No written law has ever been more binding than unwritten custom supported by popular opinion.
-Carrie Chapman Catt
Author: Keith Humphreys
Keith Humphreys is the Esther Ting Memorial Professor of Psychiatry at Stanford University and an Honorary Professor of Psychiatry at Kings College London. His research, teaching and writing have focused on addictive disorders, self-help organizations (e.g., breast cancer support groups, Alcoholics Anonymous), evaluation research methods, and public policy related to health care, mental illness, veterans, drugs, crime and correctional systems. Professor Humphreys' over 300 scholarly articles, monographs and books have been cited over thirteen thousand times by scientific colleagues. He is a regular contributor to Washington Post and has also written for the New York Times, Wall Street Journal, Washington Monthly, San Francisco Chronicle, The Guardian (UK), The Telegraph (UK), Times Higher Education (UK), Crossbow (UK) and other media outlets. View all posts by Keith Humphreys
One of the great breakthroughs in the development of Western law was a book published by Gratian (a Bolognese monk) about 1140AD in which he argued that customs must be subordinate to “natural law” (i.e. law derived from revelation and human reason; e.g. basic fairness) and to enacted law from princes and the church.
Acceptance of this principle allowed Western law to evolve and mature because it was no-longer pinned to prejudices and the idea that ‘we have always done it this way’. The church authorities (initially and later secular authorities) were given the freedom to push aside outdated customs such as trial by combat and trial by fire and substitute legal forms such as examination of witnesses, sworn oaths, trial by jury etc and to synthesize broad legal concepts from the rag-bag collection of specifics covered by customary law.
The prohibitionists and DEAdenders should keep this quote in mind. They still think it’s a choice between continuing prohibition or legalization. It’s not. It’s a choice between legalization or jury nullification. Do they really want to risk society going with the latter by their continuing opposition to the former?
DGM,
Noble thoughts on natural law. I’m no expert on medieval law or philosophy, so I don’t doubt your casting it that way. I did want to note that the more hysterical letter-writing opponents of LGBT rights and marriage tend to cite natural law as justification for their philosophy of hate. Apparently they missed the part about, “Acceptance of this principle allowed Western law to evolve and mature because it was no-longer pinned to prejudices and the idea that ‘we have always done it this way’.” I suspect their only law book is the Bible, so they are at a disadvantage in trying to avoid being influenced by their prejudices.
Jury nullification? Please oh please tell me the wingnuts are not taking over this site. I love RBC as a sane place for reasonable people to debate.
That’s not always a wingnut idea. When there comes a point that juries won’t convict-something like this happens with judges, as well-because the law is so odious in theory or practice, that’s a powerful indication something is wrong. It’s worth fighting out in some cases-I’m glad that Byron de la Beckwith died in prison-and in some cases the right answer is to give up.
I think it’s wingnuttery to pretend that we don’t face the reality of jury nullification. I can’t speak to those who actually go out and try to convince people that jury nullification is a viable strategy. In fact, I’m not talking about any specific movement to push for jury nullification.
I’m talking about simple math.
Legal medical marijuana is something supported by virtually all demographics, across the board. Some surveys indicate support exceeds 80% of the population. Legal recreational marijuana has growing majorities among many demographics. All trends indicate support will only grow.
Face it, the war on marijuana is all but over. But it’s consequences are not.
It’s right at the point where prosecutors are contemplating what Plan B will be when they can’t be sure whether or not any jury they sit will be capable of convicting. It’s happened in just a very few jurisdictions so far. Once it’s happened in a specific jurisdiction, the likelihood of it happening again go up substantially. Once word gets around, marijuana prosecutions in other jurisdictions will become similarly afflicted as more and more people realize that prohibition no longer has the votes — in the jury room or at the ballot box — to sustain the utterly failed policy of prohibition.
Once those charged start insisting on jury trials under those circumstances, the plea-bargaining process shuts down. Not too long after that things start grinding to a halt. There’s really no wingnut or other organizing required once jury nullification hits critical mass. When will that be? 5 cases? A dozen cases? 100? It’s somewhere around that number, given our modern media and the many activists across the country organizing support for legalization. Do prosecutors want to keep banging their heads on that wall once they can feel the blood running down their face and starting to drip off their chin? I think they need to pull the plug at that point or the idea of jury nullification starts getting applied to other things.
Look, we have a society where institutions like Congress are looking at single-digit approval ratings. The courts and prosecutors aren’t much better off. Give people a chance — which is why the prohibitionists fight so hard to keep the future of prohibition off the ballot — and they will vote to spank the government for being so presumptuous.
If you really think jury nullification is solely a marginal, wingnut issue, then just stay on the course you’re on now. You’ll soon find out the truth — and it’s going to be ugly when we go there. When it happens, there’s won’t be any gentle landing amongst a regulated market. Current law will simply become essentially null and void. People will be able to do what they will. Then the legislators who’ve been dragging their feet on this will be faced with trying to get the wine of regulation back in the bottle (to use a not-so-appropriate image re marijuana prohibition). That’s going to be laughable.
This is a democracy. As the quote noted, an unjust and unrespected norm may be law, but it’s an unsustainable situation when it no longer has majority support. We’re already there, if you care to notice, balanced at the tipping point. Better start working on Plan B if you still Plan on sticking with Plan A to the DEAdend.