Jury nullification means a juror can nullify a law if he believes the law or its application is unjust. He can do so by refusing to convict a defendant despite instructions to do so from a judge. In short, the juror sits in judgment on the defendant and the law.
Jury nullification was established in common law in 1670 when an English jury refused to convict William Penn for preaching Quakerism; the jury was imprisoned for their rebellion. In response, the English high court ruled that juries must be able to reach their own decisions without fear of punishment. In 1735, jury nullification was affirmed in America when jurors refused to convict the publisher John Peter Zenger for printing material critical of the governor of New York. In 1804, Supreme Court Justice Samuel Chase declared, "The jury has a right to judge both the law as well as the fact in controversy." Today, nullification has become increasingly popular in the face of how increasingly difficult it is to legislatively reverse an unjust law. Nevertheless, there are reasons to be uncomfortable with the strategy.
A Catch-22 in Trial By Jury
Under libertarianism, no one can properly exercise power over a peaceful person without that person's consent. This is especially true of power claimed by a collective or group because only individual rights exist, not collective ones. How, then, does the collective called a jury come to possess the right to sit in judgment on an unconsenting defendant? It cannot be argued that the defendant has relinquished his rights because he used force; the whole point of assembling a jury is to assess whether he is guilty of doing so. The defendant is presumed innocent until proven guilty.
The 16th century classical liberal John Locke addressed the problem of where a magistrate (or anyone) derived the right to sit in judgment. The need to protect "life, liberty, and estate" in society, he argued, was what led men to form government. In exchange for government protection, individuals relinquished the right to adjudicate their own disputes. Locke developed a doctrine of tacit consent which bound even those who did not explicitly agree to government. A man tacitly agreed because he could withdraw his consent by withdrawing from society. As long as he chose to enjoy the protection of government, however, he was consenting to its jurisdiction, including its right to adjudicate disputes. But the idea of tacitly relinquishing inalienable rights through silence or inactivity has not been popular with radical individualists.
19th century American libertarians tried to base trial by jury and nullification on other grounds. A fascinating debate on the topic broke out in the key individualist-anarchist periodical Liberty (1881-1908), edited by Benjamin Tucker.
In 1889, the booklet "Free Political Institutions: Their Nature, Essence, and Maintenance" began to run serially in Liberty. It was advertised as "an abridgement and rearrangement" of Lysander Spooner's Trial by Jury, which is often viewed as the definitive defense of juries. Victor Yarros' rearrangement began with a statement of what Spooner called "free government". This was the "theory of government…formed by the voluntary contract of the people individually with each other." Spooner then argued that certain laws or conditions are so obviously beneficial that all members of society would agree to them. He considered trial by jury to be such a condition. Thus Trial by Jury did not spill much ink on how twelve people came to possess what Spooner acknowledged as an individual right: namely, the right of an individual to try his own case. It assumed all individuals consented.
Others immediately protested in Liberty. One writer stated he would prefer to be tried by experts than by twelve men who might be ignorant of important technical matters. Spooner had anticipated the "ignorance" objection and pre-answered, "the powers of juries are not granted to them on the supposition that they know the law better than the justices, but on the ground that the justices are untrustworthy, that they are exposed to bribes, are fond of authority, and are also the dependent and subservient creatures of the legislature … " But this response did not address the core problem of how twelve people rightfully judge and punish another human being, especially when the universal agreement sketched by Spooner obviously would not occur. The basic question was repeated. If trial by jury was based on the right of every individual to judge the law, then didn't juries rob the individual of the very right upon which they themselves drew for legitimacy?
Perhaps the most effective voice against trial by jury was the egoist Steven T. Byington. He began by quoting from an editorial run by the "Times of Natal" — an English speaking country in which racism made 'trial by jury' for blacks unjust; for one thing, judgments could not be obtained against whites who committed crimes against blacks. In the presence of such prejudices, Byington claimed 'trial by jury' became an instrument of injustice. The prejudice did not need to be widespread for it to have a disastrous impact. "If only ten percent of the people were of this sort, more than sixty-four percent of the juries would include one or more of these men to prevent a conviction. In order that there should be an even chance of twelve men taken at random being unanimously willing to judge according to certain principles, it is necessary that there be not so many as six per cent of the population who reject those principles."
Byington raised a further and intriguing objection based on "the need for certainty in some kinds of laws, where it has been reasonably said that certainty is sometimes more important than justice." For example, publishers preferred a clear standard of obscenity or libel by which they could predict the legality of a work rather than depend upon the unpredictable decision of twelve men. In short, he saw great tension between nullification and the rule of law.
Perhaps the most interesting of Byington's objections to trial by jury was a economic one. Namely, the voluntary defense associations that would develop in a free market society were unlikely to adopt the jury system because it was clumsy and expensive. A defensive associate who preserved the jury system would operate at a distinct disadvantage, probably having to charge considerably more than its competitors. How would justice would be provided, he asked, in a "society where things are done on a business basis." He answered, "[D]efensive associations will have their judges, and their treaties as to the method of arbitration when two associations are on opposite sides of a case, and these tribunals of one or three professional judges will settle all cases where some one does not distinctly demand a jury. I suppose a case will almost never come before a jury except on appeal … "
Moreover, being practical men of business, those who ran the defensive associations would probably institute a policy stating that cases "clearly identical with ones" previously adjudicated required no jury. "If any defensive agency persistently followed the contrary policy, of demanding juries in such case whenever its clients asked for them, it would go bankrupt with litigation … "
Whether a jury system appears desirable hinges largely on the observer's viewpoint. If the jury is seen to sit in judgment on the law, it may well be an effective strategy against oppressive government. If the jury is seen to sit in judgment on unconsenting human beings, the procedure seems at odds with libertarianism because it is far from clear where a collective entity derives such a right.
It is more than tempting to applaud the blunting of any unjust law. But trial by jury and nullification are double-edged swords that can cut the individual as well as the government.