Picturing Justice, the On-Line Journal of Law and Popular Culture

Kenneth Wagner
attended Virginia Commonwealth University and received a PhD in Public Policy & Public Administration. He has taught at half a dozen community colleges and universities and currently is Assistant Professor at Radford University. When he is not teaching he is usually reading or of course watching movies with his wife.

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A legal positivist would note the argument made by Justice Harry Blackmun in Roe v. Wade that there is no right to life in the U.S. Constitution for 'persons unborn' since the document (in the 14th Amendment) grants rights only to citizens 'born' in the nation.

It's A Pizza The Moment You Put It In the Oven: Seinfeld, Abortion, and Meta-ethics

by Kenneth Wagner

In recent decades, television programming has been handling topics that were at one time almost unthinkable. Shows have dealt with issues such as racism, homophobia, same sex marriage, and interracial relationships. One topic that seems off limits however, is that of abortion. As Rachel Fudge points out in an article in Clamor magazine: "As many commentators have pointed out, as all of the old you-can't-do-that-on-television taboos - sexual content, violence, cursing, nudity, homosexuality - have fallen away, abortion is the one hot-button issue that simply remains too hot for TV."

Interestingly enough one recent television program that bucked this avoidance was the wildly popular, irreverent sit-com Seinfeld in the episode titled 'The Couch.' In this episode, main character Jerry and his friend Elaine go to a restaurant. At the restaurant Elaine claims that she refuses to eat pizza from a certain national pizza chain because "the owner contributes a lot of money to those fanatical, anti-abortion groups." Jerry is in disbelief, and asks her if she would eat at the present business if it had the same leanings. Upon asking the owner, "Poppie," his views and finding him against abortion, she demands they leave the establishment. Later, Elaine begins a relationship with a mover she saw at Jerry's apartment, but must break with him too when she finds that he is pro-life.

In a biting satire of the controversy, Poppie and Jerry's neighbor Kramer have a falling out that leads to a dissolving of a business partnership when they disagree about what toppings belong on a pizza. Poppie, symbolizing the pro-life stance, declares "but we cannot give the people the right to choose any topping they want" while Kramer emphatically states, "What gives you the right to tell me how I would make my pie?" Mocking the philosophical arguments engaged in over the rights of the fetus Kramer claims, "It's not a pizza until it comes out of the oven", while Poppie holds "It's a pizza the moment you put your fists in the dough!" Thus ends their partnership.

This episode brings up a major point of interest to legal scholars and philosophical ethicists. Many hold that matters of ethics are objective matters, that they are akin to saying that person A is taller than person B is, or that one comet moves faster than another does. Those who cannot or will not see such objective facts about the world are either mistaken or evil. The philosopher Immanuel Kant thought something like this, seeking to ground his ethics in 'categorical imperatives' grounded in reason. For example, any reasonable person could see that the ethical imperative "Lying is right" must be incorrect (and its negation correct) since if applied categorically the imperative cannot even be stated (if lying is right, then one should lie and not say it is right)!

On the other hand, many philosophers believe that ethics are more like matters of taste than like matters of fact. David Hume for example thought we projected ethical properties (such as "wrong" and "right") onto the world. This is called projectivism. Reason has a small role to play in these matters, but essentially, it is akin to arguing over which picture is more pleasing or what soda tastes better. As he put it in his famous quote, "Reason is and ought to be the slave to the passions."

Like most ethical arguments, these stances find footing in legal debates. Many who think that ethical matters are objective matters find a home in the growing natural law movement. Later thinkers such as Aristotle and Aquinas first put forward natural law ideas, reasoning that the nature of human beings and therefore right and wrong (which spring from our nature) is a matter discernible by reason. Later day natural law proponent Robert George puts it this way "In his formal account of natural law as a participation in what he called the 'eternal law,' Aquinas says that although God directs brute animals to their proper ends by instinct, God directs man--made in God's image and likeness and thus possessing reason and freedom--to his proper ends by practical reason through which men grasp the intelligible point of certain possible actions for the sake of ends (goods, values, purposes) which, qua intelligible, provide reasons for choice and action" (Remarks to the 1998 American Political Science Association) . Of course, many pro-choice theorists also lay claim to natural law (see for example Ronald Dworkin Life's Dominion; Alfred A. Knopf, 1993). The point for this essay is that they see the matter as one of reason and facts.

A different legal philosophy lies in the positivism of John Austin. Austin argues that laws are not anchored in nature, but are commands of the sovereign. A legal positivist would note the argument made by Justice Harry Blackmun in Roe v. Wade that there is no right to life in the U.S. Constitution for 'persons unborn' since the document (in the 14th Amendment) grants rights only to citizens 'born' in the nation. The positive law, not an abstract, discernible 'law of nature' decides the case.

After reviewing these ivory tower academic and law school theories on the issue of abortion, the nature of law and ethics it is easy to see where the episode of Seinfeld stands. Clearly, the tone is one of mocking those who, like Elaine and her boyfriend, see ethics as an objective matter. Their commitment to their abstract position is seen as dooming their happiness in this concrete and immediate relationship. This is satirized perfectly by the parallel situation between Kramer and Poppy, whose partnership is ruined when they each take absolutist positions on what is clearly a matter of taste (how a pizza should be prepared). Meanwhile Jerry, the stand up comedian, plays David Hume, marveling that folk would confuse reality with their own projections on it and that they let matters of taste ruin real friendships and social ties. As Hume has been referred to as a philosophical practical joker this seems a very fitting symbolism.

Posted July 12, 2005

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