte est laudata: est enim ratio mensque sapientis ad iubendum et ad deterrendum idonea.

De leg., II.8. Law, then, unlike fire, was not stolen from the gods as if by some Promethean act of hubris. Law was a gift, part of the largess of the gods, part of what the gods intended for man. It is in fact something that men share with the gods. Men, to be sure, make their laws, as they did the Twelve Tables, the most basic foundation of Roman law. But there is a law more ancient, more noble, more fundamental than even the most sacred of all Roman laws.

Publius Horatius Cocles Defending the Sublicius Bridge: Following Natural Law

There is a law "coeval with the God who protects and steers the earth," aequalis illius caelum atque terras tuentis et regentis dei. De leg., II.9. This heavenly law is not written, but it has the force of law. It is this law that governed the courageous Horatius Cocles or that condemned Sextus Tarquinius's rape of Lucretia.

Reason existed, derived from nature, directing people to good conduct and way from crime; it did not begin to be a law only at the moment when it was written down, but when it came into being; and it came into being at the same time as the divine min. And therefore that true and original law, suitable for commands and prohibitions, is the right reason of Jupiter, the supreme god.

Erat enim ratio, profecta a rerum natura, et ad recte faciendum inpellens et a delicto avocans, quae non tum denique incipit lex esse quom scripta est, sed tum quom orta est. Orta autem est simul cum mente divina. Quam ob rem lex vera atque princeps, apta ad iubendum et ad vetandum, ratio est recta summi Iovis.

De leg., II.10. That law, which is divine in fons et origo, in its fount and origin, is also found in man, enfleshed as it were. It is found in semine, in seed, perhaps in all men. But it is found in full flower also in the mind of wise men, in mente sapientis.

Rape of Lucretia by Simon Vouet: Disobeying Natural Law

In fact the laws of men--the laws of human judges, human legislators, human princes--are not the preeminent example of law, but are law by participation, by "courtesy," by favor only: Quae sunt autem varie et ad tempus descriptae populis, favore magis quam re legum nomen tenent. ("The legislation that has been written down for nations in different ways and for particular occasions has the name of law more as a matter of courtesy than as a fact.") De leg., II.11. This is because the definition of law includes "choosing something just and right," in ipso nomine legis interpretando inesse vim et sententiam iusti et veri legendi. De leg., II.11. Therefore human laws are to have as their aim the common good, the safety of the state, the promotion of well-being and virtuous life of its citizens. Human laws are not laws at all if they are destructive or unjust to the people they intend to bind. Laws that damage and destroy are no more laws than rules among thieves. Quid quod multa perniciose, multa pestifere sciscuntur in populis, quae non magis legis nomen adtingunt, quam si latrones aliqua consensu suo sanxerint? Cicero asks rhetorically. De leg., II.12. They are no more to be called laws, than a wicked or ignorant doctor's poisons are to be called medicine. Cicero repeats:

Law, therefore, is the distinction between just and unjust things, produced in accordance with nature, the most ancient and first of all things, in accordance with which human laws are constructed which punish the wicked while defending and protecting the good.

Ergo est lex iustorum iniustorumque distinctio, ad illam antiquissimam et rerum omnium principem expressa naturam, ad quam leges hominum diriguntur, quae supplicio inprobos adficiunt, defendunt ac tuentur bonos.

De leg., II.13.

Given such a definition, neither laws of Titius and Appuleius nor the laws of Livius,* are to be considered laws at all. Human laws have to conform to the natural law, or they are not laws at all, and it matters not the motive of the legislator who trespasses the natural law.

From here, Cicero begins to particularize and enters into specific laws relating to Roman religious and civil life which will occupy the remainder of Book II and the greater part of Book III.

From this point, we shall politely beg leave from the dialogue of the Roman friends, and we shall leave the pleasant little island in the Fibrenus at a time shortly before the coming of Christ, to return to the 21st century to a time and a place where we eat of the evil fruit, an evil fruit that comes from having rejected the Ciceronian vision of natural law and its interaction with the positive law. We have traded the Ciceronian tradition for a positivism in law, a legal positivism which both Cicero and our Founding Fathers and everyone in between would have found a recipe for tyranny, arbitrary rule, and the inculcation of vice and injustice.

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*During their tribunates, Sextus Titius (ca. 99 B.C.) and his predecessor, Lucius Appuleius Saturninus (died ca. 100 B.C.), attempted to pass radical agrarian laws in the spirit of the Gracchi brothers which, in Cicero's view, apparently trespassed on property rights. Marcus Livius Drusus, tribune in 91 B.C., was of a similar radical reforming spirit.

Natural Law in Cicero's De legibus, Part 5

WE SAW THAT CICERO WAS CONVINCED that positive law is insufficient to govern man and that the inner discipline and sanction of the natural law is required. But Cicero reserves his greatest excoriation for those who are foolish enough to think that the positive law is the only source of right and wrong. If you would have argued that law is nothing other than convention to Cicero as, for example, John Austin or Jeremy Bentham or H. L. A. Hart may have argued, Cicero would have laughed in your face and indeed called you nothing short of stupid or mad, stultified and demented:

The Three Stooges of the Law per Cicero: Bentham, Austin, and Hart

The most stupid thing of all . . . is to consider all things just which have been ratified by a people's institutions or laws . . . . There is only one justice, which constitutes the bond among humans, and which was established by the one law, which is right reason in commands and prohibitions. . . . And if justice is obedience to the written laws and institutions of a people, and if (as these same people say) everything is to be measured by utility, then whoever thinks that it will be advantageous to him will neglect the laws and will break them if he can. The result is that there is no justice at all if it is not by nature, and the justice set up on the basis of utility is uprooted by that same utility: if nature will not confirm justice, all virtues will be eliminated. . . . To think that these things are a matter of opinion, not fixed in nature is the mark of a madman.

Iam vero illud stultissimum, existimare omnia iusta esse quae scita sint in populorum institutis aut legibus. . . . Est enim unum ius quo devincta est hominum societas et quod lex constituit una, quae lex est recta ratio imperandi atque prohibendi. . . . Quodsi iustitia est obtemperatio scriptis legibus institutisque populorum, et si, ut eidem dicunt, utilitate omnia metienda sunt, negleget leges easque perrumpet, si poterit, is qui sibi eam rem fructuosam putabit fore. Ita fit ut nulla sit omnino iustitia, si neque natura est et ea quae propter utilitatem constituitur utilitate alia conuellitur. Atqui si natura confirmatura ius non erit, virtutes omnes tollantur. . . . .Haec autem in opinione existimare, non in natura posita, dementis est.

De leg., I.42-43, 45. If all is convention, if all is determined by utility, then the law itself will be destroyed by convention or utility. There would be no grounds for liberality, for love of country, for piety, for any selfless acts or acts directed toward the common good. All these acts "arise because we are inclined to love other humans (propensi sumus ad diligendos homines), and that inclination, that diligence or love, is the foundation of justice (fundamentum iuris est)." De leg., I.43.

Justice arises from nature, and not from convention. Therefore, Cicero insists, the decisions of judges, the will of the majority, or the decree of the prince cannot define justice: a judge, a prince, the people cannot make it just to commit adultery, highway robbery, or forge wills. No, nature is above positive law. Indeed, nature is what serves as positive law's standard and judge: "But in fact we can divide good laws from bad laws by no other standard than that of nature." Atqui nos legem bonam a mala nulla alia nisi naturae norma diuidere possumus. De leg., I.44.

Man is no exception to the rule. Just like a horse or a tree is judged with reference to its nature, so man is judged with reference to his nature. We do not argue that a lame horse does not correspond to what a horse ought to be, or that a tree that has tree rot or blight is not living in accord with its nature. Nothing would suggest that man operates under a different rule. "For just as true and false, logical and illogical are judged in themselves and not be external considerations, so to a constant and consistent manner of life, which is virtue, and similarly inconstancy, which is vice, will be judged by their own nature." De leg., I.45. Man's character is judged in reference to virtue and vice, and virtue and vice, including justice and injustice, are judged in reference to nature. To suggest that man is not to be judged by nature, but by opinion, is, ultimately to propose that "men would be happy by opinion--and nothing dumber than that could possibly be said," Nam ni ita esset, beati quoque opinione essemus, quo quid dici potest stultius? De leg., I.46.

Justice, like all the virtues, "seeks no reward and no prize, and thus it is sought for itself," item iustitia nihil expetit praemii, nihil pretii. A man must not apprise justice by the profit in it, or whether it is in his interest, or if there be reward in it. If not cultivated for itself, then justice is not justice. "For that is the most unjust thing of all," id enim iniustissimum ipsum est, says Cicero, iustitiae mercedem quaerere, "to seek a reward for justice." De leg., I.49.

Cicero ends his first book of the De legibus by discussing the supreme good, the finis boni. It is, he admits, a matter of controversy among all the philosophers and their different schools. Cicero's brother Quintus is the one who summarizes the Ciceronian teaching and the Academic/Peripatetic (Platonic/Aristotelian) position and the Stoic position:

But certainly it is the case that it is the highest good either [according to the Platonic/Aristotelian schools] to live in accordance with nature, that is, to enjoy a moderate life equipped with virtue, or [according to the Stoics] to follow nature and live in accordance with what can be called its law, that is insofar as possible to do everything to accomplish the demands of nature, who wishes us to live in accordance with virtue as if it were a law.

De leg., I.56. The Socratic/Platonic/Aristotelian school stresses virtue, whereas the Stoic school stresses law. Which emphasis is left for another day among the three participants of the dialogue.

From the discussion of law in its most fundamental form, the parties now turn to how life ought to be lived, and here the focus is on the philosophical life. Wisdom ought to be loved, and the law ought to be learned, for the law is what corrects for vice and encourages virtue. For this, we need to know ourselves as the Delphi oracle declared. A man who searches inward will see in him the spark of divinity in him, a divinum ingeniumque in se, which sets him apart from the cosmos. He will recognize that it is a "great gift of the gods," tantoque munere deorum that he has this quality. This quality will be precious to him, and he will do all he can to develop it. He will also recognize it in those which share his nature. And the peroration of Cicero is long but magnificent, as he sings the praises of philosophy as tutor of all that is good in man:

And when he has studied the heaven, lands, seas, and the nature of all things, and has seen where they come from and where they are going and when and how they will perish, what in them is mortal and bound to die, what is divine and eternal; and when he has (so to speak) got a grip on the God who guides and rules these things (et regentem deum paene prenderit) and has recognized that he is not bound by human walls as the citizen of one particular spot but a citizen of the whole world as if it were a single city (sed civem totius mundi quasi unius urbis agnoverit)--then in this perception and understanding of nature, by the immortal gods, how he will know himself, as Pythian Apollo commands, how he will scorn an despise and think as nothing all those things which are commonly called magnificent! And he will fortify all these things as if by a fence through the method of argument, the knowledge of judging true and false, the science of understanding logical consequences and contradictions. And when he realizes that he is born for civil society, he will realize that he must use not just that refined type of argument but also a more expansive style of speaking, through which to guide peoples, to establish laws, to chastise the wicked and protect the good, to praise famous men and to issue instructions for safety and glory suited to persuading his fellow citizens, to exhort people to honor, to call them back from crime, to be able to comfort the afflicted, to enshrine in eternal memorials the deeds and opinions of brave and wise men together with the disgrace of the wicked. And all these great an numerous things which are recognized as present in man by those who wish to know themselves, the parent and teacher of them all is philosophy.

De leg., I.60-62.

In fact, later in his dialogue, in Book II, Cicero repeats this notion. It is the divine providence that is apparent in the cosmos, the reason by which all things--the course of the stars and planets, the seasons, the growth of plants and animals--are ordered that is the "proem to the law," legis prooemium, the prelude or precursor to human law.

What is more true than that no one ought to be so stupid and arrogant as to think that he has reason and a mind but not to believe the same of the heavens and the universe? Or to think that things which are barely understood by the greatest intelligence and reason are moved without reason? Anyone who is not compelled to be grateful by the order of the stars, the alternations of day and night, the balance of the seasons, the crops which grow for our enjoyment--why is it proper for someone like that to be counted human at all? And since all things endowed with reason are superior to those which lack reason, and since it is wrong to say that anything is superior to the natural universe, it must be admitted that the universe has reason. Who could deny that such opinions are useful when he understands how many things are secured by oaths, how conducive to safety are the religious guarantees of treaties, how many people have been kept from crime by the fear of punishment, how holy the bond of citizens one with another is, with the presence of the immortal gods as judges or as witnesses? This is the proem to the law, to use Plato's term.

De leg., II.16.*

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*Plato, Laws 4:722d (νόμους δὲ ἄρτι μοι δοκοῦμεν λέγειν ἄρχεσθαι, τὰ δ᾽ ἔμπροσθεν ἦν πάντα ἡμῖν προοίμια νόμων.) "Yet it is only recently that we have begun, as it seems, to utter laws, and what went before was all simply preludes (prooimia) to laws."