James Mumford’s Ethics at the Beginning of Life: A phenomenological critique (Oxford, 2013) is a remarkable piece of work. It is a phenomenological study of the ethical import of how we come into the world. It is phenomenological because it attends “fixedly” to the phenomena. By staring hard at the phenomenon of pregnancy, the realities of newones and newborns, Mumford concludes that we don’t come into the world full-grown like Adam or Cadmus, but in radically particular, dependent, asymmetrical relationship.
A simple an obvious conclusion, it would seem, but one whose implications have been widely ignored since the seventeenth century in favor of illusory notions of autonomy. Once we establish that this is our original place in the world, many of the assumptions that founded our world collapse.
Mumford goes after the idealization of encounter/relationship in Buber and Barth who writes as if “the only valid meeting between human beings is one characterized by mutual openness, full reciprocity, a high level of intersubjectivity and heightened emotion” (103). He of course goes after Hobbes and Locke for their “contractualizing” of human relationships, their assumptions that man is originally alone and only secondarily in society, their claim that the only significant human relations are those voluntarily chosen by rational and autonomous beings, their conclusion that our most important relationships are with mirror-image others, equal partners in contract and exchange. Each of these viewpoints is at odds with reality at a fundamental level - the reality that we enter life in encounter, as weak and dependent creatures.
In the second half of the book, Mumford shows that these philosophical assumptions have had profound effects on our ethical, legal, and political decisions about newones and newborns. Legally, we have made human capacities a ground for legal recognition, most especially the capacity for autonomous life. Alternatively, we have made viability (understood again as autonomy) the criterion for deciding which infants have legal protections and which ones don’t. He concludes that “the position the West adopted thirty years ago [viability as the grounds for recognition] is in fact the one which least adequately accounts for the way human beings appear in the world” (153).
In another chapter, he analyzes Judith Jarvis Thomson’s argument that an unwanted pregnancy is the kind of “attack” on the woman that justifies the forceful response of abortion. Phenomenologically, some pregnancies do attack the woman, and abortion to save a woman’s life is, Mumford argues, justifiable. But “to distinguish some (healthy) pregnancies from other (healthy) pregnancies on account of how ‘wanted’ they are is . . . the least acceptable option.” The question is not the desire of the parents but whether or not “our particular way of appearing as human beings constitutes an attack” (179). Is it, in short, an invasion or a relationship? Mumford argues for the latter.
In the end, Mumford draws on Gregory of Nazianzus’s exposition of the imago Dei to argue for a theological basis for human rights. The counter that theological accounts of rights have no place in a democracy fails the phenomenological test” “If phenomenology reveals the capacities approach to justify inclusion only of the fully functional, phenomenology in effect collapses the buffer erected between political practices and religious convictions. Phenomenology signals in effect the failure of the liberal solution to recognition.” He concludes ominously: “Essentially, [we face] a choice between an irreducibly religious model of recognition (ascribing rights to human beings regardless of the abilities they happen to exhibit at any given moment) and Nietzsche’s power-play according to which only those strong enough to claim rights are to be ascribed them” (193).