December 06, 2003

TWELVE MEN GOOD AND IGNORED

Juries? We donít need no stinkin' juries:

Columnist Andrew Bolt complained about judges and magistrates being soft on criminals. A distressed magistrate sued. A jury found that, whatever his faults, Bolt had been "reasonable". Bolt claimed a victory for free speech.

The judge overruled the jury and awarded the magistrate damages of $210,000, plus another $25,000 to punish Bolt for his victory claim, plus interest.

Read the whole story, and be revolted by the constraints under which we live.

Posted by Tim Blair at December 6, 2003 02:47 AM
Comments

1) Pick up Richard Dawkins's "A Devil's Chaplain."

2) Read the chapter in which Dawkins disparages jury trials because they do not meet scientific standards of replicability. Read Dawkins's opinion that he would rather be tried by a judge than a jury any day.

3) Reflect that, brilliant a biologist as Richard Dawkins is, he doesn't know beans about why jury trials were considered an advance in human rights.

Posted by: F451 at December 6, 2003 at 02:58 AM

Here in the states criminal recidivism coupled with judges soft on crime forced many state legislators to pass mandatory sentencing laws taking some sentencing out of the hands of judges altogether. Legislators not only had to pass laws to protect citizens from criminals but also from judges who seemed to be practicing social engineering and experimental criminology from the bench. Some defendants get a raw deal from these laws, but jurists have no one but themselves to blame for sentencing to be taken out of their irresponsible hands.

There are some real problems in the Patriot Act here in America, but the greatest danger right now to freedom in America is and has been liberal judges legislating from the bench and regarding the Constitution of the United States along with the Bill of Rights as a template of suggestions. We now have Supreme Court justices, Sandra Day O'Connor for one, floating the incredibly stupid and ludicrious idea of using laws of foreign nations as bases for the intrepretion of American law, completely forgetting or willfully disregarding the fact that US law is based solely on the US Constitution. And for damn good reasons I might add. Fear of a judicial tryanny seems to be the just kind of thing that encouraged the founding fathers to place the Second Amendment and it's protection of citizens' rights of self-defense from such tryanny into the Constitution.

Australians would do right by themselves to relieve themselves of this sort of idiocy in their laws and courtrooms, and had better be damn quick about it too. Because I don't believe Australians have a Second Amendment right. But then I could be wrong.

Posted by: Harry at December 6, 2003 at 05:12 AM

Apparently, they have no First Amendment rights either.

Posted by: Ken Summers at December 6, 2003 at 05:32 AM

You realize, of course, you will have those rights once you become our 51st state.

Which reminds me...nobody in that entire comment thread ever answered my question. Is it true what they say about Australian women? I don't currently have the cash to go there and find out for myself.

Posted by: Ken Summers at December 6, 2003 at 05:42 AM

Harry, the problems in sentencing stemmed from the "medical model" that regarded criminality as an illness that could be cured. Judges and parole boards had great latitude in determining how quickly the cure could be effected, and they abused their power. From a system that was all rehabilitation and no culpability, we have swung the other way. Now criminal penalties, administered according to a "just deserts" model, are all about culpability. Some defendants (here I'm thinking in particular of drug users and the mentally ill) are indeed getting a raw deal, and there's growing support in the States for a two-tiered system: hard penalties for violent criminals, and more rehabilitative efforts for certain nonviolent types. An ACLU poll backing this up can be found at http://archive.aclu.org/features/f071901a.html

(I know, I know, the ACLU has some f'ed-up priorities, but I doubt they just made up the results.)

As far as US law being based solely in the US Constitution, I have to take issue with this idea. First of all, the real foundation of American law is English common law, and Supreme Court decisions from the very beginning of our country (including those construing our Constitution) draw heavily on that system in interpreting our own law. Second, it's not necessarily perfidious to give some regard to other nations' legal standards. Take the Eighth Amendment prohibition on cruel and unusual punishments. There's no concrete guide to what constitutes a "cruel" punishment, and we might look to other legal systems as a guide in making such a determination. Nobody's saying the US Supreme Court must bow to the world's opinion; but where a law or the Constitution has to be construed, there's nothing wrong with considering an argument from a non-American source.

Posted by: Joe Geoghegan at December 6, 2003 at 06:15 AM

Holy crap, that's outrageous.

I'll wager that Aussie lefties will somehow link this to John Ashcroft and Dubya.

Posted by: Dave S. at December 6, 2003 at 06:43 AM

Joe, two issues:

1) English commonlaw is the basis for state law in the US, but not federal law (as I understand it). Even assuming the court should draw on English commonlaw, that does not mean current English law (and most certainly does not mean current French law).

2) The biggest problem with using foreign law is that one has very wide latitude in choosing which foreign law to apply. Does one choose the model used in most countries? Or just particular countries chosen at the whim of a judge?

This isn't trivial, because the recent case which upset people (by using foreign sources) was about sodomy. This is a capital offense in many, possibly most, countries. Should sharia law have equal standing with English commonlaw?

Posted by: Ken Summers at December 6, 2003 at 07:43 AM

Joe,

While in agreement with your evidence of English common law as the framework for the US Constitution, I still believe that US law is based within the US Constitution solely. In other words the founding fathers cherry-picked from English common law, then they added some uniquely American safeguards such as the first and second amendments. And in doing so created a philosophy of government by the consent of the governed. Bottom up rather than top down so to speak.

The purpose of the US judiciary is plainly laid out within the US Constitution. As a matter of fact the only court the Constitution mandates is the US Supreme Court. All other US courts are products of federal legislation. That said, to interprate US law using foreign legal precedents is not something that is in the Court's Constitutionally mandated abilities. If for no other reasons the US Courts should never waver from the US Constitution are that once done they put themselves on a very slippery slope of precendence and whatever ruling they apply from a foreign country you can bet that foreign country's legal system will not contain the Bill of Rights. What this really is, is the more liberal members of the American federal judiciary attempting to fold the bureaucratically enhanced international Rights of Man bullshit into US law. What they want is the creeping invasion of international law or a form globally eqivalent law to eventually to be applied to American citizens. I'm sorry but the United States did not become a great power by following the examples of Europe. Rather by eschewing much that is European, such as fealty, Americans have managed to create a much freer and properous nation. International constitutions, European jurists, and liberal American jurists have but one goal in having US law incorporate foreign precedents and that is to ensure the dominance of the state and its permanent bureaucracy over the citizenry. No fucking thanks, I'd rather have the "flawed" US Constitution and the Bill of Rights. With those documents and philospies I know where I stand.

Posted by: Harry at December 6, 2003 at 07:53 AM

F451

Richard Dawkins is Biologist equivalent of Gnome Chimpsky. He's brilliant and his major profession but then wades into politics and makes a complete tool of himself.

Posted by: murph at December 6, 2003 at 08:23 AM

Actually, first, there is a such thing as Federal common law.

Second, the Ninth Amendment is clearly only meaningful in the context of pre-Revolutionary English law; where else could rights not enumerated in the Constitution reside in a form that judges could adjudicate? The Ninth Amendment incorporates by reference the rights of common law.

Third, the Declaration of Independence specifically cites the abolition of "the free System of English Laws in a neighbouring Province" as a reason for revolution. What point, then, if were were just going to abolish it ourselves?

Although the Constitution trumps any specific measure of common law, the common law *is* properly to be considered U.S. law, and precedents from other common law countries are valid as persuasive (not binding) precedent in the U.S. and always have been.

Now, that does not make, sharia, EU decisions, Britsh Parliamentary laws after the Revolution, unratified treaties, or any of the rest of it U.S. law, and Ms. O'Connor should be impeached. But the common law, because of precedent, tradition, and Constitutional provisions, is special.

Posted by: Warmongering Lunatic at December 6, 2003 at 08:28 AM

Ken, in Marbury v. Madison, where Justice Marshall expounded on the nature of the federal judiciary, he drew on a background of English common law in his analysis of the fundamental structure of our government. In determining that it is eminently the province of the Article III judiciary to say what the law is, he was looking to the English precedent. Additionally, federal judges have to make determinations of non-federal law all the time, especially in diversity cases. Also, federal law is not created in a vacuum; when law, particularly procedural law, is drafted, it is done with an eye on the historical roots of our legal system. Legal terms, including those used in federal law, derive their origins from English law. That's not to say, of course, that we have to ask an English judge for their modern opinions on our shared terminology.

I would never suggest that our judges should take an average of world legal systems into account when making their judgments. Justice O'Connor would have no more regard, I am sure, for sharia courts than you or I would. There are foreign judiciaries that it's safe to respect, and those that it's safe to deride. Also, no one is talking about coming up with a new judicial doctrine where our courts have to be guided by foreign ones. The Supreme Court stands up to intense international pressure regarding the death penalty. I'm just talking about granting a mental audience to the arguments of a respectable foreign judge, which is entirely discretionary and not a slippery slope concern.

Harry, there's no reason for concern that the Bill of Rights will be supplanted. No Supreme Court justice (can't speak for the 9th Circuit) would try to sacrifice a protected liberty to a foreign legal precedent. The Court's constitutionally mandated ability, however, is to interpret the law; and if they have to make a finding about an ambiguous term such as "cruel" in the 8th Amendment, they can really use just about any source they want. But since foreign legal precedents can't become controlling authority no matter how many times our courts look to them, there's no reason to be concerned with what safeguards a foreign legal system does / does not contain.

Look, if Justice Stevens' French cousin Philipe-Louis-Jean-Luc Stevens said "Ah theenk zis puneeshment, she is cruel," and Stevens said "You know, I'm persuaded," that would be perfectly legitimate. Stevens would not be under any obligation to pay heed to anything else P-L-J-L Stevens said.

This is an interesting conversation, but I have a massive exam to study for (Federal Courts, wouldn't you know), so I might not check back for a few hours.

Posted by: Joe Geoghegan at December 6, 2003 at 08:43 AM

Harry, there's no reason for concern that the Bill of Rights will be supplanted.

Well, what's left of it anyway. By my count, the only health amendment is the First (freedom of speech and religion). I suppose the Third is OK (prohibiting the quartering of soldiers). Big bites have been taken out of many of the rest by our masters in the judiciary and the legislature, though, if they haven't been pronounced dead on arrival (the Tenth, which states that the default assumption is liberty, not servitude to the state).

No Supreme Court justice (can't speak for the 9th Circuit) would try to sacrifice a protected liberty to a foreign legal precedent.

I will take the other side of that bet. Hate speech laws, which infringe on freedom of speech, will be upheld by the Supreme Court, and the opinion will mention all the hate speech laws of other jurisdictions.

Justice O'Connor should be horsewhipped out of office for suggesting that foreign law should govern the US by judicial fiat.

Posted by: R. C. Dean at December 6, 2003 at 09:06 AM

Points taken, but it still would have to refer to English commonlaw prior to the revolution, not current law, and only to form a basis for the Constitution (after which, only American case law should be used). Most emphatically, if current attitudes are important in American case law (e.g., for defining "cruel"), it must be current American attitudes.

Posted by: Ken Summers at December 6, 2003 at 10:25 AM

murph, f451- The really scary thing about Dawkins is that compared to the likes of Stephen Jay Gould and Steven Rose he is considered to be right-wing.

Posted by: Ross at December 6, 2003 at 10:44 AM

I thought it was a jury of six?

And after Stutchbury's recent ridiculous defense of Albrechtsen's plagiarism and fabrication of evidence, I think I'll get a second opinion before I pass judgment.

Posted by: Robert at December 6, 2003 at 11:28 AM

Canada is heading towards some problems too as indicated in this article.

HERE

Posted by: James Riley at December 6, 2003 at 02:10 PM

Yes I know of your respect of the Law Robert.

Posted by: Gary at December 6, 2003 at 03:38 PM

Let's get back to the real issue - Ken Summers' question about Aussie women.

Yes, it's all true Ken. We lose a couple of hundred women that way in Queensland every summer. Sydney is a bit different - it's mainly men who meet their maker that way off Bondi Beach. Given the number of Kiwi's living in the eastern suburbs, there is a pretty shocking toll of sheep as well.

TFK

Posted by: Bob Bunnett at December 6, 2003 at 05:21 PM

Queensland it is, then!

Posted by: Ken Summers at December 7, 2003 at 02:44 AM

Um, I should probably make it clear that I don't actually want women to drown. In fact, I much prefer that they stick around to continue working their magic.

But DAMN I like their spirit!

Posted by: Ken Summers at December 7, 2003 at 10:23 AM