Wednesday, August 20, 2014

Chapter 2 (Law and Justice: The cast of characters, institutions and Forms): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development  of a new course I have been developing for our first year law school students, "Elements of Law."  The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions.  I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study. 
--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,
Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world.  That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor.  The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This post produces some of the materials I will be presenting to the class.  I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of Chapter 2.
Part I: What is Law?

Chapter 2

Law and Justice:  The cast of characters, institutions and Forms;
From Justinian’s Institutes to Jury Nullification

I. Introduction.

            The question “what is law?” is to some extent intimately connected with the question “where was law made?” to understand law, then, one has to understand the institutional context in which it is produced, and the extent to which particular institutions have been accorded power to “make” or “pronounce” law.  That investigation is also far more complex in the United States than a look at the organization of its government might suggest. For our purposes, we consider whether the answer to the question depends on the character of the institution producing “law,” and the actors vested with the law making power.  We also consider what about law gives it a special quality that distinguishes it from other forms of command, guidelines or direction.  These issues will be taken up in the next several chapters.              We will try to understand the qualities that produce “law”, in part, with an identification of the basic cast of characters, institutions and forms that mark the law as distinctive. 

            That process of identification can then be brought to bear on the “uniqueness” issue.  Students of law, whether in law schools or the social sciences, learn to distinguish between law and systems of religious rules, ethics, morals, or governance. Law students are taught to engage with law within the structures established for that purpose.  Social science and policy students are taught that the special character of law is critical for better understanding policy and distinguishing the actions of states, around which law is bound, and the lesser obligations of religion, ethics, morals and governance (except to the extent those are operationalized as law through their incorporation within the domestic legal order of a state).

            The uniqueness issue than touches on a central issue of law (and to some extent, though with distinct sets of vocabulary, religion, morals, ethics and governance) brings us to the first bedrock issue—the connection between law and justice.  This connection bridges law, legislation, government, custom, policy, and process.[1]  And it touches on the connection with law producers and law protectors—for example courts, mediators, etc.[2] We do not approach that issue from the perspective of philosophy, but more practically from an institutional perspective.  To what extent is law conceived as related to justice? To what extent might they mean the same thing?  What are the consequences of convergence or divergence?  Clearly these are issues that have attracted substantial critical thinking of the highest order—none of which will be the subject of our study. References to some of these works are provided at the end of the chapter.

II. Reading.

Translated into English by J. B. Moyle, D.C.L. of Lincoln’s Inn, Barrister-at-Law,
Fellow and Late Tutor of New College, Oxford
Fifth Edition (1913)


In the name of Our Lord, Jesus Christ.

The Emperor Caesar Flavius Justinian, conqueror of the Alamanni, the Goths, the Franks, the Germans, the Antes, the Alani, the Vandals, the Africans, pious, prosperous, renowned, victorious, and triumphant, ever august,

To the youth desirous of studying the law:

The imperial majesty should be armed with laws as well as glorified with arms, that there may be good government in times both of war and of peace, and the ruler of Rome may not only be victorious over his enemies, but may show himself as scrupulously regardful of justice as triumphant over his conquered foes.

With deepest application and forethought, and by the blessing of God, we have attained both of these objects. The barbarian nations which we have subjugated know our valour, Africa and other provinces without number being once more, after so long an interval, reduced beneath the sway of Rome by victories granted by Heaven, and themselves bearing witness to our dominion. All peoples too are ruled by laws which we have either enacted or arranged. Having removed every inconsistency from the sacred constitutions, hitherto inharmonious and confused, we extended our care to the immense volumes of the older jurisprudence; and, like sailors crossing the mid-ocean, by the favour of Heaven have now completed a work of which we once despaired. When this, with God’s blessing, had been done, we called together that distinguished man Tribonian, master and ex-quaestor of our sacred palace, and the illustrious Theophilus and Dorotheus, professors of law, of whose ability, legal knowledge, and trusty observance of our orders we have received many and genuine proofs, and especially commissioned them to compose by our authority and advice a book of Institutes, whereby you may be enabled to learn your first lessons in law no longer from ancient fables, but to grasp them by the brilliant light of imperial learning, and that your ears and minds may receive nothing useless or incorrect, but only what holds good in actual fact. And thus whereas in past time even the foremost of you were unable to read the imperial constitutions until after four years, you, who have been so honoured and fortunate as to receive both the beginning and the end of your legal teaching from the mouth of the Emperor, can now enter on the study of them without delay. After the completion therefore of the fifty books of the Digest or Pandects, in which all the earlier law has been collected by the aid of the said distinguished Tribonian and other illustrious and most able men, we directed the division of these same Institutes into four books, comprising the first elements of the whole science of law. In these the law previously obtaining has been briefly stated, as well as that which after becoming disused has been again brought to light by our imperial aid. Compiled from all the Institutes of our ancient jurists, and in particular from the commentaries of our Gaius on both the Institutes and the common cases, and from many other legal works, these Institutes were submitted to us by the three learned men aforesaid, and after reading and examining them we have given them the fullest force of our constitutions.

Receive then these laws with your best powers and with the eagerness of study, and show yourselves so learned as to be encouraged to hope that when you have compassed the whole field of law you may have ability to govern such portion of the state as may be entrusted to you.

Given at Constantinople the 21st day of November, in the third consulate of the Emperor Justinian, Father of his Country, ever august.

* BOOK I *
I. Of Justice and Law
II. Of the law of nature, the law of nations,
and the civil law

* * * * * *


Justice is the set and constant purpose which gives to every man his due.

1. Jurisprudence is the knowledge of things divine and human, the science of the just and the unjust.

2. Having laid down these general definitions, and our object being the exposition of the law of the Roman people, we think that the most advantageous plan will be to commence with an easy and simple path, and then to proceed to details with a most careful and scrupulous exactness of interpretation. Otherwise, if we begin by burdening the student’s memory, as yet weak and untrained, with a multitude and variety of matters, one of two things will happen: either we shall cause him wholly to desert the study of law, or else we shall bring him at last, after great labour, and often, too, distrustful of his own powers (the commonest cause, among the young, of ill-success), to a point which he might have reached earlier, without such labour and confident in himself, had he been led along a smoother path.

3. The precepts of the law are these: to live honestly, to injure no one, and to give every man his due.

4. The study of law consists of two branches, law public, and law private. The former relates to the welfare of the Roman State; the latter to the advantage of the individual citizen. Of private law then we may say that it is of threefold origin, being collected from the precepts of nature, from those of the law of nations, or from those of the civil law of Rome.


The law of nature is that which she has taught all animals; a law not peculiar to the human race, but shared by all living creatures, whether denizens of the air, the dry land, or the sea. Hence comes the union of male and female, which we call marriage; hence the procreation and rearing of children, for this is a law by the knowledge of which we see even the lower animals are distinguished.

1. The civil law of Rome, and the law of all nations, differ from each other thus. The laws of every people governed by statutes and customs are partly peculiar to itself, partly common to all mankind. Those rules which a state enacts for its own members are peculiar to itself, and are called civil law: those rules prescribed by natural reason for all men are observed by all peoples alike, and are called the law of nations. Thus the laws of the Roman people are partly peculiar to itself, partly common to all nations; a distinction of which we shall take notice as occasion offers.

2.  Civil law takes its name from the state wherein it binds; for instance, the civil law of Athens, it being quite correct to speak thus of the enactments of Solon or Draco. So too we call the law of the Roman people the civil law of the Romans, or the law of the Quirites; the law, that is to say, which they observe, the Romans being called Quirites after Quirinus. Whenever we speak, however, of civil law, without any qualification, we mean our own; exactly as, when ‘the poet’ is spoken of, without addition or qualification, the Greeks understand the great Homer, and we understand Vergil. But the law of nations is common to the whole human race; for nations have settled certain things for themselves as occasion and the necessities of human life required. For instance, wars arose, and then followed captivity and slavery, which are contrary to the law of nature; for by the law of nature all men from the beginning were born free. The law of nations again is the source of almost all contracts; for instance, sale, hire, partnership, deposit, loan for consumption, and very many others.

3. Our law is partly written, partly unwritten, as among the Greeks. The written law consists of statutes, plebiscites, senatusconsults, enactments of the Emperors, edicts of the magistrates, and answers of those learned in the law.

4. A statute is an enactment of the Roman people, which it used to make on the motion of a senatorial magistrate, as for instance a consul. A plebiscite is an enactment of the commonalty, such as was made on the motion of one of their own magistrates, as a tribune. The commonalty differs from the people as a species from its genus; for ‘the people’ includes the whole aggregate of citizens, among them patricians and senators, while the term ‘commonalty’ embraces only such citizens as are not patricians or senators. After the passing, however, of the statute called the lex Hortensia, plebiscites acquired for the first time the force of statutes.

5. A senatusconsult is a command and ordinance of the senate, for when the Roman people had been so increased that it was difficult to assemble it together for the purpose of enacting statutes, it seemed right that the senate should be consulted instead of the people.

6 Again, what the Emperor determines has the force of a statute, the people having conferred on him all their authority and power by the lex regia, which was passed concerning his office and authority. Consequently, whatever the Emperor settles by rescript, or decides in his judicial capacity, or ordains by edicts, is clearly a statute: and these are what are called constitutions. Some of these of course are personal, and not to be followed as precedents, since this is not the Emperor’s will; for a favour bestowed on individual merit, or a penalty inflicted for individual wrongdoing, or relief given without a precedent, do not go beyond the particular person: though others are general, and bind all beyond a doubt.

7. The edicts of the praetors too have no small legal authority, and these we are used to call the ius honorarium, because those who occupy posts of honour in the state, in other words the magistrates, have given authority to this branch of law. The curule aediles also used to issue an edict relating to certain matters, which forms part of the ius honorarium.

8. The answers of those learned in the law are the opinions and views of persons authorized to determine and expound the law; for it was of old provided that certain persons should publicly interpret the laws, who were called jurisconsults, and whom the Emperor privileged to give formal answers. If they were unanimous the judge was forbidden by imperial constitution to depart from their opinion, so great was its authority.

9 The unwritten law is that which usage has approved: for ancient customs, when approved by consent of those who follow them, are like statute.

10 And this division of the civil law into two kinds seems not inappropriate, for it appears to have originated in the institutions of two states, namely Athens and Lacedaemon; it having been usual in the latter to commit to memory what was observed as law, while the Athenians observed only what they had made permanent in written statutes.

11 But the laws of nature, which are observed by all nations alike, are established, as it were, by divine providence, and remain ever fixed and immutable: but the municipal laws of each individual state are subject to frequent change, either by the tacit consent of the people, or by the subsequent enactment of another statute.

12 The whole of the law which we observe relates either to persons, or to things, or to actions. And first let us speak of persons: for it is useless to know the law without knowing the persons for whose sake it was established.

* * * * * * * *

III. Introduction: The cast of characters, institutions and forms; Reading Justinian’s Institutes

            The central reading for this first day’s assignment is an excerpt from the beginning of Justinian’s Institutes[3] (J.B. Moyle trans. (Oxford, 1911) [Some emendations by CD]); with a focus on Bk  I, titles 1(Of Justice and Law) and 2 (Of the Law of Nature, the Law of Nations, and the Civil Law). The purpose of this exercise is to begin to situate the core question raised by the course—“what is law?” The assumption is that entering law students, like many others, have assumptions about the meaning and scope of law, that are usually based on premises that have never been explored—for example, that law is what the legislature passes as a statute, or law is what a court applies, etc. because that is the way our political order is constructed, etc. This first session is meant to expose and unpack those assumptions and then to suggest a more rigorous way of thinking about the issues and ambiguities. The Institutes provides an excellent vehicle for introducing these concepts and the issues they raise precisely because the Institutes seek to raise and settle these questions quite definitively as a foundational basis for the “law” that is then elaborated.

            The first thing that ought to strike the student is the introduction. The Institutes invokes the state deity (by the time of the Institutes Christianity had become the official religion of the Roman Empire).[4]  It also invokes the authority of the Emperor as head of state, and as the authorized conduit of the divine will. This ritualized invocation, replicated innumerable times since in dozens of states in the West and in a variety of forms is not without importance to law and legal systems. One of the characteristics that makes law special is its authority to compel adherence.  That authority to compel adherence is based on the legitimacy of its promulgation.  And that legitimacy of promulgation is a function of the authority vested in the institution that does the promulgating.  Legitimacy has for a long time been either personal within the body of a monarch or ruler, who incarnates the essence of the state,[5] or it is bound in the authority of a divine being whose will is manifested by a designated individual or caste—either a priestly caste or a political one.  Consider the more modern form of this ancient form of promulgation in the Meiji Constitution of 1889.


The Constitution of the Empire of Japan

From Hirobumi Ito, Commentaries on the constitution of the empire of Japan,
trans. Miyoji Ito (Tokyo: Igirisu-horitsu gakko, 22nd year of Meiji,1889)
Hanover Historical Texts Project
Scanned by Jonathan Dresner, Harvard University.

Imperial Oath Sworn in the Sanctuary in the Imperial Palace (Tsuge-bumi)

We, the Successor to the prosperous Throne of Our Predecessors, do humbly and solemnly swear to the Imperial Founder of Our House and to Our other Imperial Ancestors that, in pursuance of a great policy co-extensive with the Heavens and with the Earth, We shall maintain and secure from decline the ancient form of government.

In consideration of the progressive tendency of the course of human affairs and in parallel with the advance of civilization, We deem it expedient, in order to give clearness and distinctness to the instructions bequeathed by the Imperial Founder of Our House and by Our other Imperial Ancestors, to establish fundamental laws formulated into express provisions of law, so that, on the one hand, Our Imperial posterity may possess an express guide for the course they are to follow, and that, on the other, Our subjects shall thereby be enabled to enjoy a wider range of action in giving Us their support, and that the observance of Our laws shall continue to the remotest ages of time. We will thereby to give greater firmness to the stability of Our country and to promote the welfare of all the people within the boundaries of Our dominions; and We now establish the Imperial House Law and the Constitution. These Laws come to only an exposition of grand precepts for the conduct of the government, bequeathed by the Imperial Founder of Our House and by Our other Imperial Ancestors. That we have been so fortunate in Our reign, in keeping with the tendency of the times, as to accomplish this work, We owe to the glorious Spirits of the Imperial Founder of Our House and of Our other Imperial Ancestors.

We now reverently make Our prayer to Them and to Our Illustrious Father, and implore the help of Their Sacred Spirits, and make to Them solemn oath never at this time nor in the future to fail to be an example to our subjects in the observance of the Laws hereby established.

May the heavenly Spirits witness this Our solemn Oath.

Imperial Rescript on the Promulgation of the Constitution

Whereas We make it the joy and glory of Our heart to behold the prosperity of Our country, and the welfare of Our subjects, We do hereby, in virtue of the Supreme power We inherit from Our Imperial Ancestors, promulgate the present immutable fundamental law, for the sake of Our present subjects and their descendants.

The Imperial Founder of Our House and Our other Imperial ancestors, by the help and support of the forefathers of Our subjects, laid the foundation of Our Empire upon a basis, which is to last forever. That this brilliant achievement embellishes the annals of Our country, is due to the glorious virtues of Our Sacred Imperial ancestors, and to the loyalty and bravery of Our subjects, their love of their country and their public spirit. Considering that Our subjects are the descendants of the loyal and good subjects of Our Imperial Ancestors, We doubt not but that Our subjects will be guided by Our views, and will sympathize with all Our endeavors, and that, harmoniously cooperating together, they will share with Us Our hope of making manifest the glory of Our country, both at home and abroad, and of securing forever the stability of the work bequeathed to Us by Our Imperial Ancestors.

Preamble [or Edict) (Joyu)

Having, by virtue of the glories of Our Ancestors, ascended the throne of a lineal succession unbroken for ages eternal; desiring to promote the welfare of, and to give development to the moral and intellectual faculties of Our beloved subjects, the very same that have been favored with the benevolent care and affectionate vigilance of Our Ancestors; and hoping to maintain the prosperity of the State, in concert with Our people and with their support, We hereby promulgate, in pursuance of Our Imperial Rescript of the 12th day of the 10th month of the 14th year of Meiji, a fundamental law of the State, to exhibit the principles, by which We are guided in Our conduct, and to point out to what Our descendants and Our subjects and their descendants are forever to conform.


But many modern constitutions and the law systems they frame, are grounded in popular authority.  Consider the we known but usually overlooked introduction to the U.S. Constitution: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” 

            The issue of authority is central to the concept of law.  That can take a variety of forms.  In the United States that sometimes posits contests for authority to make law between courts and legislature.  In other jurisdictions the issue is framed in terms of rule of law—where authority is individual and personal rather than collective. We will take these themes up in later chapters.  But for now the important point is the foundational importance of authority to law.

            Second, the student should notice to whom the notice is addressed.  In the case of the Institutes, to law students are identified as the instruments of the imperial will (officers of the court serving a public purpose in American terminology).  They are the critical actors that make good government possible through their mediating role in implementing law.  The role of the lawyer, then, is also a critical element of law and legal systems.  In the United States it has acquired a peculiar character that is at once bound up in the operation of the legal system itself (the lawyer as facilitator and key actor) and as an authoritative policy actor (making, modifying and organizing resistance to law and serving as an organizing nucleus for reform. We will consider the critical role of the lawyer in the context of the move to create legal barriers to segregated public education in the later chapters of this book. 

            Third, there is a long paragraph that appears to describe the events leading to the promulgation of the new set of laws to which the Institutes relates.  Most students will tend to look at this section, read a line or two and then skip to the next.  But that would be a mistake.  The drafters of the Institutes did not waste ink and paper.  What then was the purpose of that paragraph, and why should contemporary law students care?  The modern analogue of this paragraph might be understood as legislative history—a means of both attesting to the reasoning underlying the legislative effort and a means of conveying legislative intent.  In this case, the object was to compile in an accessible form the laws of the Empire, to refine and to make coherent the laws of the Empire.  To that end the Emperor engaged a duly constituted committee of expert (a procedure well known today in legislative programs, with special reference to the legislative habits of the European Union) to produce what for U.S. law students today would be something like a hornbook—a means of systematically studying law as the Imperial government would have it studied. And thus a bit of irony—the Institutes served as the law books of their day for generations of Roman (and then Byzantine) law students whose wrestling with those works might in some ways resemble the wrestling that contemporary law students now engage (with equal measure of joy) in today’s law schools.

            With this is mind, the student might then turn to the substance.  And here we draw certain key points about the character of law that will follow the student through the end of these readings. The Institutes (short for Institutiones Justiniani or “Justinian’s Institutes”) forms a part of the Corpus Iuris Civilis, the great codification of all Roman law ordered by the Emperor Justinian in the 6th century. The rediscovery of the Corpus Iuris in late medieval Europe served to ignite a juristic revival that provided the foundation of what would ultimately produce the modern legal systems of Europe. The Institutes served as the law book for first year law students in the ancient world. Unlike modern student case books, the Institutes also carried the force of law. Its object was to provide law students with the simplest introduction to the study of Roman law by then almost a millennium in development. Today it may also provide U.S. law students with a similar frame of reference. It provides the basic answers to questions about the subject they will be studying for the next three years in ways that should be simple to understand and that may provide larger insights useful in their doctrinal classes.

            The Institutes starts with an attempt to define “justice” rather than “law.” The reason is simple—the basic object of law ought to be to produce justice. But without an understanding of justice law becomes little more than a mechanical exercise. The definition of justice is simple yet subtle: “a set and constant purpose that gives everyone his due.” Notice what is emphasized: accessibility and predictability. These eventually became foundational notions of both rule of law and of the general principles of law of most civil law countries. In the United States it forms the basis of our constitutional notions of due process. It forms the essence of the framework for the federal Rules of Civil Procedure, as well as the foundation of U.S. Constitutional law. Notice as well what is left open ended: the substance of the meaning of justice. What may be a person’s due may be both malleable and contextual. Its sources lie outside of justice. In essence, then, justice is principally concerned with matters of process applied to a definite set of substantive concerns centering on the fundamental obligations due persons, the precise nature of which may not, in fact, be derived from the concept of justice itself. In other words, just because one can set up a well arranged law system doesn’t tell you what sorts of law one will enforce.

            Jurisprudence is then the study of the science of the just and unjust. Put differently, jurisprudence is the study of the application of principles of accessibility and predictability to the elaboration of the obligations owed to every person, the substance of which is derived from the study of “things divine and human.” (Bk I, Tit.  I.1). While lawyers do not generally spend much time on the great issues of jurisprudence, they are constantly constrained by the limits to lawyer’s role that are derived from jurisprudential principles. If for no other reason, it behooves lawyers to have a passing understanding of the relationship of law to jurisprudence—that is the relationship between what law can be used for and its application in specific circumstances.

            How does one approach the study of so massive a field? The Institutes suggest a methodology that continues to be influential for the study of law, and in some jurisdictions for the development of law codes. One starts from the simplest and most general principles and then expands from the most general to the most specific. (Bk I, Tit.  I.2). Yet it is ironic to observe that even almost 2,000 years ago, there was a tremendous amount of concern about making the study of law relevant and of keeping students interested. It is not clear that either then or now we have reached a point of great success. But the point is worth remembering—for law students, it always makes sense to start from the most general principle and then proceed to the most intricate and specific application. That is the essence of the study of civil law in many states. In the United States, a different approach is sometimes more popular. That approach takes the whole of the law and works through it from “beginning to end”. The reason this approach works in the United States, especially with respect to common law is because the basic principles are built into the specific application of law to particular groups of related cases (e.g., person A hits person B). By working through these, group by group, the general principles of law eventually emerge. That, for example, is the way one might constructively study torts.

            It is only after this broad discussion of justice and the construction of an appropriate pedagogy that the Institutes, at last, arrive at the central issue; what is law? The Institutes provide an ambiguous answer: “The precepts of the law are these: to live honestly, to injure no one, and to give every man his due” (Bk  I, Tit.  I.3). Law, then, appears to be the means through which justice is manifested in society. Law is the manifestation of accessibility and predictability at the center of justice; it is justice made manifest. But the definition also leaves open the issue of the content of law. That is a subject related but extrinsic to law. (Bk I. Tit.  I.4). What that means is that merely because one knows how to make law does not mean she knows what sort of law to make. The content of law, its substance, comes from outside of law itself. You have to look for the particulars of law elsewhere. The Institutes will eventually point to where those authoritative sources are. The student will find that these sources remain relevant for law making today.

            But to make law one needs more than a source for what to make law about, one needs a structure through which to make law. Unlike the study of jurisprudence, which is disassociated from the structures through which individuals combine to form their political societies, the study of law is firmly tied to the governmental systems of the state through which it is created. The state provides the context for the specific elaboration of the content of law, and also for the legitimate construction of that content. The state is the space through which the extrinsic meaning of “every person’s due” is made intrinsic, legitimate and enforceable against individuals and the state itself. Because of the pivotal relationship between law and the state, it comes as no surprise that the study of law is divided by reference to the state. The Institutes, like most law systems today, make a distinction between public law (the law of the state) and private law (the law applicable to the activities of individuals). The law of the state is self-referential—it is constructed of itself, by itself and for itself. This law of the constitution remains very much a work in progress both among our intellectual ancestors and the community of states today.

            It is only with respect to the law touching on individual activities that the issue of extrinsic sources at last is confronted. And at last the Institutes introduce what it identifies as the three principal extrinsic sources of law: “collected from the precepts of nature, from those of the law of nations, or from those of the civil law of Rome.” (Bk I. Tit. I.4). These continue to form the most important legitimating sources of law, sufficiently well-respected to induce both acceptance and compliance. But what exactly do these sources describe? The first is the most open ended and ambiguous. It suggests the law of nature, a substantially unhelpful approach. For many, from the time of the Institutes through the present day in the United States and elsewhere, the “precepts of nature” has been interpreted as the “law” of religion. For others, and especially after the Enlightenment in the West (and in some Marxist Leninist states as well), the “precepts of nature” point to scientific knowledge, that is to rules observed within the nature world about the “way things work”—truth from facts (or “scientific” development in the language of Chinese Marxist Leninism). The question of nature as an extrinsic source of law remains a lively subject of debate today, one that is evident throughout the traditional first year law school curriculum. Students might find it useful to see which sort of “precepts of nature” are deployed to justify particular law and policy decisions by courts.

The second and third are perhaps sources are no less interesting but easier to describe. At first glance both appear circular—the extrinsic source of law is law. But a closer reading suggests something more interesting. Both the law of nations and the civil law of Rome point to the importance of custom and tradition as a baseline source of law. That is, the law of nations is whatever it is the community of nations accepts; traditionally those embody the customs of behavior expectations embraced by nations. The same is true for the civil law of Rome, which represents the elaboration and systematization over a long time of the customs and mores of the people of Rome (as Aristotle might have understood this in his Politics); in modern terms their common law. There is more, of course, and each of these sources of law can reveal theory own ambiguities. But for my purposes here, the most interesting aspects of these extrinsic sources point to the foundational importance of customs and traditions of the people as a source of law. These are as important today in U.S. jurisprudence as it has been in earlier Western legal cultures.

            The notions about the fundamental character of these extrinsic sources are then elaborated in Title II.

            The law of nature is first defined as the incorporation of the natural order into the legal order. It is based on the observations and conclusions drawn from those interpreting “nature” in the sense that “a law not peculiar to the human race, but shared by all living creatures.” Ironically, the example provided in the Institutes is marriage between a man and a woman. Yet, to contemporary ears, that conclusion suggests the ways in which the human observer views the natural world and draw inferences therefrom that reflect more the observer than the phenomenon observed. Yet this basic notion of natural law has been an important element of U.S. law as well, framing everything from decisions about the role of women, gay marriage, sodomy, miscegenation, abortion, and murder. (Bk ITit. II) In modern form, this sort of law of nature permits the intrusion of science into lawmaking as providing the extrinsic justification for law. And, indeed, this relationship between the natural order of things and the observer is made explicit in the understanding of natural law. There is a divine or providential element to natural law that exists side by side with the natural law derived from the interpretation of natural phenomena: “the laws of nature, which are observed by all nations alike, are established, as it were, by divine providence, and remain ever fixed and immutable”. (Bk I, Tit. II 11).

            The domestic law of a state and the law of nations proceeds not from nature but from the customs and peculiarities of the people who are bound thereby. (Bk I,Tit. II.1). The law of nations reflects the aggregations of individual customs of states but emerges from an exercise of the natural reason of all humanity. Its relationship to natural law rests with the character of the law of nations—both are passive and derived from the observation of convention and custom that have acquired a universal interpretation. Neither is understood in an instrumental sense. One does not make the law of nature; neither, it seems, at this point in time, does one make the law of nature by agreement and prospectively; it acquires its character only when it is observed. This notion continues to survive into modern times in part as customary international law. Lastly, the Institutes note that the law of every state includes a mix of its own customs and statutes (civil law), the law of nations, and the law of nature.(Bk I. Tit. 2.1).

            What the Institutes call civil law is in modern times usually referenced as the domestic legal order of a state. (Bk I, Tit. II. 2). This is contrasted to the law of nations which binds all civilized people. But the law of nations as understood in the Institutes is not the equivalent to modern international law, that is, the law of relationships among states. It is a broader concept including those principles of behavior which were said to be common among all. In this sense, the law of nations comes closer to modern understandings of principles of global governance within the structures of globalization than it does classical international law. A hierarchy of law is suggested in the discussion of the law of nations—natural law is always inferior to a contrary principle of the law of nations. The example used in the Institutes is telling; the law of nations is the source of all contracts. This points to the transnational element of law, and for example, the lex mercatoria, but not to the formal structures of the law regulating the relations among states (ambassadors, the laws of war and the like). (Bk I, Tit. II. 2).

            Whatever its source, the Institutes suggest that law may take two forms; it may be written or unwritten. (Bk ITit. II,3). This division was said itself to be a product of tradition and custom, reflecting the two approaches to law developed by Athens and Sparta. (Bk I, Tit. II, 10). As is the case in modern states, the Institutes declare that every state is subject to law that is both written and unwritten. (Bk ITit. II,3). It then describes the form that written law may take (“statutes, plebiscites, senatusconsults, enactments of the Emperors, edicts of the magistrates, and answers of those learned in the law”). (Bk ITit. II,3). Many of these forms survive through modern times (statutes, plebiscites, etc.). Some remain important in the law systems of some states but not in others (e.g., the work of those learned in law). Some have disappeared except in attenuated form (e.g., senatusconsults). The character of written law is then addressed (Bk ITit. II.4-8).

            In contrast to the large variety of written law, unwritten law, as in our own time, is sourced principally from ancient custom. But such custom assumes the character of law only “when approved by consent of those who follow them” (Bk I Tit. II.9). Such customary law assumes the character of statutes.

            The power to change the substance of law depends as well on its nature. Natural law is as immutable as nature or religion dictates. The law of nations and civil law are far more mutable. Both, however, are amendable only by consent, either directly by the people, or by the enactment of subsequent law. To that end, the legitimacy of enactment then becomes for the Institutes, as it does in our time, the essential feature of law systems. More tellingly, the tensions between the immutable laws of nature, the more mutable law of nations and the most mutable civil law are also acknowledged. (Bk ITit. II.11). There is an allusion as well both to conflicts of law and to the framework within which these laws are interpreted. Lastly, the Institutes classify the entirety of the civil law as relating to either to persons, or to things, or to actions. (Bk ITit. II.12). For many jurisdictions, this remains the structural framework for the division of civil law.

            So, taken together, how might the Institutes help a student better approach an answer to the question: “what is law?” There are a number of important insights that can be usefully extracted. First, the question of the identity of law is old. Much of the way in which modern states approach the issue of law can be traced back to our cultural roots in the great ancient republics and empires from which many European and Western Hemisphere states emerged. That definition suggests a connection but not an identity between law and justice. Both further suggest the core fundamental principles of law systems: accessibility and predictability. But notions of justice also suggest the basic contextual framework within which law is developed—the substantive content of law is grounded in notions of what is a person’s due. And, indeed, one way to understand law is the expression of a set and predictable system setting out what constitutes each person’s due. It is the means through which justice, as defined and structured, is manifested. That caveat is important. The relation between law and justice, then is structural but not necessarily substantive. Both concepts are empty vessels. Yet that is essentially the core nature of its character. But what becomes of the question of the substance of law? That aspect of the question is re-characterized as a question of the nature and content of the sources of law. Where law originates, then, serves to define its content. Those sources—the law of nature, the law of nations and the civil or positive law of a political unit, usually a state—define the universe of legal sources. Their character is inherent in their identity. Natural law is immutable; the law of nations more mutable and the civil law of a state the most flexible. Underlying much of law (beyond natural law) are notions of custom and tradition. Also identified as important are notions of consent. The aggregate law of every state is said to be derived from a combination (which can vary from state to state) of a combination of the three. Lastly, this framework leads to a fundamental conclusion—that there is no single or best set of substantive values or norms, that it is not possible to develop a single universal set of substantive law. These insights will be useful as a starting baseline for the students’ consideration of the “elements” of law in the United States.

IV. Problem: Jury Nullification.

The discussion of the relationship between law and justice raises an interesting question.  If law and justice are related, at least contextually within a governance community (a state, or the federal government) and if laws are developed to provide justice, might it be possible to envision a situation where law that appears just in form perpetrates an injustice in fact.  And if that possibility can be entertained, are there mechanisms through which these injustices in application may be ameliorated.

Problem:  Seaside City, a municipality organized under the laws of the Commonwealth of Pennsylvania has a noticeable number of people begging for food. A majority of the City Council and the Mayor recently won election on a platform of ensuring that begging should be eliminated from the city. On February 1, the City Council passed and the Mayor signed Ordinance 200, An Act to Protect People from Potentially Contaminated Food.  Ordinance 200 makes it a misdemeanor punishable by a fine of $1,000 and six months in jail for anyone convicted of  “making available or otherwise distributing” food from a restaurant or similar establishment that had not been consumed by customers. 

Many restaurant owners resented Ordinance 200, some had a tradition, long established, of distributing uneaten cooked food to  the homeless and other needy at the close of their business hours.   One restaurant—Yummy Tropical—had an arrangement with a local Church in which Ms. Beta, the restaurant owner was a member, to transport homeless individuals to Yummy Tropical at the close of business to receive food. Both the church and Ms. Beta feel strongly on moral and religious grounds of their duty to feed the poor.  Many people in Seaside City also hold these views. On March 1, Officer A approached Ms. Beta, and explained Ordinance 200.  Officer A also stated that she knew about Yummy Tropical’s arrangement with the Church and that she would be deploying officers to watch the restaurant for compliance with Ordinance 200.  That evening the Church brought a number of homeless to the back of the premises of Yummy tropical, from where unconsumed prepared food was distributed. 

Officer A immediately arrested Ms. Beta, who was subsequently tried in the local criminal court for violation of Ordinance 200.  After presentation of evidence, including video of the distribution of food at Yummy Tropical, the jury unanimously rendered a general verdict of not guilty.  If the verdict was reached contrary to the evidence, did the jurors do wrong, were they empowered to act in this way, and could a court refuse to accept their verdict?  Do you think that what the jury did was right?  Does it make a difference if the judge is a fact finder rather than a jury? What does this tell you about the relationship of law and justice.

Consider the answers to these questions in the light of the materials that follow.  Note the distinction that is made between the respective power of juries and judges in civil trials and in criminal trials.  Consider the extent to which that difference may be attributed to the nature of criminal prosecution (an action by the state) and civil litigation (usually an action between private parties).  Might you be able to make an argument that the rule favoring judges in civil trials ought to be different when it is the state that is a litigant (for example in matters where the state seeks civil penalties or remedies against an individual or entity)? Should the answer turn on whether there would have been a right to a jury trial? 


Constitution of the United States of America

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.


Supreme Court of the United States.
SPARF et al.
No. 613.
156 U.S. 51 (January 21, 1895).
In Error to the Circuit Court of the United States for the Northern District of California.

Mr. Justice HARLAN delivered the opinion of the court.

The plaintiffs in error and Thomas St. Clair were indicted jointly for the murder of Maurice Fitzgerald upon the high seas, on board of an American vessel, the bark Hesper, as set forth in the indictment mentioned in St. Clair v. U. S., 154 U. S. 134, 14 Sup. Ct. 1002. On motion of the accused, it was ordered that they be tried separately. St. Clair was tried, found guilty of murder, and sentenced to suffer the punishment of death. Subsequently the order for separate trials was set aside, and the present defendants were tried together, and both were convicted of murder. A motion for a new trial having been overruled, a like sentence was imposed upon them.

The general facts of this case do not differ from those proved in St. Clair's Case, and some of the questions arising upon the present assignments of error were determined in that case. Only such questions will be here examined as were not properly persented or did not arise in the other case, and are of sufficient importance to require notice at our hands.

In the night of January 13, 1893, Fitzgerald, the second mate of the Hesper, was found to be missing, and it was believed that he had been killed, and his body thrown overboard. Suspicion being directed to St. Clair, Sparf, and Hansen, part of the crew of the Hesper, as participants in the killing, they were put in irons, by order of Capt. Sodergren, master of the vessel, and were so kept during the voyage from the locality of the supposed murder to Tahiti, an island in the South Pacific, belonging to the French government. They were taken ashore by the United States consul at that island, and subsequently were sent, with others, to San Francisco, on the vessel Tropic Bird.

At the trial, Capt. Sodergren, a witness for the government, was asked whether or not after the 13th day of January, and before reaching Tahiti, which was more than 1,000 miles from the locality of the alleged murder, he had any conversation with the defendant Hansen about the killing of Fitzgeraid. This question having been answered by the witness in the affirmative, he was fully examined as to the circumstances under which the conversation was held. He said, among other things, that no one was present but Hansen and himself. Being asked to repeat the conversation referred to, the accused, by the counsel who had been appointed by the court to represent them, objected to the question as ‘irrelevant, immaterial, and incompetent, and upon the ground that any statement made by Hansen was not and could not be voluntary.’ The objection was overruled, and the defendants duly excepted. The witness then stated what Hansen had said to him. That evidence tended strongly to show that Fitzgerald was murdered pursuant to a plan formed between St. Clair, Sparf, and Hansen; that all three actively participated in the murder; and that the crime was committed under the most revolting circumstances.

Thomas Green and Edward Larsen, two of the crew of the Hesper, were also witnesses for the government. They were permitted to state what Hansen said to them during the voyage from Tahiti to San Francisco. This evidence was also objected to as irrelevant, immaterial, and incompetent, and upon the further ground that the statement the accused was represented to have made was not voluntary. But the objection was overruled, and an exception taken.

Upon the conclusion of the evidence, the defendants requested certain instructions, which the court refused to give, and they excepted to its action in that particular, as well as to certain parts of the charge to the jury.

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2. One of the specifications of error relates to the refusal of the court to give certain instructions asked by the defendants, and to parts of the charge to the jury.

The defendants asked the court to instruct the jury as follows:
‘In all criminal causes the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment, or the defendant may be found guilty of an attempt to commit the offense so charged, provided that such attempt be itself a separate offense.’ ‘Under an indictment charging murder, the defendant may be convicted of murder, of manslaughter, or an attempt to commit either murder or manslaughter.’ ‘Under the indictment in this case, the defendants may be convicted of murder, or manslaughter, or of an attempt to commit murder or manslaughter; and if, after a full and careful consideration of all the evidence before you, you believe, beyond a reasonable doubt, that the defendants are guilty either of manslaughter, or of an assault with intent to commit murder or manslaughter, you should so find your verdict.’ These instructions were refused, and the defendants excepted.
In its charge to the jury, the court, among other things, said: ‘What, then, is murder? There are only two kinds of felonious homicide known to the laws of the United States. One is murder, and the other is manslaughter. There are no degrees of murder.’ . . . I do not consider it necessary, gentlemen, to explain it further, for if a felonious homicide has been committed, of which you are to be the judges from the proof, there is nothing in this case to reduce it below the grade of murder. In other words, it may be in the power of the jury, under the indictment by which these defendants are accused and tried, of finding them guilty of a less crime than murder, to wit, manslaughter, or an attempt to commit murder; yet, as I have said in this case, if a felonious homicide has been committed at all, of which I repeat you are the judges, there is nothing to reduce it below the grade of murder.’
The court further said to the jury:
‘You are the exclusive judges of the credibility of the witnesses, and, in judging of their credibility, you have a right to take into consideration their prejudices, motives, or feelings of revenge, if any such have been proven or shown by the evidence in the case. If you believe from the evidence that any witness or witnesses have knowingly and willfully testified falsely as to any material fact or point, you are at liberty to disregard entirely the testimony of such witness or witnesses.’

* * * * * * * *

The requests for instruction made by the defendants were based upon section 1035 of the Revised Statutes of the United States, providing that ‘in all criminal causes the defendant may be found guilty of any offence the commission of which is necessarily included in that with which he is charged in indictment, or may be found guilty of an attempt to commit the offence so charged: provided, that such attempt be itself a separate offence.’

The refusal to grant the defendants' requests for instructions, taken in connection with so much of the charge as referred to the crime of manslaughter, and the observations of the court when the jury, through their foreman, applied for further instructions, present the question whether the court transcended its authority when saying, as in effect it did, that, in view of the evidence, the only verdict the jury could under the law properly render would be either one of guilty of the offense charged, or one of not guilty of the offense charged; that if a felonious homicide had been committed by either of the defendants, of which the jury were the judges from the proof, there was nothing in this case to reduce it below the grade of murder; and that, ‘as one of the tribunals of the country, a jury is expected to be governed by law, and the law it should receive from the court.’

The court below assumed, and correctly, that section 1035 of the Revised Statutes did not authorize a jury in a criminal case to find the defendant guilty of a less offense than the one charged, unless the evidence justified them in so doing.. . . . .

* * * * * * * *

Public and private safety alike would be in peril if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves. Under such a system, the principal function of the judge would be to preside and keep order while jurymen, untrained in the law, would determine questions affecting life, liberty, or property according to such legal principles as, in their judgment, were applicable to the particular case being tried. If because, generally speaking, it is the function of the jury to determine the guilt or innocence of the accused according to the evidence, of the truth or weight of which they are to judge, the court should be held bound to instruct them upon a point in respect to which there was no evidence whatever, or to forbear stating what the law is upon a given state of facts, the result would be that the enforcement of the law against criminals, and the protection of citizens against unjust and groundless prosecutions, would depend entirely upon juries uncontrolled by any settled, fixed, legal principles. And if it be true that a jury in a criminal case are under no legal obligation to take the law from the court, and may determine for themselves what the law is, it necessarily results that counsel for the accused may, of right, in the presence of both court and jury, contend that what the court declares to be the law applicable to the case in hand is not the law, and, in support of his contention, read to the jury the reports of adjudged cases, and the views of elementary writers. Undoubtedly, in some jurisdictions, where juries in criminal cases have the right, in virtue of constitutional or statutory provisions, to decide both law and facts upon their own judgment as to what the law is and as to what the facts are, it may be the privilege of counsel to read and discuss adjudged cases before the jury. And in a few jurisdictions, in which it is held that the court alone responds as to the law, that practice is allowed in deference to long usage. But upon principle, where the matter is not controlled by express constitutional or statutory provisions, it cannot be regarded as the right of counsel to dispute before the jury the law as declared by the court. Under the contrary view—if it be held that the court may not authoritatively decide all questions of law arising in criminal cases—the result will be that when a new trial in a criminal case is ordered, even by this court, the jury, upon such trial, may of right return a verdict based upon the assumption that what this court has adjudged to be law is not law. We cannot give our sanction to any rule that will lead to such a result. We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence. Upon the court rests the responsibility of declaring the law; upon the jury, the responsibility of applying the law so declared to the facts as they, upon their conscience, believe them to be. Under any other system, the courts, although established in order to declare the law, would for every practical purpose be eliminated from our system of government as instrumentalities devised for the protection equally of society and of individuals in their essential rights. When that occurs our government will cease to be a government of laws, and become a government of men. Liberty regulated by law is the underlying principle of our institutions.

To instruct the jury in a criminal case that the defendant cannot properly be convicted of a crime less than that charged, or to refuse to instruct them in respect to the lesser offenses that might, under some circumstances, be included in the one so charged—there being no evidence whatever upon which any verdict could be properly returned except one of guilty or one of not guilty of the particular offense charged—is not error; for the instructing or refusing to instruct, under the circumstances named, rests upon legal principles or presumptions which it is the province of the court to declare for the guidance of the jury. In the case supposed the court is as clearly in the exercise of its legitimate functions as it is when ruling that particular evidence offered is not competent, or that evidence once admitted shall be stricken out and not be considered by the jury, or when it withdraws from the jury all proof of confessions by the accused upon the ground that such confessions, not having been made freely and voluntarily, are inadmissible under the law as evidence against the accused.

These views are sustained by a very great weight of authority in this country. In People v. Barry, 90 Cal. 41, 27 Pac. 62 (which was a criminal prosecution for an assault with intent to commit robbery, the accused having been twice before convicted of petit larceny), it was held not to be error to refuse to instruct the jury that under the charge they might find him guilty of simple assault, because ‘the evidence tended to show that he was guilty of the crime charged or of no offense at all,’ and therefore ‘the instruction asked was not applicable to the facts of the case’; in People v. McNutt, 93 Cal. 658, 29 Pac. 243 (the offense charged being an assault with a deadly weapon and with intent to commit murder), that an instruction that the jury might convict of a simple assault could have been properly refused, because, ‘under the evidence, he *104 was either guilty of an offense more serious than simple assault, or he was not guilty’; in Clark v. Com., 123 Pa. St. 81, 16 Atl. 795 (a case of murder), that the omission of an instruction on the law of voluntary manslaughter, and the power of the jury to find it, was not error, because the murder was deliberate murder, and ‘there was no evidence on which it could be reduced to a milder form of homicide’; in State v. Lane, 64 Mo. 319, 324 (which was an indictment for murder in the first degree), that, ‘if the evidence makes out a case of murder in the first degree, and applies to that kind of killing, and no other, the court would commit no error in confining its instructions to that offense, and refusing to instruct either as to murder in the second degree or manslaughter in any of its various degrees,’ and when an instruction ‘is given for any less grade of offense, and there is no evidence upon which to base it,’ the judgment should be reversed for error; in McCoy v. State, 27 Tex. App. 415, 11 S. W. 454 (the charge being murder of the first degree), that the refusal to charge the law of murder in the second degree was not error, for the reason that, if the defendant was ‘criminally responsible at all for the homicide, the grade of the offense under the facts is not short of murder of the first degree’; in State v. McKinney, 111 N. C. 683, 16 S. E. 235 (a murder case), that, as there was no testimony on either side tending to show manslaughter, a charge that there was no element of manslaughter in the case, and that the defendant was guilty of murder or not guilty of anything at all, as the jury should find the facts, was strictly in accordance with the testimony and the precedents; in State v. Musick, 101 Mo. 261, 270, 14 S. W. 212 (where the charge was an assault with malice aforethought, punishable by confinement in the penitentiary), that an instruction looking to a conviction for a lower grade, included in the offense charged, was proper where there was evidence justifying it; in State v. Casford, 76 Iowa, 332, 41 N. W. 32, that the defendant, so charged in an indictment that he could be convicted of rape, an assault to commit rape, or an assault and battery, was not prejudiced by the omission of the court to instruct the jury that he would be convicted of a simple assault, there being no evidence to authorize a verdict for the latter offense; in Jones v. State, 52 Ark. 346, 12 S. W. 704 (a murder case), that it was not error to refuse to charge as to a lower grade of offense, there being ‘no evidence of any crime less than murder in the first degree,’ and the defendant being, therefore, guilty of ‘murder in the first degree, or innocent’; in McClernand v. Com. (Ky.) 12 S. W. 148, and in O'Brien v. Com., 89 Ky. 354, 12 S. W. 471 (murder cases), that an instruction as to manslaughter need not be given, unless there is evidence to justify it; in State v. Estep, 44 Kan. 575, 24 Pac. 986 (a case of murder of the first degree), that there was no testimony tending to show that the dependant was guilty of manslaughter in either the first, second, or fourth degree, instructions as to those degrees should not have been given; and in Robinson v. State, 84 Ga. 674, 11 S. E. 544 (a case of assault with intent to murder), that the refusal to instruct the jury that the defendant could have been found guilty of an assault, or of assault and battery, was not error, ‘for there was nothing in the evidence to justify the court in so instructing the jury.’

We have said that, with few exceptions, the rules which obtain in civil cases in relation to the authority of the court to instruct the jury upon all matters of law arising upon the issues to be tried, are applicable in the trial of criminal cases. The most important of those exceptions is that it is not competent for the court, in a criminal case, to instruct the jury peremptorily to find the accused guilty of the offense charged, or of any criminal offense less than that charged. The grounds upon which this exception rests were well stated by Judge McCrary, Mr. Justice Miller concurring, in U. S. v. Taylor, 3 McCrary, 500, 505, 11 Fed. 470. It was there said: ‘In a civil case, the court may set aside the verdict, whether it be for the plaintiff or defendant, upon the ground that it is contrary to the law as given by the court; but in a criminal case, if the verdict is one of acquittal, the court has no power to set it aside. It would be a useless form for a court to submit a civil case, involving only questions of law, to the consideration of a jury, where the verdict, when found, if not in accordance with the court's view of the law, would be set aside. The same result is accomplished by an instruction given in advance to find a verdict in accordance with the court's opinion of the law. But not so in criminal cases. A verdict of acquittal cannot be set aside; and therefore, if the court can direct a verdict of guilty, it can do indirectly that which it has on power to do directly.’

We are of opinion that the court below did not err in saying to the jury that they could not, consistently with the law arising from the evidence, find the defendants guilty of manslaughter, or of any offense less than the one charged; that if the defendants were not guilty of the offense charged, the duty of the jury was to return a verdict of not guilty. No instruction was given that questioned the right of the jury to determine whether the witnesses were to be believed or not, nor whether the defendant was guilty or not guilty of the offense charged. On the contrary, the court was careful to say that the jury were the exclusive judges of the facts, and that they were to determine—applying to the facts the principles of law announced by the court—whether the evidence established the guilt or innocence of the defendants of the charge set out in the indictment.

The trial was thus conducted upon the theory that it was the duty of the court to expound the law, and that of the jury to apply the law as thus declared to the facts as ascertained by them. In this separation of the functions of court and jury is found the chief value, as well as safety, of the jury system. Those functions cannot be confounded or disregarded without endangering the stability of public justice, as well as the security of private and personal rights.

The main reason ordinarily assigned for a recognition of the right of the jury, in a criminal case, to take the law into their own hands, and to disregard the directions of the court in matters of law, is that the safety and liberty of the citizen will be thereby more certainly secured. That view was urged upon Mr. Justice Curtis. After stating that, if he conceived the reason assigned to be well founded, he would pause long before denying the existence of the power claimed, he said that a good deal of reflection had convinced him that the argument was the other way. He wisely observed that: ‘As long as the judges of the United States are obliged to express their opinions publicly, to give their reasons for them when called upon in the usual mode, and to stand responsible for them, not only to public opinion, but to a court of impeachment, I can apprehend very little danger of the laws being wrested to purposes of injustice. But, on the other hand, I do consider that this power and corresponding duty of the court authoritatively to declare the law is one of the highest safeguards of the citizen. The sole end of courts of justice is to enforce the laws uniformly and impartially, without respect of persons or times or the opinions of men. To enforce popular laws is easy. But when an unpopular cause is a just cause; when a law, unpopular in some locality, is to be enforced,—there then comes the strain upon the administration of justice; and few unprejudiced men would hesitate as to where that strain would be most firmly borne.’ U. S. v. Morris, 1 Curt. 62, 63, Fed. Cas. No. 15,815.

The questions above referred to are the only ones that need be considered on this writ of error.


United States Court of Appeals,
Second Circuit.
UNITED STATES of America, Appellant,
George LYNCH and Christopher Moscinski, Defendants-Appellees.
No. 18, Docket 97-1092.
162 F.3d 732
Argued Sept. 10, 1998.Decided Dec. 14, 1998.

JACOBS, Circuit Judge:

The United States appeals from the acquittal following a bench trial in the United States District Court for the Southern District of New York (Sprizzo, J.) of persons charged with criminal contempt under 18 U.S.C. § 401(3) for allegedly violating a permanent injunction that prohibited them from further violations of the Freedom of Access to Clinic Entrances Act (“FACE”), 18 U.S.C. § 248. On appeal, the government argues that the district court erred in holding (i) that a finding of wilfulness was precluded by the sincere religious beliefs that prompted defendants' conduct and (ii) (alternatively) that the court could exercise a prerogative of leniency to acquit even if there were proof of guilt beyond a reasonable doubt. Defendants argue that regardless of any error the district court may have made in arriving at the February 11, 1997 judgment of acquittal, we lack appellate jurisdiction under 18 U.S.C. § 3731 and the Fifth Amendment's Double Jeopardy Clause. Because we conclude that further prosecution would constitute double jeopardy, we dismiss this appeal.

* * * * * * **

(3) Having decided that the aspect of the judgment challenged by the government is in its essential nature factual rather than legal, we must conclude (contrary to the government's third argument) that the Double Jeopardy Clause bars this appeal. We lack jurisdiction over the prosecution's appeal if “the ruling of the judge, whatever its label, actually represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged.” Scott, 437 U.S. at 97, 98 S.Ct. at 2197 (quoting Martin Linen Supply Co., 430 U.S. at 571, 97 S.Ct. at 1355) (quotation marks omitted). Here, the factual element is wilfulness, and the district court explicitly resolved it in favor of Lynch and Moscinski. See Lynch, 952 F.Supp. at 170. It does not matter that this factual finding was arrived at under the influence of an erroneous view of the law. “[T]he fact that the acquittal may result from ... erroneous interpretations of governing legal principles affects the accuracy of that determination, but it does not alter its essential character.” Scott, 437 U.S. at 98, 98 S.Ct. at 2197 (citation and internal quotation marks omitted); see Smalis v. Pennsylvania, 476 U.S. 140, 144 n. 7, 106 S.Ct. 1745, 1748 n. 7, 90 L.Ed.2d 116 (1986) (“The status of the trial court's judgment as an acquittal is not affected by the ... allegation that the court erred in deciding what degree of recklessness was ... required.”) (internal quotation marks omitted). What is decisive for double jeopardy purposes is that the ruling represents a “judgment ... by the court that the evidence is insufficient to convict.” Scott, 437 U.S. at 91, 98 S.Ct. at 2194; Smalis, 476 U.S. at 144, 106 S.Ct. at 1748 (quoting Scott ). We therefore conclude that we lack jurisdiction to consider this appeal under 18 U.S.C. § 3731 and the Double Jeopardy Clause.

(4) We do not reach the question whether an appellate court reversing an acquittal from a bench trial would have the power to order a trial court to enter a judgment of conviction based solely upon the trial court's prior findings of fact as to the required elements of guilt. Perhaps it can be done, but no court has done it. So far as we can tell, the dissent's statement is the only opinion expressing a willingness to do so.

* * * * * *

We lack appellate jurisdiction, and dismiss the appeal.

SACK, Circuit Judge (concurring):

I concur in the opinion of the Court and accept its reasoning. I am convinced that we are forbidden to hear the substantive issues that the government seeks to appeal. Because of their importance, however, I write separately to offer some additional observations as to why I think we cannot hear them. Under the Criminal Appeals Act of 1970, read in the light of the history and purpose of the Fifth Amendment's Double Jeopardy Clause, we must decline the government's invitation, in effect, to retry the defendants in this Court on the record and opinion below.

* * * * * * * * * *

If we were to examine the record below, including the stipulation on which the court's judgment was based, together with the opinion of the court containing its explanation for its findings of fact, as the dissent does, we might come to a conclusion different from the district court's, for reasons spelled out in the dissent. But that is precisely what the Double Jeopardy Clause forbids us to do. Having been acquitted by the trial court, the defendants can never be tried again for the same offense. And that principle holds irrespective of whether the prohibited second trial would be held anew in the district court or by this Court on the record created below. “The court of first instance, having jurisdiction to try the question of the guilt or innocence of the accused, found [Lynch and Moscinski] not guilty; to try [them] again upon the merits, even in an appellate court, is to put [them] a second time in jeopardy for the same offense.” Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 49 L.Ed. 114 (1904).

Between July 1971, the year after the Criminal Appeals Act was passed, and June 1997, the last year for which statistics are available, there were 42,565 criminal bench trials in the federal district courts, 11,488 of them ending in acquittal. 1972-1997 Admin. Off. U.S. Cts. Ann. Rep. Table D-7. We may assume, I think, that inasmuch as judges are human and the trial process imperfect, some of the acquittals resulted in the guilty going free. Yet not a single one of those acquittals appears to have been overturned on appeal.

That is as it should be. If and when there is a wrongful acquittal, the remedy, if remedy there be, rarely if ever lies on appeal. There is a price, but it is one carefully exacted by the Fifth Amendment.

FEINBERG, Circuit Judge (dissenting):

I respectfully dissent. In my view, the district judge found all of the facts necessary to convict defendants Bishop George Lynch and Christopher Moscinski (also known as Brother Fidelis) of criminal contempt under the correct legal standard, and found them not guilty based solely on legal error. As a result, the Double Jeopardy Clause does not bar the government's appeal because no further factual proceedings would be required on remand in order to establish Lynch and Moscinski's guilt. I would thus allow the appeal. Reaching the merits, I would vacate the district court's judgment and remand the case to the district court for entry of a judgement of conviction.

* * * * * * * *

The district court similarly erred by claiming for the federal judiciary the power to exercise a so-called “prerogative of leniency” that would allow a judge who sits as a factfinder to acquit a defendant in the face of apparent guilt. At a pre-trial conference, the judge discussed with counsel whether Lynch and Moscinski were entitled to a jury. He stated:

    [A] jury is different than a judge.... [Y]ou could try this contempt to a jury and it could be plain as day that your clients are guilty, but the jury can nullify it. The jury has the power to nullify. They may choose not to convict.... A judge can't do that; a jury can. I guess a judge can do it too if he is sitting as a trier of the fact[s]. In a criminal case the Court of Appeals doesn't have the power to review anything I do on a clearly erroneous standard or otherwise in a criminal case.

In his opinion, the judge did rely on a jury's power to nullify the law as an alternative basis for acquitting Lynch and Moscinski. The judge stated that he could find “no authority ... that the Court, when it sits as a fact-finder, does not have the same prerogative of leniency” as that of a jury. 952 F.Supp. at 171.

The authority against this claimed prerogative, however, is clear. It is settled that “it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence.” Sparf v. United States, 156 U.S. 51, 102, 15 S.Ct. 273, 39 L.Ed. 343 (1895). Furthermore, a jury may not lawfully reject stipulated facts. See United States v. Mason, 85 F.3d 471, 473 (10th Cir.1996). Indeed, the Supreme Court has characterized the practice of jury nullification as the “assumption of a power” which a jury has “no right to exercise,” Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932), and as “the unreviewable power of a jury to return a verdict of not guilty for impermissible reasons.” United States v. Powell, 469 U.S. 57, 63, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). Four months after the district court's opinion in this case, this court forcefully restated these principles in United States v. Thomas, 116 F.3d 606, 614-18 (2d Cir.1997). In Thomas, we “categorically” rejected “the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent.” Id. at 614. In his thorough opinion for the court, Judge Cabranes recognized “that nullification may at times manifest itself as a form of civil disobedience that some may regard as tolerable,” id., but pointed out, in language originally employed by Learned Hand, that “the power of juries to ‘nullify’ or exercise a power of lenity is just that-a power; it is by no means a right....” Id. at 615.

Further, in United States v. Maybury, 274 F.2d 899 (2d Cir.1960), Judge Friendly noted that “the historic position of the jury affords ample ground for tolerating the jury's assumption of the power to insure lenity.” But he immediately went on to say that the judge does not have that power, because “the judge is hardly the voice of the community” even when he sits as factfinder. Id. at 903. Structurally, judicial nullification violates the separation of powers, for “so long as Congress acts within its constitutional power in enacting a criminal statute, [courts] must give effect to Congress' expressed intention concerning the scope of conduct prohibited.” United States v. Kozminski, 487 U.S. 931, 939, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988). By refusing to enforce a valid criminal statute, a judge acts as a quasi-legislator and usurps the Article I functions of Congress. See Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980).

Additionally, the exercise of nullification by a federal judge-even when termed a “prerogative of leniency”-may create an appearance of injustice that cannot be tolerated by a legal system that strives to resolve cases in a reliable, consistent and objective manner. The arbitrariness of a power that would allow an Article III judge to acquit otherwise guilty defendants if and when the judge sees fit to do so simply cannot be reconciled with the Supreme Court's admonition that “to perform its high function in the best way ‘justice must satisfy the appearance of justice.’ ” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) (citation omitted); see also Maybury, 274 F.2d at 903 (2d Cir.1960) (allowing a judge to nullify would not “enhance respect for law or for the courts”).

IV. Conclusion

Because I conclude that the government may bring this appeal and that the verdict of not guilty was the result of gross legal error on the part of the district court, I would vacate the judgment of acquittal and remand to the district court for entry of a judgment of conviction.


Note on Jury Nullification in Civil Actions

            In federal Courts, and in many states, the judge has a greater authority to take matters from a  jury in civil trials. Yet this has required some subtle interpretive leaps by the courts and the construction of language in the Federal Rules of Procedure that produce a procedural fiction of sorts to achieve this result.

            We start with the 7th Amendment to the U.C. Constitution which guarantees the right to trial by jury in civil cases where the value in controversy exceeds $20.00.   It also provides that no fact tried by a jury can be re-examined by the court except according to the rules of common law.  This language has been the subject of substantial interpretive flexibility, the details of which are usually examined in courts of civil procedure, federal courts, and constitutional law.  That interpretive flexibility has been used by the courts to regulate the breadth of the right to a jury trial (by controlling the meaning of the words “In Suits at Common law”) and by interpreting the extent of the “no review” constraints on jury fact finding. In Galloway v. United States, 319 U.S. 372 (1943) a majority of the Supreme Court noted that the 7th Amendment “did not bind the federal courts to the exact procedural incidents or details of jury trial according to the common law in 1791, any more than it tied them to the common law system of pleading, or the specific rules of evidence then prevailing.”  It dismissed the argument that a court in a civil matter was without power to prevent factual issues from going to a jury in the following terms:

If the intention is to claim generally that the Amendment deprives the federal courts of power to direct a verdict for insufficiency of evidence, the short answer is the contention has been foreclosed by repeated decisions made here consistently for nearly a century.  More recently the practice has been approved explicitly in the promulgation of the Federal Rules of Civil Procedure. Cf. Rule 50. [6]  The objection, therefore comes too late.

Notice the importance of unchallenged past practice in the court’s analysis of the issue.  Tradition and past unchallenged practice will play an important role in the way the legal system of the United States is interpreted and applied.  We will return to this in later chapters. Fed. R. Civ. Proc. 50 now provides:

(a) Judgment as a Matter of Law. 1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

            The Federal Rules of Civil Procedure now include several methods for avoiding a jury in a civil action, even where the right to a jury trial is preserved under the 7th Amendment. These include motions for summary judgment (Fed. R. Civ. Proc. 56);[7] motion for new trial (Fed. R. Civ. Proc. 59);[8] motion for directed verdict or judgment as a matter of law  (Fed. R. Civ. Proc. 50(a)); and motion for a judgment notwithstanding the verdict (Fed. R. Civ. Proc. 50(b)-(c)).[9]  Moreover the assertion of the right to a trial by jury is also managed (Fed. R. Civ. Proc. 38-39), which requires parties generally to demand a jury trial or waive the right (Fed. R. Civ. Proc. 38(d)), though the court might on motion order a jury trial where one might have been demanded (Fed. R. Civ. Proc. 39(b)). 

            Most of these actions are permitted to be taken before a case is submitted to the jury for decision. Directed verdicts in particular, permitted a court to avoid submitting a case to a jury on the grounds that there was no issue of fact for the jury to determine.  That served as a basis for both preserving the right to a jury trail to find facts, but also to enhance the power of the court to avoid jury nullification by avoiding the obligation to send a case to a jury where the factual issues (as determined by the courts) did not rise to a level where a jury determination was necessary. Two are not.  The motion for new trial had been the way in which courts had traditionally avoided a jury verdict that appeared to go against facts and law.  It had the benefit of avoiding jury nullification of law, but it also required a retrial.  The motion notwithstanding a verdict (originally non-obstante veredicto) had a less positive history. The motion for judgment notwithstanding the verdict was deemed unconstitutional early in the 20th century.  Slocum v. New York Insurance Co., 228 U.S. 364 (1913).  But legislatures and courts quickly found a way to work around this decision to provide the courts with this power functionally without overstepping formal constraints on the jury trial prerogative. That involved the incorporation of a legal fiction of sorts, or a procedural device: judges could reserve decision on a motion for directed verdict until after a jury rendered its verdict.  Baltimore & Carolina Line, Inc., Redman, 295 U.S. 654 (1935).[10]  This approach was then incorporated into the Federal Rules of Civil Procedure with the addition of a presumption (some call it a legal fiction) that where a directed verdict is sought after close of all the evidence (whether it is denied or not granted) the court is deemed to have reserved decision on the motion until after the jury verdict is rendered. (Fed. R. Civ. Proc. 52(b)).

[1] For one well known perspective, see Friedrich August Hayek, Law, Legislation and Liberty: A new statement of the liberal principles of justice and political economy (Routledge Classics, 2012) (originally published 1973).
[2] See, e.g., Jerold S. Auerbach, Justice Without law? (Galaxy Books, Oxford University Press, 1984).
[4] This by the Edict of Thessalonica or Cunctos populos jointly issued by Theodosius I, Gratian, and Valentinian II on 27 February 380 (Codex Theodosianus, xvi.1.2). 
[5] Well described in Ernst H. Kantorowicz, The King's Two Bodies: A Study in Mediaeval Political Theology (Princeton University Press, 1998)(originally published 1957).
[6] NOTE: The Federal Rules of Civil Procedure may be accessed electronically (as of December 1, 2013) here: The site is periodically updated.
[7] Fed. R. Civ. Proc.  56(a)  provides in relevant part: “A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.”
[8] Fed. R. Civ. Proc. 50(a) provides: “The court may, on motion, grant a new trial on all or some of the issues—and to any party—as follows: (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or (B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.”
[9] Fed. R. Civ. Proc. 50(b) provides in part: “f the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment—or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged—the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law.”
[10] The decision also emphasized the acquiescence through practice and tradition arguments: “Fragmentary references to the origin and basis of the practice indicate that it came to be supported on the theory that it gave better opportunity for considered rulings, made new trials less frequent, and commanded such general approval that parties litigant assented to its application as a matter of course. But, whatever may have been its origin or theoretical basis, it undoubtedly was well established when the Seventh Amendment was adopted, and therefore must be regarded as a part of the common-law rules to which resort must be had in testing and measuring the right of trial by jury as preserved and protected by that amendment.” Baltimore & Carolina Line, Inc., Redman, 295 U.S. 654, 660 (1935)

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