Law & Society Blog

[Jurisprudence] Following up on Bloomfield’s post, it appears to me that juries have another significant merit or flaw, depending on one’s point of view, that often remains underappreciated: they legitimize verdicts by deligitimizing dissent. Every legal rule can be questioned, and in order to establish its validity, a higher rule must be invoked. The continuation of that strategy results in either infinite regress, circularity, or dogmatism. Legal systems avoid the impractical consequences of the infinite regress by continually invoking collateral rules from non-legal systems, or by incorporating such rules into the law, to justify the validity of legal rules of any hierarchical level and to discourage parties from requiring proof of validity qua deduction from ever higher legal rules. The legal system imports collateral rules and principles from neighboring disciplines, for example, economics (efficiency), religion (marriage), psychology (feelings of inferiority as a result of unequal treatment), morals (heterosexuality). The process of importing these rules is one of assimilation, that is, the legal system recreates originally external rules internally in the context of genuinely legal arguments, for example discussions of reasonableness, of due process, equal protection, common sense, fairness, equity, slippery slope and universalization arguments. As each of these collateral rules can be questioned in just the same way as rules of the legal system, bringing them into the mix does not solve the logical problem of the infinite regress; however, on a pragmatic level, it very effectively deters the radical skeptic, as questioning not only the core legal rules that govern the conduct at issue but also the extra-legal or incorporated collateral rules would quickly exhaust the resources of any party and undermine the legitimacy of the protest against a specific rule by turning it into fundamental opposition to a broad set of rules and principles that most everybody subscribes to without questioning. Involving a jury in the legal decision making process further raises the bar for dissent. Anyone who disagrees with the verdict would have to literally take on (the judgment of) his or her peers. Any fundamental opposition to that effect would quickly marginalize the dissenter. Juries, therefore, introduce stability into a legal system. Ironically, the occasional nullification event further strengthens the ability of juries to deter dissent, because such (rare and therefore highly publicized) events serve as symbols for the independence of the jury from the legal machinery.

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