Bad Legislation
2005 March 23 10:31 CET

The day before yesterday the American Congress intervened with legislation in the matter of Terri Schiavo, a braindamaged woman whose feeding tube has been removed. This intervention wasn't as bad as it could have been, the law did not order any specific outcome for the case, but it did create an option for a federal judge to review the case, which had already passed through the Florida state judiciary and been settled there. At this point it appears congress has not gotten the results it wanted from this, but my major complaint isn't that congress wants Terri Schiavo's feeding tube to be reconnected. It is, in fact, nothing to do with the substantive issues of the case itself.

No, my major problem is with what congress did: it legislated for a specific case. It would have been bad enough if congress had passed a general law with one case in mind, but apparently the legislator's couldn't be bothered to even try to uphold the illusion. The law refers by name to "Theresa Marie Schiavo" and later to "any parent of Theresa Marie Schiavo", by it's nature then this "law" is capable only of application to one case. In fact this "law" is not a law at all. Laws must be applicable in a general sense. A rule of law prohibiting drunk-driving doesn't state that "John Smith shall not drive while under the influence of alcohol etc.", it can be applied to anyone.

This general applicability is essential to a rule being a law. Legislators make laws that apply generally, if they were to start making laws for each individual case they would essentially be judges. One does not turn to the legislative to learn that John Smith, our ever popular example, was wrong to drive under the influence last Friday night. If this must be determined by more than police action one turns to a judge. Similarly a judge would have been the right person to decide who could review the Shiavo case and rule on it, judges must decide their own competence in the specific case based on general rules provided by the legislature. Though the legislature telling a judge that he is to rule a certain way on a procedural matter like this is less harmful (in practice) than it telling him which way to rule on the merits of the case (as in "John Smith shall be found guilty of driving under the influence of alcohol last tuesday night") it is, in principle, precisely the same offence: the legislature is telling the judge what his ruling is to be, with regards to a specific aspect of a specific case.

There were eleven letters about the Schiavo matter on the New York Times website yesterday, today there are eight more. Some agree with congress, and some disagree, or so it seems at first. On closer reading however some disagree with congress and argue, as I have, that congress should not be interfering with a specific case. Others seem to agree with congress, but actually want something more than has been done. They don't argue that another judge should look at it, they argue that Terri Schiavo should be kept alive and her feeding tube reinserted.

To be fair I should point out that another group of letters argues that the tube should not be reinserted also on substantive grounds, but it's still striking that any letter going into whether or not the outcome of the case should have been influenced in this way by legislators concludes that legislators had no business doing what they did. At the end of the day in a democracy the substantive issues of a case, however complex they may be and however strong the feelings they engender, shouldn't justify setting aside the separation of powers in this way.

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