Saturday, March 26, 2005

Law as a web of values

More than anything else, what has struck me about the recent drama surrounding Terry Schiavo has been the expectations that many bring to what the law means and what it ought to accomplish. The outcry from those who want someone--anyone--to intervene in Schiavo's case and order the reinsertion of her feeding tube has centered around quasi "pro-life" arguments. Putting aside for now whether these are actually pro-life positions -- can using an individual as a means to a political end be a pro-life position? -- the fact that some (perhaps many) seem to suggest that the law is immoral if nothing is done (or, conversely, immoral if something is done), seem to me to misunderstand the nature of law as an institution.

Law -- not individual laws, but "Law" as an institution-- is a web of values. I think that it is probably right to say that the law should "favor life"; or, to put it another way, to protect those who are most vulnerable. In many instances, the law actually does do that--exceptions to the first amendment for child pornography is an example; mandatory appeals for those with death sentences is another. In other instances, the protection of those who are highly vulnerable gives way to other values that we believe are important. One could, for example, look at constitutional law on abortion as allowing the state some limited areas to protect the vulnerable fetus, but as also protecting the highly prized social value of reproductive privacy (another reading would be that constitutional abortion law represents a compromise between two vulnerable classes--the unborn and pregnant women).

These examples are examples of actual substantive values, values that focus on individual rights. No doubt these examples come to mind when we think sympathetically about Terry Schiavo. But as Terry Schiavo becomes a household word, and as her case runs through courts and legislatures in Florida and the Federal government, what ought to become clear is that these kinds of values must constantly compete with other values that we hold about the nature of our government.

In this case, those values are federalism; judicial review; judicial independence; stare decisis; and separation of powers. For those who cannot fathom how judges can so unanimously decline to reinsert her feeding tube--to favor life--the reason, I think, is because all of these values have come into play in some way or another. The value we place in federalism--in state, or local, control of areas of substantive law--means that Florida law must be followed with regard to guardianship rights. The value we place on judicial review means that courts must be able to review the constitutionality of claims, as a necessary check on the political branches. The value we place on judicial independence means that we do not want courts beholden to the political will of elected branches, that we want judges to make decisions according to (to use a question-begging phrase) "the law." The value we place in stare decisis means courts are bound by precedent and higher court decisions, unless they can find persuasive reasons to abandon such precedent in a way that is consistent with the law as a whole. The value of separation of powers means that we do not allow the executive or the legislature do what only the legislature may do.

These are not trivial values. We prize them because of the stability they give to government (and we prize them enough to debate their meaning and scope). We embrace them (often) because they allow us to insure that political majorities will not undermine minority rights. We protect them because we know that there are always competing ideas of what is good or important in society, and resolving matters in our kind of government with these values is the best way to ensure that all sides receive the process due to them, in fora where their rights may be best expressed and vindicated.

It would, however, be too simple to say merely that the values we place in various aspects of our form of government meet up against substantive values, but that something is wrong when those substantive values we might hold give way. It's too simple because allowing substantive values to give way is sometimes the only way to protect those values that lead to and maintain a stable government--that we would be worse off, for example, if we allowed courts to willy-nilly ignore precedent and established law in order to vindicate the will of a particular majority. It's also too simple because there is never just one substantive value at stake. In Terry Schiavo's case, there are several: not only is there the substantive value of "life," but there is also the value of marriage; of consent; and the social value of medical care. It is also not clear whether we are, in fact, valuing life in this case (in the effort of full disclosure, my Catholic convictions lead me to believe that there are serious concerns raised by removing the Terry Schiavo's feeding tube)--even if we are, reasonable people can, and do, differ about the morality of euthanasia, its place in our society, and the parameters it might or ought ot have.

My point in all of this is that, in any given case, there are a number of different values at stake, all of which are of a different order and assume an importance tethered to the context of the case (in other words, these are not hierarchical, static values, but in the context of our society have dynamic and evolutionary qualities). Some are values about individual rights; some are values concerning social institutions or social actors (I am thinking here of doctors and hospitals); some are values about government. There may be others -- I have not presented an exhaustive list. Within and between any given categories, values compete. Our laws--substantive or procedural; constitutional or statutory; state or federal--represent a vast array of different values that must constantly be negotiated. If we think of law as a web of values, we might be less willing to pass an easy moral judgment on a particular substantive outcome, and might be more willing to recognize that some, if not most or all, of the values finding expression in an outcome are not only complex, but perhaps even desirable.