Error, Grave Error, and Unreasonableness in Valuing Human Life (or How Much Our Two Michaels Agree)

I have read with great interest the exchange between Michael Perry and Michael Scaperlanda (with valuable contributions as well by others) on the moral significance and protection of human life at its earliest stages, which is the most profound and fundamental question of human rights in our time. Our two Michaels continue to differ (in ever-smaller terms) on the reasonableness of some opposing positions that would differently value some human beings from others depending on point of development. Nonetheless , I perceive a rapidly-declining distance between them, not only in terms of agreeing that such opposing positions do manifest error, but I think as well on the gravity of the error inherent in any deliberate deprivation of human rights protection for any category of human beings.

In considering the nature of these evaluations of the degree of “wrongness” of an opposing position on an issue, I am reminded of my attempts each year to explain to students in Civil Procedure the difference in the standard by which a judge may grant judgment as a matter of law (formerly known as directed verdict or judgment notwithstanding the verdict) as contrasted with the standard by which a judge may grant a new trial. A judge may remove a case altogether from the jury, or override a jury verdict and enter a contrary judgment, only when there are no questions of material fact upon which there is a genuine dispute and the moving party would be entitled to judgment as a matter of law. This “judgment as a matter of law” rule articulates a reasonableness standard, under which the question is whether a reasonable fair-minded jury could render a verdict based upon that factual record. By contrast, when a jury verdict is not irrational, but the judge is convinced that the verdict is against the great weight of the evidence, the judge may vacate the jury verdict and submit the matter for a new trial, with the hope that another jury will not make the same mistake. The standard for granting a new trial is whether the verdict, while not unreasonable, leaves the judge with the firm and definite conviction that a serious mistake has been made.

As further explanation for students about such procedural standards in application, I suggest that in life as well as the law we experience different levels or degrees of disagreement with others. On one end of this spectrum, we may find ourselves left unpersuaded, telling another that we simply disagree while acknowledging that his or her position is reasonable. On the other end, we may not merely disagree but regard another person’s position to be utterly irrational. In between, but perhaps closer to the irrational end of the spectrum, lies the situation in which we may admit that another’s position is not wholly unreasonable, but nonetheless insist that the person is seriously and gravely wrong.

When it comes to evaluating the error of describing unborn children at the stage before organized cortical brain activity as less worthy of protection, our two Michaels appear to fall into this third category. I read them as increasingly agreeing that the error is not merely a mild mistake of ordinary disagreement, but rather a grave and serious error that does not follow the greater weight of the evidence, that fits uncomfortably within a well-informed appreciation for the foundations of human rights, and that bears seriously detrimental consequences for human dignity. Based upon agreement to this important extent about the substantiality of the error of valuing individual human life by potential can only come alliance in a common cause for human rights.

Greg Sisk