When Fantasy Becomes Law

When Fantasy Becomes Law

                                         By Marco M. Pardi

 

Potentially inflammatory discussions should commence with a clear exposition of definitions, meaning domains, and associated supportive rationales. Thus, within this piece I utilize the following:

1. Rational thought – based on demonstrable (veridical) evidence;
2. Non-rational thought – based on assumption and/or belief and non-demonstrable evidence;
3. Fantasy – an imagined state arising from non-rational thought;
4. Law – A prescriptive or proscriptive declaration publically codified.

Sources of support for the following use of these four declarative stipulations include:

International Law – graduate level college course under Dr. James Robinson, former Deputy United States Prosecutor, Tokyo War Trials and (then) Special Advisor to the Supreme Court of the country in which I was taking the course.

Criminology – graduate level college course under Dr. Jhopal Singh, former Chief Counsel Bureau of Prisons, India.

Logic – graduate level college course Dr. H. Hsien, Visiting Professor of Philosophy, Beijing University.

Religious scholarship – various courses and sources cited as appropriate.

Definitions and distinctions include:

1. Mala in se – Bad in and of itself. Culturally reckoned as self evidently wrong.
2. Mala prohibito – Bad because it has been legally codified as wrong.  Not self evidently wrong.
3. Cognitive dissonance – an internally contradictory state arising from holding one thought as factually true while in contradiction to a conflicting thought believed to be true.

The reader is invited to examine the following discussion and to apply the above concepts and definitions to make his or her own conclusions regarding basis in fantasy, mala prohibito, male in se, and cognitive dissonance. For example, is a particular law based on fantasy or on demonstrable fact? Is a particular act mala in se, or mala prohibito?

==========================================================

About the time I was learning that people drank various mixtures of ethyl alcohol to achieve certain altered states I also learned that, in some areas of the United States one cannot buy alcohol on Sundays. Indeed, some areas banned the sale of it completely; they were “dry” areas. Inquiring into the reasons, I was told of “Blue Laws”. These had nothing to do with safeguarding the health of people with oxygen deprived blood. They were based on the idea that an entity had made the Earth in six days and had rested on the seventh, thus making that day special. Of interest to me was the apparently unquestioned assumption that this origin story was true, and the seventh day could be identified when, presumably, Man had yet to devise a calendar. Cracks in the story appeared when I discovered that my Jewish neighbors held Saturday as special, but they still could not buy a beer on a Sunday. So, what happened already?

It turns out the Babylonians, who devised the 7 day week as part of their groundbreaking astrology/astronomy based calendar system over ran the nascent Elohim (People of El – several current scholars are now considering “Hebrew” to be a derivation of the later Egyptian “hebiru”, a derogatory term of reference for foreign migrant laborers in the same vein as “Berber” is thought to have derived from the Ptolomaic –Greek term “Barbarian” for non-Greek) and, throughout the subsequent hundreds of years of Babylonian Captivity such concepts as the seven day week (the days of which were named after Roman and Norse gods),  and a Cliff Notes version of the Law Code of Hammurabi supposedly in the singed fingers of Moses, for whom there is no historical evidence external to the Talmud and what Christians call the Bible (Greek: Biblios – book) emerged.

The Christian proscription of alcohol on Sunday is interesting in the context of the Christian hagiography of the Wedding Feast of Cannae.  There, according to some editions of the over 1,900 different versions of the Christian bible currently in use (Bart Ehrman Ph.D. Misquoting Jesus), Jesus supposedly changed water into wine, not wine into water. Aside from being highly suspect as a Greek misinterpretation of the Hebrew allegorical style of communication, the story suggests at least a neutral attitude toward alcohol.  

“Blue Laws” encompassed more than alcohol, famously spawning the term “Victimless Crime”.  Thus, prostitution, legally and religiously institutionalized throughout the Mediterranean world, became “vice” as did gambling. Again, biblical scholars must hunt and peck through various contradictory iterations of long after the fact Greek versions of Hebrew attitudes and laws transmogrified into a slowly evolving New Covenant in order to infer the basis for at least some of what has become codified as law.

Although some States, notably Georgia, are still wrestling with the question of whether bending the elbow is an illegal move on Sundays, other attempts at behavioral proscriptions have gained nationwide attention, even among those who read without moving their lips. One of these is “Same Sex Marriage”.

Often popularly introduced with the slogan, “It was Adam and Eve, not Adam and Steve”, the banning of same sex marriage on this fantasy basis overlooks an obvious dilemma and plunges deeply into a cognitive dissonance. From the two significantly different versions of Genesis commonly known we can ultimately derive a male (Adam) and a female (Eve) who begat two sons, Cain and Abel. Even without the killing of Abel, an allegory of the transition from pastoralism (Abel) to agriculture (Cain) found throughout the cultures of the world, there remains the problem of one female to three males, two of whom are her own children (Let’s leave aside the genetic issues flowing from cloning a sex partner from Adam’s spare rib). I have yet to meet someone who would deny that nuclear (direct) incest, especially if perpetuated through generations, would result in genetic aberrations (“birth defects”). Yet, many of these same vocal incest averse speakers seem to glibly accept that Humanity sprang from four ultimately closest genetic partners to the 7+ billion we have today. How are we not a species of mutants? Yes, this embarrassing question arose early in the formation of the Judaic tradition and was temporarily addressed by a revised version of Genesis that cited Cain wandering off to mate with women from elsewhere – a true Deus ex machina that no high school freshman would fall for today. That version failed to make the Top Ten Scrolls list, for obvious reasons.

A more fundamental issue seems to have escaped common notice: the presumption that marriage is for procreation. Paul, the self proclaimed apostle who never met Jesus but is widely recognized as the father of Western Christianity, famously admonished his followers to, essentially, marry only if they just could not control their sexual urges. After all, the Second Coming and the End Times were expected momentarily, as is still the case judging by the Rapture bumper stickers. Although Paul’s specific view on children is difficult to discern, they probably would hardly feature in an “any moment now we are going to heaven” scenario.

One of the most common problems in crafting laws is the problem of unforeseen consequences.  Many people support laws banning same sex marriage on the grounds that children cannot issue from such a union.

Let’s look at two quite common scenarios of “children cannot issue from such a union”.

1. A young man marries and fathers a child. The marriage collapses and the young man, who deeply loves his child, vows to never put another child through the agony of divorce and separation. He gets a vasectomy. Time goes on and he finds a woman, fully knowledgeable of his vasectomy, to marry.  Should the State intervene and deny the marriage license on the grounds that “children cannot issue from such a union”? By the way, vasectomy reversal is terribly expensive, painful, and by no means certain.
2. In the developed world men generally die before women (we want to). So, grandma, well past menopause, has recently readjusted to her widowhood and met a surviving male whom she wants to marry. Once again, should the State deny the license because she can’t conceive? Would you like to be the one to tell her she can’t marry?

There are other scenarios, but the point should be clear. Marriage is not just about sex. Sex is not just about procreation. The latter assertion, stated positively, underlies the attempts to legislate against contraceptive measures, including counseling, and to legally define “unnatural acts” as those from which a pregnancy cannot ensue. Finally, to encode same sex marriage as a “threat” to traditional marriage, as done in the Defense of Marriage Act, is to trivialize marriage as a strictly sexual compact and to assert the ludicrous position that what other couples are allowed to do endangers the union of any particular couple. One expects to hear “Me too!” in primary school yards, not in the halls of State and Federal legislatures. I doubt a man or a woman will rush to leave a bona fide, healthy hetero-sexual marriage simply because marrying a same sex person becomes possible. Clue: If that happens, something was wrong to start with.

Speaking of procreation leads easily to yet another area in which some would like to intrude themselves: abortion.  Over many years of teaching college courses in Death & Dying and in conducting a private counseling practice for patients and families, I have encountered abortion in several forms. To be clear, the medical term for “miscarriage” is spontaneous abortion, a term properly applied to pregnancies which auto-abort, often before the woman is aware of her own pregnancy, to pregnancies which terminate consequent to accident or injury, and in some forms to pregnancies which are forced to terminate through some non-medical means.   

Some of the fantasies apparently intentionally generated about elective abortion include the dismissive and unsupported claim that women typically procure them out of selfishness, not wanting to bother with a child. The facts are that the “typical” woman approaches this decision with anguish, weighing her circumstances and deciding she would be unable to provide a safe and healthy upbringing for a child. Women who initiate the abortion process most commonly come from economically strained social strata, not the country club set seeking to avoid social inconvenience (Guttmacher Institute).

But fantasies, unfortunately, play large on both sides of the issue. Some of the more egregious lies told by the “Pro-Life” crowd (which incidentally overlies the pro capital punishment crowd demographic almost perfectly) such as “Abortion causes breast cancer” have faded, only to be replaced by a much more sinister and clever play on the psychology of the general public. 

In working with grieving women who had experienced abortion, of whatever kind or for whatever reason, I usually found myself initiating therapy by introducing the woman to the difference between what she thought/felt she lost and what she actually lost; non-existent fantasy, albeit possibly potential to some degree, is not today’s fact. While that may sound harsh, it pales in comparison to the horrendous photographic misrepresentations presented to women who mistakenly sought “help” they read about on highway billboards.

A tactic coming into wide use is required sonogram before abortion. Done objectively, it can be a simple “that’s it” experience. However, the language and behaviors of the technician are really the keys to the impressions made on the woman. Of course, the underlying message is that forced submission to the procedure is yet another display of the power of the State and its implied disapproval of the woman’s choice to abort, stopping just short of criminalizing her and implying a mala in se far more than a possible mala prohibito.

The use of the sonogram is a transparent attempt to foster the fantasy to which I alluded above. It is to encourage the psycho-imagery of a future state, a state which is not now, a state which is a fantasy.

Another fantasy rationale for prevention of abortion is the claim of “fetal pain”. The hoped for fantasy projection here is that the woman will conclude that the fetus is experiencing pain, perhaps even silently crying and frightened. This is transparent especially when those same legislators fix the outer boundary for permissible abortion at 20 weeks, which is becoming common.

Any 1^st year Biology student who has had a lab which included vivisection of frogs knows that once a leg is removed from the frog it is possible to stimulate the exposed central nerve and cause the leg to thrash about. Should this student assume the leg is “experiencing” pain? Does a living nerve, separated from the organism’s brain, “experience”? And what is meant by experience? At 20 weeks the human fetus has not yet fully developed the anatomical brain; that arrives at 22 weeks. Even then, who among us will issue a legal opinion stating that the arrival of this anatomical structure is conclusively accompanied by the (future) full blown introspective abilities of the structure. Modern neuroscience itself has yet to reconcile brain with mind, to explain to us how a lump of cells can generate the thought “I am”. “Fetal Pain” is yet another egregious attempt to initiate and develop fantasies and to use them for an agenda.

Curiously, the Bible is rather silent on abortion, although it spares no opportunity for stoning. The emerging Catholic church is generally reckoned as being first to stipulate that life begins with conception; this is considered the point at which a soul is breathed into the zygote, the in-spiration. The Talmud refers to “the quickening in the womb” – first movement, which obviously comes later.   

In short, the 20 week deadline is ignorant of medical science and predates by a full 4 weeks the point (24 weeks) at which a fetus has, with the ultimate in intensive medical support, at best a 60% chance of survival outside the womb. It is a Red Herring, a distraction from the attendant provisions of the legal package: facilities providing abortion services must conform to standards for ambulatory surgery centers; and, physicians providing abortion services must have hospital privileges at a surgery rated hospital within 25 miles.

Surgery center conformance, which includes certain hall widths, is medically unnecessary; it serves only to erect retrofit costs beyond the clinic’s ability to pay. Hospital privileges are unnecessary; hospital associations across the country are already citing the Federal mandate to treat all incoming patients with resident emergency room staff and facilities. Many abortion providers are intentionally situated in areas of high need, particularly in high poverty rural areas distant from hospitals. The clients are often the ones least able to afford the time away from work or the expense in travel that would be necessitated by the passage of the regulations. The two regulations cited would severely reduce the number of available clinics, as will be the case when Texas goes from 42 to 5. As one Texas State legislator said of his vote for the regulations, “It was a no brainer. My faith comes first.” His position is common; elected civil representatives feel mandated to enact civil legislation based on their fantasies.

From the proposed beginning to the certain end of life fantasies have intruded into the formulation of civil law. A final example is the controversy over end of life care and the Right to Die. Mere mention of this brings out concern over euthanasia and visions of chasing Granny with a syringe. However, this Greek derived term means simply, eu – good, thanasia – death. The obvious question is: Who decides what is good?  American culture has a conflicted view of sui-cide (self killing). As an anthropologist and a person for whom American English is a second language, I key into language usage. For me, a telling indicator of American views is the fact that most people, when speaking of suicide, choose the verb commit, as in “Mary attempted to commit suicide”. While the term itself connotes a singular and perhaps ultimate dedication to an outcome, it is also most commonly used in reference to a criminal act. In discussing suicide in my college classes I encourage a shift from commit to perform.

While most, if not all States have dropped the statutes criminalizing suicide, I know of no State in which an attempt at suicide, or even a declaration of intent is not taken as de facto evidence of mental illness, to be attended with a 72 hour involuntary psychiatric hold in a hospital. The act is viewed by many as mala in se.

This is particularly interesting when weighed against concepts of heroism. When a soldier throws himself on a grenade “to save his comrades” we find the pieces and pin a medal on them. We do not do a psychological autopsy to determine if he/she was one of the growing number of potential suicides in the military, or would have become one of the alarming number of suicides post discharge.

Suicide is often described as “cowardly” or “the easy way out”. Clearly, these speakers have never really been at the very brink of such a final act. The decision to go forward with it could be viewed as anything but cowardly or easy.

What of the person facing inevitable Long Term Care, at a cost far beyond the resources of most Americans? MediCare does not cover it, and qualification for MediCaid requires the almost complete liquidation of family assets well in advance of application. How is a suicide in this case not a hero, like the soldier but on a different battlefield?

All States that I know of now provide for Advance Directives, including DNR and/or a progressive list of less final actions. Should people who sign a Do Not Resuscitate order be considered suicides in waiting? Is there something “wrong” with them?

A couple of U.S. States have enacted legislation enabling assistance in life termination. While not as progressive as The Netherlands or Switzerland, they essentially decriminalize assistance as in such cases as “Locked In” syndrome. So many people view accident victims, nursing home residents, etc., and say “I would not want to live like that” but find that when they enter that state they are unable to do anything about it.

The issues briefly discussed above share a common denominator: They touch The Third Rail on which much of American society runs.  People seeking legislative office, particularly with one political party, are skilled in finding and exploiting the fantasy, the belief versus fact basis underlying much of American culture. When these people organize into fantasy groups they become formidable forces. Jerry Falwell, the Fundamentalist Evangelical founder of the “Moral Majority” movement and later the Liberty University, famously crowed after Ronald Reagan’s first election, “We accomplished what we set out to do.” The what in this case was not merely the election of a President, it was the placement of an individual who would go on to nominate like minded members to the Supreme Court and the federal judiciary, actions for which the United States is still paying the price.

Working from the other end, operations such as the theocratic based Dominionist Movement, supporters of Texas Governor Rick Perry and half-term Alaska Governor Sara Palin have infiltrated local boards of education across the country to enshrine fantasy in K-12 curricula and school libraries, all supported by State civil law. Texas relegated Thomas Jefferson (…wall of separation between church and state…) almost to a historical footnote. Several States have attempted to legislate into the K-12 system the teaching of faith based “Creationism”. Interestingly, some of the finest science education to be had is found at Catholic universities, as Catholicism long ago found no problem with Darwinian evolution so long as one accepts that “God works in mysterious ways”.

Defenders of the blatantly theocratic evangelical groups claim the United States was founded as a “Christian nation”.  Innumerable documents put the lie to this claim, not the least of which is the 11.04.1796 Treaty of Tripoli which was unanimously ratified by the U.S. Senate and reads in part: Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion,—as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen [Muslims],—and as the said States never entered into any war or act of hostility against any Mahometan [Muslim] nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.

Many historians are divided over this document as the sine qua non of division of Church and State. But this document does not stand alone. Yet, historical revisionism, in seeking to replace fact with fantasy, would move the United States toward the vision portrayed in Margaret Atwood’s classic, The Handmaid’s Tale, a World Tourist Destination where the rational people of the world can come to view the quaint but dysfunctional non-rational, credit cards not welcome since the money changers must have the Imprimatur of the Elect.