I thought your name sounded familiar, and then I realized you are the author of a book on my office bookshelf on jury nullification / independence. In fact, the reason I bought the book was because it was highly recommended as the best on the subject by Randy Barnett in a blog post at Volokh Conspiracy. No wonder you are a big fan of Spooner, as he wrote the classic book on the subject, Trial By Jury. The name of my blog, People v. State, was inspired in part by the paragraph on pages 280-281 of your book, where you discuss opening statement. For the benefit of others, here’s what you wrote there:

“Prosecuting attorneys almost always try to connect with the jury by claiming to represent ‘the people of’ the United States, or the state. One rarely used technique is for counsel to object, in front of the jury, to the prosecutor claiming to represent ‘the people.’ Objecting that the prosecutor represents the government, and that the jury represents ‘the people’ achieves several objectives — it shows the jurors that the prosecution is posturing and attempting to manipulate them, and it shows them that they have an independent role to play which the prosecution is attempting to usurp. The judge will almost never grant this objection in any case, and may well chastise the attorney bold enough to make it, but in front of an appropriate jury that posture may well cost the judge credibility as well. This technique can be reinforced by being sure to refer to the prosecutor either as the ‘prosecutor’ or as the ‘government’ throughout the trial, and never as the ’state’ or ‘the people.’”

Small world. Honored to “meet” you.

I’ve read Barnett’s book Restoring the Lost Constitution, and although the prospect for the restoration he outlines is indeed dismal given present political realities and public opinion, I found the book itself very persuasive and on the money. It makes room for the arbitrary but apparently necessary lines and definitions you refer to. If such arbitrary lines are indeed necessary, they can nevertheless be justified only by natural law and natural justice and nothing else. What is truly necessary is presumably just. Even if the State’s claims to legitimacy (e.g., on the theory of “consent of the governed”) are completely unfounded, we are not really harmed when we are prevented by the government from doing something we have no natural right to do anyway.

Speaking of small worlds, I have recently come across another professor at Georgetown (where Barnett is also a professor) whose thinking has illuminated and supplemented my Spoonerite worldview: John Hasnas. I especially found his article titled “The Depoliticization of Law” helpful to the questions presented.

That said, how does natural law tell us which side of the road to drive on? Shouldn’t it, however, be kept uniform? How does NatLaw tell us what penalties to attach to crimes? Why is it that it is illegal to have any sexual contact with a person who is 203 months and 27 days old, yet just fine to have all-out porn star sex with any number of them as soon as they complete their 204th month of life?

The difficult part of NatLaw, which is why it has fallen into disfavor and ridicule, is that it falls down in application. At some point, the arbitrary choices have to be made — imperfectly, of course, as they are arbitrary. Yet, somewhere, a definition has to be made, and hopefully as close to natural law as possible — even if, in application, sometimes that is not possible at all.

Randy Barnett has examined alot of these issues, in his book Restoring the Lost Constitution. If you are really interested in frustration, I highly recommend it. It is excellent, yet the realities it confronts are somewhat dismal.

My recollection of history was that the outcome just or otherwise was arrived at by a collective decision by the offenders relatives and neighbors. After awhile there would be a substantial set of precedents so the outcome could be predicted with a variable level of confidence. The problem with that approach was the relatives had too much influence in deciding the outcome. Keep in mind that in those days repeat offenders were stoned to death by their neighbors or sold as slaves.

A simple test of the outcome would be to see if order was restored and tempers cooled.

Edmund Spenser, the 16th Centruy English poet, in his epic The Faerie Queene, gave us the character of Sir Artegall, the knight of Justice. But Artegal’s justice was too harsh. As a character, he’s incomplete and must be balanced by the gracious Mercilla (mercy, of course).

Spenser’s didactic point is that justice must be tempered by mercy. Pure, it is as dangerous as law untethered to them – or process by itself. (Consider Scalia’s view that the Constitution is not offended by the imprisonment – or even the execution – of an innocent person as long as the person has received due process.

I did say that a fair and just outcome was a goal. I have no idea how often that goal is achieved. As far I know there is nothing equivalent to a batting average for the “system”. The plea bargaining process makes it nearly impossible for the general public to determine if the outcome is fair and just (assuming they are capable of making such a determination). The appeals process appears to be the only peer review and it has a very restricted scope.

I think a fair and just outcome would be more likely if the peer review was at the front end of the process rather than at the end.

Here’s the first part of Spooner’s “Vices Are Not Crimes,” which accord with what I quoted from Jefferson:

Vices are those acts by which a man harms himself or his property.

Crimes are those acts by which one man harms the person or property of another.

Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.

In vices, the very essence of crime — that is, the design to injure the person or property of another — is wanting.