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by vinceguidry
4734 days ago
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OK, at this point our disagreement is purely semantic. If you or I were to s/rational/just/g, then we would agree on everything. I do not agree that the law could never attain rationality/justness. I believe that it can, but it can only ever stay there temporarily. Eventually society will change and make the laws irrational again. Which is why my focus would be on the tuning the machinery of state rather than each individual law. With enough work, we could build a system that anticipates societal changes rather than simply reacts to it. > OTOH, using a continuous scale, even the most just law possible is going to occasionally prohibit some acts with social utility. In this case a jury can exercise discretion and refuse to convict someone even when the law and evidence would demand it. |
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Right. Or (in the abstract, though there are pretty strong signs that its not the current intention in this case) prosecutorial discretion or executive pardon can be used before or after the point where the jury would get involved. There are numerous tools available to fine tune the justice of the application of criminal law beyond just the scope of its prohibitions, and trying to foresee all the low-probability future possibilities in crafting the statutory prohibitions gets you into nasty trap; you've got to find a balance. And, most importantly, not view criminal law (or any law) as a machine that produces justice automatically without considering the people involved in its application.