When the Founding Fathers came to this land, one of the things they were leaving was the tyranny of the monarch’s “rule by decree”. The Founding Fathers envisioned and created a justice system founded on the principle of fairness and equal justice through the unique concept of the “rule of law”.
Now, it seems, America’s comtemporary justice system has been infected with an orthodoxy based on emotional feel-good-ism that can only be attained through arbitrary law.
Recently, Scott Peterson was charged with second-degree murder for the killing of his “unborn son”. (Did you notice how the media is complicit in the expedient change from “fetus” to “unborn son”?)
Yes, Scott Peterson is a murderer for killing his wife, but to charge this man with murder for the concomitant demise of a fetus, is to abandon the primary tenet on which our system of jurisprudence was founded.
Let’s go to the dictionary and look up the word “murder”.
mur•der (mûr‚dƒr) n
the unlawful killing of a person, esp. when deliberate or premeditated.
Contemporary legal precedents have determined that fetuses do not enjoy the legal status of persons. Fetuses are destroyed, killed or terminated on a daily basis out of mere convenience. To sanction the willful destroying of a fetus in one instance and label it “freedom of choice” and punish the demise of a fetus in another instance and label it “murder” is repugnant to the rule of law and is more closely akin to the tyranny of rule by decree.
You are saying that unborn son sounds more like murder, correct? because that is without question life, while ‘fetus’ has a more tenuous position in the argument over when ‘life’ begins. So you are in essence then arguing that the media slanted pro life?
As much as it pains me, I have to shudder agree with Razorsharp on this one. The fetus is not a person in the legal sense. It has no rights. It cannot be “murdered”. Statutes which make the death of a fetus outside of abortion a crime muddy the waters horribly. Every time a states passes one of these laws, I wince.
I have a nagging feeling that my reasons for agreeing with Razorsharp’s premise differ considerably from his motivation for posting it in the first place, but that’s life…
Yes, but they do enjoy some of the rights of persons. Especially once they are carried to term. And even more especially when the mother has not objection to carrying them to full term.
You are comparing apples and something else so much unlike apples that I have no idea how to analogize it. You are comparing the withdrawal of support with a deliberate act of violence. Welcome to the leftist’s table. You have just repeated every leftists favorite justification for their hatred of the conservative position against welfare.
Look, I know you have a thing about abortion. But you really need to find a way to look at these things critically. Let me ignore for a moment the most agregious breach of logic in your OP. Namely that violently killing a fetus while inside its mother without the mother’s permission is morally similar to the mother removing that fetus. Let’s ignor that for a moment.
The other part you are ignoring is that the “fetus” was very near term. I am willing to be educated, but I don’t think abortions of convenience are very easy to get in such cases. The original case you are so upset about, Roe v Wade, said specifically that by the begining of the third trimester, the state has a clear interest in protecing the fetus. I’m sure they meant that such protections should continue to the end of the third trimester.
So, ignoring your blatant (and most distasteful) attempt to draw a parrallel between violence and abortion, you will have to provide a cite that abortions of fetuses who are days away from delivery are “destroyed, killed or terminated on a daily basis out of mere convenience.” Otherwise you have no point at all.
This is only true if one forgets that there are differences between a fetus and a fetus. Do you know of any states which classify the violent death of a fetus during the first trimester as murder? If not, then there is no mud in the water.
If you do, then you may want to look more closely at them. There is a profound difference between a woman withdrawing her support of a fetus and some other agent violently destroying that fetus without her permission. Even if killing a fetus within a woman were made illegal (and raised to the level of murder) during the first trimester, it would only add a little mud to the water.
pervert: * I am willing to be educated, but I don’t think abortions of convenience are very easy to get in such cases.*
You are correct. Courts have not found any constitutional protection for choosing a late-term abortion of a viable fetus “on demand”. States are free to prohibit any kind of late-term abortion except when required to protect the woman’s life or health, and AFAIK all states have done so.
Razorsharp:Contemporary legal precedents have determined that fetuses do not enjoy the legal status of persons.
Wrong. The whole point of increasing restrictions on abortion during the course of pregnancy is the underlying concept that a fetus’s legal “personhood” changes and grows in this period, just as the fetus itself does.
It doesn’t make biological sense to claim that an invisible group of cells which can easily and spontaneously die and disappear, without anybody’s ever having been aware of its existence in the first place, should have the legal status of a “person”. Nor does it make sense to claim that a viable fetus close to term is not in most respects a “person”.
I have no problem with courts applying the term “murder” to the deliberate, wanton destruction of a fetus in the second case. That doesn’t imply that the abortion of a first-trimester fetus should also be called “murder”. There’s no danger to the “Rule of Law” here.
Actually, the California Penal Code says the following:
(a) Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought.
(b) This section shall not apply to any person who commits an act
that results in the death of a fetus if any of the following apply:
(1) The act complied with the Therapeutic Abortion Act, Article 2
(commencing with Section 123400) of Chapter 2 of Part 2 of Division
106 of the Health and Safety Code.
(2) The act was committed by a holder of a physician’s and surgeon’
s certificate, as defined in the Business and Professions Code, in a
case where, to a medical certainty, the result of childbirth would be
death of the mother of the fetus or where her death from childbirth,
although not medically certain, would be substantially certain or
more likely than not.
(3) The act was solicited, aided, abetted, or consented to by the
mother of the fetus.
(c) Subdivision (b) shall not be construed to prohibit the
prosecution of any person under any other provision of law.
In other words, the killing of a fetus is DEFINED to be murder under California law, except in the case of abortion.
So it has nothing to do with whether a fetus is a person or not. I’ve seen this argument all over the Internet, and it really annoys me. The argument seems to be:
Murder is the killing of a person.
Peterson was convicted of the murder of Connor, who was a fetus.
Therefore, Connor was a person.
But that logic is flawed, because murder, in California at least, is the killing of a person OR a fetus.
Right, just like I said:To sanction the willful destroying of a fetus in one instance and label it “freedom of choice” and punish the demise of a fetus in another instance and label it “murder” is repugnant to the rule of law and is more closely akin to the tyranny of rule by decree.
No it’s not. It may or may not be repugnant, depending on one’s worldview. It is the freaking definition of the rule of law. A properly constituted, elected legislature passed a law which was signed by a duly elected and legally installed governor and now it’s the law and the law enforcement apparatus of the State of California is required to act in accordance with the law, regardless what any member of that apparatus may think.
Not for nothing, but preferring a dictionary defintion over a legal one in a thread railing about the dangers to the rule of law is hilarious. I feel like there should be a two-drink minimum in here. Are you going to tell me to tip my waitress and try the veal?
God no, the veal sucks. It tastes like dead… never mind.
Razorsharp, the law doesn’t define a fetus as a person in one place and not a person in the other place. It defines whether the killing of a fetus is abortion or murder based upon the intent of the person who killed it.
is it just me, or is there something seriously wrong with a law proscribing something that is “unlawful”?
i have serious misgivings about this type of law, and i’m curious to see what might happen upon appeal. my reasons for these misgivings are more related to the people pushing these laws, as they seem to believe they can make inroads in favor of anti-abortion legislation.
i am, however, a pretty hard-line pro-choicer, and i don’t attribute any rights to a fetus until it is born. i can, however, see a reason to attribute sort of possessive rights to the mother of the would-be child, if she planned on carrying it to term. the laws shouldn’t give rights to the fetus, but to the mother who’s carrying the fetus. deprive a mother of rights to her fetus, face a harsher sentence, perhaps? the waters get a bit muddier if the mother dies as well, though.
You actually seem to have a problem with Democracy as opposed to the rule of law.
The rule of law is used to refer to settlement by an impartial legal system of disputes.
In this case the people of California had a dispute with Mr. Peterson over his alledged (until he was convicted) murderous actions.
The dictionary definition is not important when compared to the legal definition of something. If the law defines murder as the killing of a person or a fetus then in that jurisdiction that is most certainly what murder is.
The California code defines murder as the unlawful killing of a person or a fetus.
So no, it is not saying that the killing of a fetus (and therefor abortion) is murder. No more than it is saying executions or self-defense/law enforcement killings are murder, because those are not unlawful killings.
I don’t find anything seriously wrong with it. It is unlawful for a doctor to perform abortion with a coat hanger, that doesn’t make abortion in general unlawful.
It is an ancient tradition that some acts are unlawful while other identical acts are lawful, depending on the situation.
It is unlawful to kill someone out of anger but it is lawful to kill someone in self defense. Both of these involve acts of killing but one is lawful and one is not. The fact that one is lawful doesn’t mean all said acts are lawful or vice versa.
It’s needed to preserve the legality of the death penalty. I suppose it also is needed in the case of someone killing an intruder in his house, whis lawful under certain circumstances.
the point was that if something is “unlawful”, it shouldn’t need to be proscribed by a new law. i was making a joke, see. perhaps i should’ve worded it better.
This may be the definition of the “rule of law” in our “more enlightened” contemporary society, that requires arbitrary laws to remedy each and every grievance of each and every group, but, as I alluded to earler,
Today’s “rule of law” is not quite what was envisioned by those who founded the nation and its system of jurisprudence.
The legislatures and the laws they created were not to be held without scrutiny and oversight, as evidenced in “Marbury v Madison”. Also, laws from a “properly constituted, elected legislature” were also held up to the scurtiny and review of the jury. Juries were expected to judge the law, as well as the guilt or innocence of a defendant.
The principle behind “jury nullification” was to give the people the power to say “no” to the excesses of government.
Thomas Jefferson, in a letter to Tom Paine, wrote, " I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."
And the first Chief Justice of the Supreme Court, John Jay, instructed jurors that the jury has “a right … to determine the law as well as the fact in controversy.” (Georgia vs. Brailsford, 1794)
Today, in our “more enlightened” contemporary society, the judiciary, in protecting the arbitrary law that has become necessary to satisfy each and every group, violates that once established practice, by refusing to recognize or allow the traditional role of the jury to negate laws that the jury may find repugnate to justice.
Perhaps it is time to pay your tab, as it does seem that you may have had one too many. And yes, do tip your waitress.
What’s wrong with preferring the proper definition of a word, over a legislature’s convenient bastardization of the word?
See, the legislature was in error in assigning the penalty of “murder” to an act that causes the demise of an entity that is not legally recognized as a person. Now, I realize, in our “enlightened” contemporary society, that, as a matter of expediency in creating legislation founded on the premise of “emotional feel-good-ism”, the legislatures and judiciaries of some states are recognizing the fetus as human life, but it is contradictory and arbitrary, being that the recognition is based on a capricious notion.
Arbitrary law is the government’s refusal to accept limits on its ability to punish the citizenry.
One of the tenets of the “rule of law”, (supposedly) is to protect society from the governmental tyranny of abritrary decrees.
In 1850, following the French Revolution, and at a time when France was turning towards socialism, Frederick Bastiat, in his commentary, “The Law”, observed:
Not necessarily, in my local area, there is a young man charged with homicide for accidentally causing the demise of a fetus. Yes, the young man’s actions were careless, stupid and even idiotic. (wreckless driving) But to charge this man with homicide (the killing of a human being) is repugnant to justice, especially when considering that the woman could have been on her way to an abortion clinic to have the pregnancy terminated.
No, I don’t care about abortion, what chaps my ass, are those who wear their pro-choice ideology on their sleeves as a badge of honor, but go into coniption-fits at the mere suggestion that there are some instances in which men should also be privileged to choose.
But they are available, usually with the “the health of the mother” stipulation. But, returning to my contentions with “freedom of choice”, or rather, lack of choice for men, regarding late-term abortion, the mother’s considerations outweigh those of the viable fetus. (a child under the aforementioned statutes) While, when assigning a child support obligation to an unmarried man, the state puts the interest of the child ahead of the so-caled biological father.
So far, within the thread, California’s law concerning what constitutes murder, regarding the death of a fetus, has been addressed. Except there is one aspect of California’s law that has been conveniently ignored. California’s law defines the killing of an unborn child as murder at any stage of pregnancy. http://www.sba-list.org/index.cfm/section/whatsnew/page/UVVA_map_2003.html
Semantics. We’ve already been over this. Murder is defined as the unlawful killing of a person. To sanction the willful killing of a fetus, and calling it “freedom of choice”, and charging someone with murder for a criminally negligent death of a fetus, is repugnant to justice.