Resolved: In the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice.

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Resolved: In the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice.

I think I like this topic. I say think because I’m not entirely sure. This one could either be really good and offer debaters a great playground to carry out some wonderful debates, but I worry that modern debate has become so bogged down with nonsense that such a thing may not happen. Alas, we forge ahead regardless.

Definitions

Jury Nullification – This is when a jury intentionally returns a verdict of “not guilty” despite the defendant actually being guilty of breaking the law. In doing so, the jury effectively nullifies the law.

Perceived Injustice – Literally, this is saying that some moral wrong has been perceived. In the context of the resolution, this means that the jury perceives an injustice has taken place. This can include, but is not limited to, an unjust law, evidence planting, legal technicalities, etc…

Case Positions

Negative

1. Legal Positivism – There are two possible extensions to the positivist theory. This is the first, and the second is mentioned below in the affirmative case position. Positivism, if accepted as true, allows for the law to be fallible, meaning that it can work against the morals of the people. This realization lends credence to the normative claim that we ought not to obey every law, especially if it is unjust. It allows morality to supersede law as it does not inform that law.

2. Instrumentalism – The law is an instrument to achieve particular ends. Those ends are not morality or some concept of justice, but rather social order. To allow jury nullification would be to deny these ends, and therefore, damage social order.

3. Coherence Theory – Coherence theory holds that the truth of any proposition is determined by its coherence with a set of other propositions. This set derives from what the largest number of people currently hold to be true. It is therefore inappropriate for a small jury to arbitrarily decide truths, moral or otherwise, that do not cohere with the established law.

Affirmative

1. Legal Positivism and Moral Fallibility – This is a more philosophically dense affirmative position. Positivism contends that the existence of law depends upon the fact of its existence, not from the extension of its morality. Basically, whether or not a law is moral or immoral, just or unjust, does not change the fact that it is a law, and by extension, ought to be obeyed. To nullify the law would essentially be to take it out of existence.

2. The Categorical Imperative – Kant’s categorical imperative provides an excellent framework for assessing this issue. The three maxims can be used to argue that jury nullification is the preferred policy.

3. Governmental Legitimacy – A government exists to protect the rights of its people. If it does not meet that end, such as by enacting unjust laws, then it is no longer legitimate, and the people have the right to act against it. Jury nullification is one such method to act against the government.

I hope this helps. Good luck!

14 Replies to “Resolved: In the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice.”

  1. How would the second and third formulation of Kant’s Categorical Imperative (Autonomy and treating people as an end in themselves) be used to negative’s advantage?

    1. With the second maxim, you can contend that the jury is using the defendant as a means to an end. The actual value of the defendant is not recognized, but rather the defendant is used as a means to nullify a law.

      For the third maxim, you would have to contend that jury nullification doesn’t strive toward an end in the kingdom of ends.

      However, both of these arguments are quite weak. I’d recommend the categorical imperative for the affirmative, not the negative.

  2. Would using autonomy on the negative be effective? Negative centers around the idea of ends and the ends of social order/the criminal justice system/laws themselves, so would it be fair to assert that autonomy is being violated because ends are not being respected in society?

    1. I’m not sure how that makes sense. Why does disrespecting the ends of a social mean that individual autonomy is being violated? I would think the opposite. When people are allowed to act against the social system if they think it is wrong, then they have a higher degree of autonomy because they’re not forced to make a choice they disagree with. Also, you could argue that the end of a justice system is justice, not social order, so jury nullification actually accomplishes that end better.

  3. Wouldn’t governmental legitimacy as a value on the aff be easy to turn over to the neg? You could say that a government isn’t legitimate if it doesn’t uphold the rule of law, and the doctrine of nullification doesn’t uphold the rule of law.

    1. Hi Sophie,

      It’s not an easy turn necessarily. If the Aff is arguing governmental legitimacy, then they will likely be arguing that legitimacy comes from a government providing justice for its people, or protecting rights. You can’t just say that legitimacy comes from upholding the law. Then you’d have to accept that a government like the Third Reich was legitimate. You could make the rule of law argument, but you need to prove why it’s true, and I think the protection of rights argument is more appealing to judges generally.

  4. Wouldn’t the first contention for Affirmative and Negative be switched? It sounds like the affirmative is trying to reject jury nullification.

  5. Ok, so my question is how can I run government legitimacy for aff in this topic, I read through this article, but i still do not get it. Can you please explain how will this work.

    Thanks

    1. Hi Pranav,

      In order for a government to be legitimate, it must provide for the people, meaning that it must be just and protect peoples’ rights. At the point the government fails to do that, the people are justified in using whatever tools are at their disposal to fight for that justice. One such tool is jury nullification. The resolution poses a situation in which the government isn’t serving its purpose, and then the resolution asks us if a particular tool can be used to rectify that situation. The governmental legitimacy position argues that the tool is appropriate.

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