More than a few times in my life, I’ve seen a legal decision and thought, “How could that ever be considered just… or even ethical?” I’ve certainly heard others voice similar sentiments. Now, I know that while many lawyers and judges, perhaps the vast majority, believe that the highest priority of law is the pursuit of justice, I also know that as a tool for obtaining justice, the law and those who enforce and interpret it often fall short in seeking justice… or in many cases even being able to seek it. Part of the reason for that, besides incompetence or corruption, is the simple fact that we as a society must reconcile conflicting ethical hierarchies.
In the United States, the Congress and the courts have made an effort over the life of the nation to press for the equality of individuals under the law, and that includes the rights of people to be able to vote based on their qualifications rather than their appearance or color or gender, and more recently to be considered for employment based on qualifications. Obviously, we have a ways to go, but the legal emphasis on equal rights has been broadened and, in this regard, matters have improved over the years.
At the same time, with the increase and widening of individual rights, other historic “rights” have been limited, such as, at least for white males, the right to associate with those they chose and the right not to be forced to associate with those they do not choose, the right of to whom they might sell property, and the right to choose the employees they feel are “best” for a position, regardless of more objective qualifications. So, while at one time, the right of employer’s choice and an individual’s “free association” ruled supreme, now, under current law, those former rights to discriminate on the basis of creed or color or gender have been placed lower on the legal hierarchy than the right of individuals to be considered on their other qualifications.
The same shift in rights has also occurred in determining the membership in clubs and organizations, so that it has become far more difficult for a club to reject applicants because of gender, color, or religion. One predictable reaction is that initiation fees at private country clubs have, in general, soared to astronomical levels, so that the discrimination has become, at least theoretically, purely economic.
There is another area where there is a conflict still playing out, and that is between the general “right to life” of a person and the right to property and to protect one’s property. In general, the general framework of the law has historically allowed the use of deadly force in self-defense, but not to allow in a broad construct the use of deadly force “merely” to protect property, and in recent years there have actually been court cases where burglars have been awarded damages because a property owner used excessive force in protecting his or her property. In some states, even the right to self-defense was limited if the person whose property was being invaded could withdraw safely. And most police and lawyers say that, no matter what happened even a few moments before, shooting an intruder or attacker in the back is definitely a dangerous move from a legal standpoint.
The often unspoken justification for this particular “hierarchy” is that no property has a value equivalent to a human life, because one cannot put a value on life. Even as a general principle, however, there are some problems with this justification. First, both government regulations for the environment and safely are based on fixed [if varied] values for human life, as are the limits for wrongful death under law in many instances. So are insurance policies. Then there’s the question of what property is and what it represents. If you work and use some of your income to buy various goods – a house, a car, a television, a stereo – you have literally “spent” some of your life on those goods. If someone steals or destroys those goods, in a sense, they’ve taken part of your life. This is also true if someone hacks into your bank account or credit card.
But, for the most part, the law doesn’t see it that way. So you have criminals who”steal,” if you will, small or sometimes significant parts of people’s lives getting minor sentences, and then serving them and returning to doing the same thing, while someone who is convicted of killing someone will be punished more severely… yet if you add up the “pieces” of lives stolen by so-called non-violent criminals, the total damage to people in society might be far greater.
But that’s the way the hierarchy of law works.