a philosophy blog

Mommy has a license to kill, Kant said so

In the course of entertaining the idea that retribution may not be a principle of justice at all, Bedau mentions that people have been executed for causes that seem arbitrary and unrelated to any genuine sense of retribution: “aggravated assault, rape, kidnapping, armed robbery, sabotage, and espionage.” Even, in the state of Georgia, for desecrating a grave.1 Then there are the true criminal homicides that have often been excluded from the penalty, hence, the development of “degrees” of murder…

And then Bedau notes in passing:

Even Kant [otherwise, a firm advocate of the death penalty for murder] took a casual attitude toward a mother’s killing of her illegitimate child. (‘A child born into the world outside marriage is outside the law…, and consequently, it is also outside the protection of the law.’ [In note 14, Bedau cites Kant’s The Metaphysical Elements of Justice, 101.])

Linger on this bit of obiter dictum.

In The Science of Right, Part II, 49, E, I, (p. 86 of the Hastie translation) Kant explains:

An illegitimate child comes into the world outside of the law which properly regulates marriage, and it is thus born beyond the pale or constitutional protection of the law. Such a child is introduced, as it were, like prohibited goods, into the commonwealth, and as it has no legal right to existence in this way, its destruction might also be ignored; nor can the shame of the mother, when her unmarried confinement is known, be removed by any legal ordinance.

Presumably, in light of his laxity toward the infanticide of illegitimates, Kant would have excused abortion outside of marriage. There is an interesting question here. Why, really? As a matter of honor?—as he seems to excuse honor-killing, as in a duel, a few lines removed from this same passage.

And compare this from Hobbes (De Cive, chapter IX, article iii), writing of mothers:

Neither doe their husbands dispose of their children, but themselves; which in truth they do by the right of nature; forasmuch as they who have the supreme power, are not tyed at all (as hath bin shewed) to the civill lawes. Adde also that in the state of nature it cannot be known who is the Father but by the testimony of the Mother; the child therefore is his whose the Mother will have it, and therefore hers; Wherefore originall Dominion over children belongs to the Mother, and among men no lesse than other creatures: The birth followes the belly.2

There are several reasons: not just because the child comes into existence outside the law (a necessarily derived institution for Kant, secondary to morality) but because it is not yet a moral being, that is, with rational capacities and possessed of rights to respect as an autonomous being. But even deeper than this, because of who the murderer would be. It is not clear Kant meant his moral theory to apply to women, whose rational capacity as a class, he openly found suspect. (And we don’t need to jump to the conclusion that he was any kind of ordinary sexist. Sexist of a sort, certainly, but read him carefully, as Weininger did, and you may notice something quite amenable to the most radical feminist ethical theory.) As such, not subject to the monomaniacal rule of reason, she borders on being adiaphorous, excused from murder or at least not indictable in the straightforward way responsibility will accrue to a male murderer. She was, for Kant, almost amoral. Weininger, of course, pushed this idea all the way. For the morality she is accused of not fully partaking in is not hers but his.

If this sounds sexist (in the common derogatory sense), it is only because both women and men have bought into the idea that the male moral vision was the human standard: viz. the one that places principled behavior on a pedestal. The thought of a more fluid basis for interpersonal behavior in which non-rational contingency plays at least as central a role as any rule of reason is sacrilege to this view. And indeed it is, if you are male. As a woman, however, you are less likely to be shocked at the thought. But then you, unlike him, have been blessed with far fewer of the impulses that necessitate homage to a god of reason.

InfanticideIf it isn’t clear where this is going in application to the case at hand, what I mean to say is that the prerogative to take life is more safely invested in the one who gives it. What makes abortion problematic is not the personhood or lack thereof of the fetus, nor is it the right of the mother to control her own body (that idea is a lame attempt to import male notions of property rights to the feminine estate: her body), it is that during the period of gestation—and for sometime after—a judgment must be made by the mother or mother-to-be regarding an entire future life for which she is ultimately responsible. If this child has reason someday to rue the day it was born, she and she alone will be the object of the curse and it is her fate as a woman to be saddled with the momentous decision now with only the sketchiest information to go on.3

This is how abortion can be both wrong and her prerogative. The punishment she will endure, if she errs, cannot come from outside. She will know before anyone else if she has done wrong in curtailing this life.

If Kant felt in marriage the situation is different, it is because the marriage contract is traditionally an agreement involving another party with severable rights. The presumably complicit father is to be taken into account as well as, perhaps, by extension, the community, as the marriage contract is hallowed by this larger entity. Thus even if the husband should agree with a wife’s choice to abort the child, the contract they are parties to is not solely between them where children are involved. The community, through its law, presumes marriage is for the sake of children in which it has an interest.

Kant aside, a society may certainly choose to retreat from this involvement because it no longer perceives a pressing need for novice members. In this decision, utility, for once, has a place. Neither reason nor any morality ever requires enlarging its field of operation. And then marriage then will decline as an institution as it should—and, indeed, is in highly developed societies.4

See also “An affair of honor and the darkness of hell”.


1. Hugo Adam Bedau, “A Matter of Life and Death” in Crime and Punishment: Philosophic Explorations, Michael J. Gorr and Sterling Harwood, eds., (Boston and London: Jones and Bartlett, 1995), p. 511. [From Death is Different: Studies in Morality, Law, and Politics of Capital Punishment, (Boston: Northeastern University Press, 1987).]

2. See also Leviathan, Chapter XX, where Hobbes regards dominion over the child, in the state of nature, as lying squarely with the mother, and only by contract devolving to a father: a contract more or less forced as viewed from within Hobbes’ scheme, consisting of self-interested “rational entities in motion” of both sexes (and, of course, leaving out of account complicating affinities of the sort Hume introduced). Hobbes’ acknowledgement of a logically primeval mother-right has been brought out by Carole Pateman in her paper on Hobbes, patriarchy and conjugal right.

3. Cf. Luno, Phil. Notebook XII, sec. 104.

4. If marriage serves any purpose now, it is one, a woman especially, should find suspicious. She may be contracting away a bit of her moral autonomy in this decision, and assuming this matters to her (to the extent it may—somewhat hypocritically—to the father of her children), she should beware.

Posted by luno in abortion, Hobbes, female criminality, capital punishment, marriage, Kant, Deontology, sex differences, Weininger (Monday August 22, 2005 at 1:20 pm)

No comments for Mommy has a license to kill, Kant said so»

No comments yet.

Leave a comment


(required but not published)

RSS feed for comments on this post. TrackBack URI

Creative Commons License