This post is another re-run preparing the reader for the recent front page story about the judge who ordered that Baby Doe not be saved from a death by dehydration.   I (Bryan) wrote a paper on this case while studying sociology at Indiana University, and have long considered it a watershed in Indiana law, and more so, social reality. 

I will soon present the recent story on the powerful Indiana judge at the center of this quater century old controversy and his recent statements on the case in the media.

But first more background is in order . . .

One of the ongoing discussions among those marching to decry the dehydration of Baby Doe was this question: “Would it be “wrong” to enter the hospital and take Baby Doe to a safe place where he could be given water, food and the simple operation needed to allow him to eat?”

This is a philosophical question dealing with the nature of human laws.

It would have been illegal. Kidnapping at a minimum. Just to enter the hospital after being told that protesters must keep their distance would have been trespass.

We neither trespassed nor “napped” the kid marked for state-approved dehydration.

We marched, we sang, we chanted, we protested.

He died.

But the discussion he started proved much more viable than his young body. Similar to John Brown of old, Baby Doe’s body laid “a moulderin’ in the grave” but his soul fired up a discussion that continued for many years to come.

Would it have been wrong to have broken the law to save Baby Doe from his painful, cruel and unusual fate?

If you say “Yes, it would have been morally wrong to break the law” then you might have elevated man’s law to divine status. If you say “thou shalt never break man’s law” then you are, knowingly or not, a legal positivist.

If you say “no, it would not have been wrong under the right circumstances,” if you believe that it would have been morally acceptable behaviour to kidnap that baby to save his life if it could be done in an orderly fashion, if you believe that it can be right to break man’s law to achieve a higher purpose than the law serves, then you are struggling with issues that may render you unfit to be a licensed professional in the State of Indiana. You are struggling with issues that caused the ancient Romans to hunt down and kill the early Christians. You are struggling with a Higher Laws paradigm, which all tyrants hate — for such teachings hold that the tyrant’s law is not the highest law.

So if you are such a person please consider, as an agent working for the government recently advised me, being “ever-so-careful” about how you are perceived.  You may make a career choice if you take the claims of the Christian faith too seriously.

It happened to our Russian cousins all the time when they lived under communism.

Back to Baby Doe:

It is doubtful that anyone who had acted to save Baby Doe would have ended up doing much time, but they would have been marked as an extremist for the rest of their natural life. Countless doors would have been slammed in their face for good.

Baby Doe, on the other hand, would have celebrated his 26th birthday this last Spring.

Would the “crime” have been worth “the time?”

Maybe we should ask “Brian,” the Down’s Syndrome “sufferer” pictured on the right?

More on this subject in the next post.

postscript:

Legal positivism is a conceptual theory emphasizing the conventional nature of law. … As an historical matter, positivism arose in opposition to classical natural law theory, according to which there are necessary moral constraints on the content of law. The word “positivism” was probably first used to draw attention to the idea that law is “positive” or “posited,” as opposed to being “natural” in the sense of being derived from natural law or morality.

http://www.iep.utm.edu/l/legalpos.htm

This entry was posted on Friday, April 3rd, 2009 at 11:59 pm and is filed under Battles past, Michael, battles future. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.