Sunday, April 19, 2009

Comments on Chapter 2: Pro-Creation

Please post comments or questions on Chapter 2 here. I will then be able to start a new thread, coded with the appropriate label, to continue the discussion

18 comments:

Grandmère Mimi said...

Tobias, I delighted in your comments in the "additional observations" box on p. 13 about the English public schools and the brief quote from C. S. Lewis.

In the future, I'll try to address the topics in your book more seriously.

David Shepherd said...

Having read this chapter, it does seem that there is a distinction that should be maintained between those who hold to pro-creation as a primary essential good of the marriage and those who view marriage as participation in an act that affirms the goodness of building kinship in a manner that admits of our pro-creative genetic kinship potential.

While some may adhere to the former, they present an easy target for objection. It is the latter position that is ripe for reasoned debate.

I think that it's important that we don't confound the two views as identical. Such an affirming relationship does not need to produce the good of pro-creation, and the couple may be medically incapacitated. However, it does mean that the parties involved intend to engage in a union that admits of and is aligned with the kinship potential of pro-creative human sexuality.

Tobias Stanislas Haller said...

David, could you say more of what you mean by "a union that admits of and is al8igned with the kinship potential." I think my point is that an infertile couple precisely do not "admit of" a procreative "potential," by definition. So I'm not sure what "admits of" or "aligns with" means in your sentence, nor precisely what you mean by a "kinship potential." Please say more.

David Shepherd said...

May i refer you to Peter Ould's blog post: http://www.peter-ould.net/2011/09/22/regarding-same-sex-marriage-an-essay/comment-page-1/#comment-116209

The key point that he makes is: 'The most obvious concern raised is that the argument laid out by Girgis, George and Anderson in this paper seems to elevate sex and child-bearing to an artificial state of necessity for marriage to be valid. If procreation is a good of marriage, what about those marriages where procreation cannot occur? It is important to answer this by clarifying what Girgis et al are and are not saying. What they are not arguing is that marriage must include procreation, or at least the physical act of coitus which leads to procreation. Rather, marriage is a union of two people who, were they able to would choose to perform the act of coitus that led to procreation. This means that the example of an elderly couple who cannot perform coitus, or a couple where one or both are disabled and the same applies are still validly married if, were they able to, they would perform coitus.

The second thing to note about what Girgis et al are arguing is not that the coitus itself is the act that defines marriage, rather it is the thing that points towards the good of marriage (procreation) that society agrees is one of the functions of marriage. It does not require every single marriage to result in procreation for marriage itself to be an institution designed in part to provide for procreation within the most stable and nurturing environment possible for the offspring. For example, you do not need to catch a fish everytime you cast a rod for everytime you cast a rod to be understood as you angling. You do not need to win the match to have played successfully a game of tennis. For a marriage to be a valid marriage, the couple would have to want to perform coitus if they were able to. They do not necessarily have to procreate, but it is the willing performance of coitus that points towards procreation.'

By the phrase 'one of the functions of marriage', I assume that Peter is avoiding the reductive view that you also eschew.

Tobias Stanislas Haller said...

Thank you, David. There are a number of problems with this passage.

1) The RC church does in fact make a distinction between infertility and impotence, which appears to be alluded to under the same heading in this, "would if they could" argument. The RC church permits the marriage of infertile persons (as long as the infertility is not concealed), but not of permanently impotent persons, because they do see, as an essential of marriage, the capacity of performing an act which (all other things being equal) would be procreative. There was a case a few years back of a quadraplegic denied RC marriage because of his physical limitations. An elderly couple who cannot perform coitus could not enter a valid marriage in the RC Church.

2) For a long time in a large part of the Christian church, coitus was considered determinative of marriage, and even now is required in the RCC for "consummation" of the marriage bond.

3) Finally, the premise that marriage must "point towards proceation" and take place between a couple performing an act which would lead to procreation if they were capable of procreation, appears to be a somewhat roundabout way of begging the question: that only a man and woman can marry. It avoids the real question, which is, why does marriage have to "point to" procreation? Just because many marriages do result in procreation, or that marriage is a way of providing a stable environment in which procreation can take place does not, in itself, limit marriage to such couples, unless one accepts, a priori, the very principle of "pointing to."

So my question would have to be, why does any particular marriage have to "point to" ends which it is not in fact capable of achieving?

And, secondly, as Jacob Milgrom points out in his analysis of Leviticus, isn't the raising of children as much an aspect of the "societal structure" of marriage as their procreation, by which both same-sex and infertile/impotent mixed-sex couples can form a "family structure" that more than points to, but actually accomplishes the end for which "family" or "marriage" exist?

These are the nub of the issue, and I would like to hear your thoughts. As to the "angling" metaphor. A person fishing in a stream no doubt has some expectation of catching a fish even if he fails to do so. A man who has had a prostatectomy, or a woman after a hysterectomy, does not engage in sexual intercourse with the expectation of procreation. The proper parallel would be to a person casting a fishing line into empty space -- and no, I would not call that "angling!" The author of this piece really hasn't grappled with the meaning of "potential."

David Shepherd said...

‘So my question would have to be, why does any particular marriage have to "point to" ends which it is not in fact capable of achieving?’

It’s not begging the question when the rights and duties of affinity and consanguinity in kinship are interwoven. Marriage establishes the benchmark intent of a type of physical affinity upon which consanguine rights can be considered concomitant. The focus of the law is upon establishing that level of commitment to be intended by both parties to the marriage. That level of commitment must be established as the genuine intent, even in those incapable of producing offspring.

The legal framework supports and protects that benchmark as it does for other institutions. For instance, the decision to incorporate and become a recognised legal entity requires a certain level of conformity. There are, no doubt, numerous means by which an association of individuals may be established for different purposes. They do not have to incorporate and become a legal entity. In some cases, it would not even be advisable.
How can marriage entertain a form of affinity that, normatively, rather than by genuine incapacity, prevents the natural possibility of any consanguine kinship ties?

Tobias Stanislas Haller said...

David, this is a classic example of "begging the question." You are simply restating your premise in different terms.

On what basis does marriage require the creation of consanguine kinship ties? Or lacking the ability to actually create them, the "intent" to form such ties? And how can one legally "intend" that which one cannot perform?

You refer to "the law." What law? The law of a number of jurisdictions where same-sex marriage is permitted do not require this creation of consanguine kinship rights even in those who are capable of producing offspring, as far as I know. The laws governing inheritance only take effect when there is an actual heir, and there is no presumption that this necessarily be "normative." The laws with which I am familiar address this in the form of conditionals, not absolutes.

Further, many states have laws permitting third-party sperm and egg donation -- which completely undercuts any notion of actual consanguinity. To say nothing of adoption, which creates non-consanguine kinship relationships.

Could you cite a law that makes the demands you describe here?

And again, note that my question, which you have not answered, is about particular marriages. An infertile couple cannot legally, rationally, or morally "intend" to create consanguine kinship ties, and they are "naturally" so prevented.

So, for the reasons laid out above, I assert that the creation of consanguine kinship ties is not a requirement for marriage. Can you offer evidence to the contrary?

David Shepherd said...

The simple proof is whether one party, either presumed infertile, or who attempted to prevent conception, would be supported by law in an attempt to end their marital responsibility, should a child be conceived.

The law would rightly hold that both parties understood and intended a physical affinity that could result in consanguine kinship. That, in marriage, they accepted that as a potential outcome. This is what I mean by the intent of the marriage.

In contrast, show me a bunch of jurisdictions that would hold the parties in marriage to a lower expectation.

David Shepherd said...

'And again, note that my question, which you have not answered, is about particular marriages. An infertile couple cannot legally, rationally, or morally "intend" to create consanguine kinship ties, and they are "naturally" so prevented.'

So, let's assume that the couple are tested and presumed they are infertile before marriage. They are apparently, as you say, unable to create consanguine kinship ties. However, they maintain sexual relations and several years later, by some freak of nature, become pregnant. That one party to the marriage should claim that, as an infertile couple, this conception and the responsibility of child-rearing would involve a level of commitment that they had not entertained would not be supported by any jurisdiction. It was implied by the common understanding of marriage.

Are there a bunch of jurisdictions in which marriage doesn't entail that commitment as implied?

(PS Sorry for delay. Sandman beckoned at 2 am GMT)

David Shepherd said...

I think that the phrase used in law is 'implied assumpsit'.

'An implied assumpsit is where one has not made any formal promise to do an act or to pay a sum of money to another, but who is presumed from his conduct to have assumed to do what is in point of law just and right; for, 1st, it is to be presumed that no one desires to enrich himself at the expense of another; 2nd, it is a rule that he who desires the antecedent, must abide by the consequent; as, if I receive a loaf of bread or a newspaper daily sent to my house without orders, and I use it without objection, I am presumed to have accepted the terms upon which the person sending it had in contemplation, that I should pay a fair price for it; 3rd, it is also a rule that every one is presumed to assent to what is useful to him.' Law Dictionary

Tobias Stanislas Haller said...

David, first of all I have to note, as I have seen in your other comments on other blogs, your tendency to "wander" from the point at hand into foreign territory. Thus, what began as a topic on procreation and whether it is essential to marriage, has now wandered off into an area of contract law, that, as far as I can see, has absolutely no bearing on the subject at hand.

That being said, I have my doubts that the conception of a child by a couple who believed themselves infertile and did not expect a child, might not use that birth as grounds for divorce. The couple might well divorce for other reasons even though the birth was an added stressor.

Marriage law does not include childbearing as an "assumpsit" -- though it may well include responsibility for the care and maintenance of any child born as a requirement. This is, as I say, a "conditional" aspect of the law -- and it does not apply unless the condition is met.

As a matter of fact, if a person is infertile but does _not_ reveal the fact to the intended spouse prior to marriage, that constitutes grounds not only for divorce, but annulment, on the basis of an "assumpsit" by the other party. That is, people are assumed fertile unless shown to be otherwise -- but only as a convention. But if infertility is disclosed, there can be no "implied assumpsit" -- in fact, what is assumed is the contrary. As to your case, I recall a case from a few years back involving a man whose wife did not want to have any more children, and the man either had a vasectomy that failed, or misled his wife and didn't actually have the vasectomy --- and when she conceived sued for divorce. Care for the child was a condition of the divorce being granted, as I recall. There are also a few places where the marriage law requires, for example, persons within degrees of affinity to prove infertility prior to marriage -- so in that case the assumpsit is of infertility, not fertility. So I don't think your argument holds any water at all; nor is it germane to the discussion at hand.

Which is: the law of church and state does not require that marriages result in childbirth, or that couples who marry be capable of it. It does call for the protection of children, should they be born.

Ergo, procreation is not essential to marriage.

Have you any argument to the contrary that addresses that issue?

David Shepherd said...

Tobias, you asked for an instance and I provided it.

You have provided, as contrary examples, two instances of deception and apply 'assumpsit' to a marital case (although, before that, you declared the term completely irrelevant to such):

1. 'As a matter of fact, if a person is infertile but does _not_ reveal the fact to the intended spouse prior to marriage, that constitutes grounds not only for divorce, but annulment, on the basis of an "assumpsit" by the other party.'

2. 'As to your case, I recall a case from a few years back involving a man whose wife did not want to have any more children, and the man either had a vasectomy that failed, or misled his wife and didn't actually have the vasectomy --- and when she conceived sued for divorce.'

How are these even remotely relevant to my case in which the honest intent of both parties was established? A remedy in case law for a deception in a particular jurisdiction bears no relevance to the common understanding of the honest intent of both parties who enter into a marriage (as we discuss here).

'There are also a few places where the marriage law requires, for example, persons within degrees of affinity to prove infertility prior to marriage -- so in that case the assumpsit is of infertility, not fertility. So I don't think your argument holds any water at all; nor is it germane to the discussion at hand.'

Again, you resort to a particular exception in certain jurisdictions where marriage is permitted within the degrees of affinity to prove the general case.

That's 'cherry picking' by any other name.

Your cases of deception will not negate my point that 'The law would rightly hold that both parties understood and intended a physical affinity that could result in consanguine kinship'.

Tobias Stanislas Haller said...

David, your point is not proven, and my "cherry picking" exceptions, as you call them, proves that there is no such rule and your general assertion is false.

There is no legal requirement that both parties to a marriage understand and intend a physical affinity that could result in consanguine kinship. I have given you several counterexamples in proof of your error, in both civil and church law. There is no "general case" in this matter -- only the specific laws governing marriage from place to place. You have yet to provide even one example of a law that supports your "general case." The hypothetical case you describe, as I've shown, would not necessarily end as you suggest.

Furthermore, as to your misapplication of "implied assumptit." This principle cannot apply where there is an explicit rejection of what might otherwise be assumed. The whole legal point of "assumptit" is that the implication be reasonably "assumed" as in the examples cited in the law dictionary -- which it cannot be where it is explicitly denied.

The proper application of the principle, if you are interested, actually disproves your general point. Most couples do marry both intending to have children, and assuming themselves to be capable of doing so. The "implied assumptit" is fertility. However, if the couple later discover that one or both is not capable of procreation, that is NOT grounds for divorce. "Implied assumptit" does not apply. Procreation is not a guaranteed "good" received in exchange for a consideration.

In your circular reasoning, you are applying what you believe to be one of the purposes of marriage, procreation, which you rather complicatedly define as the creation of consanguineous kinship, as an absolute, and the whole point is that it is not an absolute requirement in law that a couple be capable of, or intend, such a thing.

As I said, if it is a requirement of law, point me to the law that says so. I've reviewed NY State's Domestic Relations law, and find no such requirement -- and that was true prior to the admission of same-sex marriage in this state.

Your assertion is disproven, unless you can produce evidence, in the form of a statue stating what you claim is "law." It is definitely not law in NY.

David Shepherd said...

Tobias, your counter-examples are based on instances of deception, not the honest intent of both parties.

In response to your request, I hypothesized a couple who assumed, by reason of their infertility, that they were incapable of offspring. You rightly indicate that 'The "implied assumptit" is fertility'. As a result of which, as you also say, 'However, if the couple later discover that one or both is not capable of procreation, that is NOT grounds for divorce.' Agreed.

Yet, you also claim of the imfertile couple who conversely discover fertility: 'The hypothetical case you describe, as I've shown, would not necessarily end as you suggest.' You did not prove that. You simply indicated doubt.

So how would the fact that 'the "implied assumptit" is fertility' be applied? That the discovered fertility *would* be grounds for divorce?

How odd that there are numerous cases worldwide where *infertility* is cited (but not necessarily upheld) as the ground of divorce. Name a few divorces on the basis of discovering fertility that did not include deception.

Tobias Stanislas Haller said...

David, this back and forth is becoming pointless. The wildly hypothetical case you posed is so very unlikely I only express doubt as to what kind of a result a trial might lead to. I also don't see how it has anything to do with the matter at hand. Can you cite a case of this actually happening?

I did cite a similar case, not necessarily involving deception, in which a couple who wanted _not_ to have children, and believed the husband's vasectomy would take care of that, might find themselves in a difficult situation. Though there might be grounds for divorce if the man lied, I don't think there would be if he was telling the truth and the vasectomy failed for some reason. I don't believe the unintentional fathering or bearing of a child is grounds for divorce. Can you provide a law that states it is?

Most of the counterexamples I provide do not deal with deception, but are actually the state of the law. Infertility is not a cause for divorce or annulment, _unless_ deception is involved, in the vast majority of jurisdictions in the US. You agree to that point in your last comment.

Your challenge to name cases where discovering fertility is pointless -- that was your hypothesis, not mine, and I fail to see what bearing it has on my thesis which is, "Procreation is not necessary to marriage." That is the law of church and state. And I don't believe the law explicitly addresses your hypothetical case.

Unless you can prove otherwise, by citing a law to support your contention, I consider this discussion closed. It is not a matter of argument, but of fact. You assert the existence of a law. So cite it. Or accept that your assertion is simply what you think the law should be.

David Shepherd said...

I was careful at the outset to distinguish my position from 'those who hold to pro-creation as a primary essential good of the marriage'.

Given that the reality in the UK (in contrast with NY) is that the announced consultation on gay marriage will need sufficient proof that the current provisions do not remedy actual discrimination; the onus in the broader context of real marriages is not on my side of the debate. Announcing doubt does not disprove a hypothesis.

However, I would like to thank you for a patient, insightful explanation of your position. There are several more chapters to read.

Tobias Stanislas Haller said...

David, you did make that distinction, but I believe, and I hope you will clarify if I am misreading you, that your substituted statement about the required intent to create what you call "consanguine kinship ties" in marriage is the same premise as "the required intent to procreate is required for marriage" in different words. I have shown both by reason and example that both assertions are false. There is no doubt about that.

You claim that the reason an infertile couple who intend to be infertile and who later have a child might want to divorce but that would not be supported because of a common understanding of marriage being open to the possibility of procreation. Here you have also reinserted your premise into the argument (that there is such a "common understanding." While I have no idea how such a case might be decided in a court of law (that would depend on the wording of the law). But that the fact the couple could marry in the first place proves my point: an intent to procreate is not essential to a valid marriage if the couple incapable of it.

Such a marriage contravenes any "common understanding" that a couple must intend procreation if they are infertile. I gave a specific example in which infertility must actually be proven prior to marriage being permitted. I've pointed to the RC Canon law which does not require this "intent" of infertile couples, but only that they perform sexual acts that, in a fertile couple, might lead to procreation. (That is, even an infertile couple cannot use additional birth control methods.) I have done far more than "announce doubt" but have shown the non sequitur and petitio principii in your statements.

You seek to change the subject once again with the UK situation, having to do with alleged discrimination. That is not my concern. Frankly I think a civil union can be identical to marriage, and much of that divide is a logomachia.

Thank you for your comments. I hope we can stick to the subjects of each section a bit more closely. Stating a clear thesis and then offering evidence in support of it would be helpful.

Tobias Stanislas Haller said...

I see that Mr. Shephard has crossposted some of his verbiage from here over at Mr. Ould's blog, where no doubt it will receive a more sanguine hearing than I can muster. I've also taken the opportunity of addressing the logical fallacies involved at my main blog, as this position continues to survive in spite of its logical inadequacies.