Did Legal Formalism Mortally Wound the Independent Jury?

Many years ago, Prof. Randy E. Barnett suggested to me that in my book on jury nullification I missed one of the reasons late nineteenth century juries lost the legally recognized role of deciding both facts and law. The reasons I had given were the diversification of the jury (which had come to include blacks, women, poor whites, and new immigrants), and the fact that elites could control legislatures but not juries. Barnett saw another factor at play: the rise of legal formalism during that same period, supplanting the natural rights doctrine that gave rise to the jury's larger role.

Under natural rights doctrine, certain rights exist independently of written laws. Whether a product of nature or God, these rights must be recognized for any laws to be legitimate. Governments can violate these rights, but cannot create or remove them. According to Barnett, the Ninth Amendment recognizes these "other" rights, which are too numerous and diverse to be enumerated. The job of legislatures, judges and juries is to perfect their understanding of those rights which already exist: they in doing so they are to help perfect an understanding of justice.

Legal formalism is an alternative doctrine that arose in the late nineteenth century. Formalists believe that justice is a product of properly and evenly applying written law. Law, according to the formalists, must be explicit and enforceable. It is the job of the legislature to adapt the law to new situations. Legal formalism respects tradition, authority, habit and training. It casts the judge less as a philosopher of law than as an interpreter and guardian of law.

One of the primary threats to legal formalism is the independent jury. Juries are more interested in justice than in law. To legal formalists, injustice under law is preferable to a justice which is the product of discretion. As Duncan Kennedy puts it, legal formalism "involves the morally delicate refusal to respond to the call for justice in the particular case, for reasons that may be bad or good according to the circumstances."

Legal formalists require that trained judges, with respect for the institutional hierarchy, strictly interpret the law. The lay public is qualified to find the facts, but no more. Juries should precisely apply the law, as given them by the judge, regardless of consequences. The appellate courts then decide whether the judge interpreted the law correctly, and in doing so will provide a precise formulation of the law to be used in future cases.

Of course, many other philosophies of law exist, yet most have as their base a belief in legal formalism. Critical Legal Studies, feminist jurisprudence, law and economics, utilitarianism, legal pragmatists and postmodernisms, and critical race theorists all, to a greater or lesser degree, depend on legal formalism. Legal formalism is no longer (for the most part) considered a theory in America's law schools; it is simply The Way We Do Law. It is the framework upon which all other theories are built.

None of us would be so brash as to suggest that justice is a meaningless word; we all desire our laws to be just and fair. Contrariwise, none of us would be so brash as to suggest there is no need for formal laws: nature will not tell us which side of the street to drive on. What legal formalists cannot concede is that there are some constitutional statutes which are unjust, or that just statutes can be misapplied in a draconian and unjust fashion. As U.S. District Court Judge Thomas A. Wiseman once noted, "Congress is not yet an infallible body incapable of making tyrannical laws." Until that omniscience is gained, there will continue to be a rather large chink in the armor of legal formalism.

A broad role for the jury in determining the merits of the law is incompatible with a legal formalist conception of law. As legal formalism rose into the predominant theory of law, jury independence was formally squeezed out of the system. It has continued to exist in a sort of legal twilight: recognized and protected in the formal law, yet considered "jury misconduct" and hidden from jurors at trial. Whether this is a rational or even formally appropriate manner of dealing with the prerogative of jurors to nullify the application of laws they find unconscionable is a question to be addressed at a later date.