Harland,
You made some excellent points regarding the different aspects of Due Process.
I'm willing to concede that my definition was probably too narrow.
Jury nullification is (at least in theory) a powerful check on bad laws. Most
juries today have no clue that they are independent bodies, but I don't believe
their ignorance is the only factor that prevents them from exercising their
right to nullify. More specifically, human nature itself gets in the way.
For example, if I were to violate the law requiring drivers to purchase vehicle
insurance (which I believe to be unjust), I would be issued a citation and
given a chance to defend myself in court.
Let's assume that I'm able to make an airtight case to the jury regarding the
unethical and impractical nature of the law. We can also assume that the jury
is fully informed of their right to nullify. I'll bet you anything that they
would still return a guilty verdict, and the reason is quite simple.
Their emotional reaction to my logical arguments would one of resentment:
"Who does this guy think he is?"
"We all have to obey this law. Why shouldn't he? Does he think he's special?"
"He knew that he was disobeying the law and he did it anyway. If he had a
problem with the law then he should have complained through the proper
channels."
"If we admit that the law is bad then we also have admit they we were wrong to
have obeyed this law in the past."
"He's only saying that it's a bad law because he was caught."
When engaging in Civil Disobedience we have to deal with these same emotional
reactions from others, which makes our work much more difficult, unfortunately.
---Sasan
--- In [email protected], Harland Harrison <harlan...@...> wrote:
>
> You make a logical argument, Sasan, but your definition of "Due Process" is
> wrong. Due Process includes standards of fairness which courts have defined
> through the centuries, known as the "Common Law". When politicians can
> change the rules, they violate Due Process.
>
> For example, trial by jury remains at the heart of the legal system which
> the US inherited from England. A jury of their neighbors should simply find
> those Saturday night poker players not guilty in the interests of justice.
> But in the US, governments keep jurors from knowing that juries can "nullify"
> any law. The jurors very well might convict the poker players despite
> sympathizing with them.
>
> An independent judiciary is another aspect of Due Process. Judges serve
> "during good behavior", often for life. The revolving door of political
> appointments and lobbying should not influence judges. Philosophically, the
> judiciary descends from royalty. The king remains impartial because he is
> not the servant of anybody else. When the US government planned to put
> torture victims in Guantanamo on trial before military officers appointed for
> that purpose, the plan violated Due Process.
>
> Another feature of Due Process is a single, predetermined, court of
> jurisdiction. The government cannot shop for a "hanging judge" somewhere in
> the country. The Constitution, Article III Section 2, says that only
> Congress can pass a law to decide where crimes outside the country are going
> to be tried. When the White House plans to move "terrorist" trials at all,
> they violate Due Process and the Constitution as well.
>
> Trial before punishment is the most basic aspect of Due Process. The US
> government now claims the right to declare people "terrorists" without any
> judicial proceeding at all. The US government also claims the right to
> murder them and everybody nearby in a neutral country by a secret attack.
> The US government is killing men, women, and children, in Pakistan, by remote
> control aircraft operated from Nevada. The bragged about it on "60 minutes"
> while pretending, officially, that they know nothing about it.
>
> These excesses of the US government, and the ones you describe, are real,
> but they are not the result of Due Process. Rather, they are the result of
> politicians violating Due Process rights, and violating the very framework
> of laws which elected them.
>
> Harland Harrison
> LP of San Mateo County CA
>
>
>
>
> ----- Message d'origine ----
> De : Sasan <sasan.sa...@...>
> À : [email protected]
> Envoyé le : Jeu 28 Janvier 2010, 16 h 32 min 27 s
> Objet : [Libertarian] "Without Due Process..."
>
> "...criminals would roam free and innocents would be lynched."
>
> Before I address this common argument for a government Justice monopoly, first
> allow me to give my own definition of Due Process: a standardized method for
> determining guilt and punishing offenders according to law. This process is
> enforced by governments and the applicable laws are written by governments.
>
> Critics of Freedom like to point out that without Due Process there would be
> injustice in the world. Some criminals would never answer for their crimes.
> Some
> innocents would be wrongfully punished. This is absolutely true, and I'm not
> going to fool myself into thinking that a Free Market in Justice would solve
> this issue completely.
>
> We also hear stories about a time before there was the concept of Due Process,
> when a ruler could arbitrarily decide who would be punished and how severely.
> This is also true, but is Due Process really the antidote for this Tyranny?
>
> Let's assume, for a moment, that a government is capable of providing a
> perfect
> legal system of Due Process. Everyone who violates a law is held accountable.
> Everyone who doesn't violate a law goes free. No mistakes. That's Justice,
> right?
>
> Well, not really. For that "perfect" system to be truly just, you would have
> to
> make a very outlandish assumption: the laws that we are judged by are
> themselves just.
>
> Let me put this another way: what's the point of fair treatment under the law
> if
> the laws do not accurately identify criminal behavior?
>
> For example, if I were to invite some friends to my home for a low-stakes game
> of poker, I would be in violation of an unjust law. Under Due Process, police
> officers can legally kick down my door and kidnap everyone in the room. Even
> though I violated the law, and the officers acted completely within the law,
> was
> justice served?
>
> What was the bigger threat to society --- my illegal poker game or the legal
> home invasion?
>
> Since most libertarians would agree that the overwhelming majority of current
> laws are unjust, what we actually get with Due Process is INJUSTICE ON AN
> INDUSTRIAL SCALE. A fair trial is meaningless if you can be convicted of
> violating laws that shouldn't exist. Even worse, a fair trial gives the
> ILLUSION
> that justice has been served, which helps to perpetuate this destructive
> process.
>
> Besides systematically punishing the innocent, Due Process also provides
> protection for real criminals. Think about the police officer who spends his
> nights assaulting and kidnapping peaceful people, or the soldier whose
> profession is to commit murder on command. Because these career criminals are
> acting in accordance with the law, Due Process actually shields them from
> justice.
>
> As you can see, Due Process has nothing to do with real Justice; it is a
> powerful tool for Injustice. Like all government attempts at Central Planning,
> it has backfired in a catastrophic way and has achieved exactly the opposite
> of
> its intended purpose.
>
> ---Sasan
>
>
>
> ------------------------------------
>
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