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How much of the laws on the books today were written by philosophers of law? It

Law
How much of the laws on the books today were written by philosophers of law? It seems to me that the overwhelming majority of laws were written by people with JDs ergo people with degrees in which philosophy of law was not an important subject during their education. If they had more training in the philosophy of law would law be More efficient and fairer?

Disclaimer: I'm neither a JD nor a philosopher of law. But I don't think that will matter for the points I want to make.

My guess is that very few laws were written by people with training in philosophy of law, and not too many more by people with training in philosophy of any sort. But I'm not sure that should worry us.

The first reason is that laws in many countries—including the United States, where I live—are part of the democratic process. They neither are nor pretend to be examples of perfect justice or perfect efficiency. They're the result of various kinds of compromise and without a dictator, that's how it has to be.

Furthermore, in democratic systems, the question of what justice really demands isn't the only one we think should guide lawmaking. People can disagree about what's just. In democratic systems, the will of the voters counts. Suppose a legislative aide has been charged with drafting a law. Suppose she is well-schooled in legal philosophy. And suppose that the statute she's meant to draft doesn't fit her considered view of what the law should be. If it's something the voters clearly support, her contrary opinion won't matter. And unless the law is deeply and manifestly unjust, it shouldn't matter. We live in a democracy, not a philosophracy, to coin an ugly term. If the philosopher wants her view to prevail, she should run for office, or try to persuade voters by becoming a pundit or commentator. (I'd add: even then, it's a mistake to think that philosophers have more insight into what's just than everyone else does.)

Finally, suppose a proposed law seems fair and reasonable. Turning the proposal into a statute that will function efficiently in practice is a specialized craft. It calls for a practical understanding of how the courts, government bureaucracies, businesses, etc. actually work. There's no reason to think that training in philosophy of law makes someone an expert on any of that.

Disclaimer: I'm neither a JD nor a philosopher of law. But I don't think that will matter for the points I want to make. My guess is that very few laws were written by people with training in philosophy of law, and not too many more by people with training in philosophy of any sort. But I'm not sure that should worry us. The first reason is that laws in many countries—including the United States, where I live—are part of the democratic process. They neither are nor pretend to be examples of perfect justice or perfect efficiency. They're the result of various kinds of compromise and without a dictator, that's how it has to be. Furthermore, in democratic systems, the question of what justice really demands isn't the only one we think should guide lawmaking. People can disagree about what's just. In democratic systems, the will of the voters counts. Suppose a legislative aide has been charged with drafting a law. Suppose she is well-schooled in legal philosophy. And suppose that the statute she's...

I'm a lawyer. One of my previous clients asked me for specific legal advice that

I'm a lawyer. One of my previous clients asked me for specific legal advice that he later used to commit financial fraud. I strongly suspected at the time that he was going to use my advice for that very purpose but I told him anyway because I like him as a person and I also disagree with the law that prohibits the particular type of fraud that he committed. Have I acted immorally according to virtue ethics?

First, a thought about the question: you ask whether you've "acted immorally according to virtue ethics." You might be trying to understand what light virtue ethics in particular casts on a case like this, or you might be interested in whether what you did was wrong, period. In either case, I don't think we have enough information to say. But let's take the cases in turn.

Some views provide what's supposed to be a criterion that we might be able to use rather like an algorithm to figure out what's right or wrong. Utilitarianism would tell us to do a sort of cost/benefit analysis, toting up the goods and the harms and deciding whether one action is better than another by seeing how the arithmetic works out. Kantianism would direct us to apply the Categorical Imperative in one or another of its forms. (For example: we might ask whether what we're considering would call for treating someone merely as a means to an end.) Virtue ethics doesn't work that way. It's often understood as telling us to do what a virtuous person, aware of the situation and properly informed, would do. We can get a grip on that by asking what virtues are relevant—honesty, for instance, or fairness or courage or kindness. But the list of virtues is open-ended, and even once we've identified some relevant ones, there's no recipe for saying how they apply in a particular case. For example: a person with the virtue of honesty isn't necessarily someone who unfailingly tells the truth. Rather, a person with this virtue knows when truth-telling is the right thing, and acts accordingly. My own view is that it's a virtue of virtue-ethics that it has this open-ended character, but not everyone feels that way. In any case, it's hard to say with so little information just how the virtuous person might act in your situation without knowing what's at stake and what the law actually is forbidding.

The fact that you ask your question in the first place suggests that, virtue ethics aside, you may not be sure you did the right thing. If you told your former client what the law actually calls for and he chose to break the law anyway, then it's not likely that you breached any duties of professional ethics. However, that doesn't necessarily answer the larger question; things can be in accord with professional codes of ethics and still be wrong. If you were implicitly encouraging him to commit some sort of fraud, that would be at least somewhat worrisome even if this particular sort of "fraud" is something most people wouldn't see as wrong. The worry is that we have at least some duty to obey the law even when the law is less than ideal. One reason: picking and choosing among laws might weaken your own overall respect for the law, and might likewise make other people respect the law less. Again, this isn't conclusive and a lot would depend on the details. But as a lawyer, you arguably are held to a higher standard than most people when it comes to matters of the law. It doesn't sound like you literally broke your professional oath, but we can still ask whether you behaved as we would ideally like lawyers to behave. Did you caution your former client? Did the way you answered his question suggest that you take the general maxim that we should respect the law seriously? Or was there a wink and a nod? How good are your reasons for thinking this kind of "fraud" isn't really wrong?

I don't know the answers to any of those questions. But if you're trying to decide whether you acted wrongly, they're the sorts of questions I'd say you should ask.

First, a thought about the question: you ask whether you've "acted immorally according to virtue ethics." You might be trying to understand what light virtue ethics in particular casts on a case like this, or you might be interested in whether what you did was wrong, period. In either case, I don't think we have enough information to say. But let's take the cases in turn. Some views provide what's supposed to be a criterion that we might be able to use rather like an algorithm to figure out what's right or wrong. Utilitarianism would tell us to do a sort of cost/benefit analysis, toting up the goods and the harms and deciding whether one action is better than another by seeing how the arithmetic works out. Kantianism would direct us to apply the Categorical Imperative in one or another of its forms. (For example: we might ask whether what we're considering would call for treating someone merely as a means to an end.) Virtue ethics doesn't work that way. It's often understood as telling us to do...

Justice Scalia famously stated that crosses on graves have, well, crossed-over

Justice Scalia famously stated that crosses on graves have, well, crossed-over from an overtly religious symbol to one that may represent any dead soldier. How do philosophers treat such claims? How do we establish when religious practices, symbols, rituals, etc. have entered the secular public domain to the extent that the law can recognize them as such?

I'll have to admit that I think Justice Scalia is full of prunes on this one, as my grandmother would have said. And I think the case was decided wrongly by the Supreme Court. (Here's an account of the decision that's not just neutral, but still... http://www.patheos.com/blogs/friendlyatheist/2010/04/28/supreme-court-ru... )

As for your question, it has an empirical component and a conceptual one. The conceptual part calls for deciding what it would mean for a symbol not to have a religious meaning, and the empirical part would be finding out if crosses on graves now have a secular meaning.

The answer to the conceptual question might call for some bells and filigrees, but the basic idea is pretty clear: do most people, including in this case most non-Christian people, agree that a particular symbol (in this case, a cross on a grave) has no religious meaning? If the answer is yes, then Justice Scalia is right. If the answer is no, then he's wrong.

As for how we'd sort out the empirical facts in this case, that would best be left to people who not only understand the issue, but also know how to design good tools (surveys, etc.) for probing such matters. I'm not one of those. However, I'd think some things are clear. We'd want to know, for example, whether most Jews, for example, would be comfortable with the idea of a family member (or themselves!) being buried in a grave marked by a cross. And if the answer is "no" (that would be my guess), then we'd want to know what reasons would typically given. I'd bet a large chunk of my 403B that the answer would be "because it's a Christian symbol and my loved-one isn't Christian."

Since I'm a philosopher, my union card calls for adding caveats. Of course it's not true that each and every use of a cross on a grave is intended to have a religious meaning. We can imagine someone in exigent circumstances marking a grave with a cross just because that makes it likely that people who encounter it will recognize it as a grave. But that doesn't show that crosses have become secular symbols for purposes of the law, and it's an insult to both Christians and non-Christians to pretend otherwise.

I'll have to admit that I think Justice Scalia is full of prunes on this one, as my grandmother would have said. And I think the case was decided wrongly by the Supreme Court. (Here's an account of the decision that's not just neutral, but still... http://www.patheos.com/blogs/friendlyatheist/2010/04/28/supreme-court-rules-that-a-cross-is-not-a-symbol-of-christianity/ ) As for your question, it has an empirical component and a conceptual one. The conceptual part calls for deciding what it would mean for a symbol not to have a religious meaning, and the empirical part would be finding out if crosses on graves now have a secular meaning. The answer to the conceptual question might call for some bells and filigrees, but the basic idea is pretty clear: do most people, including in this case most non-Christian people , agree that a particular symbol (in this case, a cross on a grave) has no religious meaning? If the answer is yes, then Justice Scalia is right. If the answer is no, then he's wrong....

Is is true that justice is an essential element of law such that without it, law

Is is true that justice is an essential element of law such that without it, law cannot be law?

The big issue behind your question is the relationship between law and morality. That's a very big question, though on at lest one important view of what laws are (legal positivism) the answer to your question is no. On the positivist view, laws are, roughly, what lawmaking entities (legislatures, monarchs...) say they are. Whether a law is is another question, as is the question of whether you should obey some particular law.

Whether you think this is right at the end of the day, it fits the common sense thought that there can be bad laws that are still laws. For example: I'd say that at least some aspects of US civil forfeiture laws are actually unjust. They allow the government to seize your property in ways that, these days, many liberals and conservatives agree are unjust. But critics of those laws don't claim that they aren't actually laws; they argue that the laws should be changed.

In any case, there are laws that don't raise questions of justice. In the USA, the law says you drive on the right side of the road; in South Africa, it's the left. Laws like this aren't unjust, but there isn't really an issue of justice here. Justice isn't the only thing the law concerns itself with.

The big issue behind your question is the relationship between law and morality. That's a very big question, though on at lest one important view of what laws are (legal positivism) the answer to your question is no. On the positivist view, laws are, roughly, what lawmaking entities (legislatures, monarchs...) say they are. Whether a law is is another question, as is the question of whether you should obey some particular law. Whether you think this is right at the end of the day, it fits the common sense thought that there can be bad laws that are still laws. For example: I'd say that at least some aspects of US civil forfeiture laws are actually unjust. They allow the government to seize your property in ways that, these days, many liberals and conservatives agree are unjust. But critics of those laws don't claim that they aren't actually laws; they argue that the laws should be changed. In any case, there are laws that don't raise questions of justice. In the USA, the law says you drive on...

Are libel laws immoral? Libel is so not easy to define yet depending on how it

Are libel laws immoral? Libel is so not easy to define yet depending on how it may be interpreted, all satire and caricature can be considered libel. Isn't the mark of a free society being able to say whatever one wants, even if it amounts to character assassination? Character assassinations can always be defended in the court of public opinion without resorting to courts of law.

Your suggestion that all libel laws are immoral seems to be based on the premise implicit in this rhetorical question: "Isn't the mark of a free society being able to say whatever one wants, even if it amounts to character assassination?" But why think that? As near as I can tell, more or less all of the societies that we usually think of as by and large free have libel and/or defamation laws, and so if the freedom to say anything you like about anyone, in any venue, without legal consequences, were the mark of a free society, it would follow that there are no free societies. But that conclusion would rely on using the phrase "free society" in a way that very few people would find plausible.

Turning to the substance, it's not easy to com up with good reasons why a society should do without libel laws. Your suggestion is that the "court of public opinion" is the alternative. But what if someone libels you and it costs your your job? What if it not only costs you the job you had, but marks you as a scoundrel and keeps you from getting another job? How, exactly, are you going to appeal to the "court of public opinion" to restore your good name or provide compensation for the harm that was done to you by the libel? For my own part, if I were in that position and I couldn't turn to the courts, I would have more or less no idea how to work the levers of public opinion to recover from the damage.

People can deliberately harm you in many ways. Many of those ways aren't tolerated by the law. If you steal my wallet, you can end up in jail. But if you deliberately rob me of my good name, you may do me far more harm. Shakespeare's Iago may have been a villain, but he was right about that.

Libel laws can be too strict, of course, but that's not the question. Bad libel laws might indeed have the result that satire and caricature would count as libel. But at least in the United States (and in many other countries) libel laws don't work that way. If the question is whether libel laws are immoral by nature, then I think we'd need better reasons before we said yes.

Your suggestion that all libel laws are immoral seems to be based on the premise implicit in this rhetorical question: "Isn't the mark of a free society being able to say whatever one wants, even if it amounts to character assassination?" But why think that? As near as I can tell, more or less all of the societies that we usually think of as by and large free have libel and/or defamation laws, and so if the freedom to say anything you like about anyone, in any venue, without legal consequences, were the mark of a free society, it would follow that there are no free societies. But that conclusion would rely on using the phrase "free society" in a way that very few people would find plausible. Turning to the substance, it's not easy to com up with good reasons why a society should do without libel laws. Your suggestion is that the "court of public opinion" is the alternative. But what if someone libels you and it costs your your job? What if it not only costs you the job you had, but marks you as a...

Suppose you have been wrongly accused of murder. You know you are innocent but

Law
Suppose you have been wrongly accused of murder. You know you are innocent but you also know that the states attorney believes you are guilty. The attorney offers you 25 years if you plead guilty but If you go to trial you will be executed if you are found guilty. You are unsure of your chances of winning the case so to prevent the possibility of death you accept the plea. Does the fact that you chose the plea bargain mean that you acknowledge that it is better to have a plea bargain than not have a plea bargain? If it is better for you to have it than not have it then does that mean that someone who would consider such a plea bargain to be coercion is wrong?

Given that I'm in the rotten situation of being charged with a murder I didn't commit, it may be a good thing for me that I can avoid being executed. But I'm in a rotten situation; all things considered, my situation is bad. It's bad even if I would be a fool not to accept the plea deal. It's bad even if the possibility of plea deals is a good thing in general, and even if the prosecutor is acting entirely responsibly. (Let's suppose the murder I'm accused of is a particularly heinous crime and that the evidence is strong, even if it points to the wrong conclusion.) It could be good for the justice system overall that plea deals like this are possible, good for me from a narrow point of view that I can accept the deal, and yet, given that I'm innocent, a bad situation from my larger point of view.

What about coercion? If we use that word, most people would understand it to mean that the prosecutor shouldn't be putting me in this situation---that a responsible prosecutor wouldn't offer such a stark choice. That's a different question from whether the deal is a good one for me from one point of view or another. Though I'm innocent, the prosecutor might have strong reasons to think I'm not, and she might be following reasonable guidelines scrupulously. That would make the word "coercion" a poor fit. On the contrary, it could be that the prosecutor firmly believes that offering this deal has an element of mercy about it and that she privately hopes I'll accept it because though she thinks I'm guilty, she abhors the death penalty. Whether the deal is coercive is a question about whether the prosecutor is doing something wrong by offering it, and not simply a question about how things look from my own point of view.

Also: whether it's better for me to have the plea option than not to and whether it's coercive aren't the same question. Leave your specific example aside. Suppose we have a case where a reasonable punishment would be, say, 5 years. Suppose I'm innocent and the evidence is not overwhelming, but the prosecutor needs more successful prosecutions under his belt to keep the voters happy. Furthermore, the prosecutor doesn't like me. Suppose the deal I'm offered is that I get 8 years if I plead guilty and 20 years if I lose at trial. It might be that all things considered, I should accept the deal. But given the particulars, it sounds like coercion. The prosecutor is putting unreasonable pressure on me to accept a bad deal just because it suit his purposes.

There's no puzzle here, and this brings us to the final point. The thing about coercion is that it works by putting people in a situation where their options are wrongly narrowed and where given those bad options they are rational to accept a result that in a just world they wouldn't have been faced with. In the case we just described, it's better for me to have the unreasonable option of 8 years in jail than not to. But I'm still being coerced.

So maybe your case is coercion, and maybe it's not. That's a different question from whether the possibility of plea deals is good overall, and it's a different question from whether you are wise, all things considered to accept the deal.

Given that I'm in the rotten situation of being charged with a murder I didn't commit, it may be a good thing for me that I can avoid being executed. But I'm in a rotten situation; all things considered, my situation is bad. It's bad even if I would be a fool not to accept the plea deal. It's bad even if the possibility of plea deals is a good thing in general, and even if the prosecutor is acting entirely responsibly. (Let's suppose the murder I'm accused of is a particularly heinous crime and that the evidence is strong, even if it points to the wrong conclusion.) It could be good for the justice system overall that plea deals like this are possible, good for me from a narrow point of view that I can accept the deal, and yet, given that I'm innocent, a bad situation from my larger point of view. What about coercion? If we use that word, most people would understand it to mean that the prosecutor shouldn't be putting me in this situation---that a responsible prosecutor wouldn't offer such a stark...

Do polygamy bans violate the natural rights of bisexuals? In wake of the current

Do polygamy bans violate the natural rights of bisexuals? In wake of the current Supreme Court debate in the US that gay marriage bans violate due process and equal protection guarantees, I want to ask a philosopher whether these two legal concepts, due process and equal protection (which go by different names in different countries), are derived from natural philosophical rights. If so and assuming that they are similar in meaning, does that mean that at least philosophically speaking, polygamy irrespective of particular examples is NOT inherently immoral? The main philosophical argument for gay marriage from what I've heard is that since sexual orientation is a fundamental and largely unchangeable part of a person's nature, it is immoral to deny gays a right that straight people have. But what about bisexuals? Isn't a bisexual woman or man who is in a serious relationship with both a man and a woman at the same time just as deserving? I don't think it matters whether or not the other two members of the...

I'm not sure I have your question clearly in my sights, but I think it's something like this: As it stands the only kind of marriage many countries recognize is between one man and one woman. Advocates of same-sex marriage argue that for a variety of reasons, not least the fact that sexual orientation isn't simply a choice, we ought to recognize same-sex marriages as well. Otherwise, there's a serious issue of fairness and justice.

Your suggestion is that this leaves a particular injustice unaddressed: bisexual people who are in relationships with men and women at the same time. If same-sex marriage is the cure for discrimination against homosexual relationships, then, so the thought goes, polygamous marriage is the cure for the parallel injustice against bisexuals.

Here's why I'm not persuaded. Leave hetero- vs. homo- vs. bisexuality aside. Some people are in love with more than one person. Call people capable of such attachments polyamorous. In some cases, all concerned parties would be more than happy to from a common household and live together as spouses. Should we say that by not allowing polygamous marriage, the law discriminates unjustly against polyamorous people?

Before we get to the question itself, notice that it has nothing special to do with bisexuality. Most people are quite capable of being attracted to more than one person at once. From this point of view, someone who's in love with both a man and a woman at the same time is just another polyamorist. And there's no reason I know of to believe that the polyamorous desires of bisexuals are any stronger than anyone else's.

Now to the question. You said you wanted it understood as philosophical rather than legal, so here's the philosophical bit. It's one thing to say that the law shouldn't outlaw polyamorous relationships. It's another to say that it should broaden marriage to include n-adic relationships with n greater than 2. More generally: it's one thing to say that the law should allow certain kinds of conduct. It's another to say that it should give them special status. From "the law shouldn't interfere with polyamorous relationships" to "the law should allow polygamous marriage, with all the rights and privileges thereof" is not a mere skip and a jump. However, none of this has anything special to do with bisexuality.

We could put it this way: if people's polyamorous tendencies give us a good reason for legal polygamy, then the law shouldn't worry itself with the internal geometry of the configuration. I have no problem with the conditional itself. The "if" part, however, is where the rub comes. For while there are limits on what a legitimate legal system should allow or forbid, every remotely just legal system I know of is hip-deep in policy issues. There might be many good reasons for the law not to embrace all the tax, inheritance, child-custody, benefits, child-custody questions, and other sequlae of polygamous marriage even if it should also mostly keep its nose out of people's intimate relationships. In other words, there might be good policy reasons not to recognize polygamous marriage. But even if we agree (as I do) that the law should recognize same-sex marriage, the fact that bisexual people are amongst the polyamorous doesn't give us any special reason to recognize polygamy.

I'm not sure I have your question clearly in my sights, but I think it's something like this: As it stands the only kind of marriage many countries recognize is between one man and one woman. Advocates of same-sex marriage argue that for a variety of reasons, not least the fact that sexual orientation isn't simply a choice, we ought to recognize same-sex marriages as well. Otherwise, there's a serious issue of fairness and justice. Your suggestion is that this leaves a particular injustice unaddressed: bisexual people who are in relationships with men and women at the same time. If same-sex marriage is the cure for discrimination against homosexual relationships, then, so the thought goes, polygamous marriage is the cure for the parallel injustice against bisexuals. Here's why I'm not persuaded. Leave hetero- vs. homo- vs. bisexuality aside. Some people are in love with more than one person. Call people capable of such attachments polyamorous. In some cases, all concerned parties would be more...

Is it unfair for a judge to give their verdict based on a technicality?

Law
Is it unfair for a judge to give their verdict based on a technicality?

Suppose the "technicality" is something that the law pretty clearly entails, even though it's doubtful that legislators had the particular worrying circumstances in mind. In that case, the judge is doing something we normally think judges are supposed to do: deciding cases based on the law. It's open to the judge to point out that this is an unfortunate consequence of the law, and may be open to him/her to adjust penalties accordingly, but if the law actually has a certain consequence, then that's the law. If the "technicality" is an unfortunate one, legislators can fix it, or so the argument would go.

Compare: suppose that it's not a matter of a technicality at all, but a matter of a law that the judge thinks is bad. Then it's still the judge's sworn obligation to follow the law.

Is this fair? In various senses of the word, the answer may be no. Should the judge do otherwise? That doesn't follow. It's not clear that the cure for bad laws is to have judges substitute their judgment of what's fair for what's legal.

That said, two comments. First, could there be cases so egregious that it would be just plain wrong of the judge to enforce the law? Perhaps. But that's different from saying that judges should routinely substitute their own sense of fairness for what the law entails. Second, what's been said here doesn't mean that judgments of fairness and the like never have a place in the law. Laws themselves can leave room for that. In some parts of the legal system, especially in some countries, the notion of equity has an important role to play. And when it comes to constitutional matters, legal philosophers like Ronald Dworkin have argued that the Framers were aiming at general principles and didn't intend for courts to be bound by their own conception of what those principles call for in particular cases. Whether that's the best view at the end of the day, it's at least a worthy contender.

Suppose the "technicality" is something that the law pretty clearly entails, even though it's doubtful that legislators had the particular worrying circumstances in mind. In that case, the judge is doing something we normally think judges are supposed to do: deciding cases based on the law. It's open to the judge to point out that this is an unfortunate consequence of the law, and may be open to him/her to adjust penalties accordingly, but if the law actually has a certain consequence, then that's the law. If the "technicality" is an unfortunate one, legislators can fix it, or so the argument would go. Compare: suppose that it's not a matter of a technicality at all, but a matter of a law that the judge thinks is bad. Then it's still the judge's sworn obligation to follow the law. Is this fair? In various senses of the word, the answer may be no. Should the judge do otherwise? That doesn't follow. It's not clear that the cure for bad laws is to have judges substitute their judgment of what's...

Dred Scot v. Stanford, Supreme Court rules slavery is constitutional.

Law
Dred Scot v. Stanford, Supreme Court rules slavery is constitutional. Plessy v. Ferguson, Supreme Court rules segregation is constitutional. Today they’ve allowed the government to spy on its own citizens. They’ve outlawed partial birth abortion. They’ve pursued pro-torture policies. The Supreme Court is appointed, not elected. I was never given any say in WHO gets to be a Justice. While the President is only allowed a max of eight years in office, and legislators have to repeatedly struggle for re-election…the justices serve for life and there’s no way for us to remove them from office. …Considering that they’re the ones who get to decide what the constitution means, (Mauburry v. Madison, Judicial Review) don’t you think this seems a bit out of place in the American government? I mean…they tell us what our constitution means, and there’s nobody to check it. Seems tyrannical, primitive, undemocratic, and out of place in an republic government to me.

Of course, if you vote, you do get at least an indirect say in who's on the court. And after all, your say in a good many matters is only indirect.

In any case, if the question is what the Constitution means, there's something unappetizing about having the check be one that's too directly tied to the political realm. Constitutions are supposed to set some things beyond the reach of the ordinary democratic process, not least so as to evade what some call the "tyranny of the majority."

But in any case, it's not as though there are no counterweights. Some have held that Congress has the authority to declare that some matters are simply outside the purview of the Court, though I gather that this is controversial. But if the Court makes a constitution ruling that enough people object to, the Constitution can be amended, and has been many times.

More generally, what strikes me (as someone born elsewhere) is that far from being "primitive," the American system of checks and balances - including checks and balances on the Court itself - is actually both supple and subtle.

Of course, if you vote, you do get at least an indirect say in who's on the court. And after all, your say in a good many matters is only indirect. In any case, if the question is what the Constitution means, there's something unappetizing about having the check be one that's too directly tied to the political realm. Constitutions are supposed to set some things beyond the reach of the ordinary democratic process, not least so as to evade what some call the "tyranny of the majority." But in any case, it's not as though there are no counterweights. Some have held that Congress has the authority to declare that some matters are simply outside the purview of the Court, though I gather that this is controversial. But if the Court makes a constitution ruling that enough people object to, the Constitution can be amended, and has been many times. More generally, what strikes me (as someone born elsewhere) is that far from being "primitive," the American system of checks and balances - including...

Suppose a defense lawyer strongly suspects (to the point that he would be

Suppose a defense lawyer strongly suspects (to the point that he would be willing to bet a large amount of money on it) that his client has committed the crime he charged with. Would it be right or wrong for him to encourage the jury to deliver a "not guilty" verdict?

At least in the USA, the premise of the criminal justice system is that the burden is on the state to establish guilt "beyond a reasonable doubt." And there are various reasons why we might want to stick to that standard. It's not a good thing when a guilty person goes free, but it's also not a good thing when the state has low standards for establishing guilt. And so the usual idea is that everyone is entitled to a vigorous defense. Even if the lawyer believes in his/her heart of hearts that the client is guilty, the question for the judge and jury is whether the state's arguments and evidence make the case.

At least in the USA, the premise of the criminal justice system is that the burden is on the state to establish guilt "beyond a reasonable doubt." And there are various reasons why we might want to stick to that standard. It's not a good thing when a guilty person goes free, but it's also not a good thing when the state has low standards for establishing guilt. And so the usual idea is that everyone is entitled to a vigorous defense. Even if the lawyer believes in his/her heart of hearts that the client is guilty, the question for the judge and jury is whether the state's arguments and evidence make the case.

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