Jewish and American Law

Jewish and American law alike regard an infant as indistinguishable from a competent-if-unconscious person, and hold that even its parents can be liable for wrongs done to it. American law not only purports to limit the options of citizens, but to provide sanctions and even prior restraint. More remarkable still, American law appears not to recognize the problem of scarcity of resources.

Jewish and American law have in common that both have been built up over generations by following precedent--stare decisis--rather than by any intent to create a rational society (as in a constitutional convention): thus, even if the precedents are in harmony, it is always debatable what is the law of which the decisions are the evidence. Therefore, both bodies of law have difficulty with the issues raised by modern medical technology, which has allowed the preservation of life in highly unnatural ways.

I - The Issue of the Afflicted Infant

Modern medical science has a good understanding of the manner in which chromosome defects, such as trisotomy 18 (Edward's Syndrome) or trisotomy 21 (Down's Syndrome), affect a foetus. These conditions present the situation that the infant may be incapable of life without some form of medical/surgical intervention, but with such intervention may live for years or decades with severely limited abilities, typically requiring continual care. The incapacity may or may not extend also to mental functions; a number of live births show partial or total

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of ordinary persons. Thirdly, birth does not render one competent for other purposes, such as disposing of property. A plausible "moral" criterion for entity (as opposed to nonentity) has been proposed by Tooley: it is that the organism be conscious of its own existence, and capable of preferring continued existence to non-existence. This definition is justifiable on the grounds that it distinguishes human from animal life (the ordinary person would kill an animal, but not cause it pain--a child or an idiot might behave in the opposite manner): it has the character that it affirms that man was created in the image of He who named Himself "I Am." This criterion well serves to illuminate the difficulties in the traditional law. III - American Law The law in the United States, in this as so many instances, fails to determine whether the society functions by power or by liberty. The (popular) perception in favor of power is articulated, for instance--seemingly with approval--by Horan, who holds that the law incriminates the intentional killing of "an individual" by "a person;" while the term "person" presumably excludes at least those incapable of formulating an intent, the term "individual" includes anyone (except, perha

Category: Government - J