The “Ethical Hierarchy” of Law

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.

6 thoughts on “The “Ethical Hierarchy” of Law”

  1. Esquire says:

    an interesting post. if i’m following your logic, if you take the abstracted value for the economic equivalent of a life (life-time earnings) of the homicide victim, and compare it to the economic damage of the property crimes? it does have a logic to it.

    sadly, logic is not usually an element of a criminal sentence, emotion plays a greater impact. it would be interesting to compare European sentencings to US in the area of property crimes to see if the logic applies there. homicide crimes are punished less severely (often) there than in the US, with no real increase in homicide rates or recidivism.

  2. I’d be interested to know the comparative severity of punishment for “property crimes” as well.

  3. Wine Guy says:

    We see a difference similar to this in medicine as well: physical ailments such as heart attacks, trauma, pneumonia, and diabetes are treated very differently compared to depression, bipolar disorder, and other psychological issues. Psych issues still have a stigma. The suffering of the people with psych issues is somehow ‘different’ despite the fact that no one can quantify suffering because it is so subjective.

    Personal injuy suffering is easy to quantify because nearly everyone can relate. Mr. X was stabbed in the chest but survived…. most everyone has had some sort of painful trauma experience and can at least empathize with that. Mrs. Y had her house broken into an her laptop, cash, and sentimental jewelry stolen… leading to identity theft (and the true PITA that comes along with that), long weeks to months of insomnia from new anxiety, and eventually loses her job and is forced to move because her new job only pays 1/2 of what the old one did…. or her new anxiety leads to suicide 6-10 years after the crime.

    There is much discussion about about appropriate punishment.

    Perhaps we need to turn the discussion to appropriate restitution. And restitution towards the injured party, not the fines collected by the government to put into a general or slush fund.

    1. Jim Ewins says:

      The old English “common law” sense that restitution be given the victim has be turned on it’s head in the consideration that the state is the victim and can exact retribution and restitution.

      Government avoiding all responsibility leaves victims in the lurch.

  4. Tom says:

    In another one of your books, I am sorry I do not recall which but probably one of the Quaeryt series, you indicated that societal change relies on the effect of the outliers of society.

    Is the legal set of societal “hierarchy” judice-prudence driven by our outliers, small vociferous groups of extremists? If so, are we indeed sheep and herd-like in succumbing to the shout of “fire” without thought? Is that fear-reaction response despite education or lack of intestinal fortitude in speaking out in public because of the possibility of being made to look biased, insensitive, uninformed, etc.? Or something else?

    I am looking for a resource that might address, in simplistic terms rather than cumbersome philosophical terms, why society changes. Do you have such a reference or an opinion about what drives societal change?

  5. In the most general sense, repetition drives much of societal change. You can certainly see that with the motifs in both advertising and politics. One of the most striking examples of that is illustrated by Hitler’s rise to power, in that he specialized in repeating themes that appealed to people’s beliefs.

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