Nullification as Law

Abstract

The rule of law is central to our notion of governance and our legal system. The ideal of a knowable, regular, public law shimmers in the discourse of our democracy. It stands in sharp contrast to the arbitrary and often anarchic law of men, in which those with absolute power rule absolutely. But the devil is always in the details. To move past the idealism is to enter a contested realm where competing theories seek to claim the mantle of the rule of law. While this article cannot claim to resolve the dispute over the precise meaning or construct of the rule of law, it does seek to consider the questions that jury nullification raises in the context of our republican democracy. In so doing, a more nuanced conception of the rule of law emerges – one grounded in the daily realities of the lives the law would govern, and that would include, if not at times encourage, the possibility of nullification.

Jury nullification questions the formal paradigm surrounding law and seeks to inject the law with communal values. The audacity of a juror defining law speaks of some small space where law is constructed and given meaning outside the halls of formal government. It imagines a law that is more than the written word of statutes, executive orders, or judicial opinions, but is an interplay between the written word and the citizen’s interpretation of that word. In its very nature, nullification points to the citizen juror as a source of the law itself. It pushes against static constructs of law and seeks to inject ideals of justice and equity into the larger body of law. Equally importantly, it recognizes the democratic function of the criminal jury and asserts that nullification promotes that function.

In placing nullification within the context of the rule of law, this article considers how the citizen’s relationship with the government has developed in light of changing notions about the criminal jury’s role in the interpretation of law. It concludes that nullification is not inconsistent with notions of the rule of law, and instead ensures an active role for the citizen in the construction and deconstruction of the law itself.

Keywords: Jury Nullification, Rule of Law, Concept of Law