A criminal trial is not an action of just the judicial branch of the government. In fact, in every trial all three branches of government cooperate. There is the judge, obviously representing the judiciary. There is the "executioner," representing the executive branch. And there is the jury, which is like the legislature.

It is the last point that I want to stress. If we take this analogy in the widest possible sense, then the jury is not limited to deciding whether the defendant has broken any laws. It can repeal any laws it likes or pass new ones. Hence the doctrine of jury nullification, a time-honored though neglected nowadays practice in common law.

Yet we can argue, I think, that jury nullification does not go far enough. The jury need not merely have the power to say that a certain law is bad and invalid. It should also be able to set up new laws on the spot and say that the defendant broke them. Just as it can judge a law bad, it can judge the absence of a law bad. If indeed the jury thinks that "there ought to be a law," then let it pass it in that particular case.

It has been a long-standing argument in legal circles whether a judge is allowed to legislate and if so, then when. One of the candidates for judge-made law is in the cases of the penumbra problem, which means vagueness of ambiguousness of the text of the law. For example, if the law says that vehicles are not allowed in a public park, the word "vehicle" obviously includes cars. But what about motorcycles and bicycles and electric wheelchairs and rollerskates? What is a judge to do if someone were arrested in the park on a bicycle? One possibility is for the judge to refuse to decide the case, order the defendant released, send the whole thing to the legislature, and tell it to make the meaning clear. But such a thing could be costly, take a long time, etc. Why not allow the judge to make law in order to make the process more efficient? On the other hand, in the example of the park and the vehicles, how can the judge possibly know the correct policy for the park? The government owns the park and has both a certain amount of knowledge and some incentives (e.g., to please to voters) to manage it properly. How can a judge who knows nothing about the park and doesn't care about it know what the park policy ought to be? Therefore how can he legislate? Still, interpreting the law is part of what a judge is supposed to do.

Another situation in which judge-made law seems appropriate is when laws conflict. For example, a statute may conflict with the Constitution. Or a human law may be contrary to morality. Then the judge's job is apparently to decide which law, the lower one or the higher one, takes precedence. The contradictory laws may even be on the same "level." Thus, a law authorizing the government to build a dam may conflict with the law ordering that certain endangered species be preserved. Still, the quandary is how a judge can possibly legislate in the absence of both knowledge and incentives to make the right decision.

The problem goes away, however, if it is not the judge who legislates but the jury. The jury, composed of twelve honest citizens, represents, in a way, the entire community. Since so does the government that owns the park, the two are equal in status and authority. Therefore the jury can legitimately decide whether bicycles are, in fact, prohibited on whatever principle, such as the greatest good for the greatest number.

Now can the jury simply pass an arbitrary or absurd law and say that the defendant has violated it? First, what if he is unpopular in the community? Well, if the jury is a lynch mob, they are going to get the guy no matter what. They can simply give the prosecutor everything he wants. There is no need to make any new laws. And what if the defendant is, on the contrary, popular? Then the jury might declare him innocent despite the evidence. The situations are completely symmetrical. Second, isn't there a Constitutional prohibition against ex post facto laws? Indeed there is. But perhaps the jury feels that the defendant has broken a moral law, which is serious enough to warrant a legal remedy, which is missing because of (the jury reasons) the negligence or mistake of the legislature. Then, in a way, the defendant should have known better. The moral law was always there, known to all through reason or even social convention. In that case, the argument that jury-made laws are after the fact loses some of its strength.

Another argument against jury lawmaking is that in a trial only specific charges are brought against specific violations of existing laws and all the information that the prosecutor gives the jury is intended to prove the defendant's guilt of breaking those laws. The jury cannot examine the defendant's life in minute detail and invent laws that supposedly ought to be on the books that he broke. Granted. It is therefore expected that this power will be used very rarely. But if during the course of a trial the jury learns something that would warrant making or discovering a law and concluding that the defendant broke it, the jury should have to power to convict on that alone.

How would my proposal exclude simply plucking a random person off the street and putting him on trial by having a jury scrutinize his life and come up with some laws that he broke? Again, we can eliminate the absurdity by saying that only violations of existing laws will prompt a trial. But once a trial commences, new laws are fair game.

What of the argument that juries are not qualified to judge or make laws? First, if that is so, then they are surely not qualified to judge lawmakers, as well, and democracy and self-government, too, go by the board. Second, lawmakers are pretty ignorant of the consequences of what they produce themselves; they don't read their own bills; they delegate most of the rule-making to executive regulatory agencies; etc. And third, this is an argument for abolishing compulsory jury service and actually paying jurors market wages for their services. This will attract a class of professional jurors who are familiar with the laws, ethical theories, economics, who are specialized, aware of their powers, and so on. For example, what of government regulations and corporate law, which have apparently very little to do with morality? Here, too, the jury, if it is sophisticated enough, can judge the utility of these rules. If it feels that they make no sense, away with them, and an accused company will stand acquitted.

In short, I think it is a great idea and one that will further liberty to restore and even extend the jury's power of nullification and turn juries into mini-legislatures.

Update 4/22/2011. The symmetry is broken because of the presumption in favor of private action as opposed to the communal law. Everything that is not explicitly prohibited is allowed. If it were the case that, on the contrary, everything that was not explicitly permited was outlawed, and moreover, one was presumed guilty until proven innocent, then my argument would work.

October 7, 2006