I fought the law and the law won

I put up a Google alert on jury nullification and the first thing I got was my own blog entry.

Whatever.

I’m fascinated by law, as members of the VCA, or at least those who follow the feed, know well. You can make a lot of claims about what law is, that it is socialized morality, for instance, but I’m reluctant to go so far. There are laws against spitting on the subway, for instance. This act of expectoration, while crude, hardly strikes me as immoral (unless you have some viciously contagious disease that will infect anyone who comes within ten feet of your phlegm, or can envision some other science fiction scenario worthy only of the greenest philosophical novice). We legislate all sorts of stuff. Law is part of society’s attempt to organize itself, to identify a set of actions that are not permitted, for whatever reason. I guess you can say that anything that there is not a law against is allowed.

Law as we’re discussing it here is, obviously, social. That is, we are talking about laws that are enacted within a society as a measure of civil order. Whoever holds the power in a society gets to make the laws, to create the civil order. There is no guarantee that the power-holder always makes what we could call “good” laws. I mean, look at who could be holding the power. In a dictatorship, it could be some monomaniacal strongman general who is robbing the country blind and who makes laws to protect himself from his enemies who would stop him from his evil-doing. Monarchs share this dictatorial focus of power in one person or family, but can be either enlightened or comparably evil, and will act accordingly. In a democracy, where power is held by the people, we still don’t necessarily only get laws that somehow benefit the people, although that would theoretically appear to be the goal. It doesn’t make sense for democracies to enact laws that would harm the members of the democracy, but that this not happen would require that the enacting of law be a perfect system that always works as intended. We have plenty of evidence that demonstrates that this is not the case.

Still, the intention of democracy is law that benefits the populace, since the populace does, by definition, create the law, and we can intuitively assume that the populace would have its own benefit in mind. Locke classically explains how laws should be created, and the centuries that have succeeded him have offered no better scenario. The idea is to create a legislative body that represents the people, and have that body come up with the laws that will manage those people. The entire scope of this legislative body is that creation of law, not its execution, not its application. Legislators make legislation: end of story.

So law exists to create a civil order, and in a democracy a special legislative body is empowered to create that law. Once laws are created, they are out of the hands of the legislative body, and into the hands of the executive, which enforces those laws, and the judiciary, which interprets those laws.

The resolution at hand, jury nullification, deals only with the subset of law that defines criminal acts or areas of civil dispute that are resolved by juries. The passing of a healthcare bill, or non-passing of a healthcare bill, is another thing altogether. But when crimes are committed, or disputes are taken to court, juries usually come into play. Juries are composed of the peers of those who stand before the court. Whether or not you committed such and such a crime, broke such and such a law, is decided by the people at large, in other words, based on the evidence brought before them. These are, theoretically, the same people who created the law that you are accused of breaking.

In a courtroom, everyone has a particular role to play. The two sides of the case argue their positions, presenting such evidence as they think will win the day. The judge is there to make sure that both sides of the case follow the rules, and also that the jury follow the rules. The judge will see to it that the lawyers don’t cheat, in other words, and also to make sure that the jury understands what is going on. Every trial is a question of whether there was some sort of violation of the law or, in civil suits, the violation of a party’s rights. It is the judge’s job to clearly present to the jury what exactly is being charged, and what the law is regarding it, so that the jury can go off and decide if a law has been broken in this case or a right has been infringed. It does not matter if the judge believes one side or the other; it only matters that the judge make it clear to the jury what their job is in this particular case, so that they can make a decision. What the jury believes is all that matters.

There are, of course, plenty of process issues that can throw off the rather ideal picture painted above, of two sides being kept within fair boundaries by an impartial judge who clearly explains the situation to the jury so that they can decide without prejudice. One judge might admit evidence that an appellate might consider inadmissible, and so forth and so on. An appellate might even determine that a judge’s statements to a jury are prejudicial. If you’re really interested in all the ins and outs, either go to law school or rent the DVDs of any popular legal TV show. You’ll see it all, sooner or later.

Jury nullification is, very specifically, a jury saying (explicitly or implicitly) that a particular law is unjust, and that they refuse to prosecute someone under that law. It doesn’t matter if the person “did it,” although the assumption is that they did. What matters is the law itself, and the jury’s refusal to apply it. The jury, a handful of people with no standing as legislators, the creators of laws, or judges, the interpreters of law, take it on themselves to do, or undo, both that making and that interpretation. In other words, they take the law into their own hands.

Shades of civil disobedience!

I cross-posted some material from Jim Anderson’s blog on the Feed that you might want to take a look at. It will provide the legal standing (or lack thereof) of nullification, but not necessarily a commanding explanation of why it is right or wrong. That you’ll have to do for yourself. There are so many ins and outs to his subject, you can start almost anywhere. As I said Monday, I wish that more people were debating this one more often.