no third solution

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Should Libertarians Reject Jury Nullification?

September 24th, 2008

In the latest chapter of libertarian anti-nullification arguments, (it should be noted that Kip’s post is a hypothetical, I have no idea whether the “Palin Hacker” is pursuing a nullification defense, and so what follows here is probably a futile exercise in verbosity), we revisit among other things, the tired argument that, lying is always and everywhere wrong, and since one (probably) has to lie in order to get past voir dire, and subsequently, to nullify, then nullification is also wrong per se, which raises the question:

Do I have an obligation, morally, to convict someone for violating an unjust law? If so, on what principle of law or reason is this conclusion based? that I am obligated to injure someone, or to participate in his injury, who is guilty of no harm?

I would argue, unequivocally, that I have no such obligation.

As a moral proposition, it is perfectly self?evident that, unless juries have all the legal rights that have been claimed for them in the preceding chapters … they have no moral right to sit in the trial at all, and cannot do so without making themselves accomplices in any injustice that they may have reason to believe may result from their verdict. It is absurd to say that they have no moral responsibility for the use that may be made of their verdict by the government, when they have reason to suppose it will be used for purposes of injustice.
— Lysander Spooner, Trial by Jury

If every juror willing to stand up to unjust laws abstains from “lying”, and is ultimately removed from the pool, what follows is, that the voir dire process allows the court to essentially pack the jury with lackeys who are willing to enforce the law as interpreted by the state, for the sake of enforcing the law, conscience and consequences be damned.

The central question to Kip’s post is whether sympathy for the defendant is a sufficient condition for a nullification argument. This rhetoric is merely grasping at straws.

The defendant in such cases is portrayed as a sympathetic victim of an oppressive system

Now given that this framework — a just law with a sympathetic defendant — lacks a key prerequisite for traditional nullification (i.e., an unjust law), does that mean that nullification is inappropriate in such a circumstance?

Assuming for the sake of argument that the law in this case is objectively just, then of course nullification would be inappropriate. In any event, the other condition, the “oppressive system” is equally (if not more) important to the principle of nullification. Sympathy always helps, but it is hardly a sufficient condition. No principled libertarian — no principled man — could argue e.g., that one should not be held accountable for true crimes against person or property, except perhaps under the most exigent circumstances, like the starving beggar stealing a loaf of bread.

If so, then nullification is hypocritical. Why should a sympathetic defendant be allowed to argue nullification in one fact pattern (i.e., an unjust law) but not another (i.e., a just law)?

An unjust law is a necessary condition for any appeal to nullification.

Accordingly, the difference between the two fact patterns is not de minimis; rather it is the single most important question fact in any case. Furthermore, a jury nullification defense is usually (always?) blocked unless defendant is sui juris, and even then, could probably be considered contempt of court.

If not, then nullification is rudderless. The self-congratulatory insistence that libertarian nullifiers adhere to “higher” notions of justice is exposed as a consequentialist fraud. All laws — just or unjust — are reduced to mere suggestions, with any lay juror entitled to nullify any law, consistently or inconsistently, based solely on whim. We replace the maxim, “a government of laws, not men” with “a government of lotteries, not laws.”

On the subject of jury nullification, Kip has previously conceded that there is a higher power (be it natural law, morality, ethics, etc.) to which one ought appeal, when “those of us who believe in the supremacy of individual rights” are left without recourse against

An increasingly intrusive legislature, intertwined with an often unaccountable bureaucracy, enabled by appellate courts that have elevated ‘deference’ to the highest judicial virtue, leave without any other recourse.

It is imperative to remember that however much one wants to believe in a government of “laws, not of men,” that it is mere mortal men who craft those laws; men who are often, if not always, moral defectives , and who, through the apparatus of the state lawmaking bodies, are able to craft laws that suit their interests to the detriment of the rest of us. Laws which criminalize otherwise peaceful, private behaviors, which destroy families, ghettoize our cities, incentivize drug cartels, and expand empire.
These defectives rarely, if ever, face any consequences for the usurpations of individual rights.

Judges as servants of the law, are barely more tolerable than judges as servants of a Crown. It is essentially a distinction without a difference.

Responding to Kip’s previous post on jury nullification, I wrote, and still maintain that “The act of nullifying a verdict must be measured by the end towards which it is directed, as a tool, it is morally neutral. Nullification, in and of itself is no more (or less) moral than a rifle: although some may use it for ill will, in the hands of a revolutionary fighting a despot, it is great tool which should not be cast away.”

If this is “consequentialist fraud,” then color me consequentialist.

The only rational and moral resolution to the paradox is to reject from the outset both the general concept of nullification and the specific hubris-laden belief that nullification is proper when, and only when, libertarians do it.

Reject these concepts? to replace them with what, pray tell? The absurd notion that the law is always to be upheld, no matter the implications?

Let’s rephrase that thesis, as I commented there: The only rational and moral resolution to the paradox is to reject from the outset both the general concept of a right to bear arms in self-defense, and the specific hubris-laden belief that bearing arms is proper when, and only when, libertarians do it (i.e., the non-aggression principle remains inviolate).

As libertarians we reject neither of the above concepts, nor should we.

We accept a general right to bear arms, but temper that with the non-aggression principle. One’s right to bear arms, deriving from the individual’s right to his own life, does not entitle him to pop a cap in the ass of anyone who looks askance, or shoot anyone with whom he disagrees.

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Nobody here is claiming that jury nullification is a magic wand. It’s not. It’s not going to reverse decades of bad laws, overnight. And it can, of course, be used the wrong way.

But so can the law itself be perverted, and used for ill.

As I’ve argued previously, if the jury is packed with bad people, there’s not really any reason to suspect that the law won’t be bent in their opinion, in the first place. If everyone, or even a sufficient majority, of the population are e.g., racists, then the laws won’t be just to begin with. Arguing that bad people can use nullification to adversely impact the rulings of just laws is a dead letter.

If you are threatened with fines and forced to serve on a jury, and you can think for yourself, your duty to your fellow man is to avoid at all costs, participating in a system which means to injure him. If the State is wrong, if the laws it enacts and enforces are wrong, then obeying these laws, or participating in the system which fosters them or implements them, is also wrong,

Jury nullification is the only moral option.

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Further reading:

  1. On Jury Nullification
  2. Jury Nullification and blocked Defenses
  3. If you can think for yourself, you can’t serve on a jury

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Reefer Madness

September 18th, 2008

Last weekend, I made a Julian Simon-esque wager with a friend: that we’d see the complete decriminalization of marijuana (and possibly other substances) within 10 years, citing only what I believe to be massive popular support (or at least, a lack of strong opposition among the public at large). It’s been quasi-legalized, or decriminalized in a number of states/cities.

Now, a recent ruling in California (Santa Cruz v. Mukasey) might put an end to the fascist War on Drugs, as we know it.

[A U.S. District Court] has recognized a concerted effort by the federal government to sabotage state medical marijuana laws, which violates the U.S. Constitution. The significance of this ruling, the first of its kind, cannot be overstated…

In the summation, the court found that, “There was a calculated pattern of selective arrests and prosecutions by the federal government with the intent to render California’s medical marijuana laws impossible to implement and therefore forced Californian’s and their political subdivisions to re-criminalize medical marijuana.”

Medical Marijauna is on the ballot in Michigan this year, so the ruling in California is cause for optimism. Perhaps we will one day look back on the days when terminally ill people were forced to die in pain, or when otherwise peaceful and law-abiding individuals were arrested, families destroyed, etc. Maybe.

The empirical evidence in favor of decriminalization/legalization is overwhelming to the point of not warranting citation, here.

It’s time to face the facts: drug prohibition doesn’t work, and no amount of tax-dollars directed towards the war on drugs will render it successful. Alcohol prohibition in the 1920s was such an abysmal failure that the Amendment to the constitution was eventually repealed. The drug war, has by any objective account, ruined or destroyed far more lives, wasting untold billions, depriving brown-skinned people in third world countries of lucrative incomes (cf American interventionism in Afghanistan’s opium trade), disproportionately incarcerating brown-skinned Americans, and depriving people of their individual liberties.

But still, politicians and pseudo-politicians like Sheriff Bouchard are willing to throw the will of the people out the window, if it disagrees with his personal opinions on the matter. Last I checked, recreational use has at least tacit support among a pretty significant number of people.

Some people argue that the Medical Marijuana initiative is a wolf in sheep’s clothing, and that the proponents of medical marijuana are trying to back-door their way to full-blown legalization. I say that full-blown marijuana legalization is the issue, and it’s the only way to frame this discussion which is compatible with any notion of freedom.

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See also: Reefer Madness #1

Bike Parking: A Commons Problem?

September 3rd, 2008

In response to a “don’t chain your bike to the fence” sign, Kip is clearly baiting those of us who argue in favor of jury nullification.  Either that, or I’m in a particularly foul mood, and couldn’t see through the sarcasm (at the very least, I think it is a poorly chosen analogy).

Many, but not all, the transgressors eventually complied and removed their equipment.

As for those who didn’t, I suppose they’re just engaging in a little roaming jury nullification. Same principle, right? If you don’t like the law, then screw it and pat yourself on the back for your “higher principles.”

Ummm, no.  Just because we advocate the nullification of unjust verdicts, does not mean that we advocate wholesale ignorance and/or disregard for law or order.  Opposing the war on drugs, or any particular, ham-fisted piece of government intervention, is not the same as violating rights.

Of course, the question that comes to mind here (almost immediately) is one of rights.  Who owns the park?  The people, presumably, own the park. But the people do not exercise control over it, nor can they dispose of portions of it, nor can they act generally as though it were theirs in fact.  This particular issue, as it pertains to public parks, is a question of poorly or illegitimately defined property rights.

Now, you can say that this argument is a cop-out, but I disagree. If the park is owned by an individual or a group of individuals who excercise effective control thereof, they can do with it whatever they please.

But the park is “owned” by people who can’t control it, and is controlled by people who don’t really own it. Tragedy of commons ensues, no?

no third solution

Blogging about liberty, anarchy, economics and politics