The Instigator
LaLaLa
Pro (for)
Tied
0 Points
The Contender
Valtarov
Con (against)
Tied
0 Points

Resolved: In the united states, the principle of jury nullification is a just check on government

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Voting Style: Open Point System: 7 Point
Started: 6/11/2010 Category: Miscellaneous
Updated: 6 years ago Status: Post Voting Period
Viewed: 1,750 times Debate No: 12318
Debate Rounds (3)
Comments (6)
Votes (0)

 

LaLaLa

Pro

Trying this again, the first time my opponent forfeited
Because just is the adjective form of justice, the resolution is based in normative ideals of justice. Ideals of justice and morality have no privileged normative content; the only thing inherent to the form of justice is the conceptual exclusion of the unjust. This is true for four reasons.

First, universal normative concepts are empty concepts that are hegenomized by particular identities that transform their struggle into the symbol of justice. Zizek writes,

The universal is empty, yet precisely as such always-already filled in that it, hegenomized by some contingent, particular content that acts as its stand-in — in short, each Universal is the battleground on which the multitude of particular contents fight for hegemony. no content of the Universal [could] be effectively neutral and, as such, common to all its species: all positive content of the Universal is the contingent result of hegemonic struggle in itself, the Universal is absolutely empty.
The implication is that normative concepts have no privileged content; anything could hegenomize justice or morality. All we know is that when something hegemonizes the universal it excludes other competing influences, meaning that justice is conceptual exclusion

Second, defining universals implies that we place antagonistic limits on them. Laclau 1 writes, "true limits presuppose an exclusion a signifying totality is a system of differences. This means that [the two sides] are part of the same system and that the limits between the two cannot be the limits of the system. In the case of an exclusion we have, instead authentic limits because the actualization of what is beyond the limit of exclusion would involve the impossibility of what is this side of the limit. True limits are always antagonistic."
This means that we define justice by setting a limit in a field of differences that establishes the line between justice and injustice. There is no naturally occurring place for line to be; we construct it ourselves. Thus no limit is privileged in its definition of justice's content and all that we know is that justice is conceptual exclusion.

Third, justice is not derived from some transcendental being, it is conceptualized by humans. As such, these conceptions bear the marks of their creators, their current problems, needs, and desires. As these change so does the conception of justice. For example, the early feminist movement perceived their problems as resulting from legal inequality, and so conceptualized justice in terms of formal equality and legal rights like voting. Later, they achieved these goals and their needs and situation changed. They then perceived injustice as stemming from the effective exclusion of women from roles outside the household. This illustrates how normative concepts are never stable, they reflect the circumstances of their creators. The only thing we do know is that justice excludes something as unjust.

Fourth, justice represents a negation of all particulars differences and is consequently empty of concrete meaning. Laclau 2 writes,
"different particular struggles are so many bodies which can indifferently incarnate the opposition of all of them to the repressive power. the equivalent relation shows that these differential identities are simply indifferent bodies incarnating something equally present in all of them, [and] the longer the chain of equivalences is, the less concrete this 'something equally present' will be The community created by this equivalential expansion will be, thus, the pure idea of a communitarian fullness which is absent - as a result of the presence of the repressive power This absent fullness which shows itself through the collapse of all differential identities is something which cannot have a signifier of its own - for in that case, the 'beyond all differences' would be one more difference and not the result of the equivalential collapse of all differential identities. the community is not a purely differential space of an objective identity but an absent fullness

Laclau explains that any particular can incarnate the struggle against injustice. This means that justice is just something that negates the differences of all particulars. It can't have its own meaning in the abstract because then it would just be one more difference in relation to other differences instead of the collapse of all differences. Instead all we know is that it is a fullness which is absent as a result of something that is excluded as unjust.

Thus normative concepts are empty of content in the abstract. The only thing unique to the form of normative standards is conceptual exclusion. Therefore, the affirmative burden is to provejury nullification is conceptual exclusion. This is sufficient to affirm before anything else in the round because the only thing we know about justice is conceptual exclusion of the unjust. If jnull does this, then that's sufficient to affirm.

I meet burden in two ways. First, every legal order depends on the determination of what are normal situations in which the law applies, and the exclusion from normality of abnormal situations in which the state is excepted from the law. Agamben writes, "Since "there is no rule that is applicable to chaos," chaos must first be included in the juridical order through the creation of a zone of indistinction between, chaos and the normal situation— the state of exception. To refer to something a rule must both presuppose and yet still establish a relation with what is outside relation, the sovereign decision on the exception is the originary juridico-policical structure on the basis of which what is included in the juridical order and what is excluded from it acquire their meaning. The state of exception is therefore the principle of every juridical localization, since only the state of exception opens the space in which the determination of a certain juridical order becomes possible.

Second, Jnull involves the exclusion of things from the realm of justice. It accepts that a person is legally guilty under the united states system of justice and then excludes their legal punishment.

under views: Consequentialism is flawed:
a) Consequentialist morality is paradoxical because a single act can oscillate between moral and immoral as time passes. For example, after 1 year an act may be net beneficial, after 2 years net harmful, and continue to oscillate over time. The inability to characterize acts as definitively moral or immoral precludes its validity as a moral system.

b) Values can't come from senses. Ends-based standards set empirical goals and ascribe to them value. But there's no rational way to tell which empirical states are valuable. It's completely arbitrary and not justified. "Something makes me happy" is not a rational justification.

c) Utilitarianism paralyzes decisions because infinite future generations mean even a minor harm to the future by using resources now has an infinite impact due to accumulation of harms to each person in the future. Under ends based morality, no action could be taken because doing anything would use resources future generations could not use.
2) Presume Aff: Negate means to prove false, so the negative must do so. Simply disproving the affirmatives case does not negate
3)Fairness is not a voter
a. No bright line for what is strategic and what is abusive because both exclude arguments, but there is no clear distinction.
b. The only objectively fair standard is speech time, which is already equal, so theoretical correction is unnecessary.
c. Ex post facto rule is unjust because I don't know what im being held to
e.TURN: fairness as a voter is unfair because it asks for judge intervention and every judge has different conceptions of what is fair. There is no threshold for fairness. Ballots say to vote for the better debater, but theory asks for a judges personal preference.
Valtarov

Con

First I will make my own case, then address my opponent's case.

Resolved: In the United States, jury nullification is a just check on government.

I negate the resolution.

Value: Morality defined as the specific set of duties recognized as right by a particular culture. Thus, we are looking to what the culture of the United States considers moral, which, as the United States is democratic, is reflected in law.

Criterion: Obedience to Justice defined as giving to each what he is owed for his moral actions. The word "just" in the resolution means that we are looking to what gives each what they deserve; in a word, their dues. People's dues are what one is owed because of one's moral actions. Thus, we must look to morality, and its impact on justice, to determine the resolution. "Justice" is defined as "giving each his due"; one's dues are decided by the combination of customs and moral principles that make up the body of law in a democratic nation.

Contention 1: Jury Nullification undermines the government.

A. Jury Nullification is unjust because any instance of jury nullification goes against the morality of this nation. Since the United States is a democracy, whatever those elected to represent the people of the United States and thus the culture reflects the morality of the nation. For any single person then to negate the morality of their culture on purely personal grounds is unjust.

B. Jury Nullification allows one individual, often a single-issue activist, to overturn the moral judgment of an entire civilization. Citizens should follow proper, available channels to change the law.

Joseph Leone, "Proposed Amendment Undermines the Law," The Yale Herald, October 4, 2002
"A few examples of overzealous prosecution don't justify giving juries the power to legislate according to their whims. The laws in this country are flexible and subject to change, but if people strongly feel a law is faulty or injurious to their rights, they have every opportunity to come together and rally for a change in this law. And if a law is indeed detrimental, people should work to gather support to repeal it through the legislature. This should not sound new to anyone; it is how our democracy works."

If a citizen thinks a law is bad, he may campaign to change the general moral sentiment, but may not overturn the moral calculus of his entire culture in favor of his own.

C. Nullification undermines the impartial jury.

Iowa State Bar Association, "Jury Nullification," The Iowa State Bar Association, 2001
"Nullification instructions weaken the constitutional guarantee to trial by an impartial jury. Studies show that juries receiving a nullification instruction in mock trials spend less deliberation time on the evidence presented on the case, and more deliberation time on the defendant's characteristics and attributes, and on the juror's own personal experiences."

D. Nullification undermines due process.

Iowa State Bar Association, "Jury Nullification," The Iowa State Bar Association, 2001:
"Nullification instructions affect important constitutional protections. When criminal charges are brought against an individual, an allegation is made that the defendant violated a particular provision of state law. Even if the evidence in the case proves that the defendant did not violate state law, a jury may decide to convict the defendant because they think the state law is not a good law. A nullification instruction allows people to be convicted of breaking laws based upon the belief of a small group of individuals as to what the law should be. This would result in persons being convicted without due process of law, because the act for which the person is convicted has not yet been declared illegal. In such cases, persons are also denied their constitutional right to know what he or she is accused of. Furthermore, a person's right to be presumed innocent and not guilty unless the evidence shows guilt beyond a reasonable doubt is lost if the jury can rely on 'conscientious consideration'."

Contention 2: Jury Nullification, though intended to check the government, really hurts the defendant or plaintiff the most. Jury nullification means a hung jury, which equals a mistrial. This means that the case must be retried. Thus, the government will continue to try the case until someone doesn't nullify it. Considering the impact of retrials, and all the legal fees entailed, on the defendant and plaintiff, it is apparent that the weight of jury nullification falls much less on the government and much more on the defendant/plaintiff. So, since justice is "giving one what one deserves for one's moral actions," and jury nullification is motivated by immoral actions of the government, then it is not just, because it punishes the defendant and plaintiff, not the government. It's rather like saying, "It is unjust for that man to kick you. Therefore, I shall hit you with a baseball bat."

Now on to my opponent's case.

My opponent's essential argument is that, because justice is only the conceptual exclusion of the unjust. If justice is anything more than the conceptual exclusion of the unjust, then the Affirmative's case falls apart.

According to Merriam-Webster's' Dictionary, "justice" takes the following relevant meanings:
1 a : the maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments c : the administration of law; especially : the establishment or determination of rights according to the rules of law or equity
2 a : the quality of being just, impartial, or fair b (1) : the principle or ideal of just dealing or right action (2) : conformity to this principle or ideal : righteousness c : the quality of conforming to law
3 : conformity to truth, fact, or reason

I quote my opponent, "Because just is the adjective form of justice, the resolution is based in normative ideals of justice." This statement is key to my opponent's case, but he never supports this statement. There is a huge difference between "just check on government" and "normative ideals of justice." Unless my opponent can substantiate why the resolution necessitates "normative ideals of justice", his key and only argument falls.

There are two with his Zizek quote. First, he makes the rather large leap from "justice is conceptual exclusion" (Zizek) to his conclusion that justice is merely conceptual exclusion. Second, the thinking itself is flawed. The author baselessly asserts that universals are always hegenomized by conflicting contingents, etc. None of his reasoning is explained in the quote. Unless my opponent explains the reasoning behind these assertions, his evidence is null and void.

The second quote again makes unsubstantiated claims. It is asserted that there is no naturally occurring line between justice and injustice; there is no reasoning presented why. Drop this point unless he can explain why there is no naturally occurring line between justice and injustice.

The third quote is the most logically flawed of all. My opponent claims that justice is not derived from any higher power but is merely a human conception. He doesn't explain why. He also states that, because of the changing problems, needs, desires, etc. faced by parties, justice cannot be concrete. First of all, conceptions of justice and justice may differ; a universal of justice does not exclude the unjust from being said to be just. People's perceptions of a person or object do not change the object as my opponent would have you believe; he violates the most basic of ontological logic.

My opponent's fourth quote has nothing to do with his case and does not support his conclusion. The quote implies a definition of justice that is really not justice but equality. Since justice is under no definition an elimination of differences, this quote is completely irrelevant and the point falls.

The
Debate Round No. 1
LaLaLa

Pro

Order: Standards, AC, NC
Standards: My opponent provides the value of morality, however he fails to provide a reason as to why this is the best value for the resolution. Without out this link you cannot use this value in evaluating the round. Further, my opponent provides the criterion of "Obedience to Justice," so even if you accept my opponents value as long as I can prove that I am being just you can affirm the resolution. Remember that justice is only the conceptual exclusion of the unjust. Now, my opponent tries to refute this by claiming that this is not true as there are other definitions of the word justice. However this is not a sufficient argument, because all these other definitions all require my claim to be true. Take the definition from my opponent's case (essentially giving each their due); Different people and different cultures have different ideas of what people are due. Now these different people compete for there conception of justice, and which ever concept comes out on top will exclude the other's as unjust (this is the Zizek card). So lets say I believe that people should are due the right to life, liberty, and property, while another believes that people should have the right to kill people in certain situations. My concept of justice excludes his concept as unjust.

I give 4 reasons as to why justice is conceptual exclusion.
1) Zizek which I've covered
2)There is no natural line between justice and injustice. Because there are many different views as to what justice is, each one has its own line between the two. If there was a natural line that existed, then we would all have the same idea of what is just and what is not. This is obviously not the case as many debates are focused around what is and isn't just.
3) This argument is just that peoples ideas are constantly changing and the only way we can know what is just at any given time is by look at what is being considered unjust at that moment in time. For example, take the women's rights movement. Originally women considered it unjust that women could not vote, while later on they considered it unjust that women didn't have equal opportunities in the work place. Thus the concept of justice changed over time.
4) Here, my opponent misunderstands the argument. It states that people have the ability to challenge the current conception of justice. And in doing so they can change the conception of justice. Thus justice can't have its own meaning because its meaning is determined by people and what the believe at that moment in time. Thus its definition is determined by the conceptual exclusion of the unjust.

Now the final point my opponent makes against this argument is that normative ideals of justice have nothing to due with a just check on government. However, the link is very clear and stated in the AC. The resolution states a "just check on government. " Just is the adjective form of justice. So in order to determine what justice is (and thus what a just check on government is) we must look to normative ideals of justice. Which as I've proven all we know about justice is that it is the conceptual exclusion of the unjust.

Now onto the AC: My opponent fails to disprove that Jury nullification is conceptual conclusion. Remember I meet my burden in two ways. I meet burden in two ways. First, every legal order depends on the determination of what are normal situations in which the law applies, and the exclusion from normality of abnormal situations in which the state is excepted from the law. Agamben writes, "Since "there is no rule that is applicable to chaos," chaos must first be included in the juridical order through the creation of a zone of indistinction between, chaos and the normal situation— the state of exception. To refer to something a rule must both presuppose and yet still establish a relation with what is outside relation, the sovereign decision on the exception is the originary juridico-policical structure on the basis of which what is included in the juridical order and what is excluded from it acquire their meaning. The state of exception is therefore the principle of every juridical localization, since only the state of exception opens the space in which the determination of a certain juridical order becomes possible.Second, Jnull involves the exclusion of things from the realm of justice. It accepts that a person is legally guilty under the united states system of justice and then excludes their legal punishment. Insofar as I am meeting my burden, I win the round right here. Game Over.

However even if you don't buy that, lets move onto the NC
Contention 1: A)My opponent claims that jury nullification goes against the morality of the nation because elected officials make the laws that determine morality. However, laws are not just as laws. Rather they are justified by some antecedent moral principle. Thus juries always have the right to nullify unjust laws. Darryl Brown writes: The rule of law in [certain] instances is unjust when assessed by natural law or some scheme of moral justice. Officials are never absolutely bound to implement unjust laws; the "scope of such obligation is not determined just by the law but also by moral considerations that are independent of the law." This is the argument of many nullification proponents, the law is unjust, so we have to violate the rule of law to achieve real justice. Moreover, because there are no moral experts, there is no reason why juries ought not be given the ability to determine whether a law should be nullified due to its unjustness. Also, since all citizens can serve on a jury, the democratic nature of juries means they uniquely ought to determine the legitimacy of laws as they are the only means through which citizens have a direct say in policies.

B) This argument is false. When a jury chooses to nullify it must do so unanimously, since all jury decisions must be in order to reach a verdict. As for the Leone card, this card assumes that the law is always applicable. jury nullification evaluates individual acts on a case by case basis and ensures that justice does not fall victim to the letter of the law. Andrew Parmenter writes, "Nullification allows the jury to ensure that generally enacted laws do not create injustice in their individual applications. Neither legislators nor voters can anticipate every instance where a defendant's actions will be unlawful yet not blameworthy. A jury informed of its nullification power can employ the "community's sense of values" to determine this "subtle and elusive boundary" as it exists in an individual case. The jury's nullification power provides "a slack into the enforcement of [the] law." This slack allows the jury to temper the law's rigor "by the mollifying influence of current ethical conventions." Because the jury serves as "the conscience of the community," it is uniquely suited for patrolling the gap between law and justice to ensure that the latter is not unduly sacrificed for the former. "

C) This argument seems to be claiming that we must adhere to letter of the law in order to maintain an impartial jury. Howver, because people base their actions on their moral intuitions, not on the law itself. Very few people actually know enough about law to determine whether or not their actions are legal or illegal, they just rely on their simple moral intuitions. Jury nullification doesn't change those intuitions, so the way people treat the law doesn't change in the aff world.

D) Here the Iowa State Bar association appears to be making things up or is using a modified version of nullification. It talks about convicting people who haven't broken the law, however the principle of jury nullification (which is what the resolution claims) only refers to situations were the defendant has broken the law and is acquitted, the decision is considered an acquittal. This answers contention two as it is not a hung trial.
Valtarov

Con

Valtarov forfeited this round.
Debate Round No. 2
LaLaLa

Pro

LaLaLa forfeited this round.
Valtarov

Con

Valtarov forfeited this round.
Debate Round No. 3
6 comments have been posted on this debate. Showing 1 through 6 records.
Posted by LaLaLa 6 years ago
LaLaLa
ok, I'll remake the debate. Is it ok if I have it up next tuesday. I'm on a trip right now and will be able to focus better next week.
Posted by Valtarov 6 years ago
Valtarov
Gah! My timer ran out mid-writing of my rebuttal. I can respond in round 3, or we can re-issue the debate.
Posted by rougeagent21 6 years ago
rougeagent21
old is relative, and it was a good topic nonetheless.
Posted by Valtarov 6 years ago
Valtarov
What? It cut off my last 10 characters!

Wow, lalala, you really made me think with that one. I had to make every character count in my rebuttal.
Posted by LaLaLa 6 years ago
LaLaLa
Its not that old. Its not like I'm putting up the death penalty topic.
Posted by wjmelements 6 years ago
wjmelements
Old topic.
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