From: matt@smoke.brl.mil (Matthew Rosenblatt)
Newsgroups: misc.legal
Subject: Re: jury nullification
Summary: The absurd consequences of "positive law" doctrine.
Keywords: FEMINISMUS DELENDUS EST
Date: 9 Apr 92 18:41:31 GMT
Organization: U.S. Army Ballistic Research Laboratory, APG, MD.

In article <ARG.92Apr8160924@huxley.bitstream.com> arg@bitstream.com writes:

>mlee@esd.dl.nec.com (Michael Lee) writes:

>   deej@gorilla.nbn.com (Donna Corner Holmes):
>
>   > I'm  afraid  I have to agree here   [that  the most fair thing  is for
>   > people to be convicted when they have violated  statutes and acquitted
>   > when they  have  not.]   Jury   nullification...  result[s]  in  total
>   > anarchy and a failed legal system.   [Donna Holmes]

>   This is an interesting view of "Justice" - that if one person is found
>   guilty and punished for breaking a bad statute, everyone else must be also
>   convicted and punished for breaking the same bad statute.  [Michael Lee]

>There are no such things as "bad" laws--strictly speaking.  [Adam Grossman]

Oh, so?

>You must believe that  either (1)  there   is natural law whereby  laws are
>inherently good or bad like the physical laws of nature, or (2) there is no
>natural law and whatever rules we choose  to make in  our  society are only
>opinions.   [Adam Grossman]

So far, so good.  Alternative (2) above is called the doctrine of
"positive law," as opposed to "natural law."

>For those of us who do not subscribe to the doctrine of natural law, trying
 ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
>to figure out which laws are bad only depends on whom you  ask.  One person
>says it is good, another says it  is bad.  Likewise, one jury  may decide a
>law is good, and another may decide it is bad.  How can you prove  a law is
>good, or bad, or just, or fair?  You can't.  [Adam Grossman]

The positivist can't, that's for sure.

>We cannot  prove correctly  or  absolutely  whether a  law  is  or  is  not
>*substantially* fair, . . .   [Adam Grossman]

But we know that if a law is absolutely fair, it must be uniformly fair
on compact subsets.

>. . . but we can prove that it  is  *procedurally* fair, by
>requiring  that it is enact[ed]  properly, applied   properly, and enforced
                                  ^^^^^^^^            ^^^^^^^^
>properly.  This is what we mean by "fair".  [Adam Grossman]
 ^^^^^^^^
How can anyone prove that his definition of "properly" is the correct one?
For instance, there are those who believe that one's financial worth is
a measure of what one deserves to have.  In that case, the VIth Amendment's
guarantee that an accused defendant "shall enjoy the right . . . to have 
the assistance of counsel for his defence" might mean that no one may
prevent him from hiring a lawyer, but if he cannot afford a lawyer,
he doesn't deserve one.  On what basis can the positivist argue that
applying criminal laws this way is "improper"?

>Why is this so interesting?
>
>If a law is "bad" because someone says "In  my  opinion, this law  is bad",
>and if "bad" laws should not be enforced, we won't  have any laws left!  
>[Adam Grossman]

But if a law is bad because it goes against the natural law that Thomas
Aquinas (among others) says the Creator implanted in all men's minds and
revealed to some men in theophanies, the only question is how to go about
figuring out what the applicable natural law is (reasonable men may differ).
Once we figure that out, we can determine whether a particular law ought or
ought not to be enforced.  For example, here is how George Mason argued:

   "Now all acts of legislature apparently contrary to natural right
  and justice, are, in our laws, and must be in the nature of things,
  considered as void.  The laws of nature are the laws of G-d; whose
  authority can be superseded by no power on earth.  A legislature
  must not obstruct our obedience to him from whose punishments they
  cannot protect us.  All human constitutions which contradict his
  laws, we are in conscience bound to disobey.  Such have been the
  adjudications of our courts of justice."
                    -- argued in _Robin v. Hardaway_, 1 Jefferson's Va. 
                       Rep., 109, 114 (1772).

Mr. Mason cited, among other cases, Sir Edward Coke's description
of the "law of nature" as
 
    "that which G-d at the time of creation of the nature of man
   infused into his heart, for his preservation and direction
   and this is _lex aeterna_, the moral law, called also the
   law of nature."  -- Calvin's Case, 7 Coke's Rep., 1(a), 
                       77 Eng. Rep. 377, 392 (1610).

>So I have to ask, if people should ignore ["bad"] laws, why have laws?
>[Adam R. Grossman]

So I have to ask, If "positive law" doctrine leads us to question why
we should have laws at all, why follow "positive law" doctrine?  For
all the difficulties attendant on trying to determine the substantive
content of "natural law," the "natural law" doctrine never leads us
to such an absurd conclusion as the "positive law" doctrine seems to
have led Mr. Grossman.

					-- Matt Rosenblatt
                                        (matt@amsaa.brl.mil)

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