imported post
deepdiver wrote:
The law is based on morality. Why do you think the liberals are always screaming, "Do it for the children" every time they want to pass a crappy socialist law. Jessica's Law and Amber Alerts are two well known examples of laws birthed from the fires of moral outrage. We have a long history in this country of legislating morality. Blue laws, red light laws, gambling laws, drug laws, etc. Even murder, rape, assault, etc. are actually morally based. In some places in the world murder, rape and assault are allowable in many circumstances or at least just shrugged off. We don't think they are good things. We distinguish between killing and murdering. That is a moral distinction. We distinguish between assault, battery and attempted murder. Those are all moral decisions on some level.
There is a well established concept of mitigating circumstances in jurisprudence. Judging the weight of those mitigating circumstances is a moral decision. We have judges rather than computers presiding over the court because morality is so important in ensuring that the trial is fair. The judge must "judge" the circumstances, evaluate the fairness and appropriateness of various matters, and depending on the kind of trial, weigh the evidence for a verdict. If legal matters were simply a matter of the letter of the law, a computer could be programmed to adjudicate everything.
You get a speeding ticket driving your wife, who is in labor, to the hospital. You go to court. You throw yourself on the mercy of the court explain to the judge that you were speeding, however it was because blah blah. The judge makes a moral decision as to what to do from that point. Stuff like that happens every day. And that isn't judicial activism. I'm not referring to cases where the judge is trying to change the law from the bench or change how the law is generally used or applied. I'm talking about judges who actually follow the existing law using good sense and "judge" the circumstances and then use morality and the spirit of the law, along with the letter of the law to make good decisions.
I've never contested oursystems of law wasn't based upon its creation on religious based morality. Back to the formation of the county the foundation of our system took heavily from Christian doctrine and practices to establish what was and was not permissible by the citizens who would occupy the new world.
With the establishment of these laws, the adjudication of what is and is not permissible is then intended to be based upon these laws, not on any morality germane to the situation (although it present day such is not always the case.) In the situations you provide, such as the man speeding to get his pregnant wife to the hospital, while he may be guilty of multiple driving infractions, there is always more to be taken under consideration, and none of them are morality. Issues such as malicious intent (he didn't WANT to speed, but for the safety of his wife and baby he undertook his actions) extenuating circumstances (a wife in labor) and even the wording of the law itself. The Judge or magistrate is also permitted to sentence with these factors in mind.
While a man might be guilty of the above, the judge is permitted to suspend the entire sentence if he feels such is prudent. Again, such should be based on what the actions of a reasonable person would be, but would not surprise me if morality played a part therein. Multiple laws take these issues into accountsuch as self defense into account.
A man who shoots somebody who is stabbing a 3[suP]rd[/suP] person, is permitted to do so not because it is morally wrong to murder, but because the law states he may take that action if he REASONABLEY feels the act he witnesses could end his life were he in the situation, or that of the woman being stabbed. In the commonwealth of Virginia, the law states you may not carry a firearm into a place of worship without REASONABLE cause, thus removing any morality over what may or may not be right, but what reason may or may not be justifiable per the law. Again, I don’t contest such laws were made on the foundation of the Christian doctrine of “Thou shall not kill,” but the foundation and the exercise thereafter are separate circumstances.
I’ll counter your examples with one of my own. The case of Harold Fish, a retired Arizona high school teacher, was convicted on Second Degree Murder in a convoluted case of self-defense. Fish was just completing a hike in the remote Mogollon Rim country of Eastern Arizona when several large dogs approached him in an aggressive manner. Fish’s response was to deploy his 10mm Kimber and fire a shot into the dirt between himself and the animals - a seemingly reasonable response to the threat posed.
Unfortunately, the dogs’ owner, who was making his way toward the commotion, apparently thought Fish had actually shot one of the dogs and in a rage charged down the trail toward Fish screaming threats and obscenities.
As an Arizona CCW holder, Fish had received specific training about the safe, legal carry and use of a firearm. It is evident from other information available that Mr. Fish was a conscientious gun owner who had received more than the minimum training required by law and had attained a superior level of skill.
Harold Fish did exactly what he had been trained to do; and was permitted by law to do. In that brief moment, gun in hand, vicious dogs in the area, with limited mobility on the steep trail, a heavy pack on his back, and a large enraged man screaming death threats charging down upon him, Harold Fish had few options; he faced his attacker, gave verbal warnings, and at the last possible moment, since the crazed man made no indication of second thought or hesitation as he charged directly toward the still smoking muzzle of Fish’s Kimber, Fish obeyed his training and pulled the trigger.
After firing the shots, Fish immediately rendered aid to his attacker then ran to the highway where he flagged down assistance.
The initial reports from the Sheriff’s Office indicated that the shooting was clearly a matter of self-defense and that no charges would be filed, but news reports of an “unarmed man” being “gunned down,” and a loud outcry from friends of Kuenzli started the wheels of injustice slowly turning. A charge of Second Degree Murder was presented to a Grand Jury and an indictment was handed down. A variety of possible scenarios, options, and alternatives were presented in court and the press with the bottom line being that Harold Fish didn’t have to kill Grant Kuenzli. In the end, the jury agreed and Harold Fish was found guilty of Second Degree Murder and might well spend the rest of his life in prison because he obeyed his training.
Morality was used in substitution of the facts in evidence and the word of law. Thus morality became law and a man was found guilty of the violation of morality, but not the law.