This chapter examines jury nullification, through which American juries refuse to convict criminal defendants in the face of overwhelming evidence of guilt to express disapproval of specific criminal laws or of their application to particular defendants, through the political theory of Carl Schmitt. It distinguishes liberal components of American jurisprudence, especially the rule of law, from democratic sovereignty, and shows how the two are in deep tension with one another. In light of this tension it argues that jury nullification amounts to democratic sovereignty applied counter to the liberal state in a way that paradoxically upholds individual liberty.
I thank Austin Sarat for inviting me to participate in this special issue of Studies, and an anonymous reviewer for helpful and insightful comments.
Delaune, T. (2014), "Jury Nullification: An Illiberal Defense of Liberty", Special Issue: Law and the Liberal State (Studies in Law, Politics, and Society, Vol. 65), Emerald Group Publishing Limited, pp. 57-81. https://doi.org/10.1108/S1059-433720140000065002Download as .RIS
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