Legal Dissonances

Morris B. Hoffman

doi:10.1017/CBO9781139811873.009

8 - Legal Dissonances

Published online by Cambridge University Press: 05 May 2014

Morris B. Hoffman

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Morris B. Hoffman: Affiliation:
University of Colorado Boulder

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Summary

People crushed by laws have no hope but to evade power. If the laws are their enemies, they will be enemies of the law.

Edmund Burke

The Naturalistic Fallacy: Mind the Gap

As any trial lawyer or trial judge will tell you, there are a handful of cases where the law requires jurors to follow rules that seem especially hard for them to follow. These are not cases about difficult factual determinations, such as whether the sex was consensual in a “he-said/she-said” rape case, or even whether a defendant had a certain required state of mind. Instead, there are some legal rules that jurors have trouble with because they just don't seem to believe in them. Blackstone's “pious perjury” is an example. Jurors in sixteenth- and seventeenth-century England simply did not believe that citizens should be put to death for certain relatively minor crimes, and therefore regularly acquitted them of the charged crime and convicted them of a less serious crime that did not carry the death penalty.

Type: Chapter
Information: The Punisher's Brain
The Evolution of Judge and Jury
, pp. 251 - 271

DOI: https://doi.org/10.1017/CBO9781139811873.009 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2014

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References

Robinson, Paul, Geoffrey, & Reisig, Michael, The Disutility of Injustice, 85 N.Y.U. L. Rev. 1940 (2010)Google Scholar

Sutton, S., Predicting and explaining behaviors and intentions: how well are we doing?, J. Appl. Soc. Psychol., 28(15), 1317–1338 (1998)Google Scholar

Oulette, J. & Wood, W., Habit and intention in everyday life: the multiple processes by which past behavior predicts future behavior, Psychol. Bul., 124(1), 54–74 (1998)Google Scholar

Aarts, H. et al., Predicting behavior from actions in the past: repeated decision making or a matter of habit?, J. Appl. Soc. Psychol., 28(15), 1355–1374 (1998)Google Scholar

Robinson, Paul & Darley, John, Intuitions of Justice: Implications for Criminal Law and Justice Policy, 81 S. Cal. L. Rev. 1 (2007)Google Scholar

MacIntrye, A., Hume on “Is” and “Ought,”Phil. Rev., 68(4), 451–468 (1959)Google Scholar

Jones, Owen D., Time-Shifted Rationality and the Law of Law's Leverage, 95 Nw. L. Rev. 1141 (2001)Google Scholar

Hoffman, Morris B., Evolutionary Jurisprudence: The End of the Naturalistic Fallacy and the Beginning of Natural Reform?, in Law and Neuroscience 433 (M. Freeman, ed., Oxford 2011)Google Scholar

Henrich, J. et al., Markets, religion, community size and the evolution of fairness and punishment, Science, 327, 1480–1484 (March 2010)Google Scholar

Henrich, J., Costly punishment across human societies, Science, 312, 1767–1770 (June 2006)Google Scholar

Morse, Stephen, Psychopathy and Criminal Responsibility, 1 Neuroethics205 (2008)Google Scholar