The Common Law and How it Pertains to Abortion “Rights”

Below is a conversation I had with a Libertarian on a Facebook post he made, not due to the post itself, but a comment thread he was involved in. I find that many Libertarians can also be quite ideological, rather than philosophical, due to their lack of logical insight into the tenets of natural law, the origin of an individual’s natural rights due to man’s ability to use and master reason, basic human psychology and applying it to their own psyche, sociology/group psychology and how man’s individual psychology has been manipulated to make them easier to control, and of course the common law, which is a system of law based in reason and precedent that undergirds all individualist societies of the world. I’d also add that ideologues are more prone to black and white monological thinking, the kind of logic that’s employed to determine that 2+2=4, rather than the multilogical processes that span multiple domains and disciplines, which is required for coming up with philosophically nuanced positions.

While I’m thankful that this conversation stayed polite, and credit to him for remaining respectful and having control of his emotions, not all conversations with ideologues, Libertarian ideologues included, remain this polite. This particular conversation centered around the importance of the common law to any discussion focused on so-called abortion “rights”, and his lack of understanding of why and how this system of law is important to maintaining a free and self-regulating society.

Me: The common law holds that abortion is lawful up to the quickening, which the scientists involved in Roe v Wade points to happening just after the first trimester, but prior to that decision was said to be at the halfway mark when the baby is felt kicking, and after the quickening it is considered murder of an unborn child. It’s not a political issue but an issue of lawfulness.

Libertarian: So which will you use to force birthing in the name of your NAP [non aggression principle], which in fact has nothing to do with you, <name redacted> /  Nathan? Your own sidearm with them in that room, that she must yield up from her depths what is counter to her will? Or just the strong-arm of the government instead ?

Me: if a crime is committed against another individual, who takes care of the offender? Crime being defined as an act of aggression against another person’s property (our life is also our property, aka self-ownership), and not violating a policy or statute as is the case with Civil matters. Criminal Law / Common Law still exists in an anarchist society, even if government doesn’t (not that you’re an anarchist, just listing the two extremes of State vs no State). Although, the “government” in America was originally intended to be a form of anarchy, because politicians at the time were not considered rulers, but holding public office, which is a step down from those they were supposedly serving (that didn’t last long, I know).

Anyway, the real discussion around this needs to be around the concept of personal property, as our body is our personal property, and is therefore a matter of property rights. Additionally, the life of the baby needs to be considered in the discussion of property rights, because each human is capable of reaching the rational state, therefore they also have natural rights. If it is okay to kill an unborn baby after the quickening, it would follow that it is also okay to kill a child that is outside of the womb, which we would both agree it is not. So when does a baby become a person? In common law, which is the law of the land, the precedent is that life begins at the quickening, which was set at the time when the baby can be felt kicking, at mid term. However, Roe v Wade said that science said life begins at the beginning of the second trimester, therefore adjusting the time of the quickening from mid term to one third term. In common law, aborting a baby after the quickening is considered an act of aggression against another being who’s capable of developing the capacity to reason, which is therefore a criminal matter and should be judged accordingly.

Incidentally, I wrote an article on the “my body, my choice” concept, which many people use as a justification for abortion being a constitutionally protected right, but it is my contention that the slogan is just an inversion of self-ownership, as those stating it aren’t taking personal responsibility for their lives.

Libertarian: but you’re not in charge of preventing crimes via the strongarm of the state. We have a judicial system that addresses that. We don’t do preventative rights here. I’m not concerned about property matters so much as choice. Obviously the choice is with those with the investments / responsibilities, and those capable of volition in the whole matter. The unborn is not with us yet for any of that.

Me: protecting the unborn was never considered preventative rights before, what changed? It is considered murder (or at least manslaughter if done by accident) if the unborn child in a mother’s womb is killed by another person, so that seems to negate the preventative rights argument.

Also, it is in our own rational self-interests to protect our offspring, as it is the furthering of our lineage, culture, and values. To offer up our children to such an extent where an abortion is as easy to get as a hamburger is not rational, nor does it promote our self-interests.

Libertarian: but I would just argue that it’s not your call. Collectivists and statists will say that ‘we’ have to do these things. I don’t see as how it’s anyone’s business except those involved

Me: Who’s business is it in the perfect world to enforce criminal law? If this is a criminal matter, which I’m arguing it is post “the quickening”, somebody would have to prosecute the criminal offense, yes?

Libertarian: I have no investment in your beginning of life premise, therefore I have no investment in your premise that it has anything to do with crime. We’re talking about Liberty matters, and laws for instance answer to their constitutions. This is what I’ve been indicating, my own premises have not been addressed but seem to be in a context of being overwritten here

Libertarian: I can simplify this and thank you for showing up with your intelligence. The adult has to have the say, a fetus has no cogency with which to be involved. We are not called upon to enforce our morals about this between a woman’s legs via the power of the state. That’s counter-liberty. Thanks for your time, I’m calling it a night now.

Me: you do realize that common law predates constitutional law, and is the system of criminal law that America has used since her founding, yes? In many ways, natural law, common law, and constitutional law are interwoven, especially since constitutional law is a contractual agreement that bases itself upon the founding premises of both natural law and common law. Therefore, common law applies, the precedent it set was that life begins at the quickening, and it is considered an act of aggression against the unborn child after that time. Common law IS the law of the land in all common law countries, while civil law is agreement based (as is commercial law) and considered the law of the sea.

Me: Good night.

Libertarian: an act of aggression against an unborn child it may be. Per liberty principles of any pedigree, who are we to get involved with people’s decisions? This is your display of collectivism, which I say is anathema to liberty.

Libertarian: a response would be fair and appropriate, this all has been important work, it’s just that I’m saying there’s no guarantees when I’ll get back to it again.

Me: I can say that this is the first time I’ve ever heard adhering to the rule of law, an established rule of law based in both reason and precedent used in individualist societies, as collectivism. In fact, common law is an enemy of collectivism, because it is objective compared to the [subjective] policy law that is enforced by the “police”. Which leads me to your other point:

“Who gets to be involved in the people’s decisions?”

Peace officers enforce the peace, it is their public office to ensure the common law is adhered to, and swear an oath to the constitution to do so. The same people who enforce the peace in regards to murder, theft, or rape of an adult or child are responsible for protecting against the murder or manslaughter of an unborn child. I know for a fact that a person who murders a woman who is pregnant gets charged with a double homicide, and if there’s a car accident where somebody causes the unborn (or anybody else) to die due to their own negligence, they are charged with manslaughter for the [unborn] baby’s death. I’m saying that the laws as they are written in the common law are more than enough at this time, and should be enforced by the criminal justice system uniformly, not just with a car accident or the murder of a pregnant woman.

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