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Juries Judge the Law As Well

It is argued by Mark Pulliam that juries should just follow the law and convict those that violate the law. But there is a deeper question here: What is the law that the juries should be following?

Is the law whatever the statute says? We know this cannot be true or there would never be unconstitutional statutes. Some countries do operate this way (especially civil law countries), but this has never been the understanding in the United States.

Is the law whatever the judges say it is? Where in the Constitution does it say that? No doubt that it is the duty of judges to say what they believe the law is, but that does not mean they are the only ones who do so. Thomas Jefferson wrote that “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” The so-called “power” of a judge to “strike down” a statute, is nothing more than the recognition by the judge that any statute passed contrary to the Constitution is not the law and should not be respected as law by the judge. Judge’s oath of office that requires this, but there is no special power that judges have here.

Respect should be shown to the determination by the judge that the statute is constitutional, but that is merely a presumption in favor of respect for reasoned judgment of an independent person who has examined the statute as applied to the facts in this case. For instance, in 1794, in the case of Georgia v. Brailsford in which the facts were not in dispute and the Supreme Court unanimously held that one party should win on the law, the case was still sent to a jury. Chief Justice John Jay—the first Chief Justice of the United States—instructed the jury as such:

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.

Pulliam says that this traditional understanding has changed, but I ask what has changed? Have we adopted a new constitution? No. Is there a constitutional amendment that changed this? No. The power of judges and juries is as it was at the founding of this country, and courts across this country have recognized the power of jury to decide the law as well as the facts of the case. Some judges do not like the diminution of their own power and try to hide this fact, refusing to inform juries of their power in this area even as they recognize it, but they are wrong to do so.

As the jury has the right to determine the law, that includes the determination that a given statute violates the Constitution and to refuse to consider that statute the law. There is also a question of if the Constitution itself is the highest law. No doubt that it is the highest law of the American government, but is it truly the highest law there is? Our Declaration of Independence says otherwise. It spoke of the “Laws of Nature” that even have the power to dissolve the obligation to follow any statutes. The rights to Life, Liberty and the pursuit of Happiness are rights derived from natural law—higher than the law of any nation on earth. Any nation violating these rights is committing a wrong against their own people.

What if the Constitution allowed punishment for freedom of speech or practicing religion? There was no First Amendment protecting our Founders under English law. Nor did the First Amendment exist under our current Constitution from 1788 to 1791. Can a person truly be said to have violated the law by violating a statute which itself violates these natural rights? That was the question presented to our Founders.

One founding era example of jury nullification was the trial of William Penn, who founded Pennsylvania and it was named after him. The statute at the time prohibited religious assemblies of more than five people, other than the Church of England, and in 1670 Penn was charged with violating this statute. The jury found that he had done exactly what the statute prescribed but refused to recognize such an assembly as unlawful. The judge then held that the jury “shall not be dismissed until we have a verdict that the court will accept” and locked the jury up without food, water, or heat. But the jury still refused to find him guilty. Penn said to the jury, “You are Englishmen, mind your Privilege, give not away your Right,” to which juror Edward Bushel replied, “Nor shall we ever do.” The judge tried to fine the jury for their verdict, but the Court of Common Pleas upheld the right of the jury and dismissed the fine.

A second example was John Peter Zenger who in 1735 was charged with libel for insulting the colonial governor William Cosby. His lawyers basically admitted he had published the work that had insulted the colonial governor, but argued that truth was an absolute defense to liable. This wasn’t the commonly understood law of the time, but it so moved the American people that it is now incorporated into what we consider to be a core requirement of the freedom of speech in the First Amendment. It took the jury ten minutes to find him not guilty. The jury saw applying libel in this case as violating the natural rights of Zenger to freedom of speech.

For similar reasons, under the new American government, various juries also refused to find people guilty of violating the Alien and Sedition Acts which prohibited criticism of the government—acts that are broadly recognized today as violating the natural right of freedom of speech. Is it wrong for those juries to have done so even when instructed by the judge that the Alien and Sedition statutes were constitutional?

Now let’s talk about jury nullification as applied to African-Americans. It was quite common for juries in the north to refuse to convict people of violating the Fugitive Slave Act, despite overwhelming evidence that is exactly what they did. But it is also true that sometimes all-white juries let white defendants accused of murdering an African-American (and other heinous crimes) go free and it is said this was jury nullification. But in these cases, there is no notion of the jury finding the statute unjust, it is an accusation of pure animus against the victim based on his race. This is clearly despicable behavior that should not be lauded. The purpose behind these actions is not the same as real jury nullification like had happened before and after. I ask, though, why were these juries all white? If there had been African-Americans allowed on those juries, the results would have been different.

No doubt that the power of juries to acquit people who have violated the statute can be abused to let those that have committed wrongful acts go free. We, sadly, must allow such things to occur in which we as a society value that “It is better that ten guilty persons escape than that one innocent suffer.” You may point to ten people who have been released by juries who should not have been, but I look to the one person the jury has set free from an unjust statute who should have been set free.

There may be only few statutes that a jury would find that grossly unjust today, but the jury acts as a safety valve preventing tyrannical government. I trust, as the Founders did, in the American people serving on the jury to find true justice.

Reader Discussion

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on January 18, 2018 at 16:22:46 pm

I still don't understand why it's OK for the DA to have discretion on whether or not to charge someone with a crime (and which crimes to charge them with), but it's not OK for juries to have the same discretion as to whether they find someone guilty. They're both using their power to keep someone from being punished. If anything, I'd rather have that power in a group of 12 rather than an individual of one.

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Transparent Discretion
on January 18, 2018 at 16:32:06 pm

[…] Read more[…] […]

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Juries Judge the Law As Well | Top 100 Blog Review
on January 18, 2018 at 16:49:07 pm

Great article..

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David R Henderson
on January 18, 2018 at 16:54:12 pm

Agree whole-heartedly.

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Paul Binotto
on January 18, 2018 at 18:26:15 pm

The judge's job consists of jus dire, not jus dare. As soon as the judge indulges in "recognizing" what "should not be respected as law by the judge", that judge is invading the province of the legislature. It is always improper for judge to legislate from the bench. Likewise, it is wrong for the judge to grant to the jury the ability to legislate at trial.

Pulliam's point in this regard is that jury nullification is the wrong mechanism for deciding laws, that is, for crafting them. That is or should be done only through legislation. Jury nullification (or the equivalent where a judge improperly favors the wrongdoer) leads to an impermissibly inconsistent application of the law. This is tantamount to rendering the law nugatory.

Moreover, real-life occurrences of jury/judge nullification are not limited to questions of constitutional versus natural law. I can point to my own litigation as an example where the Constitution coincides with (and even reinforces) natural law, and yet a judge blatantly suppresses both (as argued on page 42 of my Application for Leave to Appeal in the Michigan Supreme Court, http://www.oneclubofjusticides.com/p/viggers-v-pacha_74.html ):

The Constitution of Michigan in its Article I.2 states "No person shall be denied the equal protection the laws", and Article I.23 states that the enumeration of certain rights "shall not be construed to deny or disparage others retained by the people". The latter article coincides with a person's right to his good name, for example, in a defamation lawsuit. See Williams v. Ragaglia, 261 Conn. 219, 232 (2002) ("Courts have recognized the importance of being able to maintain one's good name"). See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 341; 94 S.Ct. 2997 (1974) (placing the right to the protection of one's own good name as "a concept at the root of any decent system of ordered liberty").

In this respect I was arguing my equitable right to compel the defamation defendant to retract his disproved statements. At that point Michigan judge Carol Kuhnke lectured me that Michigan "loves" [sic] certain groups "and it loves anybody who's powerful [...]. But if you're not in those groups, the[n] you just kind of have to try and stay away --- stay out of the way" (hearing transcript of August 17, 2016, page 21, lines 1-12, also available at the aforementioned URL) ... Was her lecture a sign of wisdom reflecting some natural law? No. Absolutely not. It is judge Kuhnke's unchecked/unrestrained corruption. It is the aberrant act of a judge's ineptitude shattering the root of any decent system of ordered liberty.

The law has evolved to the point that Den Watkins is right by stating "There may be only few statutes that a jury would find that grossly unjust today". Instead, the harm of jury/judge nullification is much more prevalent in some courts and in people's lives than a debate of "constitutional vs natural law" that inspires only few landmark cases. Therefore, nowadays our attention should focus on a judge's (or jury's) disavowal of the well-established law.

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Iñaki Viggers
on January 18, 2018 at 18:42:30 pm

Jury discretion cannot be cabined so easily. If jurors are entitled to ignore their instructions because of a belief that the law they have been asked to apply is unconstitutional, in their own judgment of what "natural law" allows (a completely subjective determination), there is no way to prevent them from reaching decisions based on their personal notions of fairness, prudence, policy, social justice, identity politics, animus (racial or otherwise), or for that matter mere whim or caprice. This would defeat the purpose of having laws, which is the expectation of general and uniform application. Ilya Somin had a more measured response in the Volokh Conspiracy, which I would commend to you. http://reason.com/volokh/2018/01/17/does-jury-nullification-undermine-the-ru

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Mark Pulliam
on January 18, 2018 at 19:34:40 pm

"[T]here is no way to prevent them from reaching decisions based on their personal notions" - except that, in real world application, as jury nullification has very infrequently occurred, it doesn't bear out that jurors are so willing to set-aside court instructions and nullify but in the rarest of occasions. Devin seems to be arguing, and I tend to agree, that our constitutional system can bear these occasions, (aside from the Jim Crow examples which he seems to adequately refute) and in many instances, may be stronger for them.

Jury nullification doesn't occur arbitrarily at the whim of only one or two jurors - that would result in a hung-jury; but rather by the consensus of twelve. It may be that jury nullification represents government of the people, by the people, for the people in its most organic form.

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Paul Binotto
on January 18, 2018 at 19:45:59 pm

1) Natural Law is an objective test, not subjective. It is similar to the reasonable person standard in that two people may not always agree on its application but that doesn’t make it subjective. It is not based off any individual person’s beliefs but instead based on reason. There are lots of things I think are good policy that are not natural law.

2) You are right that there is nothing to stop a bad jury (or judge) from all the bad things you cite. But that is not a flaw in my argument. It applies to any similar argument as to what judges or juries should do. I do not claim that juries or judges will always act properly. There is nothing to stop a judge from acting in a non-originalist manner, but that doesn’t undercut the argument of orignalism. There is nothing in your own formation which would prevent juries from doing all the things you identify as bad.

3) Is that really the whole “purpose of laws” to have the “expectation of general and uniform application”? The laws of many totalitarian countries are general and uniformly applied: “everyone must bow down to government and do a, b, and c, and are prohibited from doing x, y and z.” To me the purpose of laws is to protect our natural rights such as liberty, that is what the Declaration of Independence says (“That to secure these rights, governments are instituted among men”). Written law (and the stability of that) should be in the furtherance of securing those rights, but when those written laws violate the very things they are meant to protect, what good are they? Is it best to know you will have liberty (stable laws that protect natural rights), it is second best to not know if you will have liberty (not having stable law), and it is worst to know you will not have liberty (stable laws that violate natural rights).

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Devin Watkins
on January 18, 2018 at 20:06:03 pm

The real jury nullification occurs relatively infrequently is that it is actively discouraged. Potential jurors who indicate they won’t be bound by the court’s instructions are excused, FIJA activists are not allowed to distribute pamphlets in front of court houses, jurors are given an oath when empaneled, etc. If nullification was promoted and encouraged, as its proponents desire, we would see it far more often. In all kinds of cases. Kate Steinle-style verdicts would become a common occurrence in many urban areas. We have a rule of law only if people take law seriously.

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Mark Pulliam
on January 18, 2018 at 20:35:43 pm

Mark,

Thanks for your response. I think I understand your points and concerns. And, I am not totally certain about the appropriateness of groups promoting to potential jurors so actively, as apparently is occurring (I was not aware). And, I totally agree we are a people and country of the rule of law that needs to be given great respect and deference.

But, I tend to think, a jury cannot know, before hearing all the facts of the case, if what they are swearing to ahead of time in fact squares with their best judgement about justice. As such, they need to have nullification as an option, a last resort option to be sure, but an option. Otherwise, they run the risk of sullying their hands as co-conspirators of grave injustice. At the very least, shouldn't they have the option to take their concerns back to the court, and deadlock or nullify it if afterwards they still remain unconvinced or unsatisfied that they aren't being forced to be complicit in an injustice? The case can always be appealed - no?

Interesting debate and glad to hear both sides so eloquently argued!

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Paul Binotto
on January 19, 2018 at 00:39:25 am

A few random,haphazard thoughts:

1.) As with many contentious issues, resolution is impaired by the assumption that the issue is one of classifications rather than of spectra; that it simply a matter of what something is, as opposed to the degree to which it is that thing. This is evident in the discussion regarding the purpose of the law. It may be argued that the purpose of the law, particularly the criminal law, is to "establish justice." Justice requires some measure of predictability as to the effect , and generally understood substance of the law. On the other hand, the drafters of a law could not have thought of everything and covered every contingency; therefor justice requires some degree of flexibility in its application. This tradeoff between flexibility and predictability is inherent in human affairs and is unavoidable. If the law is not predictable, it becomes arbitrary; if it is not flexible it is draconian.The role of the jury must accommodate these two necessary but competing factors.

2.) If the law is applied mechanically injustices result. An example is the execution of Admiral Byng , or that of General Dmitry Pavlov, who was executed for the misfortune of commanding the poorly trained and equipped Soviet army at Minsk, after Stalin had largely decimated the officer corps in political purges. These events call attention to the harshness of the underlying rules and often lead to reform. General Pavlov had the good fortune of being posthumously "rehabilitated," which, I am sure, made everything okay. This is a bit of a paradox; unjust judicial outcomes lead to improvements in the law. Conversely, excessive discretion on the part of courts and jurors often lead to undesirable outcomes such as mandatory sentences, federal prosecutions that are double jeopardy by another name, and criminalizing ancillary behaviors to make it probable to convict the defendant of something. This also is a paradox: using judicial and juror discretion to arrive at what is perceived as a just outcome may lead to changes in law that make such outcomes less common.

3.) Why have jurors take an oath? If they pledge to follow the letter of the law but are permitted to do otherwise, what purpose does an oath serve? It may be useful to note that the word "jury" comes from the Latin word for "swear." At a minimum, it would seem that conduct in the jury room, to an honorable juror, would be to observe one's promise, regardless of the history of juries, courts, or policy considerations.

4.) I am not persuaded that juror discretion is a counterweight to excessive authority of the judge. It seems that the judge has as much influence over a verdict by deciding what evidence a jury hears and does not hear as by how the jury is instructed.

5.) The arguments in favor of jury nullification touch on a number of perceived perils from unjust laws, from blinkered judges to overzealous prosecutors. The legal system recognizes that the law will sometimes lead to unjust outcomes and provides a smattering of remedies, e.g. executive pardons, expunging of convictions, "not guilty by reason of insanity," or "guilty but insane," and the most basic, the right to appeal. These are imperfect responses to the conflicting implications of the law needing to be both flexible and predictable. The thing about jury nullification is that it apples to a single case, and a jury may have several reasons for nullification: sympathy with the defendant, the desire to make a statement and stick it to the man, as an act of conscience when a defendant is imperiled by a potential injustice that the jury can avert, etc. But the key factor is that the nullification is specific to a particular case and, it seems to me, subjectively, that what jury nullification accomplishes in a particular case is to declare that prosecuting that case is unjust, regardless of the soundness of the law upon which the prosecution was based. This situation more closely describes the real malady in many jury nullification scenarios: overzealous, vindictive, self-interested prosecutors, protected by court-created immunity, and enjoying an advantage in resources. Letting jurors "judge the law" does nothing to fix this. If jurors believe that a particular prosecution is unjust, they should be allowed to say so explicitly, not merely have it inferred by an acquittal. ...in my opinion. The validity of jury nullification must be assessed against the background of prosecutorial accountability, or lack thereof.

6.) The point about prosecutorial discretion in deciding to prosecute is a valid one, as is that regarding granting of immunity, If memory serves there was consideration of granting Susan Atkins immunity for her role in the Tate/Lo Bianca killings, in exchange for testifying against Charles Manson. One can only surmise what the considerations of "justice" would have been in such a case.

7.) Professor Pulliam and Mr. Watkins are not in different camps; they are on different points on a spectrum of concepts regarding justice, civil society, and the role of law. The thing about a spectrum is, if you are in the middle, everyone thinks you are wrong.

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z9z99
on January 19, 2018 at 05:39:11 am

Are all commentators agreed on a definition of "natural law"?

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Latecomer
on January 19, 2018 at 06:24:57 am

In a word, no. Some people think “natural law” compels abortion rights; some think the opposite. And so forth. It exists in the eye of the beholder. But more broadly, natural law—the God-given freedom we were born with—exists in nature. When we enter civil society, we leave our natural rights behind and enjoy instead civil rights—the laws enacted by the government we create, including the rights we preserve in a written constitution. As I said in my original post, for many libertarians (and this issue is a perennial libertarian hobby horse), nullification is a proxy for objection to law per se. It is minarchism in action.

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Mark Pulliam
on January 19, 2018 at 07:12:17 am

Mark,

"When we enter civil society, we leave our natural rights behind and enjoy instead civil rights—the laws enacted by the government we create, including the rights we preserve in a written constitution" - Respectfully, I would have to disagree with you on these two points. Natural law is never left behind, nor is it possible to nullify them simply because we enter in to civil society, rather they are the basis, template, and legitimizer for all law subsequently posited, including as constitution, and against which every subsequent posited law needs to be justified.

If a written constitution failed to preserve (or later was interpreted to not include) any of the natural rights, that constitution is an unjust one and deserves no deference, at least in so far as pertaining to the particular natural law considered "unpreserved". Even so, even if the Constitution should fail to preserve a certain natural right, that right would remain notwithstanding.

We don't give up rights to enter civil society, we only transfer those rights to a legitimate government to enforce and protect on our behalf. The moment government fails in this regards, we have a right (and a duty) to recall our transferred rights and depose that government if necessary.

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Paul Binotto
on January 19, 2018 at 07:22:09 am

These are some excellent points!

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Paul Binotto
on January 19, 2018 at 08:02:32 am

That is because
(1) the jury/judge/court's decision has a character of "permanent", whereas the limits on for how long the DA can prosecute or restrain a defendant are much shorter; and
(2) the verdict or ruling is supposedly made upon assessment of both parties' evidence, thereby with fewer gaps in the ascertainment of the truth than whatever information was available to (or acknowledged by) the DA when deciding whether to file charges. Thus, fairness dictates that the verdict or ruling be made in accordance with the society's most consensual criteria: the enacted laws.

Also, the DA's discretion is not unfettered. In order to prosecute, the DA ought to satisfy requirements such as probable cause and due process.

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Iñaki Viggers
on January 19, 2018 at 08:20:51 am

1) Natural Law is not always based on pure reason: It is often based on instinct. In fact, reason often intervenes to curb instinct, in which cases one would need to define natural law as a combination of two antagonistic elements: instinct and reason. Since it is impractical to generalize what percentage of natural law comes from reason and what from instinct, it necessarily follows that natural law cannot be objective.

Furthermore, "reason" itself is undeniably influenced by the subject's education, experience, and beliefs. Since it is unrealistic to assume that jurors will have the same education, experience, and beliefs, it is likewise unrealistic to expect they will hold compatible conceptions of "natural law". Therefore, natural law is not objective.

2) It is more plausible to find objectivity from an external source of common access to all (that is, in the enacted laws) than to expect each juror to arrive at "the right" notion of natural law. Promoting jury nullification will add a layer of complexity to the standard of reaching verdicts: Which cases truly merit a "natural law" approach notwithstanding the detriment to the victims of a crime?

3) Enacted laws are not always "binary" and uniform. They currently enumerate provisions, exceptions, standards of proof, etc. The general application of evolved laws is preferable than uncertainty and judicial erraticism. See z9z99's reference to predictability as to the effect. The lack of that predictability that results from jury/judge nullification complicates the act and purpose of reasoning. When written law contravenes the interests it is supposed to protect, it is the people's responsibility to repeal it at the systemic level rather than randomly (or at least, per my comment on (1), subjectively ) or on a case-by-case basis.

The really worst option is to know & be assured that you will have liberty (in its widest sense) and later be defrauded in court. Jury/judge nullification leads to that undesirable outcome.

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Iñaki Viggers
on January 19, 2018 at 09:11:24 am
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EK
on January 19, 2018 at 10:46:16 am

I am a retired judge. I remember when I was a young lawyer many years ago. The senior partner had practiced in the depression, which had struck my part of the country with a particular vengeance. There were many foreclosures brought by the banks. At that time, juries were used to try the issue of default. The juries, the very accomplished senior partner said, would not foreclose. He always had represented the landowner and "the little guy," rather than the banks or corporations. He said he never lost a case. The bank always lost, he said. That is jury nullification at a practical level. If jury nullification is a good thing, healthy for our country, then, I suggest, any law, any effort to restrict trial by jury, whether it be attempts to circumscribe jury power in cases of torts, I.e., personal injury, or efforts to require arbitration in disputes with credit card companies, nursing homes, telephone companies, and the like, should, in order to be consistent logically, be vigorously opposed. Nullification cannot be justified only on " big," or "constitutional" cases, for who decides , and by what criteria, what a "big," or a "constitutional" case is. The proposal contained in the article has always been present in the law, if not on a practical, but a philosophical level. It illuminates what we mean by "Rule of Law," but without fastidious identification of consequences, followed by civil, informed and orderly debate on the issues of effect and merit, we should tend to avoid swallowing this medicine. To be unfair to all, including history itself, it is not much of a stretch of fact to say that Citizen Lincoln asserted that the Supreme Court was not the final say in interpreting the Constitution, which implies a position also with respect to federal power, and that he maintained that position until he became President, at which time he modified his views. As unfair perhaps as this it also illuminates part of the question. I am for nullification when my heart says I believe one of the parties should win, for whatever reason, such as leave the poor debtor be, but I don't like it at all if I am the bank, after all people who borrow should repay.

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Robert H. Howerton
on January 19, 2018 at 10:55:27 am

“Natural Law” is a very big concept with a long history. I was quoting from the Declaration of Independence created 242 years ago, and these ideas were ancient even then. There are two theories each of which call themselves “natural law.” The first is the idea that all moral questions are objectively true or false. This is not what I refer to when I speak of “natural law.”

The second idea is that there are standards of morality (right and wrong) are derived from the nature of human beings especially their rational nature, in this way those standards are universal as they apply to all humans as we are all rational beings. Included in this is the idea that the authority of many human laws derive from these universal laws. These laws prohibit what is called “malum in se” (wrong in itself), and often include things like murder, rape, theft that all people consider wrong. If a government, for instance, committed murder or rape of its own people, even if it were totally authorized by the constitution of such a government, it would still be wrong.

Many of the major legal philosophers of the past subscribed to these ideas, especially during the founding era (such as William Blackstone). The first person to really explore these ideas with depth and rigor was Thomas Aquinas who distinguished between four kinds of law: (1) eternal law; (2) natural law; (3) human law; and (4) divine law. Eternal law is more like scientific laws of the universe. Natural law is the parts of eternal law that govern the behavior of beings who possess reason and free will. Human law is the law promulgated by humans (which is valid only as long as it is consistent with natural law). Divine law is religious law (divine law cannot be derived from natural reason and relies upon faith).

We don’t have to all agree as to what the natural law is, merely that it exists. Just as we might disagree as to what the eternal laws of the universe are as applied in science, that doesn’t refute the idea that those laws actually exist.

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Devin Watkins
on January 19, 2018 at 11:08:39 am

RE: "We don't have to all agree as to what the natural law is, merely that it exists."

(If my question is too simple for this forum, please ignore it.)

Still, I wonder: How does a political entity proceed in establishing "human law" if we agree that "natural law" exists but do not know what it is; "merely that it exists"?

Or, on the other hand, if some measure of agreement once existed but has disappeared, how long can we possibly hope to survive as a coherent entity?

The Old Testament/Jewish Scripture tell us that this law "is written on the heart". Has it been overwritten?

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Latecomer
on January 19, 2018 at 11:38:38 am

It’s not that we don’t know what it is. I think each of us has very broad agreement as to what it is. Although we may disagree on a few of the details. The same is true of scientific laws, we have very broad agreement as to what those laws are, but scientists are constantly debating the details.

The legislature (and individual legislators) are tasked with drafting human laws that they believe are consistent with natural law. Sometimes for reasons of faction (even majority factions), as explained in Federalist #10, statutes harmful to our natural rights are passed. I gave a few examples, but, for instance, the Sedition Act that prohibited criticism of the government may have sounded very good to those in government at the time. But natural law has a tendency to assert itself over time like gravity. The problems with such a statute become apparent over time (at least to the people if not those in power).

So in the end, the best each of us can do is to try to apply our own reason to determine what we believe the natural law is. Legislators, for instance, should only pass laws they believe are consistent with natural law. Ultimately it is the people who will decide what violates natural law, either long term when choosing to re-elect (or not) those politicians or (shorter term) when the people are sitting on the jury to judge guilt.

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Devin Watkins
on January 19, 2018 at 14:17:51 pm

I very much appreciate your response.

I hope you are right when you state that, "But natural law has a tendency to assert itself over time like gravity."

I wonder though how "the people" are going to decide what "violates natural law" if no authority can be found on which to base these decisions. Our present situation seems to cast doubt on our ability to do so peacefully.

Concentration of power can force agreement to "human law" though. The price of not doing so is usually quite high.

Judge and/or jury nullification is the subject under discussion here. I have taken the liberty of posting a few ancillary thoughts and am grateful to have had an opportunity to do so. I will continue to follow the discussion with interest.

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Latecomer
on January 21, 2018 at 13:04:39 pm

Z:

Sorry I missed all of this.

One comment:

Z - insightful as always.; being in the *middle* means not only that you are always *wrong* but that you are constantly abused! _Ha!

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gabe
on January 22, 2018 at 13:40:47 pm

Dear Judge Howerton,

Your honor, thank you for offering this interesting anecdotal account of actual jury nullification in practice, and the valuable reminder to all that the appropriateness of it varies widely depending on whose interests it vindicates. Likewise, your Depression Era example may actually be the best evidence that jury nullification is not necessarily detrimental to the rule of law, but in a way, preserving of it.

Of course, I am really only hypothesizing theory out loud here, but might it be, that under unusual and extreme circumstances, such as those faced by the country during the Great Depression, where, as you attest, few if any citizen jurors were willing to foreclose on landowner/homeowners during this period of mass mortgage default, that this is good example of an instance where the citizens, whose Government, Constitution, and Law it is, “of”,” by”, and “for”, are willing (if only sub-consciously) to recall to themselves an element and degree of, to the extent they deem necessary, those powers to enforce, protect, and expound upon, their natural rights that they originally consented to transfer and confer upon their government as a condition of entering in to (the American) civil society?

It may be, that just as a man who is unforeseeably thrown out a window, by no fault of his own, can’t be justly held criminally or civilly liable for assault, despite the letter of the law that might otherwise and under usual circumstances convict him, for an injury he may inflict when he falls on someone who happens to be standing on the sidewalk directly below; that someone who is unforeseeably and suddenly forced to default on his mortgage because his job and income, like every other job in the region, state, and nation, dried-up essentially overnight due to the Depression, cannot justly be held accountable. In each instance, the falling man and the man fell upon, and the defaulting mortgagor and the defaulted upon mortgagee, are equally victims of an unforeseen circumstance.
Jurors charged with deliberating on the facts of these case examples, can in neither instance, justly ignore the undeniable and controlling fact of the case, which is, (but for) the unforeseen, unintentional, and extreme circumstance, the absence of which, the offending injury or default would not otherwise (with great odds) have occurred. It might even be arguable, to ignore this factor, would be a violation of their oath as juror, and the judges charge.

Just as citizen’s cannot and do not grant their government, when entering into civil society, any powers that they themselves do not already possess by natural law and right, in pre-civil society, and as government can neither legislate any law that rescinds, nor may an individual contract away, a natural right, (i.e. cannot contract himself into slavery), so too, when the people give certain powers to their government to temporarily suspend (some) civil rights under extreme crisis of national security, in turn citizens may, under extreme circumstances, rightly refuse to enforce a law (made of, by, and for them), in order to prevent an injustice in civil society, that they would not otherwise permit in pre-civil society.

Such an aberration from the rule of law, even when widespread as in the Depression Era mortgage foreclosure cases, may in fact, not represent a mass rejection of the rule of law in general or particular, and their action not be precipitated by the law itself, which they can arguably still deem wholly just and appropriate under the vast majority of circumstances to which it is applied for the maintenance and promotion of civil and domestic tranquility, but rather, it may be seen as the manifestation of a popular willingness to temporarily suspend application of a law, when confronted with an unusual and extreme circumstance, whose usual enforcement would now result in an unjust outcome. In fact, assenting to the mass foreclosures, on the scale threatened by financial crisis of the Great Depression likely would have precipitated the kind of constitutional crisis that detractors anticipate as the very outcome of widespread jury nullification.

Therefore, maybe the best evidence of this enduring commitment to the rule of law, even while refusing to enforce it, is that the widespread jury nullification abates at roughly the same pace that the crisis resolves back to the status quo.

That, in the case of the Depression Era, the Constitution and rule of law managed to endure and withstand the aberrant stresses of the mass jury nullifications of foreclosure cases, and to emerge from this period intact and perhaps stronger for the tempering, and that juries by and large subsequently relented in their nullification of foreclosure cases, seems a sure sign that this practice doesn’t derail the so-called constitutional train, but may even preserve it by temporarily diverting it from a sudden and unforeseen hazard in its track.

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Paul Binotto
on January 31, 2018 at 18:55:42 pm

When I was young and had never heard the term "Jury nullification" I just knew that if the law was unjust I could vote not guilty. I don't think there is anyway to control it.

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Paul Westmoreland
on February 22, 2018 at 01:34:23 am

Humph. Leave for a few days, and then try to catch up, and see what happens...

So, just in case anyone didn't catch my prior comment :

From Lysander Spooner's "Trial By Jury":
FOR more than six hundred years that is, since Magna Carta, in 1215 there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.

Kurt

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kurt
on February 18, 2020 at 18:34:58 pm

so many people are ignorant of the true law, and the intent, spirit and importance of the framers ideas, that hey hardly count as jurors. the jury, is the final defense against unconstitutional laws.

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john norris

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