Is the obligation to know the law a moral obligation, a legal obligation, or both? But we ought not assume that there are any moral obligations apart from legal obligations.

Suppose, then, that the only obligations there are are legal obligations: there are no moral obligations as a species of extra-legal obligations. There are no obligations logically antecedent to legal obligations. On this supposition, to be obligated to do X is to be legally obligated to do X in the sense that if there were no positive law that expressed the obligation to do X, then there would be no obligation to do X. Accordingly, the supposition is that obligatoriness collapses into legal obligatoriness.

Now if all obligations are legal obligations, if obligatoriness just is legal obligatoriness, and there is an obligation to know the law, then this obligation is a legal obligation. If so, this obligation must be codified in some law L that mandates that one ought to know the law. L, then, is the positive law that states that one ought to know the law. It follows that L mandates that one know all laws including L. Thus L mandates that one know that L is a law and what it requires. It mandates that one know that it is legally required that knowledge of the laws is legally required.

Now either I know L or I don't. If I don't, then I should since ignorance of the law is no excuse. But how can I be obligated to know a law that I do not know when my obligation to know the law is not something antecedent to the positive law but is expressed only in the actual positive law? This is what is puzzling me.

I am obligated to know L. But this obligation can only be a legal obligation on our supposition. Thus there is a law, namely L, that legally obligates me to know it. But I can be under this obligation only if I know L. If I don't know L I am under no obligation to know it. This is because, on our supposition, the obligation toknow L cannot be logically antecedent to L.

I conclude that our supposition is false, the supposition that the only obligations there are are legal obligations. The obligation to know the law cannot be a legal obligation; it must be a moral obligation. It follows that the moral is logically antecedent to the legal, and does not collapse into the legal.

Now I am quite convinced (for other reasons) that the moral is logically antecedent to the legal. But I am not so sure that above reasoning is correct or even clear enough to be evaluated.

Take 'fact.' For some, it is a matter of definition that a fact is a true proposition. But as I use the term, a fact is the truth-maker of a true proposition. Suppose you use 'fact' as interchangeable with 'true proposition.' Then I can accommodate you by distinguishing between facts-that and facts-of. Thus, the fact that Bill is blogging is made true by the fact of Bill's blogging. But we must sort out these definitional questions if we are to make any progress with the substantive issues. A substantive question would be: Are there facts? Obviously, we cannot make any headway with this until we agree on how we are using 'facts.'

The same holds no matter what the subject matter, and understanding this is a mark of an educated person. There is no point in debating whether Obama is a socialist until one has defined or at least explained 'socialist.' Would that the gasbags of contemporary punditry appreciated this simple point!

Returning to 'fact,' if you say that a fact is a true proposition, then I will ask you how you are using 'proposition.' Do you mean the sense of a context-free declarative sentence? Are propositions for you abstract objects? Are you Fregean when it comes to propositions? But now we need to get clear about 'abstract' and 'object.' Do you use 'object' and 'entity' interchangeably? Or can there be objects that are not entities and entities that are not objects? (An hallucinated pink rat might count as an object that is not an entity, and a being that has never been the accusative of any intellect might count as an entity that is not an object.) Someone who uses 'object' in such a way that there is no object without a (thinking) subject is not misusing the word: that is a traditional use. But equally, a person who uses 'object' to mean entity is not misusing it either. So the use of 'object' needs clarification.

'Object' is used in at least three ways, none of them wrong: (i) object = entity; (ii) object = intentional object = accusative of a mental act; (iii) object = particular. I just used 'particular.' But what is a particular? I would explain 'particular' by contrast to 'universal' and say that a particular is any item that is unrepeatable, while a universal is any item that is repeatable.

I just used the word 'item.' What do I mean by that? As I use it, 'item' is the most noncommittal of terms, the ultimate in terminological neutrality. It does not beg any questions or import any theories. An entity (from L. entitas, from ens, being) is anything that exists or has being, with 'existence' and 'being' being used interchangeably. 'Item,' however, is broader than 'entity' since an item may or may not exist. An item is anything one can think about or refer to in any way. Suppose a Meinongian distinguishes among existence, being, and Aussersein (extrabeing). Then 'item' is neutral with respect to that three-fold distinction. 'Item' commits me to nothing except self-identity. Cf. Latin idem. An item is an item. No item is self-diverse. Self-diversity is of course an item, but it is not self-diverse! Why is self-diversity an item? Because I just referred to it. Nothing is self-diverse, and nothing can be self-diverse, so this 'property' cannot be a property of anything. Yet we are now thinking about it and saying truth things about it: self-diversity is not self-diverse; it is what it is; it is not possibly instantiated; it is diverse from self-identity; etc.

But what about the Meinongian item, the self-diverse item? Is it self-diverse or not? This looks to be a puzzle for a Meinongian, but since I am not a Meinongian I don't have to solve it.

Returning to 'abstract' and its opposite, one might use 'abstract' and 'concrete' as follows: X is abstract (concrete) iff X is causally inert (causally active/passive). But I know of at least one name philosopher who uses 'abstract' interchangeably with 'nonspatiotemporal.' On this usage, God would be an abstract object, while on the first definition God would be concrete.

Note that an abstract entity on either of these two definitions can be a substance (another word with about ten meanings!), i.e., a being capable of independent existence. But 'abstract' is used by philosophers as diverse as Hegel and Keith Campbell (the Aussie trope theorist) to refer to non-independent objects. And indeed, their use is the classical, and etymologically correct, use.

I have merely scratched the surface of terminological fluidity in philosophy. I could write pages more (and you hope I won't). The main point is that, before 'cutting loose,' one must carefully define one's terms and reflect on how they cohere with one another.

The Unavoidability of Terminological Fluidity

The fact of terminological fluidity is undeniable. It is unfortunate in that it impedes understanding and communication. Time is consumed by mere terminological clarification. But nothing can or should be done about it. For the terminology we craft, and the distinctions we draw, may limit or enable or otherwise interfere with the claims we advance. Suppose there were a Central Terminology Authority (CTA) and it ruled that 'exist' shall mean: to be instantiated. It would follow from this terminological fiat that no individual can exist. For it is obvious that no individual can be instantiated: 'Socrates has instances' is nonsense. And yet it makes sense to speak of the existence of individuals. Or if the CTA were to rule that 'cause; is to be defined as a relation between events, this would rule out agent causation, which is the classical notion of causation.

Terminological fluidity must be tolerated in a discipline as open-ended as philosophy. Kierkegaard compares philosophizing without dogma to sewing without a knot at the end of one’s thread. His thought is that the reasoning process must be anchored in premises whose truth is beyond question; otherwise, one will never arrive at a fixed conclusion. This invites the rebuttal that to philosophize with dogma is not to philosophize at all. Philosophy is radical reflection: it cannot take anything for granted, as immune from examination. This is the very idea of philosophy. If so, then a fixed and unquestionable terminology is as anathema to the true philosopher as unquestionable premises.

The requisites of an office are the properties that must be possessed by anything that occupies the office, if anything does occupy it. Thus, among the requisites of the office of U. S. president, there is the property of being at least 35 years of age. Among the requisites of the divine office we find the familiar omni-attributes or 'perfections,' omniscience, etc. Both the presidential and the divine offices are individual offices in the sense that, if they are occupied, then they are occupied by an individual. Note that the requisites of an individual office are first-level properties of the office-holders, if there are any.

Tichý finds two fallacies in the above Cartesian argument.

The first is that it assumes that existence is a first-level property, a property of individuals. For if existence is one of the requisites of the divine office, as it must be if existence is a perfection, then existence is a property that can be meaningfully attributed to individuals. But we have seen that for Tichý, existence is not a property of individuals but of offices. It is the second-level property of being-occupied.

The second mistake in the Cartesian argument is that it relies on the following fallacious argument-pattern:

P is a requisite of office O
Therefore
The occupant of O instantiates P.

The argument-form is indeed invalid. Let O be the office of King of France. Let P be being human. P is a requisite of O. But it doesn't follow that the occupant of the office of King of France is human. For there is no occupant. Similarly, even if existence were a requisite of the divine office, it would not follow that the occupant of the divine office exists. For the office may be unoccupied. All we can safely infer from the fact, if it is a fact, that existence is a requisite of the divine office is that, if the office is occupied, then the occupant exists.

This is a very old objection, and it strikes me as sound. The concept of God is the concept of a being possessing all perfections. Now let it be granted that existence is a perfection, a "great-making property" in Alvin Plantinga's phrase. From these premises we may validly infer that the concept of God is the concept of a being that exists, indeed, the concept of a being that is as inseparable from its existence as the idea of a mountain from the idea of a valley, to revert to a Cartesian analogy. Still, how does this get us to the conclusion that God exists? For all that this argument shows, the concept of God might fail of instantiation: there might not be anything that falls under it. If something instantiates the God-concept, then that thing has an essence which includes or entails existence. But from this one cannot validly infer that something does instantiate the God-concept, or occupy the divine office.

Of course, Tichy does not grant that existence is a perfection, a great-making property of God. For his whole point is that existence cannot be attributed to individuals. This yields a much more radical objection to the Cartesian ontological argument, an objection one finds already in Frege, but not before Frege: Kant does not anticipate Frege's exact point about existence, contrary to what many, including Tichy, think. (To establish this would require a separate post.) In The Foundations of Arithmetic, we read, "Because existence is a property of concepts, the ontological argument for the existence of God breaks down." (p. 65) This amounts to a very radical criticism since it implies that 'God exists,' interpreted as the attribution of existence to an individual is meaningless.

Now I reject this more radical Fregean objection to the ontological argument. First, it implies a theory of existence open to powerful objections, a couple of which are sketched here. Second, the argument for it is not compelling, as explained here.

Thus few if any will say that Jones, an adult human, lacks the right to life when he is sleeping, or passed out drunk, or under general anaesthetic, or temporarily incapacitated due to an auto crash, or having a serious stroke or heart attack, or reversibly comatose, or in some similar state. Nor would we say that Jones' right to life varies with his alertness (or any other mental variable) or his age. Suppose a male is at his prime (all things considered) at age 50. Few would say that a person under or over 50 has less of a right to life. And if anyone were to say that, I wouldn't consider it worthwhile to discuss moral questions with him.

RP, explicitly stated, is CP. Now suppose someone, call him 'Peter,' tries to mount an argument against CP. He begins by reminding us of a couple of conceptual truths:

CT1. A capacity C's being unexercised at time t excludes C's being exercised at t. (This is an analog of the principle that a thing's being a potential F at t excludes its being an actual F at t.)

CT2. The properties that make an exercised capacity exercised, or supervene upon a capacity's being exercised are not properties of the corresponding unexercised capacity. (This is an analog of the principle that the properties that make an actual F actual are not properties of the same thing when it was potentially F.)

From these conceptual truths, Peter then infers that CP is false. He reasons as follows. "Since the right to life supervenes upon the exercise of such capacities as rationality, agency, and the ability to make and implement plans, there is no right to life when none of them are being exercised." Suppose Peter's argument is sound and shows that CP is false. Then Peter's argument will have 'proved too much': it will have proved that RP is also false since CP is just an explicit statement of RP.

Of course, Peter might bite the bullet in one of two ways. He might concede that RP entails CP and reject both of them. Or he might cleave to RP while prising it apart from CP. He would then be holding RP in tandem with CCP. Either way, I would consider the discussion to be at an end. For then we would lack common moral ground for profitable discussion.

The right thing to say is that a person's right to life, which supervenes upon such capacities as rationality and agency, is had by the person not just at the times at which the capacities are exercised but at other times as well. It is the person's having of the capacity (whether exercised or not) that confers the right to life.

Young children lack even the capacities associated with moral personhood and rights-possession. But they have a second-order capacity, the capacity to develop these capacities. The potentialist grounds the right to life in the potential to develop the first-order capacities. If one argues against the potentialist by invoking the truisms that the potential is not actual and the properties of the actual are not properties of the potential, then one should also argue that first-order capacities are not enough to ground a right to life, and that the actual exercise of these capacities is necessary. But then one must accept the counterintuitive consequence that a person's right to life is had by him only when he is fully exercising such capacities as rationality, agency, and the ability to make and implement plans.

In numerous previous posts, with the help of commenters, I have made precise the sense of 'potentiality' in play in PA and PP and have refuted various objections to PP including Joel Feinberg's "logical point," Peter Lupu's somewhat similar objection, as well as some of the probative overkill or proves-too-much objections. There is still an objection or two to turn aside, but the time has come to give positive arguments for PP.

To understand PP one must understand that it grounds the pre-natal right to life in the very potentiality of a genetically human individual to develop, in the normal course of events, into a being that actually possesses such rights-conferring properties as rationality. Therefore, if there are any post-natal genetically human individuals to which we ascribe rights on the basis of their potentiality to develop into individuals that actually possess rights-conferring properties, then subscription to PP is already a fact and its extension to the pre-natal cases will be mandatory unless there can be shown to be a morally relevant difference between the pre-natal and the post-natal cases. Now there are such post-natal cases. Therefore, since we already accept and apply PP to these post-natal cases, we ought to apply it to the pre-natal cases as well unless there is a morally relevant difference between the two sorts of case.

Consider post-natal humans from birth on to the age of seven or so. Do they have rights? Liberals, who believe in all sorts of rights, will presumably maintain that children have rights to health care, education, food, shelter, clothing and what all else. But underlying all of these is surely the right to life without which none of the others has any purchase. Now what is the basis for ascribing rights to neonates or one year olds? They cannot walk or talk, syllogize or philosophize. Chess is out of the question as is cell phone use. They cannot even control their bowels. They are helpless and in a sense good-for-nothing. They don't cook or clean or shop or work or pay taxes. They are more useless than cats who at least can fend for thmselves and control the rodent population. There is little that is actual about them. They don't realize much value or exercise the capacities that confer value or a right to life. And yet, as matter of fact, we consider them precious.

On what basis, then, do we ascribe value and rights to them? We value them for their promise and potentiality. We value them for what they will, in the normal course of events, become. I am not saying that there is nothing actual in young children that we value. We may value their openness to experience, their curiosity, their ability to learn, their sheer existence. But their potentiality outweighs their actuality and this potentiality is the ground of our ascription to them of the right to life and other rights that presuppose this fundamental right. So my first argument goes like this:

1. We ascribe the right to life to neonates and young children on the basis of their potentialities.
2. There is no morally relevant difference between neonates and young children and fetuses.
3. Principles -- in this case PP -- should be applied consistently to all like cases.
Therefore
4. We should ascribe the right to life to fetuses on the basis of their potentialities.

What I am arguing is that we already do accept PP and that we ought to be consistent in its application. To refuse to apply PP to the pre-natal cases is to fail to apply the principle consistently.