Nulliﬁcation as Law
Citation: 102 Geo L.J. 579 (2014)
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 despotic 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. Although 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 role that jury nullification plays in 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. This new vision of the rule of law includes, if not at times encourages, the possibility of nullification.
Jury nullification erodes the formal paradigm surrounding law. 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 suggests 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 a citizen juror as a source of the law itself. It pushes against static constructs of law and seeks to inject community-based ideals of justice and equity into the larger body of law.
In placing nullification within the context of the rule of law, this Article recognizes the democratic function of the criminal jury and asserts that nullification promotes that function. In doing so, it considers how the citizen’s relation- ship with the government has developed in light of changing notions about the criminal jury’s role in the interpretation of law, concluding that nullification is consistent with notions of the rule of law; instead, nullification promotes an active role for the citizen in the construction and deconstruction of the law itself.
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