Abstract
This chapter will articulate social nullification as theory. Legal theorist Paul Butler’s reading of “jury nullification” in the context of African-American racial critique is foundational to my conception of social nullification level. Butler argues that African-American jurors critically interrogate of the US criminal justice system, viewing it as an inherently racist system, and based on this analysis, they create alternative systems of value by which they implement their ideas of justice. They thereby subvert the dominant (white supremacist) values of the criminal justice system as they are imposed upon African-American defendants. This chapter argues this space of critical engagement reveals that the US state has a legitimacy crisis in the eyes of the African-American population and that social nullification theory demonstrates that US civil culture, which is inherently white supremacist, suggests that nullification, on a societal scale, provides a new way forward.
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Notes
- 1.
“The Influence of the State and Federal Governments Compared (No. 46).” The Debates on the Constitution: The Federalist Papers. New York: Library of America, 1993 220.
- 2.
The secession of Southern states and the initiation of the US Civil War (1861–1865) is, according to Hoyle, the very definition of the “ill” use of nullification logic.
- 3.
In Bushell’s Case (1670), Quaker defendants William Penn and William Mead were prosecuted for unlawful assembly and disturbance of the peace. Encouraged by Penn to question the legality of the law they were charged with breaking, the jury found the defendants not guilty. The judge levied a fine against the jurors for handing in a decision that was in violation of the evidence and in violation of the judge’s instruction that Mead and Penn’s admission of committing the acts proved their guilt. Juror Bushell refused to pay the fine when examined by the Court of Common Pleas, “which held that jurors in criminal cases could not be punished for voting to acquit, even when the trial judge believed that the verdict contradicted the evidence.” In the case of Peter Zenger, the defendant was prosecuted by the British government for seditious libel. Zenger’s lawyer told the jury to ignore the judge’s statement that Zenger’s statements were libelous: “‘because the jury had the right beyond all dispute to determine both the law and the facts’… the lawyer then echoed the language of Bushell’s Case arguing the jurors had ‘to see their eyes, to hear with their own ears, and to make use of their own consciences and understandings, in judging of the lives, liberties or estates of their fellow subjects’ … the jury acquitted Zenger” (Butler 1995, 701–702).
- 4.
Tyranny of the Majority. New York: Free Press 1994.
- 5.
Ibid., p. 4.
- 6.
Ibid., p. 5.
- 7.
United State Census. 2010. “2010 Urban Area FAQs.” https://www.census.gov/programs-surveys/geography/about/faq/2010-urban-area-faq.html#par_textimage_2, 21.01.2021.
- 8.
Race, Rights and Recognition (2015).
- 9.
By unique but not exclusive, I point toward the particularities of the historic and contemporary circumstances of First Nations (indigenous) peoples in the United States. Their pre-existence and maintenance of polities prior to the arrival of Europeans initiate parallel questions of their relationship to US constitutional order and the possibilities of resolving resulting conflicts. Jacob T. Levy outlines the paradoxes and possibilities of resolving these challenges in “Indigenous Self-Government.” Nomos 45, Secession and Self Determination (2003): 119–135.
- 10.
Malcolm X (El Hajj Malik el Shabazz), “The Ballot or the Bullet,” American Radio Works: Say It Plain Say It Loud: A Century of Great African American Speeches. https://americanradioworks.publicradio.org/features/blackspeech/mx.html. Downloaded January 26, 2021.
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Peterson, C.F. (2021). Crises of Legitimacy and Social Nullification Theory. In: Beyond Civil Disobedience. African American Philosophy and the African Diaspora. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-77554-4_3
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