Hobbesian Existence

There’s a flutter of discussion on jury nullification in the blogosphere. For those unfamiliar with the term, the idea is that an individual on a jury may apply his own personal view of what the law should be in determining his or her finding in a case. If you don’t think a law is right or just, you may then ignore the evidence presented as well as the instructions of the judge with regard to what the law demands. You don’t like the law, you simply and adamantly refuse to convict. It should be noted, early on, that the principle is most often linked to prosecutions for recreational drug use.

So, take a look at this well referenced summary of the issue and then take a moment to read some of the comments:

The Judge Reports, You Decide

Or read here and see if you agree that America isn’t a free country when laws are used to imprison those who break them:

Save the Unjustly Convicted

Notice that the general tenor of the comments is that, in the words of Charles Dicken’s character Mr. Bumble in Oliver Twist, “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”

There are the usual appeals to glorious Constitutional principles being somehow assailed by enforcement of duly enacted legislation. They somehow forget, in advancing that argument, that the Constitution only offers the Supreme Court the privilege of declaring a law invalid and then only with respect to the Constitution itself. That power of “judicial review” is not even specifically expressed, but only implied and then asserted in 1803 by John Marshall in Marbury v Madison. We should not assume a right or privilege for each of us to determine what is and what is not the law.

The rhetorical distinction which is so often trotted out, regarding “rule of law rather than rule of man,” means that individuals, whether citizens, judges or prosecutors, don’t get to decide what law can be ignored. The clear authority to make laws is delegated to the elected legislative body. Admittedly they can be outrageously inept, but they still have the authority. Once enacted by the defined procedures spelled out in our federal and state constitutions, the laws must be complied with until they are revoked by further legislative act or overturned by judicial review. We as citizens only are involved in the process through our ability to elect those legislators and to influence their choices through political action.

Even when more democratic procedures are used to pass laws, the results still must be binding even when the law is ridiculous. Simply because most people want it, doesn’t make it good law. Witness the 18th Amendment. No legislative incompetence led to that foolishness. It was pure old-fashioned, democratic majority ruling. The correction was repeal of the amendment, not individual jury nullification.

When the law plainly sucks, we should do something about it. But, taking it into our own authority to ignore the existing laws because they don’t suit our convenience at the moment is a major part of that sacrifice of a segment of our liberty that is required if we are to live under the Social Contract. The Hobbesian world that would evolve without that sacrifice would be a natural state in which life would be even more nasty, brutish and short than it already is.

But a rational man will always view with respect the counter argument. If I were to change my mind it would be because of this excellent analysis. I lean toward order, but this is compelling:

Strongest Argument in Favor

Are you now confused or confirmed? My conclusion is that while a reasonable argument can be made for jury nullification of an unjust law specifically, the reasoning collapses when you extend the principle of jury nullification, as you inevitably must, to anyone with regard to any law. Then the result is chaos. You nullify for recreational drug use; I nullify for drinking and driving and Joe Bagadonutz nullifies for child pornography. That simply doesn’t work. The solution to the unjust law is not to ignore it, but to correct it within our Constitutional process.