Ex post lacto, or, mother’s milk vs the positive law
April 14, 2018 § 43 Comments
If the positive law of some governing body expressly authorized X yesterday, and then that same body criminalizes X tomorrow, it is unjust – with caveats – for that body to punish someone tomorrow for having already done X yesterday. This has to do with the just exercise of authority, not the justice of the action in question: when a particular authority punishes an action which it explicitly authorized this (the punishment) is an unjust act by that authority. If I authorized you to shoot the dog it would be unjust for me to punish you for having already shot the dog, though it is not unjust for me to withdraw authorization.
This principle against ex post facto law has limits. Punishment might not be an unjust act by a different, especially a higher, authority: God punishing people for doing things which are supposedly “authorized1” by the positive law is not unjust, for example. And in general a different authority may be justified in punishing actions which it did not authorize, even though some other authority attempted to “authorize” it.
This is especially true when people ought to know better. Importantly, the fact that some authority has not said anything about X does not constitute authorization by that authority to do X. In this case no ex post facto prohibition applies as a moral constraint on the authority to punish. And I would not be too quick to dismiss the notion that mothers mostly ought to know better than to kill their own children, no matter what pressures they are under.
Modern people with their politically liberal commitments may find this difficult to swallow, but the fact that nobody in authority has expressly forbidden doing X does not mean that you are authorized (have the authority) to do X. The fact that there is no positive law prohibiting you from doing X doesn’t grant you a right to do X, for all possible X: “right” is just a different term for authority.
When we do something which we have no right to do, sometimes there are consequences, including punishment of some sort by someone in authority. And the fact that someone – even someone in authority – told you that you were authorized to do something evil does not confer actual authorization: it doesn’t make you not guilty, it just makes the person(s) who attempted to authorize evil also guilty.
The fact that someone in authority egged you on to commit murder may be a mitigating factor in deciding upon a just punishment. But it can never be entirely exculpatory. We are responsible for our own choices2, and that includes being sure that we have the authority to do the things we choose to do.
[1] I use scare quotes around “authorize” because in fact nobody has the capacity to authorize or require doing evil.
[2] Here I leave out the mentally ill and otherwise truly incompetent.
Zippy Catholic 
I remember you getting into it with Tony over deportations, but that seems like a perfect example of where a seemingly just act of authority today can be punishable tomorrow. It would be perfectly just for a new German government to come to power, arrest Merkel for treason, have her shot and give the migrants one week to leave or any that are left will be rounded by the security services into camps where they will be efficiently bulk shipped back to their motherlands.
Though one could argue that her decision to allow them itself is an injustice at which point it would be moot.
Rejecting the death penalty for women who murder their own children raises the question of what punishment a properly ordered society ought to have in place for murdering unborn children.
Does it? If capital punishment is rejected for a properly ordered society, then it does. If it is rejected for our own perversely ordered society, then it surely raises rather the question of what punishment a lousy degenerate society ought to have.
Voluntary abortion only has “two victims” in the same sense that any kind of voluntary murder has “two victims” – that is, when we cast the perpetrator as a kind of victim.
But that’s inaccurate: it assumes that volunteering for an abortion is equivalent to perpetrating one; and while that may be the case sometimes, it is far from guaranteed. As you go on to say:
We are responsible for our own choices [2] Here I leave out the mentally ill and otherwise truly incompetent.
So, are we still talking about an ideal society? Or a real one that is full of the mentally ill and incompetent?
I’m confused as to what the substantive difference is between perpetrating and volunteering for an abortion. The proper analogy seems to be hit man and the one who hires him.
[…] Source: Zippy Catholic […]
Malcolm:
The difference is that hiring a hit man (abortionist) is worse, because it involves another person in your crime.
Mike T:
I’ll just suggest that the central moral issue with something like already-accomplished immigration/refugees is the extent to which the government made a contract or agreement with immigrants/refugees. Perhaps it is analogous to asking an invited guest to leave; or perhaps it is analogous to evicting a tenant without cause. The general notion that new management voids all existing contracts is an obvious non-starter.
In short, the details matter.
As an aside, your rhetoric would be more effective, in my view, if it were less histrionic.
As an aside, your rhetoric would be more effective, in my view, if it were less histrionic.
Noted and feedback appreciated.
So, are we still talking about an ideal society? Or a real one that is full of the mentally ill and incompetent?
Mental illness has to be pretty extreme to morally mitigate a woman’s decision to have an abortion. That’s not Bipolar Disorder, but something like untreatably bad schizophrenia.
Malcolm: My statement wasn’t very clear. What I wanted to say is that one can be an accomplice to a crime in a variety of ways, and with varying degrees of culpability. The person who hires a hit-man is (typically) as fully responsible as the person who pulls the trigger. The get-away driver quite possibly is less culpable. In fact, if he’s ordinary taxi-driver who is completely unaware that he’s co-operating in a murder, then he is not guilty at all — even though his co-operation was completely voluntary. We don’t have to “cast” the taxi-driver as a victim; he legitimately is one. For that matter, the fellow who hires the hit-man can be a (culpable) perpetrator and a victim, say, if he in turn is being threatened or coerced in some way. Voluntariness and culpability are related but not the same.
Mike T: Mental illness has to be pretty extreme to morally mitigate a woman’s decision to have an abortion.
I don’t know how to quantify the extremity, but if you raise people on a diet of junk-food and poison, I think you have to expect that a lot of them are going to be very ill.
I don’t know how to quantify the extremity, but if you raise people on a diet of junk-food and poison, I think you have to expect that a lot of them are going to be very ill.
The new twinkie defense…
If the point is “We need to take everything into account when we sentence the perpetrators, absolutely.
Just like every other murder.
[I inadvertently posted my reply to Malcolm in the previous thread instead of this one: https://zippycatholic.wordpress.com/2018/04/12/victim-status/#comment-54700.]
To which Wood responded: But I think the “point” is the same one made in Zippy’s post about digging outside the walls of the Evil City.
Thanks, I don’t think I’ve read that post. (I couldn’t find a link to it either.) I should also clarify that I don’t mean just Zippy’s point(s); this topic has been making the rounds for a few years now, and I always feel as though I’ve walked into the middle of a conversation and can’t follow it properly. Which to some extent is certainly the case — I don’t read all the same articles that everyone else does, of course, so an appropriate answer might be, “If you don’t understand it, it wasn’t addressed to you.” Fair enough.
On the other hand, perhaps there is a simple bit of context that could be supplied (e.g. the point is merely to note that Mark Shea has gone off his rocker; or that “scorched earth” allusion is a reference to some specific event I could look up, etc.).
@ Mr. Green:
You can find the relevant post here.
JustSomeGuy — thank you!
Simply getting on with your life as well as you can is excellent (and oft-neglected) advice; and I take it that “digging at the foundations” covers activities such as Zippy’s running of this very site. I’m not sure how that connects to the topic of these posts, though.
If it were just the occasional post here or there, that would be unremarkable — people will, naturally, post casual commentary, write to work out their own thoughts, etc. But there are many posts (not just Zippy’s, but from all sorts of people) and many replies that carry the tone of some battle being fought… however, I have yet to come across anyone explaining exactly who is fighting whom about what. (“The” pro-life movement as though there were a single monolithic organisation? “Old” vs. “new” from what date? “Lenient” in personal charity… or in wielding their official state juridical power? Is “untreatably insane” a hyperbolic figure of speech, or a serious (inapt) attempt at psychoanalysis?) I am left reflecting that a lot of people appear to have a lot of outrage over something that nobody (that I have seen) has ever articulated clearly or rationally.
But maybe I’m reading too much into it. Or just reading too much of it (this is the Internet, after all, what do I expect?).
(Actually, this post itself does have a fairly clear and reasonable point specifically pertaining to authorisation; the previous post and others like it, less so.)
Mr. Green:
One possibility is that my posts are mostly pointless. Another is that the lack of a coherent understanding you perceive is your own, simply.
One more person seeing the truth on even one particular point is one more shovelfull of dirt.
It is true that Zippy has a tendency to elevate comments and comment replies to the status of their own posts, which might add to confusion if you’re expecting each post to be completely self-contained.
However, I would like to think that the moral point of any given post should stand on its own, regardless of the exact context of its coming into being.
If (for example) Zippy is responding to the wailing and gnashing of teeth of some forum or other to the latest particular victory or defeat in the sexualization front of the culture war, nevertheless the central point that he makes – for example, that women are, at bottom, agents with their own wills and powers, however inferior they may be in average to those of men – is perfectly capable of being considered on its own merits, without being ‘up on the news’ so to speak.
That said, if you’re not aware of the exact context, you do risk recapitulation.
Zippy: Another is that the lack of a coherent understanding you perceive is your own, simply.
Sounds far-fetched, but maybe that was why I was asking if someone could explain it to me.
(Of course, it’s far from simple to perceive understanding, let alone a lack. Whether the lack of a coherent explanation stems from a lack of understanding remains to be seen.)
JustSomeGuy: One more person seeing the truth on even one particular point is one more shovelfull of dirt.
Of course — but preaching to the choir isn’t shovelling anything. The best version of that scenario is that someone who already generally agrees with your background position is brought to consider a conclusion that he hadn’t explicitly considered before. That’s not removing dirt, that’s just the omission of adding more dirt — not a bad thing, to be sure, but it’s not going to bring down any walls.
Again, there are legitimate reasons to rehearse with the choir sometimes, but if the goal is to chip away at some foundations, we need to change people’s minds, and that takes clear and complete explanations, in terms they can understand.
Rhetocrates: which might add to confusion if you’re expecting each post to be completely self-contained.
I try to keep my expectations reasonable. Zippy himself provides plenty of cross-links, which do provide additional context, but they do not always trace back to any kind of definitions or starting point that grounds the subsequent discussion. (Sometimes they do, which is quite useful. Other posters typically don’t do even that much.)
Yes, a post ought to be able to stand, to some degree, on its own. And every piece of writing cannot recapitulate the history of the universe to this point, so it must also assume a broad shared foundation. But if one claims to be putting forth an argument for something, then one must have some solid defintions and logical steps to ground that argument, or it is merely rhetoric. A central point doesn’t have any [non-rhetorical] merits if we cannot even nail down what the point is.
And of course, it’s worse than just not being clear or not being able to show somebody the truth you have (allegedly) discovered. If you come across as an irrational jerk (because you do post insults and you don’t post rational arguments), you will likely solidify someone’s attachment to his (allegedly wrong) position.
Mr Green:
You could always ask for a show of hands of people who have changed their minds or radically altered some view of theirs as a direct result of reading my stuff.
And certainly if my stuff isn’t your cup of tea, nobody is holding a gun to your head making you read it.
You’ve convinced me Zippy. I’ve gone from being a classical American Conservative, to quasi Marxist/left liberal, to committed reactionary thinking. You demonstrated to me that the of the liberal way of thought are just the shadows on Plato’s cave.
Mr. Green
Re: preaching to the choir.
Zippy has said on more than one occasion that a large motivation for his blogging is laziness. That is, he blogs here so that instead of having to retype the ideas in comment boxes where people are disagreeing with him, he can simply link back to here so that people can see his arguments (it also helps a lot of us to have something to show others). So if you think that the blog post is here just to sit here and be discussed only by the people who follow Zippy’s blog, then you are mistaken.
I concur with MT in that Zippy has helped me repent of my liberalism. His explanation of objective moral standards and positivism has also been extremely influential and beneficial to me.
Mr. Green,
I’ll say I’ve been red-pilled on some of the most eternally significant themes (for lack of a better word) through the writings of Zippy. So your choir metaphor is wrong.
With that out of the way, I’ll just notice that if one were to type, say, “abortion” in the search tab of Zippy’s blog one would find like a bazillion posts written well beyond the span of a decade. So if you come to this site with what amounts to “meh, not convinced” without a single substantive counterpoint to a single post here, well you sorta sound like a troll.
Preaching to the choir has a solid and useful social and political function.
You go to church every Sunday. (You see, I do you the favour of assuming you are a committed Christian.) But you do believe in the creed already, don’t you? So why does that priest get up there every week after the gospel reading to talk to you about what you already know?
Gentlemen: Yes, Zippy is undeniably an intelligent and interesting writer, and I am one of the people who have benefitted from his work (e.g. regarding the Usury FAQ, or working through some of my own ideas about modernist heresies). It is because he is thoughtful and insightful that I start from the assumption that his posts have a (reasonably) rational and thought-out basis. All I’m asking for is a statement of the basis for this (more, rather, the previous) post.
Now, perhaps it doesn’t exist. Perhaps it does exist but nobody feels like presenting it. Perhaps I have fallen into unconsciousness and am hallucinating this whole exchange. But if Zippy or anyone else cares to post an account of the argument, here or anywhere else, or provide a link, to here or anywhere else, I will gratefully read it. And if nobody does, then I won’t.
https://zippycatholic.wordpress.com/2013/01/26/pro-life-stockholm-syndrome/
https://zippycatholic.wordpress.com/2013/01/27/stocking-patty-hearsts-food-bank/
https://zippycatholic.wordpress.com/2016/04/04/an-argument-that-the-pro-life-movement-does-not-consider-women-to-be-moral-agents/
https://zippycatholic.wordpress.com/2016/04/06/not-guilty-by-reason-of-life-is-hard/
https://zippycatholic.wordpress.com/2016/04/07/im-sure-your-wife-deserved-the-beatings/
https://zippycatholic.wordpress.com/2016/04/08/if-you-arent-dead-you-arent-the-murder-victim/
https://zippycatholic.wordpress.com/2016/04/13/magistrates-managing-the-madness-of-murderous-murderess-mothers/
https://zippycatholic.wordpress.com/2016/10/02/respect-for-murderesses-sunday/
https://zippycatholic.wordpress.com/2016/04/15/life-under-the-big-top/
https://zippycatholic.wordpress.com/2016/04/15/how-to-end-political-conflict-over-abortion/
https://zippycatholic.wordpress.com/2016/04/21/how-liars-come-to-believe-their-own-lies/
https://zippycatholic.wordpress.com/2016/04/25/pro-choice-not-pro-abortion/
Mr. Green,
A lot of the issues about the pro-life movement that Zippy and others have raised come down to the fact that when discussing penalties for the mother seeking an abortion, you can get a room of “mainstream pro-lifers” to more readily agree to throw a woman in prison for maliciously running down a neighbor’s dog than aborting her child.
Here is another post (there are probably more):
https://zippycatholic.wordpress.com/2016/10/13/bringing-murderers-to-the-gospel-through-a-process-of-accompaniment/
Mr. Green,
Will have to second going through Zippy’s links. You’re asking questions that have been discussed at lwngth quite a bit already.
Rest assured Zippy is probably second to Dr. Feser in terms of changing my worldview.
Zippy: Thanks for the links! I’ve read some of those before, and I’ll check out the rest.
Mike T: you can get a room of “mainstream pro-lifers” to more readily agree to throw a woman in prison for maliciously running down a neighbor’s dog than aborting her child.
Yes, and…? Of course I understand the general point, but any details about how much of a problem, why it’s a problem, and how, let alone what could be done about, or what should be done about it are far from obvious. Yet this topic always seems to provoke more self-righteous denunciation than is warranted by any particular post. So I’m on the hunt for some article somewhere that perhaps would warrant such replies.
Malcolm: Will have to second going through Zippy’s links. You’re asking questions that have been discussed at length quite a bit already.
I daresay I’ve been reading Zippy’s stuff longer (if less consistently) than you have; I’ve seen no end of discussion (here and elsewhere), but what I’m asking for is a precise statement of what the argument actually is, and the best, most careful, most logical presentation of that argument that I can get. (I know, you can barely contain your excitement!)
Argument for…What, exactly?
I don’t understand the question. That we should treat women who procure abortions exactly the same as any other murderer and not as a second victim or nonsense like that?
An argument as to why approaches that are pastoral or conciliatory in nature inevitably fail to address the root of the problem?
An argument that we coddle women and are afraid of saying they are doing anything wrong without blaming men as well?
Read Dalrock for that last one.
As to the others hopefully those links help.
Concern troll is very concerned.
Malcolm: Argument for…What, exactly?
That’s one of the things I’m trying to find out!
That we should treat women who procure abortions exactly the same as any other murderer and not as a second victim or nonsense like that?
Another thing is: who’s “we”? You and I? You and I are neither the King nor the Lord High Executioner, so we don’t have legal standing to treat murderers like anything. Or do you mean, say, how we treat them in church? I dunno, how do you treat murderers in your church? I don’t know of any in mine. Or do you mean how “we” the Catholic Church treats murderers? Well, have they been to confession?? Or “we” the people of the country that you live in? Or that I live in? (Might be awkward if that’s not the same country.) And who’s “any other murderer”? A murderer who has been caught and convicted by the state? A murderer who hasn’t been convicted… because the legal system doesn’t acknowledge the crime? How is treating a second victim as a second victim “nonsense” when that is how we treat “any other murderer”? Are pastoral approaches supposed to address the root? What is the root? Are “men” in fact blame-worthy, and if so, shouldn’t we blame them? Etc., etc., etc.
These are not bizarre questions. In fact, everyone who makes any statement on the topic has answers to these questions in his head (however crude or ill-defined). But if those details are hidden, probably no two people have the same answers to all of them.
Mr Green, concern troll writes:
…
Maybe you should just re-read the post you keep griping about.
Mr. Green,
We – I use “we” to mean Catholics – do not need to have every answer to every conceivable question about murdering babies in order to say some valid things about murdering babies.
In fact, from my perspective the notion that murdering babies is some overly complex moral question that requires Catholics to hush up with furrowed brows and hand wringing is a very large part of why we US Catholics live in a butcher house.
Yes, and…? Of course I understand the general point, but any details about how much of a problem, why it’s a problem, and how, let alone what could be done about, or what should be done about it are far from obvious. Yet this topic always seems to provoke more self-righteous denunciation than is warranted by any particular post. So I’m on the hunt for some article somewhere that perhaps would warrant such replies.
“Why it’s a problem.” If you’re a conservative Christian and have to ask…
FWIW, I provided you some examples. They’re not particularly hard to find. When Zippy fishes them out of moderation, they’ll be in the other thread. So be prepared for some reading if you’re not a concern troll.
What Wood said.
I mean, you’re the guy asking the questions here. If you actually have a specific question – want to know a position, or why we think that, or who we’re referring to – you can try asking that directly, and then subsequently discovering it was answered and probably several times over.
Late to the party here, but I truly have to give credit to good Sir Zippy for his eye-opening writings on liberalism, authority and the pro-life movement. So “Mr. Green” can count me as one more ‘convert’, if he wishes.
Mr. Green,
Your reading assignment is posted:
https://zippycatholic.wordpress.com/2018/04/19/what-game-theory-says-about-negotiating-with-terrorists/#comment-54924
If you go to Dalrock’s beware the comments. He for the longest time had a extremely limited censorship policy. Some of the comments were interesting, but there was a tendency in some threads for commenters to have… prurient asides.
TBH I am not sure if Dalrock ever changed his commentir policy, because I haven’t visited his site for a long time.