What’s doing the work in justifying some political arrangement we’ve made is not whatever the official justification might be – as, for example, in the preamble to the Second Amendment to the American Constitution – but rather that in virtue of which it perdures. And the Second Amendment does not perdure because, not unlike Switzerland or Israel, the American people have to be ready at a moment’s notice to come to the defense of the homeland from foreign invasion. It perdures because the American people want to be ready to resist their own government if, in their judgment, it has become tyrannical. Is there a cost to this readiness? Yes, by leaps and bounds the highest rate of criminal and domestic gun violence in the developed world. Is it worth it? Their call, not mine. I’m just calling a spade a spade, not whether a spade should necessarily trump.
We have juries. Why? Because a man [sic] has a right to be judged not by the sovereign but by his peers? That’s certainly the official story. But what’s also doing some of the work here is the jury’s capacity for nullification. That is, a jury is neither required nor permitted to accompany its verdict with a dicta. So it can with impunity nullify a law – or in the case of OJ Simpson the behavior of the police – it considers unjust. Juries are never told that. They’re told that they’re only to pass judgment on the facts, and that they’ll be instructed as to the law by the judge. They might even be told they’re not to pass judgment on the law. But what’s to stop them from doing so? And it’s precisely for that reason that an accused, like Henry Morgentaler, who was perfectly content to admit to the act, wanted a jury to pass judgment on whether the act was an actus reus. As it happens no jury thought it was. If the Supreme Court hadn’t ruled the criminalization of abortion unconstitutional, the government would have had to decriminalize it on its own.
The question of whether judges too should allow themselves the power to nullify is slightly more complicated, but not very. The Supreme Court aside, judges aren’t required to accompany their verdicts with a dicta either, so they too, and occasionally do, nullify as well, much to the disapproval of many jurisprudes, who worry about maintaining the distinction between the legislature and the judiciary. There is nothing arguably unconstitutional about the criminalization of marijuana, but some judges – probably because they enjoy the odd joint themselves – will find some pretext to acquit.
Is this as it should be? Certainly in the case of marijuana. But what about rape? What would we think of a judge who finds a pretext to acquit a rapist because, suppose, he privately thinks her past sexual history can be taken by the accused as evidence of consent? The law says no, but he thinks the law is an ass. If he shouldn’t be allowed to think that in the case of rape, why should he be allowed to think it in the case of marijuana?
Of course ‘allowed’ is the wrong concept here. All is permitted save what is prohibited, and nothing is prohibited unless that prohibition can be enforced. But enforcement is precisely what nullification is designed to thwart. Or if not designed, then at least not designed not to thwart.
Needless to say what’s hanging over these deliberations is what happened to the judiciary in Nazi Germany, and routinely happens under totalitarian regimes today. Judges in Nazi Germany would have dared to nullify only on pain of death. And resigning from the bench would have incurred a similar if not identical penalty. So we’re inclined to think that judges not compromised in this way should do what the Nazi judges couldn’t. If a law is unjust they should simply decline to enforce it. And that seems like the right solution were it not for that bugaboo of rape and similar contestable offenses.
As with so many issues in ethics and political philosophy, the solution lies not in any of the constituent concepts. They’ve just been laid out, and they seem not to give us any definitive guidance. So it becomes a matter of picking and choosing our path through the minefield. We’ll turn a blind eye to nullification in the case of marijuana, but scream bloody murder if it’s done with rape. Any appeal to principle will be ad hoc. It’s casuistry through and through. And it can’t really be any other way.
We might have to pretend to appeal to principles we ad hoc for the occasion, and then ad hoc a meta-principle to explain why that first-order principle doesn’t apply in the case for which we want a different answer. But most of us know what we’re doing. It’s performance. But performance may be all that stands between the appearance of order in the law and the unmitigated disappearance of it. And that’s nothing to sneeze at.