All Commentary
Friday, March 1, 1996

Nullifying the Rule of Law

Jurors Ignoring the Law Accomplish Nothing but Anarchy in Microcosm

Mr. Pulliam is an attorney in private practice in San Diego.

What do nineteenth-century anarchist Lysander Spooner,[1] the O. J. legal defense team, some elements of the militia movement,[2] the Los Angeles juries that failed to convict the Menendez brothers of murdering their parents and that acquitted the brutal assailants of Reginald Denny, and the activists who promote the idea of “fully informed juries”[3] have in common?

They all symbolize the notion that juries can and should refuse to heed the instructions given them by the trial judge, and that jurors should instead follow their own consciences and “nullify” those instructions by doing what they personally feel is just.

Jury instructions are the applicable legal rules communicated to the jury by the trial judge. In virtually every jurisdiction, jurors take an oath at the beginning of the case that they will consider only the evidence presented and the instructions of the court. The “instructions” are, therefore, laws that society has duly enacted through either the legislative process or the common law judicial process. In either event, the laws derive legitimacy from our democratic political traditions.

As citizens, we may not agree with all the laws on the books, but in a system of representative government we are bound to follow them. It is inherent in the concept of the State that there will not be unanimity in all matters, but that the views of the majority will prevail. This “coercion” or “oppression” of the dissenting minority has long perturbed anarchist philosophers such as the aforementioned Spooner, who objected to the “social compact” rationale for the state as well as the institution of the jury.[4] Jury-power activists sometimes cite Spooner as a proponent of “jury nullification,” but he is best known for his more fundamental objection to constitutional government.

On what basis do advocates of jury nullification attempt to justify the lawlessness that ignoring the court’s instructions entails? Advocates advance two principal explanations, neither of which is persuasive: (1) civil disobedience, or the moral right or obligation to resist enforcement of an unjust law,[5] and (2) populist opposition to tyrannical actions by an unresponsive government.[6] Let’s consider these explanations.

Civil Disobedience

Civil disobedience is a misnomer in the context of a seated juror refusing to follow the law. Civil disobedience, properly understood, is resistance to unjust government action as a last resort—when disobedience is the only alternative to becoming a participant in an objectionable act. This will never be the case with a seated juror. A potential juror who objected to service could refuse to report to court or serve on a jury. A person with a moral objection to enforcing a particular law (say, punishing a defendant charged with private drug use or blockading abortion clinics) could disclose that objection during voir dire and be excused from serving in the case.

But, after a juror has reported for service, been screened through voir dire, been seated and sworn to follow the law according to the instructions of the court, there is no room for “civil disobedience.” A juror reneging on his oath is an outlaw, a scofflaw. A renegade juror cheats the parties to the case out of their right to have the matter decided according to the law, on the basis of which the evidence and arguments have been presented.

Despite proponents’ fondness of quoting Henry David Thoreau on civil disobedience,[7] a lawless juror is no more heroic than a rogue policeman violating the law or a politician accepting a bribe. If a juror (or any other member of the political community) feels that a particular law is unjust—and in a society as large and diverse as ours, we can assume that someone, somewhere, feels that every law on the books is unjust—the remedy is to petition the legislature for reform, not to infiltrate the jury and then ignore the law.

Populist Opposition

The other frequently cited justification for jury nullification—the need to rein in abusive government power—is even more specious. An honest anarchist such as Lysander Spooner would refuse to serve on a jury because he wouldn’t believe in the concept of mandatory jury service or even governmental proceedings to enforce the law. Let’s not forget that a trial, whether civil or criminal, is government action. Enforcing democratically enacted laws is one of the basic purposes of government. When a juror considers defying his oath and deciding a case based on his personal feelings rather than the court’s instructions, the alternative is not between liberty and coercion, but between coercion informed by the rule of law and coercion at the whim of 12 jurors.

And what is a jury acting outside of the law but a 12-person mob, like modern-day vigilantes? Although the jury-power activists point to historical events where juries refused to enforce the Fugitive Slave Act,[8] there is no assurance that a jury operating outside the law would only acquit in a criminal case; it could just as easily “nullify” the instructions by convicting a person who was technically innocent. Moreover, there are no counterparts to the Fugitive Slave Law in a civil case. Furthermore, nullifying the law strips the individuals who comprise society of their right to have the laws enforced. Nothing could be more tyrannical or despotic than the arbitrary decision of a jury that has rejected the law.

It disturbs me to see libertarians and conservatives—whom I generally regard as allies—embrace the jury nullification cause. The rule of law is essential to the preservation of liberty. Friedrich Hayek, perhaps this century’s pre-eminent theorist of classical liberalism—the political philosophy of freedom—believed that the defining characteristic of a free society is the rule of law, meaning legal rules stated in advance, uniformly applied, without excessive discretion.[9] In Hayek’s words: “[W]hen we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man’s will and are therefore free.”[10] Thus, it is the universal, non-selective nature of law that allows us to be free.[11] In Hayek’s view, it is precisely because judges and juries cannot pick and choose what laws to enforce in a particular case “that it can be said that laws and not men rule.”[12] Jury-activist pamphleteers in front of the courthouse would do well to heed Hayek’s admonition that “few beliefs have been more destructive of the respect for the rules of law and of morals than the idea that a rule is binding only if the beneficial effect of observing it in the particular instance can be recognized.”[13]

Yet that is exactly what advocates of jury nullification espouse—following the law only if they agree with it in a particular case. I am not unsympathetic to concerns about unjust laws and government overreaching. The solution is grassroots political activism and reforms such as fewer federal mandates and expanded use of the initiative and recall devices, not shortsighted demagoguery in the form of jury nullification. Jurors ignoring the law accomplish nothing but anarchy in a microcosm—nullifying the rule of law.

1. Lysander Spooner, An Essay on the Trial By Jury (1852).

2. “Militias Are Joining Jury-Power Activists to Fight Government,” Wall Street Journal (May 25, 1995), p. A1 (hereinafter “Militias”).

3. Ibid.

4. Lysander Spooner, No Treason: The Constitution of No Authority (1870).

5. Michael Pierone, “Requiring Citizens to Do Evil,” The Freeman (July 1993), p. 261.

6. “Militias,” p. A8; N. Stephan Kinsella, “Legislation and Law in a Free Society,” The Freeman (September 1995), pp. 561, 563.

7. Pierone, note 5, p. 262.

8. Ibid.

9. Friedrich A. Hayek, The Road to Serfdom (Chicago: University of Chicago Press, 1944), pp. 72-79.

10. Friedrich A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), p. 153.

11. Ibid., pp. 153-54.

12. Ibid., p. 153.

13. Ibid., p. 159.