Lord Patrick Devlin, Call Your Office

An important point buried at the end of a Reason article on why gun control wouldn't work better than Prohibition:
Those defiant gun owners will also be included in the jury pools chosen to sit in judgement of unlucky violators scooped up by law enforcement. That situation will likely replicate the difficulty prosecutors had in getting convictions of Prohibition scofflaws in the 1920s and marijuana law resisters today. "[I]f juries consistently nullify certain types of criminal charges (charges for possession of a small amount of marijuana, for example), this can render an unpopular law ineffective," wrote John Richards at the LegalMatch blog after a jury couldn't even be seated in Montana.

"If you pass laws that people have no respect for and they don't follow them, then you have a real problem," Connecticut Sen. Tony Guglielmo (R-District 35), told the Hartford Courant when large numbers of state residents flipped the bird to lawmakers and defied the new gun law.

Well... yes, you do. And like their restriction-inclined predecessors, gun controllers will have quite a mess on their hands.
This argument is most famously made in Lord Patrick Devlin's The Enforcement of Morals. His point was that, in a country that accepts freedom of conscience where religion is concerned, religion can no longer ground moral laws (because everyone has a right to dissent from any religious view). Rather than do away with legislation that was meant to enforce moral codes, Devlin proposes an alternative justification. He called it 'man in the jury-box' or 'man on the Clapham omnibus' standard. Essentially the idea was that ordinary British citizens could be trusted to know right from wrong, or in any case to work it out over time, and thus that they should be free to pass moral laws grounded on their common sense. The test for whether a moral law was valid or not was whether or not the ordinary British citizen would enforce it if called to serve on a jury. A law they wouldn't enforce had no business being a law anyway.

That's actually a fairly strict standard, since juries require unanimous consent to convict someone. It means that any minority large enough to regularly turn up as even a single member of a jury has to be considered as well. Thus, you could still have laws grounded on nothing more than 'common sense moral disapproval' of a practice. You'd just have to have a very wide consensus about what morality entails on the point.


Ymar Sakar said...

Prohibition came out of the Temperance movement. Temperance, as a virtue enforced by churches and membership, was one thing. Prohibiting alcohol was an act of evil by everyone involved, whether they were part of a church or part of the government profit.

They took their virtue, and made it into a vice via extremist ideology. Plus pie in the sky promises they bought into, such as Eve falling for Samael's words.

Humans are easy to deceive. Particularly the ones that think themselves righteous or better than their peers. Unfortunately, firewalls against evil, virus scanners to detect evil in their own souls, were not prepared or equipped for installation back in those days. A result of the loss in Christian hierarchy and truths, probably.

Then again, they fell for Sanger's eugenics, they fell for SPLC, they fell for Wilson, they fell for FDR, so Prohibition could scarcely be called their primary failure point or source of failure. Even idiots are harder to con than that.

Eric Blair said...

You forget that it was powered by the women's vote. Probably a more important factor than anything else, in the end.

Was it evil? A bad decision, certainly, based on the outcomes. Evil is something else again.

Ymar Sakar said...

Anything that involves empowering the government is evil, unless justified with a divinely inspired document like the US Constitution or Declaration of Independence.

Empowering the government to create a problem such as prohibition, then electing FDR to "solve" the problem created by the government, is classic Democrat SOP for con artist work. What makes it evil is not the outcome of bad results. What makes it evil is what got the power, the State itself, the one that ruled the other states.

There's always a problem when humans, who call themselves followers of a God, give more power to the State.

Grim said...

There was a nest of interests aligned with Prohibition. The Temperance movement was not just born-again Christian but anti-immigrant; the move to crush alcohol was about crushing German/Irish/Italian cultures as much as anything else.

The women's vote movement was likewise anti-immigrant: it was suddenly plausible to get all these upright, proper women to vote so that those dirty Irishmen would be diluted as a voting bloc.

There's a similar set of prejudices at work in the gun control prohibition effort today. It's more about suppressing an undesirable culture (mine, as it happens) than anyone wants to admit. AVI was making that point the other day, and he's right.