“As a matter of law” is a code phrase for “this isn’t a simple objective balancing. There is another policy at play that’s putting its thumb on the scales.”

Also, Lady Justice could have been more clear here. The Scales of Justice aren’t engaged in a purely utilitarian exercise. If that were true, the one could not outweigh the many, and we just saw that it can. That’s because it’s not the one and the many that are being weighed. The rights of an individual often weigh more than the wants of society. The greater good consists of protecting those rights, not the majority’s desires. That’s not an obvious takeaway here.


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Join the conversation! There are now 7 comments on this chapter's page 65. “As a Matter of Law”: Policy’s Thumb on the Scales. What are your thoughts?
  1. Murdoc Addams says

    Well, not _never_; there’s got to be exceptions to that. At the extreme end, there’s the ol’ a-bomb in WWII. I think that’s still controversial.

    • That’s different. Here, we’re talking about the criminal law of those U.S. states that follow this particular policy. That’s not at all the same thing as the policies behind such international law that may apply to acts of warfare between two nations. My point is that, under the criminal law of certain U.S. states, killing an innocent person is not justified even to save the lives of others. Those states’ laws don’t have anything to do with whether it was legal for the U.S. to bomb Hiroshima.

      You’re in good company, though — many very well-educated people were never taught this distinction between domestic and international law (or even that there is such a thing as international law). In fact, I wouldn’t be surprised to know that most weren’t, at least here in the U.S. After all, tons of well-educated folks don’t even really get that there’s a difference between federal law and that of the states, and that the law of one state differs from that of its neighbors. Heck, it wasn’t until my first week of law school that I myself learned that criminal law and civil law were two entirely different animals. We just don’t teach basic civics in this country any more — certainly not the basic concepts of how our own law works.

      The whole reason why I do this series is to teach the stuff we ought to have been taught in high school civics, and debunk the many myths that have grown up to fill the void. And I’m grateful for comments like yours, that help me flesh it out even more.

  2. Legion says

    This rule also does a lot to discourage “shoot the hostage” behavior.

    I’m curious if that interpretation of police shootings though. Cops sure seem to shoot a lot at “could’ve been a threat” targets, and be forgiven afterwards.

    • I suspect that cops are permitted to be somewhat justified in being jumpy and nervous. Plus, we typically don’t hear about the many many cases where innocents are NOT injured or killed.

    • Even if they’re mistaken about someone being a threat, if a “reasonable person” would have believed the person was a threat, that’s probably justified as self-defense.

  3. Anonymous says

    As a matter of law, it’s better to die than kill an innocent.
    As a matter of fact, in jail you’re still alive.

    In a choice between jail or death, the world’s gonna be short one Jack and up one Jill.

    • That’s why I honestly think it needs to change, as it’s not fair to force people to go against their own preservation instinct.

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