Comments on: Re-Empowering Juries http://blogs.law.harvard.edu/nesson/2008/07/26/re-empowering-juries/ Tue, 24 Nov 2009 05:00:24 -0500 http://wordpress.org/?v=2.8.5.2 hourly 1 By: CSConrad http://blogs.law.harvard.edu/nesson/2008/07/26/re-empowering-juries/comment-page-1/#comment-3700 CSConrad Sun, 27 Jul 2008 03:15:09 +0000 http://blogs.law.harvard.edu/nesson/2008/07/26/re-empowering-juries/#comment-3700 What you are saying boils down to the distinction between formal law, and what is called Natural Law. Now, at the time of the founding of this country, Natural Law was still accepted. Under that understanding, jurors could decide whether the law they read passed muster: whether it was compatible with Natural Law. Come the late 1800's, and Natural Law started to be disavowed by the Harvard School. Formal law, statutory law, gained ascendancy. There was little more tolerance for allowing jurors to use their sense of justice: the formal law was what mattered. Thus, jury nullification started to wain. However, prohibition cases often ended in nullification verdicts, and nullification started to occur in a variety of cases with a wink and a nod. Nobody got too worked up about it: it just seemed fair. As the criminal law started to take a larger and larger role in society, and as social engineering programs increasingly operated through the criminal law, jury nullification became more and more dangerous to the engineers and technocrats. I think that pretty much explains where we are today. What you are saying boils down to the distinction between formal law, and what is called Natural Law. Now, at the time of the founding of this country, Natural Law was still accepted. Under that understanding, jurors could decide whether the law they read passed muster: whether it was compatible with Natural Law.

Come the late 1800’s, and Natural Law started to be disavowed by the Harvard School. Formal law, statutory law, gained ascendancy. There was little more tolerance for allowing jurors to use their sense of justice: the formal law was what mattered. Thus, jury nullification started to wain.

However, prohibition cases often ended in nullification verdicts, and nullification started to occur in a variety of cases with a wink and a nod. Nobody got too worked up about it: it just seemed fair.

As the criminal law started to take a larger and larger role in society, and as social engineering programs increasingly operated through the criminal law, jury nullification became more and more dangerous to the engineers and technocrats.

I think that pretty much explains where we are today.

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