Are nation states more trustworthy now than in previous times? I am of course asking a rhetorical question. No, they are not more, or less, trustworthy. People, in particular the sort of people who seek political power or to in some way wield the authority of the state, are essentially the same sort of people who have always sought such things.
And so, when the Scottish state tells us that the venerable prohibitions against double jeopardy, being put on trial more than once for the same crime, must be abolished due to improvements in methods of forensic science, they are actually saying “we, the state, can be trusted with the power to just shuffle the deck and try again if we do not like the outcome of a criminal trial because of course our motives could never be anything less than a relentless search for truth and justice, right?”…
That is in actually what they are saying, because DNA cannot possibly be planted or falsified and our priestly class, sorry, I mean scientific experts are always simply concerned with the dispassionate facts (like say, the good folks at the CRU).
What could possibly go wrong with being able to keep retrying people until the “right” result is gained, eh?
While I agree with the point. You can’t double dip ad infinitum to get the verdict you want, I can’t agree with the way that you put this.
For a start, a judiciary needs to exist whatever form of government you have and it needs to be invested with the power to deliver judgements et al. Anything less and you have no means of providing equal protection under the law and anybody with sufficient clout gets what they want.
Second, whether or not you agree with the science behind global warming – the conflation of scientists with a “priestly class” and the anti-science baggage that comes with that perception doesn’t help any debate stay reasonable. Whether or not the scientists are at fault there.
Next stop vaccination, evolution and industrial civilization.
Surely, if forensic science, and the quality of evidence in general, has improved then there is even less justification for a retrial than there was before it improved, as the verdict is more likely to be correct.
Flawed logic, as well as statist.
The basic problem is that it’s centuries since British people had to deal with arbitrary justice and an overbearing state, so they have forgotten how bad that is: and no longer bother to protect themselves from it. You never know what you’ve got till its gone- but eventually people will learn (the hard way) and fight to regain their liberty.
Er no, Daveon. I am not arguing against courts and having a criminal justice system, I am arguing against abandoning double jeopardy and allowing them a second try because ‘the science is better’, because that is the wrong issue (and in any case I do not think scientists are any more trustworthy that policemen, prosecutors and judges… and my ‘priestly class’ aside is against the notion that we must defer to ‘experts’ in ever more aspects of life). The real issue is that the state cannot be trusted with the power abolishing double jeopardy gives them and the quality of the damn science changes nothing.
I agree; the state cannot be given that power. Even granting their claim and assuming, arguendo, that in some cases the “science” has improved and a “faulty” acquittal was returned solely because of the previous weakness or defect, how can one ensure that this is the true basis for a retrial? Even if it doesn’t begin this way, in my opinion the inevitable result will be trumped-up claims of scientific improvement masking the true goal of simply hoping for a “better” (from the state’s perspective) jury which returns a conviction the second (or third?) time around.
Jury nullification, still a central (if judicially despised) feature of anglo-saxon jurisprudence, would be the first casualty of such a change.
This is what comes of not having a written constitution. Imperfect as it may be (in content and observation), at least in the US the prohibition against double jeopardy could not be eliminated by a simple Act of Congress.
As an aside, the Volockh Conspiracy and one of the regulars at NRO have a bit of a pissing contest going over nationalism and/or patriotism, although that is not the focus of this post, it is about the nation state.
I am saddened to hear that one of the elements that comprises Great Britain has decided to embark on such a ruinous path. We have seen a variation of that in the US, in which certain suspects are tried in courts at various levels until convicted, or hauled into civil court when the trial in criminal court is unsatisfactory to the prosecution.
I believe we are facing a critical period in western history, in which many of the most fundamental and cherished values we hold as free people will be repeatedly challenged.
This, of course, is nothing new, but I sense a desperation on the collectivist side that had seemed to fade somewhat during the last decade of the 20th century, as they staggered from the collapse of totalitarian collectivism in many parts of the world.
Those who can always find ten reasons why individual rights and personal liberties are inconvenient or dangerous or destructive or simply outmoded have clearly regrouped, and are coming at us in waves of new and innovative ways to increase state power and devise collectivist schemes to exploit a whole range of alleged crises.
Goliath has taken the field. We await David and his sling to bring low the giant that threatens us all.
It is important to recognise that what is usually called forensic science isn’t science. The government forensic services don’t test conclusions they look for clues, from which inferences of suspicion can be made. (When a small grain of explosive was found in Barry George’s pocket, the FSS did not have any form of control nor detailed mechanism to explain how it got there. It do not go out and inspect the pockets of 100 other people living in Fulham.) ‘Forensic science’ would be better labeled as detective technology.
Nevertheless there have been improvements. DNA does catch criminals who would have escaped in former times.
But the Scottish legislature has been watching too much CSI (any is too much by me), and missed the point of double jeopardy, which is the same as the point of a fair trial in the first place: to prevent prosecution from becoming persecution.
veryretired,
I am saddened to hear that one of the elements that comprises Great Britain has decided to embark on such a ruinous path.
Scotland (which has a quite different, as well as separate, legal system) is catching up with England and Wales, where the double jeopardy rule was abolished, retrospectively, in 2005.
Depending on the “starting point” of any culture, civilization or social organization, which may have “evolved” into a “Nation-State,” its procedures for identifying and dealing with “Crime,” will be subject to issues such as raised by J P.
Those considerations should cause us to reflect and focus on: the reasons issues of identifying and dealing with crime are administered through the instumentalities of governments; why they are administered in any particular fashion and how have those reasons brought us to the present concerns.
In the U S, we are seeing a disastrous trend toward the “creation” of crimes via legislative forms of indentification of (1) particular conduct and (2) particular results of certain events or relationships.
From its history, England’s (which evolved socially distinct from Scotland) social orders generated community “law” for identification and dealing with crime. That was overlaid with the consolidations of power by those concerned with maintaining sufficient civil tranquility to support economic and military resources to sustain their control (not limited to the Normans).
Dealing with crime became a concern for administration by those seeking to maintain control, even before there were “States” or “Nations.”
Those social orders that became “Nations” mostly through forms of sovereignity that extended controls in the mechanisms of a “State,” carried forward an inherited concern with control over the administration of crime – which continues to these times under the rubric of “The Interest of the State.”
Of course, that is a moronic concept today. The “State” as an administrative instrument has no interest. Only individuals have interests. There is commonality of interests, of course, and common concern as to means of protecting those interests.
So it has been said that those common concerns are amongst the reasons “Governments are instituted among Men.” However, that is not the historical basis on which most governments (including that of England) have come into being; nor does it seem to be the basis on which most are currently developing.
It could be different, but it pobably will not be.
“The “State” as an administrative instrument has no interest. Only individuals have interests. There is commonality of interests, of course, and common concern as to means of protecting those interests.”
Absolutely. The “State” is a lie, or it is only a name for a collection of individuals whose essential value (interest) is the power to preside over the values of other individuals. I’ve long thought the best description of this is Billy Beck’s metaphor; both illuminating and horribly vivid.
I suppose the State is just trying to balance the ledgers as many people are let out due to DNA proving that they were not the perpetrator, and if it’s useable for that, then new evidence not in existence at the time, they feel, should be used to put the right person away.
Which leads to the second part of referring to those within the State Bureaucracy as priests with an agenda – it is not hyperbolic to do so. IF we could trust such folk, then we would be much more agreeable to allow for re-trial with ONLY the incremental new evidence not discernable before – we after all really do want innocent people free and guilty people caged. But it stands that those who adamantly want to control other people will resort to unsavory methods to do so. Their motivations are seldom pure and taken to their root typically are riven with superstition – ergo priests is an apt word as far as I am concerned. Those who enter the corridors of power are self appointed Keepers of the Truth and we cannot trust that they indeed want to keep innocent people free and guilty people caged. The opposite might have to be entertained with some frequency to keep the Greater Cause alive. And that Greater Cause when examined closely, rationally, and without emotion is a threadbare, cobbled together set of superstitious beliefs.
Yes you’d think so but in truth all institutions beyond a certain size have a meta-contextual forming characteristic that almost completely alters the outlook and behaviour of people operating within those institutions, be they states or businesses or religions. Institutions *do* have interests… oh sure, it is the literal truth that “people have interests” yet it is an observable fact that reforming political “go native” once they stop being outsiders and start operating within the meta-context of the system they think they are going to reform… why? Because institutions are a mass of interlocked confluences of interest that take on a quality all their own, much as what we call “society” do… and you cannot point at a society or identify its biological brain within which an “interest” lies, yet to deny societies exist and have an effect on the people who make them up is most unwise.
No, states do indeed have “interests”, because they are filled with people who see that institution as serving *their* own narrow interests and the resulting self perpetuating group-mind is made up of the people within that institution with emergent properties above and beyond that of the individual “neurons”.
What is that “meta-contextual forming characteristic?”
From what follows, the point seems to be that the functioning of institutions can shape the interests of those individuals involved in such functions.
Granted, there are commonalities of interests of individuals, especially within institutional frame-works (family, clan, tribe, polis, town, county, state, company, regiment, church, Congress, Parliament, etc., etc.). Granted further, the institutions are the major context in which individual interests are formed – to be carried on and sought “beyond” the frame-work of that institution. No doubt, to that extent, they are “meta-contextual.”
It might be worth reflecting on the obverse, the impacts on the functioning of institutions resulting from the interests of the individuals engaged in its operations, which as most here are aware is the scholarship of Public Choice Theory.
Could we not say, credibly, that the current quality of Parliament or Congress as an institution reflects the interests of its members rather than a function for the interests of its electorate; that those interests of its members shape the institution?
The constant habit of reifying institutions, giving them a persona separate and apart from the individuals, separately or in commonality, who “operate” their functions has created major deficiencies in maintaining an Open Society.
J P
Is that an argument to validate: “The Will of the People?”
they’ll never be trustworthy
I can think of only one way in which getting rid of double jep could possibly be justified – I do not say would be justified, it is only an arguement.
This is to leave it to the jury – if a jury ruled “not guilty” that would be it, no second go for the prosecution (regardless of any new evidence that is found).
However, if a jury were unsure and ruled “not proven” then, if new evidence was found, the prosection (whether the government or a PRIVATE prosecution) would be allowed to come back in.
Of course allowing the jury to decide is the last thing the politicians and administrators would want.
The American position is interesting – in that ban on double jep has de facto been abolished.
This has been done via “Civil Rights” law.
Let us say a person is found innocent of assault of murder and the powers that be do not like that……
They then charge the person with “violating the civil rights” of the victim and the case is run again – with a jury rigged by the government (in fact the entire Federal “justice” system is just a whole series of riggings, and many of the State justice systems are not much better).
The Common Law recognises no such offence as “violating the Civil Rights of….” (such terms are meaningless to the Common Law), but they are one of the many ways that the rulers of the modern United States wipe their backsides with the Constitution of the United States (which both outlaws double jep and specifically states that the Federal court systme shall follow the Common Law).
The United States (like Britain) has many tens of thousands of “laws” – but the “rule of law” is a very different thing.