AVN said:
Today the German Constitutional court decided that this law violated the German constitution (it infringed the right to life and human dignity) and can't be used anymore.
see BBC article.
Does the court have the final word on constitutional matters? I would hope that the German executive and legislative leaders would stand up to the court when it makes a ruling like that. I am not an expert on the German legal tradition, but in American history there are a few instances of executive and/or legislative leaders standing up to an unjust court (for instance Thomas Jefferson in some measure, mostly by rhetoric and Andrew Jackson in great masure, by rhetoric and action--and today Senator Coburn so far just by rhetoric).
In any free society it is critical that one's personal conscience be the ultimate authority and that one stands up to unjust decisions, whether they come from a panhandler, CEO, President, Congress, or Court.
Should a government have the right to shot down a hijacked plane. And in what sort of circumstances do they have that right
Absolutely. If a hijacked plane poses a danger
proportionate to the loss of life in shooting it down then the civil authority has that right and not only the right but the duty, a moral imperative -- a moral imperative that goes beyond any respect owed to a court opinion.
An example of such a case might be of the hijackers on the plane communicate their intention to crash it into a nuclear powerplant such that it is certain to cause an environmental and human disaster, where perhaps ten times more people would die.
One lacuna in my opinion which I will fill is that the moral imperative does not exist when a family member, such as the executive's children or spouse is on the plane. However in such a case the executive has a moral imperative, a duty, to step down and allow succession to take place, entrusting the decision to the un-personally-encumbered successor.
The moral law of mankind precedes any laws a society constructs and so what a court or legislature may say in this particular matter is irrelevant to the affirmative obligation of the executive to protect the nation.
However a soldier, even a general, cannot act in contravention to the supreme executive. A soldier under the Commander in Chief's command must follow the chain of command unless asked to
affirmatively do something which violates his moral conscience. Not acting to shoot down a plane is by definition not an affirmative action and so a soldier cannot shoot it down against the supreme executive's orders.
This does not give absolute power to the executive since the legislature (at least in the American system) is able to use the power of the purse to constrain even the military actions of the executive (for instance some Senators voted against funding of the Iraq war effort and if enough of them had voted against it, the war effort would quickly grind to a halt unless the President decides to steal some tanks from Canada). And, the court is able to without using the unconstitutional "judicial review", refuse to punish those who disobey the orders of the supreme executive. So for instance, if the court considers the Patriot Act unconstitutional, they cannot impose their opinion on the legislature or executive, but they can impose it on themselves by excluding from evidence material obtained through the Patriot Act or dismissing with prejudice any case brought with the help of the Patriot Act or after a conviction by a jury, just refusing to sentence the criminal to any sentence.
Anyway, the answer is yes when the good gained is greater than the evil suffered and it is not only a right but a duty, any opinion of any court or legislature or anyone else for that matter, not withstanding, and spurious claims that this the supreme executive (in any society) absolute power notwithstanding.
