On the Flawed Nature of the Rule of Law

Imagine for a moment that a good friend of yours has been pulled over by a state trooper for changing lanes without using his blinker.  The police officer finds that your friend has had four beers to drink that evening, and he is promptly written up for a DUI and handcuffed.  This individual is hardly even buzzed, and has done no damage to himself or others.  The U.S. justice system guarantees him the right to a “fair” trial.  It is important to consider, however, just what this term means.  Your friend could very well be “lucky in his judge,” and let off with a fine for driving while only slightly above the legal alcoholic limit.  He could also very well be thrown into prison for a few years, cited as a significant risk to the well-being of others in the community.  The ideals of the rule of law – predictability, non-arbitrariness, fairness, and so on – are essential, at least in theory, to the upkeep of the morality of society at large (for if the judicial system is fundamentally flawed, is our system of governance not as well?).

Jeremy Waldron, NYU Law Professor and author of Lucky in Your Judge, states that “The effects of these man-made laws on [my] actions are of precisely the same kind as those of the laws of nature: [my] knowledge of either enables [me] to foresee what will be the consequences of [my] actions, and it helps [me] to make plans with confidence” (Waldron 190).  Without such preparedness as to what to expect in the court of law, people believe that their interests are not well-protected, and this is dangerous to the law’s pursuit of justice.  Simply, those impacted by a certain law should be well aware of the law’s implications; without predictability, the law has the potential to become devoid of true certainty in its rulings.

Waldron goes onto say that because the outcome of a specific case can be extraordinarily detrimental to an individual, it is morally impermissible to apply random standards or interpretations of the law to certain cases. Interminable inconsistencies within law allow for the relative mistreatment of the accused in certain cases.  The time in which a trial was had, for instance, can dramatically affect its outcome and make the defendant either unlucky or lucky in his judge.  To value non-arbitrariness, we should value the proper reason that has allowed the courtroom to reach such a decision.  Waldron makes clear that completely unrelated variables – be it the whether outside on the day of the trial or “whether the altruism neuron fired [in the judge’s mind] during an individualist process of reasoning” – can, in fact, remain factors in the outcome of a case (Waldron 206).

Paul Butler’s Racially Based Jury Nullification opens with a quote by Malcolm X that states, “There just has to be a new system of reason and logic devised by us who are at the bottom. . .in this struggle that is called ‘the Negro revolution’” (Butler 677).  It quickly becomes evident that Butler does not believe the ideals of predictability, non-arbitrariness, and fairness apply equally to all Americans; he feels African Americans are subject to increased potential suppression from enjoying these judicial principles.  The author diagnoses the judicial – perhaps societal, if viewed in a broader lens – ill that is the unjust prosecution of blacks for victimless crimes in an otherwise white judiciary system.

Butler writes: “My goal is subversion of American criminal justice, at least as it now exists.  Through jury nullification, I want to dismantle the master’s house with the master’s tools.  My intent, however, is not purely destructive; this project is also constructive, because I hope that the destruction of the status quo will not lead to anarchy, but rather to the implementation of certain noncriminal ways of addressing antisocial conduct” (Butler 680). Butler vehemently believes that the oppression of African Americans – or what society would, in this case, call drug dealing and possession, certain burglaries, and other victimless (admittedly, a relative term) crimes – is a product of white society.

Waldron concludes his Essay by telling a guilty defendant, “Yes, you were unlucky, I suppose.  But what is one to do?” (Waldron 216).  Waldron is right, and it appears he agrees with Altman’s essay; even if observed, the rule of law can still be unfair and discriminatory.  The current judicial system is flawed, but does there exist a better alternative?

Butler, Paul. “Racially based jury nullification: black power in the criminal justice system.” Yale Law Journal. (1995): 667-725. Print.

Waldron, Jeremy. “Lucky in Your Judge.” Theoretical Inquiries in Law, Tel Aviv University. (2007): 185-216. Print.


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