Whatever Happened to Justice Ch 21

Instability in Law

• Legal instability arises from the idea that law is made by judicial interpretation, rather than found in established principles.
• This change in perspective, from interpreting established law to creating law through interpretation, occurred in the first decades of the 20th century.
• The instability makes it difficult to predict legal responsibility for actions and injuries, and who is liable.

The Abortion Question

• Abortion is highlighted as a crucial legal issue, potentially the most important in US history, due to the fundamental question of who/what is a person, and the right to life.
• Defining a person is difficult and has varied over time (based on status like property or slavery).
• The common law framework has yet to provide definitive answers about determining rights to life, or the basis of these rights for issues like fetuses, animals, or potentially non-human intelligent entities.

Rights and Intelligence

• The right to life is potentially connected to intelligence, though the nature and measurable level of intelligence required are unclear.
• This adds further complexity in applying rules for entities that may or may not resemble characteristics associated with intelligence.
• Applying the concept of rights to animals (chimpanzees, cats, etc.) poses questions of where to draw the line and the arbitrary nature of deciding which animals warrant legal protections.

Political Law and the Nuremberg Trials

• The author emphasizes the dangers of political law (majority rule) in resolving rights issues, particularly right-to-life questions.
• The Nuremberg trials exposed the potential danger of political law when Nazi defendants claimed they were following orders, which were legal in their nation but morally unconscionable, highlighting the existence of a higher law.
• The Nuremberg court decision asserted the existence of a higher law than government law and the court's responsibility to uphold it.

Implications of Political Law

• The author warns that prioritizing majority rule over established legal principles could lead to situations similar to Nazi Germany, where millions were killed under the cloak of legality.
• The author fears that the resolution of abortion (or similar right to life issues) through a constitutional amendment, using political means, could erase centuries of legal precedent and fundamentally disrupt legal protections.
• This would undermine the concept of an inherent right to life, making it contingent on voter opinion rather than a fundamental right.

This quiz explores the complex interplay between legal interpretations, rights, and societal changes throughout history. It delves into pressing issues like abortion and the evolving definitions of personhood and legal responsibility. Test your understanding of how these themes have shaped contemporary legal thought.