Criminality vs. Morality

[sandwichwarrior.livejournal.com]

This has come up in a few discussion over the last few days so I thought I'd give it it's own post...

To what degree (if any) does legal sanction determine morality?

Does an action's legality or Illegality affect it's morality?


An issue that's been getting a lot of play on Right-wing/Libertarian Blogs is the recent arrest of a retired chemistry professor for advocating "Jury Nullification"

Jury Nullification is the idea that even in a case where an individual clearly broke the law a jury could still vote to aquit them on moral grounds. For obvious reasons, State and Federal prosecutors tend to get really mad at jurors who take this option.

As such a New York state Judge has barred...

the dissemination of all leaflets and other materials to summoned jurors containing written or pictorial information tending to influence summoned jurors, as well as approaching a summoned juror for the purpose of displaying a sign to, or engaging in oral protest, education or counseling with information tending to influence summoned jurors...

Emphasis mine.

To me, the key features of our judicial system are 1: the presumption of innocence and 2: the right to trial by a jury of your peers. These two tenants serve a crucial role in ensuring that "civil law" (what the government considers acceptable) does not stray too far from "common law" (what the average citizen considers acceptable).

I am a big fan of "Checks and balances" and when someone with starts complaining about thier checks, I start thinking about tar and feathers.

Comments

[frodomyhero.livejournal.com]

I'm a big fan of checks and balances too, unfortunately today that means in Washington, "checks to me and I'll balance the laws for you so the balance in my checking account goes UP UP UP" It's very simple, our political system today......... just follow the money. There is no more morals.

[sandwichwarrior.livejournal.com]

There is no more morals.

In politics or in general?

If in general, what makes you say this?

[404.livejournal.com]

So what does that have to do with the OP?

[sandwichwarrior.livejournal.com]

You'd think...

[farchivist.livejournal.com]

Nope. USC Title 18 Section 1504: Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.

Advocating jury nullification is considered to be influencing the action or decision of a juror.

[meus-ovatio.livejournal.com]

I like jury nullification too, because fuck them, that's why.

[404.livejournal.com]

Brilliant

[gunslnger.livejournal.com]

To what degree (if any) does legal sanction determine morality?

None.

Does an action's legality or Illegality affect it's morality?

Yes, a little bit. At least to Christians anyways. I don't know about anyone else.

These two tenants serve a crucial role in ensuring that "civil law" (what the government considers acceptable) does not stray too far from "common law" (what the average citizen considers acceptable).

I agree. Jury nullification is an important check on the judiciary, moreso than just electing judges.

[mrsilence.livejournal.com]

Yes, a little bit. At least to Christians anyways. I don't know about anyone else.

It's also "a little bit" true for other groups, including secular humanists and other atheists, although obviously for somewhat, although probably not entirely, different reasons.

[anfalicious.livejournal.com]

I can agree with this; I think that breaking the law does involve a moral choice because you are violating the social contract.

[frodomyhero.livejournal.com]

Electing judges? A great number of judges are appointed.

[underlankers.livejournal.com]

It also affects it to Muslims. In fact I daresay that Osama Bin Laden would be delighted if the Fundies got the 18th Amendment back.

[fizzyland.livejournal.com]

I can see Jury Nullification working in certain circumstances like the Phelps family protesting a funeral and getting gunned down by a bereaved family member who really didn't want to read signs about how their dead son/brother/husband is going to be sodomized by Satan for all eternity.

[whoasksfinds.livejournal.com]

i just finished watching "sleepers". a movie in which a catholic priest lies under oath to serve a moral justice. id have to say that moral codes are the higher authority. the law is just annoying.

[farchivist.livejournal.com]

If moral codes are a higher authority, then I guess you'd have no problem with Sharia law, which is derived from the moral code of Islam, having higher authority over the Constitution? Or the laws derived from the moral codes of Confucianism? Or is it just Christian moral authority which is the higher one, and if so, from which Protestant sect?

[frodomyhero.livejournal.com]

Amen

[allhatnocattle.livejournal.com]

The jury doesn't have Miranda rights. 12 angry men are never considered innocent. Jurists should say nothing. Their words can be used against them.

[farchivist.livejournal.com]

These two tenants serve a crucial role in ensuring that "civil law" (what the government considers acceptable) does not stray too far from "common law" (what the average citizen considers acceptable).

I disagree completely with your definitions of 'common law' and 'civil law'. They're crap.

Common law is the process of deciding the law of the land based on prior judicial decisions. That's it. They are traditions and customs that have become law over time. To a certain strain of irrational thinker, however, 'common law' represents a semi-mythical body of legal theory that represents a type of idealized state free of judicial activism. Except that 'common law' doesn't contain the following:
- rules of evidence
- substantive due process
- the legal principle that the laws of the land apply to everyone in equal measure, with no exceptions
- that individual legal decisions should be derived from general legal principles
- like cases should be treated alike
- restrictions against retrospective laws

As for jury nullification, the primary arguments against it remain valid. Sure, jury nullification is a power of the jury. That is not argued against. However, jury nullification is advocated not as a means of protesting laws (its main function), but to get rid of laws. Except that jury nullification does nothing to establish any legal precedent against those laws. The idea that jury nullification will result in making those laws of no effect is a fallacy; in fact, all it does is result in making those laws unevenly enforced. One juror practicing jury nullification and holding out for acquittal will merely result in a hung jury, and the case is then retried. The few cases where the entire jury moves to acquit a defendant can be contrasted to the many where technical violations of those same laws resulted in a conviction. This is where the jury nullification cause fails, as jury nullification results in uneven/unfair application of the law while accomplishing nothing toward repealing bad laws, which should be the real goal.

As for this asshole who's been arrested, fuck him. He's affiliated with the Fully Informed Jury Association. You know who those assholes are? They're a militia-type pseudolaw group who are often involved in tax protester and spurious legal arguments like "God's law is above the Constitution, so we're not bound by the Constitution.", which you can find on their goddamn 'Freedom Calendar' they pass out every year (http://fija.org/media-catalog/broc-pubs/). Worse, these are the same cranks who put out the Citizen's Rule Book (http://en.wikipedia.org/wiki/Citizens_Rule_Book), which has such lovely gems as:

The TEN COMMANDMENTS represent GOD'S GOVERNMENT OVER MAN! GOD commands us for our own good to give up wrongs and not rights! HIS system always results in LIBERTY and FREEDOM! The Constitution and the Bill of Rights are built on this foundation, which provides for punitive justice. It is not until one damages another's person or property that he can be punished. The Marxist system leads to bondage and GOD'S system leads to LIBERTY!

or how about this one:

Without the power to decide what facts, law and evidence are applicable. JURIES cannot be a protection to the accused. If people acting in the name of government are permitted by JURORS to dictate any law whatever, they can also unfairly dictate what evidence is admissible or inadmissable and thereby prevent the WHOLE TRUTH from being considered. Thus if government can manipulate and control both the law and evidence, the issue of fact becomes virtually irrelevant. In reality, true JUSTICE would be denied leaving us with a trial by government and not a trial by JURY!

Here you can see the fundamental problem with the authors' idiotic thinking: the jury's job is not to protect the accused, the state, the prosecution, or anyone else. The jury's job is to evaluate the evidence in light of the law. If a situation arose where the jury was in some sense protecting the accused, the judge would be well within his or her rights to declare a mistrial because the jury is not being impartial. The Citizens' Rule Book is full of idiot fuckery like this.

[anfalicious.livejournal.com]

Thanks for that. Common Law = derived from medieval legal systems and practice in England and many of its former colonies. Civil Law = Derived from Roman Law and practiced nearly everywhere else.

[anfalicious.livejournal.com]

I think it's important to keep the law and morality separate. The law should be about trying to protect people from harm by others, whereas morality is the code you choose to live your life by. I don't believe that there are moral absolutes; things that are absolutely always morally wrong. However, we can't leave it up to individuals to govern themselves by their own morality because there is too much conflict in this space. It could be morally acceptable (to them, to me, to others, it doesn't matter) for a person to kill another person, but individuals should have the right to some protection from the moral whims of others.

Incidently, this is why I'm anti-death penalty. Even though I think it is a morally wrong, I oppose it based on the fact that it is more expensive (http://aler.oxfordjournals.org/content/early/2009/12/11/aler.ahp022.abstract), the deterrent factor is so negligible that there is no definitive answer (http://onlinelibrary.wiley.com/doi/10.1111/j.1745-9133.2009.00597.x/abstract) and doesn't bring closure to the families of victims, and often leaves more unanswered questions (http://books.google.com.au/books?hl=en&lr=&id=Wzs8MQjvih0C&oi=fnd&pg=PR9&dq=death+penalty+victims+families&ots=I9GvZCt6Xh&sig=zv9Ul-4AixPoEQXURJ-n7puDGVA#v=onepage&q&f=false).

My Grandfather used to say a bad law is one that protects you from yourself, a good law is one that protects you from others and a great law is one that protects you from the government.

[rasilio.livejournal.com]

That's funny, I'm pro death penalty because I believe it is far more humane than long term institutionalization.

[mrsilence.livejournal.com]

Why do I suspect that if it goes to trial, that upon learning the facts of the case, the jury will nullify?

Assuming that the judge allows them to even know what the contents of the pamphlets were.

[underlankers.livejournal.com]

Legal sanction nowhere determines morality. It is perfectly possible to have very moral actions that are considered illegal, and it is even more possible (humans being the selfish dicks we are) to have perfectly immoral actions granted all the legal and coercive power of the state to enforce them. The question thus blends two distinct and incompatible issues.

[underlankers.livejournal.com]

In my view, however, legality tends to override morality among more people than would ever care to admit it. There are those brave or as I see them stupid people who hold to moral beliefs to the point that faced with the coercive power of the state they prefer to die for those beliefs. However that simply makes them fanatical and does not in and of itself rehabilitate the beliefs in question. Similarly, as the various experiments have shown, people are always willing to resort to extremely horrific actions if they can say "I was just following orders."

What I'd do in those situations would depend on my actually being *in* those situations, and it is not something that someone can say "Well I wouldn't do *that*" unless you've actually been there. Moralism is separate from geopolitical reality because politics is ambiguous and dirty at its cleanest and best. Morality, however, sees everything in stark black and white, no room or authorization for disagreement, and certainly none for compromise. If the state tries to enforce it, the result even at the best is a much more tyrannical and repressive state, and at the worst millions are dead.

[rasilio.livejournal.com]

Personally I could care less about "Legality" and civil law. I understand the need for it, however I just don't think it works very well and far too often leads to injustice rather than justice.

In otherwords I am so much in favor of Jury Nullification that I would like to see a law passed by which judges are REQUIRED to instruct juries in it's use prior to a trial.

[ccr1138.livejournal.com]

I do believe morality and law are not always in sync, but it's fairly rare. Here in Texas, "He needed killin'" is still a valid excuse for a lot of folks. And you hear people say, "A jury would never convict." I get the feeling prosecutors like to plead out such cases and not let them come to trial for fear of this happening.

One conspicuous dichotomy for me is the legality vs. immorality of things like abortion, divorce, and adultery. I don't believe everything "immoral" should be made illegal, because people disagree on the relative morality of these types of issues. Making one's own morals into law, especially when the majority disagrees, is the equivalent of establishing religion IMO.

[anadinboy.livejournal.com]

finding someone guilty for a whimsical reason would be the problem, finding them not guilty is fine. However i can think of plenty of cases where criminals have got off with juries drawn from highly criminal areas, i can only think of one case off the top of my head where a sterotypical vigilante was found not guilty even though he was guilty as sin. Law of averages i soppose