Moral inequality.

Author:Stith, Richard
Position:LETTERS - Letter to the editor

R. R. Reno cites Charles Murray and Mary Douglas for the compelling proposition that the abolition of clear social rules wreaks greater havoc among the economically and educationally weak than among the strong, inter alia because the latter have more resources to deal with ambiguity and uncertainty ("War on the Weak," August/September).

As a teacher for many years of comparative law, I think there is a legal and international analog here.

In the United States, Legal Realism has long taught that it is wrongheaded and impossible for judges to follow legal rules. The law is just too vague and conflicting. As a result, there has been a secular shift in our judiciary away from the rule of law toward the rule of activist, policy-making, social-engineering judges. But since our federal judiciary has tremendous informational and economic resources at its disposal, it has been able to engineer fairly solid constructions. Moreover, our society is still bound together by many ties other than just the law.

Not so in the developing world, where law alone may unite peoples of vastly different cultures and levels of economic and educational development. Yet American programs such as Fulbright have taught the world's leading judges and law professors that Legal Realism is the only sophisticated way to think about law, with frequently disastrous results.

Just last December, in the Artavia case, the Inter-American Court of Human Rights announced a new human right to subsidized in vitro fertilization, pushing aside arguments that IVF may be dangerous to women and to the children born thereby. It also dismissed arguments that, by intentionally or recklessly destroying human embryos, IVF violates the American Convention on Human Rights, which proclaims every human being a person and recognizes the right to life of every person "from the moment of conception."

The court reasoned that the treaty's drafters were actually concerned only to protect life from the moment of implantation, and that the human embryo is not a person under the American Convention because it is not a person under certain treaties elsewhere in the world. For good measure, the judges added that the right to life is not so absolute and can be overridden by other human rights.

The same Inter-American Court of Human Rights has proudly insisted that fundamental principles of law like no double jeopardy (no second trial for the same offense) and res judicata (once someone is finally acquitted, the...

To continue reading