Jury Nullification--real life, not theory

[LawDog]

Lawdog,
In feudal Japan prior to the 1868 Meiji Restoration, a samurai could kill any impolite person who was not samurai or noble with no penalty. Also, many if not most societies as some point in their history did not consider the killing of any non-member to be murder. The names many cultures had for themselves translated literally as "The People" or "The Humans" while their name for foreigners literally translated meant "Not People" or "Not human."

Be that as it may, all of which still had the concept of 'murder', and each society understood 'murder' to be wrong, however they defined it.

In the example of the samurai, they had to justify the killing on a point of honour, or courtesy -- otherwise it would have been murder.

The cultures which did not consider the killing of a non-member to be murder, considered the unjustifiable killing of a member to be murder.

They still have a concept of 'murder' and part and parcel of that concept is that it is wrong.

LawDog

 

[Control Group]

LawDog, I take your point regarding mala prohibita acts, but your stance seems, to me, to be somewhat circular. Perhaps I'm misunderstanding, in which case I apologize. But can you name any law that would qualify in your mind as respecting a malum in se activity? It seems to me that, by your reasoning, anything that has a law is malum prohibita because it has a law.

By contrast, my understanding of the terms has been that laws respecting acts that would be culturally prohibited with or without the law are mala in se laws, whereas laws respecting acts that are prohibited solely because there are laws about them are mala prohibita laws. Regardless of what other historical cultures have believed, modern America in general believes that rape is bad, and should be punished. Hence, malum in se. By contrast, most of America does not believe that tax delinquency is wrong in itself, it's only wrong because the IRS demands payment. Hence, malum prohibita.

I don't think that the criterion for an act being malum prohibita should be whether or not there is a law against it, but whether or not it would be wrong if there weren't a law against it. For that test, we need only look to the culture in question.

EDITED TO ADD: also notable, though potentially tangential, is that according to findlaw's dictionary, to be guilty of a malum prohibitum act, mens rea is not required - that is, you're guilty of gambling whether or not you had criminal intent. The implication, of course, is that you're not guilty of a malum in se act without criminal intent, thereby making manslaughter malum prohibitum and murder malum in se.

 

[Daniel T]

Not to mention that many societies did not recognize rape as any sort of crime. Or that women were anything but property.

So, are rape laws mala prohibita or mala in se?

Well, I'm prenty sure of the answer to that. I think that as a society's morals change, so do the things that become mala in se.

 

[LawDog]

There are three acts which are malum in se. Murder, theft, and violation of an oath sworn before your deity.

These acts are fundamentally wrong, and have always been so. No society has ever condoned the unprovoked killing of another in their society -- murder. No society has ever accepted the taking of a fellow society members private property without permission -- theft.

I think that as a society's morals change, so do the things that become mala in se.

No, mala in se is fundamental. It never changes. If your society changes an act because the morals of the society have changed, that is -- by definition -- mala prohibita.

LawDog

 

[publius]

I said, society considered addiction immoral and ostracized addicts. Which is a fact. I didn't say a damned thing about it being a "huge problem".

Sorry for the extrapolation. Maybe I can rephrase.

If "marihuana" smoking were a societal problem at the time, isn't it likely that the Speaker of the US House would have heard of it?

 

[LawDog]

If "marihuana" smoking were a societal problem at the time, isn't it likely that the Speaker of the US House would have heard of it?

What's that got to do with the price of tea in China?

Are you arguing that because the Speaker of the House didn't know what marijuana is, it changes marijuana laws from mala prohibita to mala in se?

Are you trying to present the position that because the Speaker of the House didn't know what marijuana was, slavery should be considered malum in se?

Help me out here, because I don't see what your point is, or how it's germaine to the debate I'm in.

LawDog

 

[publius]

Well, LawDog, when you brought cannabis prohibition into the discussion, you said this:

American society at the time that the marijuana laws were passed believed dope-smoking to be an immoral act, to the point that addicts were ostracized by society

At the time (or just before) I was trying to steer the thread back on topic, but I figured that if a mod let it wander, I'd join the wandering. So I decided to question your assertions there. If it was a societal problem (which suggests to me a large and widespread, not to say huge, problem) then the Speaker of the House would probably know about the problem. I didn't (yet) ask for a source on the ostracism claim, just thought I'd question one at a time.

Oh, and I also asked if anyone here thought that the Congress' power to tax was intended to include the power to regulate cannabis growing or firearms. It's something I frequently ask, to deafening silence each time. But since we're off topic anyway, want to answer that one as well?

 

[LawDog]

At the time (or just before) I was trying to steer the thread back on topic, but I figured that if a mod let it wander, I'd join the wandering. So I decided to question your assertions there.

You know, you're right.

Mea maxima culpa. As a moderator, I should know better.

I apologize for bending the rules there. I'll try not to let it happen again.

Closed for thread veer.

LawDog