Document Type

Working Paper

Publication Date

12-17-2012

SSRN Discipline

Economics Research Network; Legal Scholarship Network; Criminal Law & Procedure eJournals; Law School Research Papers - Legal Studies; Litigation, Procedure & Dispute Resolution eJournals; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network

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 nullificationJury 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 functionIn 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

Download

Share

COinS