Milton Friedman was a Nobel Prize winning economist who famously defended free market values and conservative politics. In his 1970 article, “The Social Responsibility of Business is to Increase its Profits”, Friedman discusses the stockholder theory, stating that firms only have a ‘legal responsibility’ to make a profit for their shareholders.[1] Friedman’s view emerges in the context of the post-World War II rise of corporate capitalism as firms and executives tried to reconcile social and moral obligations with a stronger cultural emphasis on profit. Prior to this time, in AngloAmerican context, there was a strong belief that firms have moral standards beyond rational selfinterest. For instance, the concept of the ‘Christian’, civically-minded businessperson which predominated in the 19th century and well into the 20th. Friedman’s essay is especially relevant today due to the resurgent debate on the viability of Corporate Social Responsibility. This essay will argue there are five major flaws in Friedman’s arguments. Firstly, it will question Friedman’s argument that, while people have moral obligations, firms are not really moral actors. Relatedly, it will critique his moral distinction between privately owned firms and public companies. Secondly, it will examine Friedman’s odd concession that companies should still observe ‘ethical customs’, which contradicts his general stance. Thirdly, it will explore the complexity of determining when companies are seeking profit or acting morally. This is an issue Friedman acknowledges, but this essay will argue that he downplays its significance. Fourthly, this essay will critique Friedman’s argument that firms would not be efficacious in their attempts to achieve aims other than making profit. Fifthly, it will interrogate Friedman’s claim that firms can leave serious environmental and social reform to governments.

From the outset of his essay, Friedman argues that “only individuals can have responsibilities. A corporation is an artificial person and, in this sense may have artificial responsibilities, but "business" as a whole cannot be said to have responsibilities”.[2] He states that individuals who wish to contribute to a certain cause may do so with their own money and time, however, seeking to do it through a business is wrong, as it involves spending someone else’s money for one’s own interest. By contrast, he states that the obligations of a firm are to follow the law, not espouse any further morality.[3] However, Friedman’s argument is flawed, because corporations are formed by individuals. For instance, let us imagine an anti-racist CEO working in a racist area with weak anti-discrimination laws. If they follow Friendman’s argument, they would not hire a racial minority job candidate in a public-facing role. By doing so, however, they would perpetuate one of the worst forms of racism, economic disenfranchisement, and entrench race-based income inequality. In a capitalist society, individuals spend much of our lives at work and, indeed, it is often the role where we can most impact our community. While Milton Friedman states that individuals can have morals, therefore, he denies them the opportunity to express those morals or act in accordance with them.

Tellingly, Friedman excludes ‘individual proprietors’ from his essay and ‘focuses on corporate executives’.[4] This is because, technically, individual owners have total control over their business. The business is funded by their own money, and therefore, all expenditures are technically a ‘personal social cause’, which he states they are well within their rights to pursue. However, it should be noted that shareholders are very similar to individual proprietors. Shareholders simply have a portion of capital in a firm and use their shares to make decisions within the company, based on an agreed voting system. As such, if the collective will of the firm is that they should pursue corporate social responsibility then that is not meaningfully different from an individual proprietor. Even if one might say that the shareholders rarely vote on corporate strategy, they select the board who hires the CEO to act on their behalf every day. Part of the CEO’s considerations will naturally be to maximise all interests of the shareholders, including their moral values. Later in his essay, Friedman states, that “the newer phenomenon of calling upon stockholders to require corporations to exercise social responsibility” will... “involved is some stockholders trying to get other stockholders… to contribute against their will to ‘social causes’”. But the reverse is also true: totally-profit-seeking shareholders impose their will on more sociallyminded shareholders.[5] As Asher Schechter has argued in response to Friedman, paraphrasing the theories of Nobel Prize winning economists Oliver Hart and Luigi Zingales, “A company’s ultimate shareholders are ordinary people who, in addition to caring about money, are also concerned about a myriad of ethical and social issues”[6] Friedman also argues that when large public companies pursue ethical standards also might harm consumers or employees[7] but similarly, pursuing profit also does not always please your customers, or employees. For example, raising the prices of your product may increase profit, but will likely frustrate customers, whilst lowering wages to cut costs may also annoy your employees. As scholar Lynn A. Stout noted when examining Friedman’s views “certainly they can choose to maximize profits; but they can also choose to pursue any other objective that is not unlawful, including taking care of employees and suppliers”.[8]

Having identified some flaws in Friedman’s definition of a ‘company’, this essay will now turn to problems in his conception of what constitutes non-profit based goal or objective. Friedman argues that “responsi­bility is to … make as much money as possible while con­forming to the basic rules of the society, both those embodied in law and those embodied in ethical custom.''[9] This is contradictory since ‘ethical custom’ could include a range of moral objectives and values. It can be argued that following these customs will not always maximise company profits, or even may damage them. For example, not lying is an ethical custom, and outside of fraud laws, one is not mandated to tell the truth. However, telling the truth might reduce the company’s profits. For example, imagine a CEO is in negotiations with two companies. She instructs her secretary to lie one of those firms about why she cannot meet with them, when in fact she is conferencing with their rival, this would be legal, but not ethical. Following the ethical custom of honesty would, however, weaken the firm’s negotiation position. If Friedman believes the CEO should be compelled by ethical custom to tell the truth, what is the distinction between this behaviour and the CEO making environmental goals a condition of the tender? Friedman thus contradicts himself here by conceding that there are some cases where a firm should not seek to maximise profitability.

Thirdly, Friedman concedes that there are some unclear cases where profit may or may not conflict with other goals[10], but massively underestimates how often this might occur. This is significant because it makes his advice to executives impractical. Friedman only considers the case where doing some social good may improve your brand image. For example, some banks refuse to lend to fossil fuel projects, which, while does reduce their immediate profits, helps improve their image with current and potential future employees. There are, however, other instances: For example, the government sets baseline standards for non-discrimination in hiring staff but firms often have diversity policies that exceed this because workers value working alongside colleagues that reflect the society which they live in. A more diverse workforce increases company productivity, leading to long term profitability. Moreover, as David Rodin argued in “The Ownership Model of Business Ethics” “the separation of long-term profitability and the social good becomes arbitrary” especially since the “viability of society and the environment are central to the performance of firms over time”[11]. As such, Friedman’s strict distinction between profit and other goals is difficult for firms, directors and executives to uphold.

Finally, Friedman also makes an argument about efficacy. He states that many executives do not know how to truly bring social good, and therefore, they should not attempt doing so. Milton uses the example of an executive told to fight inflation:[12] “He is told that he must contribute to fighting inflation. How is he to know what ac-tion of his will contribute to that end?... But nothing about his selection makes him an expert on inflation. Will his hold-ing down the price of his product reduce infla­tionary pressure?”[13] This argument is spurious, as inflation is unlikely to be combated by individual firms lowering the prices of their goods. There are, however, other examples where corporate change is possible. For example, executives are likely to know how to decarbonise within their industry, and also would know that such a change would improve the environment.

For example, Google has been carbon neutral for two years now, their data centres use 50 percent less energy than comparable facilities and their ‘campuses’ are made from sustainable materials[14]. Google thus chose to forgo immediate profits to pursue an objective that was not required by law. But more importantly, Google were clearly effective: as a major energy-using corporation they cut emissions in California in a non-negligible way. Their actions have also set the standard for their industry.[15] Even if other firms are not experts on how to have an environmental impact, they can hire consultants to help their decisions. Moreover, logically, if people working at a firm suspected their socially-minded actions would not have an impact, it is unlikely they would risk profits, even in the short term. In reality, this debate is confined to cases where the benefits of a socially just decision are probable and measurable.

On the issue of efficacy, Friedman argues that the government has set basic ‘ethical’ regulations on companies, and will continue to do when a problem, such as global warming, become more serious.[16] However, this contradicts the views Friedman has articulated in his broader scholarship, that governments are often not best placed to act and misunderstand the needs of wider society. Additionally, the government can be short-sighted when making regulatory decisions, since they are focussed on winning elections every few years. This means radical action will not happen soon enough for issues such as global warming. Corporations have short term incentives too, of course, like annual earnings targets, but they also have an interest in the long term. For example, companies are actually incentivised to reduce their negative impact on the environment because they recognise the long-term viability of their business is dependent on a healthy ecosystem.

Friedman argues that it is undemocratic to impose social obligations and moral preferences that are not legally enforced since this goes against the will of the majority in a society. Rather, he also calls on socially-minded executives to lobby for change in the electorate or legislature.[17] However, this option is not very realistic. In his conception massive corporations are unable to bring about change, so why would individuals, like socially-minded executives, be better placed to do so? Individuals have fewer resources and power compared to corporations, so lobbying for change is more challenging and less likely to yield results. In addition, it is not likely that executives could both effectively argue for social change and continue to work at a firm that undermines it. For instance, it would be odd for the CEO of a firm that does not hire any women as senior executives to call for quotas to be imposed. Or, let us assume, these executives will be successful. By this logic, powerful and wealthy individuals who perform moral actions that are not required by law could also be viewed as anti-democratic since they are imposing their values on an unwilling polity.

Milton Friedman was undoubtedly an incredible economist, and his work has had an immense impact on public policy. However, Friedman was unable to predict the complex role of morality in contemporary business and the blurring of the difference between profit and social good. Especially in a status quo where society faces issues such as global warming and structural inequality, it is important that firms do more than seek profit.

Footnotes

1 Milton Friedman, “The Social Responsibility of Business is to Increase its Profits”, The New York Times Magazine, September 13, 1970, located at: https://web.archive.org/web/20060207060807/https://www.colorado.edu/studentgroups/libertarians/issues/friedman-soc-resp-business.html, accessed 1/06/2019.

2 Friedman, “The Social Responsibility of Business”, op cit.

3 Friedman, “The Social Responsibility of Business”, op cit.

4 Friedman, “The Social Responsibility of Business”, op cit.
5 Friedman, “The Social Responsibility of Business”, op cit.
6 Asher Schechter, “Why Friedman Was Wrong”, in “It’s time to rethink Milton Friedman’s shareholder argument’, Chicago Booth Review Online, 07/12/17, https://review.chicagobooth.edu/economics/2017/article/it-s-time-rethink-milton-friedman-sshareholder-value-argument
7 Friedman, “The Social Responsibility of Business”, op cit.

8 Lynn A. Stout,, "The Shareholder Value Myth" (2013). Cornell Law Faculty Publications. Paper 771. http://scholarship.law.cornell.edu/facpub/771

9 Friedman, “The Social Responsibility of Business”, op cit.

10 Friedman, “The Social Responsibility of Business”, op cit.
11 David Rodin, The Ownership Model of Business Ethics. Metaphilosophy Vol 36, No 1-2, (2005) 163–181.
12 Friedman, “The Social Responsibility of Business”, op cit.
13 Friedman, “The Social Responsibility of Business”, op cit.

14 Google, “Environment Projects”, n.d., located at: https://sustainability.google/environment/, accessed 15/07/2019.
15 Ibid.
16 Friedman, “The Social Responsibility of Business”, op cit.
17 Friedman, “The Social Responsibility of Business”, op cit.

Bibliography

Friedman, Milton,“The Social Responsibility of Business is to Increase its Profits”, The New York Times Magazine, September 13, 1970, located at: https://web.archive.org/web/20060207060807/https://www.colorado.edu/studentgroups/libertaria ns/issues/friedman-soc-resp-business.html, accessed 1/06/2019.

Google, “Environment Projects”, n.d., located at: https://sustainability.google/environment/, accessed 15/07/2019.

Schechter, Asher, “Why Friedman Was Wrong”, in “It’s time to rethink Milton Friedman’s shareholder argument’, Chicago Booth Review Online, 07/12/17, https://review.chicagobooth.edu/economics/2017/article/it-s-time-rethink-milton-friedman-sshareholder-value-argument, accessed 16/07/2019

Stout, Lynn A., "The Shareholder Value Myth" (2013). Cornell Law Faculty Publications. Paper 771. http://scholarship.law.cornell.edu/facpub/771, accessed 16/07/2019.

Rodin, David, The Ownership Model of Business Ethics. Metaphilosophy Vol 36, No 1-2, (2005) 163–181.

Socialism can refer to many things. It can refer to an ideology that values equality, community, and solidarity. It can refer to an economic and political system where wealth is distributed by the government to ensure everybody’s needs are met. It can also refer to a social protest movement in which socialism is romanticized to oppose and antagonize capitalism. At first glance, claiming Sweden is socialist may seem valid, however, this is incorrect and frequently due to inconsistent definitions of socialism combined with difficulty distinguishing between the socio-economic system and the strong welfare state. This essay will argue Sweden is a capitalist country despite being closer to achieving ideals of socialism than many other countries. Firstly, it will examine Sweden’s economic and political systems in the past, focusing on what impact it has had on the current situation. Secondly, it will analyze Sweden’s economy and how it conforms to characteristics that tend to be most prevalent within a capitalist market. Thirdly, it will explore Sweden’s political system and class politics to demonstrate the lacking presence of key features of a socialist country’s political system outlined by the Marxist-Leninist model. Fourthly, the aspects of Sweden’s economy considered socialist, like the highly equitable share of wealth, will be evaluated and discussed in depth. Finally, it will critique the importance of Sweden achieving socialist ideals in debating how socialist is Sweden.

Sweden’s current socioeconomic status is a product of wealth gained during the Post-World War II Economic Expansion and the social reforms implemented in the 1970s. Sweden’s economy benefited heavily from the Post-War Economic Expansion as they had stayed neutral during the conflict and consequently had not been economically devastated like many other nations. This allowed Sweden to climb to be fourth in the OECD rankings of GNP per capita, by the 1970s, as a result of sustained economic growth and high employment rates (Heyman, Norbäck, & Persson, 2019). This is significant because economic growth combined with industrialization acted as a foundation for Sweden to become a Fordist welfare society (Östberg, 2019) of which we can still see much resemblance to in modern-day Sweden. For example, some key characteristics of Fordism include wage compression and a universalistic welfare state (Viktorov, 2005) both of which are still highly valued in Sweden and maintained by key organizations such as the Swedish Trade Union Confederation and the Swedish Government. Although Sweden is no longer considered Fordist, the economic growth, industrialization, and establishment of an active welfare state, that resulted from the employment of the ideology of advanced capitalism, have had lasting effects such as creating a foundation for a capitalist economy.

As mentioned previously, the social reforms implemented in the 1970s by the social-democratic prime minister, Olof Palme, led to what many call ‘Sweden’s Socialist Experiment’ (Norberg, 2020). Before the Swedish social democrats implemented extensive reforms, Sweden had grown their economy by maintaining ‘highly competitive market-based policies’ (Fernandez-Villaverde & Ohanian, 2019) as is demonstrated by Sweden achieving one of the highest per capita incomes in the world (Östberg, 2019). However, in the early 1970s, the Social democrats raised taxes and heavily regulated businesses and the labor market, hence crippling the economy, and causing many businesses and entrepreneurs to leave. During these 10 years, the public sector’s share of GNP increased by a staggering 50% (Östberg, 2019) which is illustrative of the radical approach of the reforms. The reforms caused extensive damage forcing the government to turn to a market-oriented approach effectively reversing the social reforms: privatizing parts of the health-care system, reducing welfare benefits, deregulating industries, and cutting corporate tax rates (Fernandez-Villaverde & Ohanian, 2019). This demonstrates how socialist policies, in the past, have had negative impacts causing Swedes to shift in favor of capitalist policies and how Sweden is still working to reverse and recover from the failed socialist experiment. Nonetheless, although Sweden now pursues competitive market-policies and is still decreasing corporate tax rates, some aspects of the socialist reforms are still visible, such as being one of the strongest welfare states, misleading people to think Sweden still primarily employs socialist policies.

One of the most defining factors in determining whether Sweden is socialist is its economy. Sweden is a free-market economy consisting of profit-driven privatized corporations similar to other capitalist countries such as Singapore. A free market is an economic system where there is an absence of or little interference from the government meaning individuals make economic decisions. According to Statista’s Index of Economic Freedom (2020), Sweden was 74.9% economically free ranking 22nd overall indicating there is minimal regulation on business and lack of government-imposed tariffs which are currently just 1.69% (Macrotrends, 2020). Moreover, private property rights in Sweden are some of the highest in Europe scoring 89 on the Property Rights Index (The Heritage Foundation, 2020) further emphasizing Sweden’s high levels of economic freedom typically characteristic of a capitalist economy. Capitalism is also based upon the principle that competition and profit drive business. With Sweden’s highly competitive market, this is absolutely the case. Sweden ranks 8th out of 140 countries in terms of competitiveness (World Economic Forum, 2018). Many companies are based in Sweden due to the tax incentives implemented with the goal of reattracting companies to Sweden’s market after social reforms in the 1970s drove them away. For instance, the corporate tax has decreased drastically and is scheduled to decline to 20.4% by 2021 (Fernandez-Villaverde & Ohanian, 2019) in turn acting as a stimulus for domestic businesses to stay in Sweden and international corporations to come to Sweden. These economic reforms have allowed Sweden to recover from the damage caused by the socialist experiment of the 1970s as is apparent from Sweden having a high GDP per capita of $51,610 (World Bank, 2019). Clearly, Sweden’s economy corresponds to many factors of a capitalist economy. On the contrary, if Sweden were in fact socialist, their economy would look vastly different. The economy would be entirely state-controlled, there would be collective ownership of over means of production, and goods would be produced for usage value rather than for profit determined through laws of supply and demand.

A common misconception is that a socialist government always equates to an authoritarian or communist government. This stems from the fact that many countries considered socialist, based their government systems on the Marxism-Leninism model and therefore have political systems that share attributes with communism rather than democracy. Some of these countries include the People’s Republic of China and the Republic of Cuba, both of which have social economies under communist party control. Contrarily, Sweden has a capitalist economy and is a constitutional monarchy paired with a parliamentary democracy. A socialist government could favor democracy, like Sweden, because a priority of a socialist nation is equality and the empowerment of the people, however, Sweden is democratic as the government and parliament strongly value peoples’ freedoms while a socialist system would prioritize equality over individual liberty. In the most recent elections in 2018, 87.2% of the population eligible to vote voted (Statistics Sweden, 2018) suggesting that the people of Sweden value democracy as much as the government. This also implies that voters understand and practice one of Sweden’s fundamental freedoms, the freedom of speech as is outlined in the Constitution (Riksdag, 2018). The Constitution also expresses other freedoms Swedish citizens are entitled to including, but not limited to, freedom of the press, freedom of expression, and freedom of information (Sweden.se, 2020). These freedoms play a role of paramount importance in Swedish society taking precedence over all other laws which would be uncharacteristic in a socialist society where the end goal of essentially eliminating social classes and achieving an egalitarian society would surpass all other matters.

Having discussed how Sweden became a capitalist nation and how capitalism is at the core of Sweden’s economy and political system, this essay will now critique and invalidate the importance of arguments often made when defending the stance that Sweden is socialist, primarily focusing on aspects of Sweden’s economy deemed socialist such as high taxes, redistribution of wealth, and the ‘safety-net’ provided to citizens in the form of a strong welfare state. Furthermore, the importance of achieving socialist ideals such as equality and advanced workers’ rights protection will be discussed.

Although many features of Sweden’s economy and market are considered capitalist like the minimal government interference in business and the highly competitive market, some aspects of the economy are products of and still reflect the social reforms from the 1970s. Firstly, someone could claim Sweden should be considered socialist because they have extremely high taxes. This is not true. Swedes pay fewer taxes than many other European countries. France’s tax revenue is 46.2% of the GDP compared to Sweden’s is 43.9% (OECD, 2019). This demonstrates how taxing and redistribution of wealth are socialist methods however they do not define a country as socialist as it is a single factor of many that are considered. Even countries traditionally considered capitalists have relatively high tax revenues as a percentage of the GDP. For instance, Germany’s tax revenue is 38.2% of the GDP which is above the OECD average of 34.3% (OECD, 2019). Taxing is a method of redistribution of wealth which is often associated with and utilized by socialist countries to create a more equitable society, but Sweden is surprisingly unequal in terms of income and this inequality is still growing. Sweden has a low Gini coefficient of 0.28 (OECD, 2017) which would influence one to assume Sweden is economically equal. However, the top 1% richest in Sweden own 25-40% of total wealth which is level with the 35% of total wealth that the top 1% richest in the capitalist country of the United States of America possesses (Cowen, 2014). This demonstrates how Sweden is unequal in terms of income despite often being falsely idealized as a model socialist nation with little inequality.

Sweden’s welfare state is often misinterpreted as socialism. Socialism strives for a system that ensures everyone’s needs are met which is also the role of the welfare ‘safety net’ Sweden has created for its citizens. The welfare system encompasses many things: childcare, education, medical care, unemployment benefits, pensions, and many more. Both the high taxing and the welfare state are products of the socialist reforms from the 1970s, yet they both actively enable a highly competitive economy. University tuition is free, making it more accessible hence creating more highly skilled workers; childcare pricing is based on income ensuring parents can afford to have their child or children cared for while at work; unemployment benefits are generous but given on conditions that encourage people to find jobs, leading to less unemployment and poverty. Similar ‘socialist’ systems that prioritize citizens’ welfare can be seen in other capitalist countries as well. For example, the NHS, in the United Kingdom, is a publicly funded healthcare system. Another example, the United States of America’s government finances public schools with taxpayers’ money.

Lastly, Sweden is highly unionized. According to the OECD’s latest report on trade union density around 65% of workers were in labor unions (2018) which is harmonious with socialist beliefs of protecting and empowering the working class as well as class solidarity. However, the argument is to be made that labor unions protect human rights and ensure humane working conditions making them human rights organizations rather than socialist organizations. This furthers the idea that Sweden identifies its citizens’ freedoms and rights as being of utmost importance.

There is no single term to describe Sweden’s socio-economic and political system as no country is solely socialist or exclusively capitalist. Each nation takes ideas from a wide array of ideologies and systems to create a unique, complex web of concepts woven together to create a structure that helps society develop and thrive. Sweden is unlike any other country as its history, values, and people cooperate to construct a holistic system in which a capitalist free-market economy, democratic government, and a strong welfare state coincide to complement each other.

Bibliography

Cowen, T. (2014, May 30). Sweden has lots of wealth inequality. Retrieved July 10, 2020, from https://marginalrevolution.com/marginalrevolution/2014/05/wealth-inequality-in-sweden.html

Dorfman, J. (2018, July 08). Sorry Bernie Bros but Nordic Countries Are Not Socialist. Retrieved July 06, 2020, from https://www.forbes.com/sites/jeffreydorfman/2018/07/08/sorry-bernie-bros-but- nordic-countries-are-not-socialist/

Fernandez-Villaverde, J., & Ohanian, L. (2019, January 9). How Sweden Overcame Socialism. Retrieved July 09, 2020, from https://www.wsj.com/articles/how-sweden-overcame-socialism-

11547078767

The Heritage Foundation. (2020). Sweden. Retrieved July 09, 2020, from https://www.heritage.org/index/country/sweden

Heyman, F., Norbäck, P., & Persson, L. (2019, June 24). Turnaround of the Swedish Economy: Lessons from Large Business Sector Reforms. Retrieved July 10, 2020, from https://academic.oup.com/wbro/article/34/2/274/5522304

Norberg, J. (2020, March 05). Sweden's Lessons for America. Retrieved July 11, 2020, from https://www.cato.org/publications/policy-report/swedens-lessons-america

OECD. (2018). Trade Union. Retrieved July 09, 2020, from https://stats.oecd.org/Index.aspx?DataSetCode=TUD

OECD. (2019). Revenue Statistics 2019 - Sweden. Retrieved July 07, 2020, from https://www.oecd.org/ctp/tax-policy/revenue-statistics-sweden.pdf

OECD. (2019). Income inequality. Retrieved July 10, 2020, from https://data.oecd.org/inequality/income-inequality.htm

Riksdag. (2018, August 29). The Constitution. Retrieved July 09, 2020, from https://www.riksdagen.se/en/how-the-riksdag-works/democracy/the-constitution/

Statista. (2020, March 27). 2020 Index of Economic Freedom. Retrieved July 11, 2020, from https://www.statista.com/statistics/256965/worldwide-index-of-economic-freedom/

Statistics Sweden. (2018, November 21). Highest turnout since 1985 general elections. Retrieved July 10, 2020, from https://www.scb.se/en/finding-statistics/statistics-by-subject- area/democracy/general-elections/general-elections-results/pong/statistical-news/namnlos/

Sweden.se. (2020, April 28). Openness shapes Swedish society. Retrieved July 11, 2020, from https://sweden.se/society/openness-shapes-swedish-society/

Viktorov, I. (2005, January). Fordism and the Swedish Model. Retrieved July 09, 2020, from https://www.researchgate.net/publication/251436459_Fordism_and_the_Swedish_Model

The World Bank. (2016). GINI index (World Bank estimate). Retrieved July 11, 2020, from https://data.worldbank.org/indicator/SI.POV.GINI?view=map

The World Bank. (2018). Tariff rate, applied, weighted mean, all products (%). Retrieved July 12, 2020, from https://data.worldbank.org/indicator/TM.TAX.MRCH.WM.AR.ZS?end=2018

World Population Review. (2020). Socialist Countries 2020. Retrieved July 09, 2020, from https://worldpopulationreview.com/country-rankings/socialist-countries

Östberg, K. (2019, September 25). Was Sweden Headed Toward Socialism in the 1970s? Retrieved July 09, 2020, from https://www.jacobinmag.com/2019/08/sweden-1970s-democratic-socialism- olof-palme-lo

As a matter of jurisprudence, the legitimacy of jury nullification is subject to extensive controversy. Jury nullification, or perverse verdict in the United Kingdom, occurs when a criminal trial jury acquits the defendant despite believing that his guilt has been established beyond reasonable doubt. This unofficial mechanism in criminal procedure offers a crucial channel for the public to protest against laws that they either find unjust or carry disproportionately harsh sentences. However, critics maintain that it threatens legal certainty to allow laymen to arbitrarily diverge from the letter of the law and to permit jurors to exercise powers beyond that prescribed by law. This essay argues that jury nullification is not only consistent with fundamental common law principles, but crucial to their survival, that it must be required that all jurors be informed of this power. This proposition shall be justified on two grounds:

1. Jury nullification not only does no harm to the legal notion of precedent, but it also secures systematic standardisation of judicial proceedings which enhances common law certainty.

2. The ultimate aim of the common law is to administer justice consistent with modern societal values and to ensure that justice is fairly served. This is best achieved with direct citizen involvement in the judicial system.

Originating from Anglo-Saxon England, the common law can be described as a body of unwritten laws built on past cases.[1] It is unwritten in the sense that unlike civil law, where a comprehensive set of codified legislation is present, the common law lacks a centralised documentation of such rules. Rather, the common law relies on precedents, an agglomeration of previous legal rulings. This distinguishes the common law from other bodies of law, because in the case of the former, the law is primarily developed by the judiciary as opposed to the legislature. Apart from precedents, the common law is also recognised for its flexibility to adapt to changes in social needs.[2] Despite the importance of precedents, common law courts can, when extremely compelling reasoning is submitted, revise and reinterpret the law without the involvement of the legislature.[3] This view is supported by Lord Justices in the UK Supreme Court, writing in the judgment of Willers v Joyce [2016, UKSC 44] that “while the Law Lords would regard their earlier decisions as ‘normally binding’, they would depart from them “when it appears right to do so”.[4] This allows the law to constantly progress gradually orderly alongside evolving political and social values, preventing change from causing immediate and disrupting effects on existing law.[5] These fundamental principles of common law will form the cornerstone on which this essay’s arguments are based.

Stare decisis, or precedent, is a fundamental pillar of common law. Principles and decisions established in previous cases are referenced and applied when adjudicating a future case of a similar nature. This model ensures legal consistency and clarity, or quoting Lord Mansfield, makes “every aspect of the law, its formation, interpretation, and performance, subject to a general duty of good faith and fair dealing”.[6] This certainty allows one to predict to a reasonable degree where the law might stand on a particular issue. However, critics contend that allowing jurors to arbitrarily exercise conscientious acquittals causes inconsistencies, disrupts the system of precedents, and jeopardises legal certainty.[7] This criticism, however, is unfounded, and can be refuted from a legal and a layman approach.

Legally, this argument fails to distinguish between a verdict and a judgment. A verdict is a declaration given without reason by the jury on whether or not they believe a defendant is guilty of the offence he is charged with; a judgment is a set of legal reasoning outlined by the judge on the rationale of his ruling. Emphasising reasoning rather than outcome, a judgment is far more impactful than a verdict on the overall growth of the common law: whereas the former explains legal principles, the latter gives only a short definite answer. In a system that is so rooted in explanation and analysis, it is unlikely that an acquittal rendered without reason would significantly interfere with the integrity of legal precedent. This shows that telling juries of perverse verdict is, at the very least, consistent with the elementary principle of certainty. Therefore, it is unsubstantiated for critics to object the requirement for juries to be told of their nullification based on this point.

To a layman, the idea of certainty is viewed differently. Jury nullification, although contentious, is not explicitly outlawed. It is, however, a power that the judiciary and legal practitioners appear to hide from the jury, hoping that it would not be exercised. This is precisely the problem that threatens certainty. While some may be ignorant, certain knowledgeable jurors may still know of and use this power of acquittal. In fact, courts have no way of knowing whether this power has been invoked since juries do not justify their verdicts.[8] When court procedures are not uniform, when certain powers are only known to some but not to all, an element of randomness is introduced into the jury, where the composition of the jury may affect the verdict just as much as the facts of the case. This compromises legal consistency alongside its legitimacy. The common law guarantees that defendants be tried before a competent tribunal, yet this can hardly describe a jury that is unclear of its own powers and limitations. Logically, therefore, jury nullification must be made clear to all jurors to mitigate entropy in judicial proceedings. Otherwise, the public may doubt the legitimacy of the court, subsequently weakening the force of stare decisis. Since common law survives and thrives on precedents, precedents that are subject to entropy will provide an unstable basis on which future judges can cement their own reasonings on, and thereby cripple the credibility of the common law system. If jury nullification cannot be completely eradicated from court, as indeed it cannot, then requiring that all jurors be told of this practice is the only realistic method to standardise court procedures and guarantee certainty.

Legal certainty is a hallmark of common law, and the system of precedent is a means to achieve it; however, it should be considered whether strict legal certainty, or upholding justice, is its ultimate aim. Lord Mance discussed this dilemma between certainty and justice in depth in his speech Should the Law Be Certain given in Oxford in 2011. He offered a balanced argument. Initially, he mentioned the importance of precedent and legal certainty and cited numerous authorities to support this point.[9] Certainty eliminates confusion and makes it easier for citizens to understand and thereby follow the law. But, he also recognised the presence of limits to absolute legal certainty. He cited Lord Goff, who described the common law as “a living system of law”, “reacting to new events and new ideas”, and being a system of “practical justice relevant to the times in which they [citizens] live”;[10] he referenced Lord Mansfield: “The most desirable object in all judicial determinations… is to do justice”.[11] It is evident that Lord Mance saw more in the common law than just an adherence to precedent; rather, he believed that it portrays societal values, and is an instrument for the pursuit of justice.

If Lord Mance’s view precisely describes the common law as a reflection of social values, then this further justifies why everyone must be informed of jury nullification. To demonstrate this, we turn to the situation of stealing in Medieval England. At a time when crime was rampant, criminal punishment was harsh. A crime’s severity was determined by whether a thief stole over or under a set threshold, with the former punishable by death.[12] While the death penalty was a fearsome deterrent, the public soon felt that it was disproportionate to the crime of stealing. Historical evidence suggested that juries began acquitting defendants for this reason, hence jury nullification became a mechanism for jurors to reflect inconsistencies between the law and societal principles.[13] Lord Denning once described juries as a “cross section of society”, making them the best candidates to introduce modern societal values and sentiments into the courtroom.[14] Critics can argue that this disrupts stare decisis; however, one can equally dismiss this argument by contending that the common law characteristic of compiling new case laws supports the gradual acclimation of the law to a new status quo. If one were to take the perspective of Lord Mance, that the law reflects society, then the right of a juror to give a perverse verdict must be made known to all, even if this may be perceived to interfere with precedent. Otherwise, this becomes self-defeating, as on the one hand the law values keeping up with societal attributes, yet on the other jurors are being denied the knowledge of knowing that they can voice objections towards outdated jurisprudence.

Another fundamental function of the common law, according to Lord Mance, is to pursue justice. By its very nature, justice demands a moral consideration of right and wrong, and this extends beyond the letter of the law. Described by Lord Brown as a “bulwark against injustice”, juries are designed to protect unpopular interests, or the interests of the unpopular, against persecution.[15] If this ideal role of the jury is to be realised, then jurors must be invested with the power of nullification to intervene in the face of tyranny. So was the case in the trial of John Lilburne, an outspoken critic of the then tyrannical British Government.[16] In 1649, he was tried twice for high treason for denouncing the legitimacy of the Commonwealth and criticising Parliament. Facing capital punishment, the jury, sympathising with his commitment to the common good and his bravery in challenging authority, nullified his charge and spared him from death.[17] Subsequently, the Court of Common Pleas acknowledged that the right to jury trial entailed a right to acquit, irrespective of the judge’s view on whether or not the defendant was guilty.[18] This ruling had implicitly affirmed not just the legitimacy of jury nullification, but its importance in allowing the law to serve faithfully as an instrument for the pursuit of justice. Critics may be inclined to cite the dangers of entrusting the common law to a layman’s moral discretions; however, by its very nature, determining fairness requires one to apply his own moral judgement to the situation, adding on his understanding of societal norms, to decide on whether or not something is fair. Failing to disclose the existence of jury nullification to jurors is a denial of their right to translate their moral values into action in an attempt to eliminate injustice in society. In other words, since jury nullification is an effective means to pursuing justice, which is in itself an objective of the common law, then it would be inconsistent to champion the common law and not jury nullification.

The debate on jury nullification wrestles with the very principles integral to common law. It calls into question how the possible unpredictability of a layman’s input into the judicial process may disrupt the order of precedent and threaten legal certainty. It also pushes one to consider whether stare decisis, or the attainment of justice in accordance with the societal values of the time is the ultimate purpose of the common law. This essay has proven that jury nullification does not threaten the legal notion of precedent, and more importantly, denying jurors the power of conscientious acquittal will undermine the legitimacy of the common law’s goal to dispense justice fairly. Based on the arguments aforementioned, it is clear that common law principles require that juries be told of jury nullification.

Footnotes

1 Segal, T., ‘Common Law’, Investopedia, 29 March 2020, https://www.investopedia.com/terms/c/common-law.asp, (accessed 10 July 2020)

2  Wikipedia Contributors, ‘Common Law’, Wikipedia, https://en.wikipedia.org/wiki/Common_law, (accessed 10 July 2020)

3  Wikipedia Contributors, ‘Common Law’, Wikipedia, https://en.wikipedia.org/wiki/Common_law, (accessed 10 July 2020)

4 Willers v Joyce and another (in substitution for and in their capacity as executors of Albert Gubay (deceased)) [2016] UKSC 44, https://www.bailii.org/uk/cases/UKSC/2016/44.html, (accessed 10 July 2020)

5  Wikipedia Contributors, ‘Common Law’, Wikipedia, https://en.wikipedia.org/wiki/Common_law, (accessed 10 July 2020)

6 Mance, J., Deputy President of the Supreme Court of the United Kingdom, ‘Should the Law Be Certain’ (The Oxford Shrieval lecture given in the University Church of St. Mary The Virgin, Oxford University, 11 October 2011), https://www.supremecourt.uk/docs/speech_111011.pdf, (accessed 10 July 2020)

7 Brooks, T., ‘The Right to Trial by Jury’, Journal of Applied Philosophy, volume 21, number 2, 2004, p. 197-212, https://www.jstor.org/stable/24355195?seq=1, (accessed 10 July 2020)

8 Smith, D., ‘The Historical and Constitutional Contexts of Jury Reform’, Hofstra Law Review, volume 25, issue 2, Winter 1996, p. 380-505, https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1958&context=hlr, (accessed 10 July 2020)

9 Mance, J., Deputy President of the Supreme Court of the United Kingdom, ‘Should the Law Be Certain’ (The Oxford Shrieval lecture given in the University Church of St. Mary The Virgin, Oxford University, 11 October 2011), https://www.supremecourt.uk/docs/speech_111011.pdf, (accessed 10 July 2020)

10 Mance, J., Deputy President of the Supreme Court of the United Kingdom, ‘Should the Law Be Certain’ (The Oxford Shrieval lecture given in the University Church of St. Mary The Virgin, Oxford University, 11 October 2011), https://www.supremecourt.uk/docs/speech_111011.pdf, (accessed 10 July 2020); citing Kleinwort Benson Ltd v Lincoln CC [1992] 2 AC 349, 377-379

11 Mance, J., Deputy President of the Supreme Court of the United Kingdom, ‘Should the Law Be Certain’ (The Oxford Shrieval lecture given in the University Church of St. Mary The Virgin, Oxford University, 11 October 2011), https://www.supremecourt.uk/docs/speech_111011.pdf, (accessed 10 July 2020); citing Alderson v Temple (1768) 4 Burr 2235, 2239

12 Smith, D., ‘The Historical and Constitutional Contexts of Jury Reform’, Hofstra Law Review, volume 25, issue 2, Winter 1996, p. 380-505, https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1958&context=hlr, (accessed 10 July 2020)

13 Smith, D., ‘The Historical and Constitutional Contexts of Jury Reform’, Hofstra Law Review, volume 25, issue 2, Winter 1996, p. 380-505, https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1958&context=hlr, (accessed 10 July 2020)

14 Brooks, T., ‘The Right to Trial by Jury’, Journal of Applied Philosophy, volume 21, number 2, 2004, p. 197-212, https://www.jstor.org/stable/24355195?seq=1, (accessed 10 July 2020)

15 Mance, J., Deputy President of the Supreme Court of the United Kingdom, ‘Should the Law Be Certain’ (The Oxford Shrieval lecture given in the University Church of St. Mary The Virgin, Oxford University, 11 October 2011), https://www.supremecourt.uk/docs/speech_111011.pdf, (accessed 10 July 2020); see paragraph 16

16  Robertson G., Queens Counsel, ‘Magna Carta and Jury Trial’, British Library, https://www.bl.uk/magna-carta/articles/magna-carta-and-jury- trial, (accessed 10 July 2020)

17  Robertson G., Queens Counsel, ‘Magna Carta and Jury Trial’, British Library, https://www.bl.uk/magna-carta/articles/magna-carta-and-jury- trial, (accessed 10 July 2020); Smith, D., ‘The Historical and Constitutional Contexts of Jury Reform’, Hofstra Law Review, volume 25, issue 2, Winter 1996, p. 380-505, https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1958&context=hlr, (accessed 10 July 2020)

18  Robertson G., Queens Counsel, ‘Magna Carta and Jury Trial’, British Library, https://www.bl.uk/magna-carta/articles/magna-carta-and-jury- trial, (accessed 10 July 2020)

Bibliography

Brooks, T., ‘The Right to Trial by Jury’, Journal of Applied Philosophy, volume 21, number 2, 2004, p. 197-212, https://www.jstor.org/stable/24355195?seq=1, (accessed 10 July 2020)

Mance, J., Deputy President of the Supreme Court of the United Kingdom, ‘Should the Law Be Certain’ (The Oxford Shrieval lecture given in the University Church of St. Mary The Virgin, Oxford University, 11 October 2011), https://www.supremecourt.uk/docs/speech_111011.pdf, (accessed 10 July 2020)

Robertson G., Queens Counsel, ‘Magna Carta and Jury Trial’, British Library, https://www.bl.uk/magna-carta/articles/magna-carta-and-jury-trial, (accessed 10 July 2020)

​

Segal, T., ‘Common Law’, Investopedia, 29 March 2020, https://www.investopedia.com/terms/c/common-law.asp, (accessed 10 July 2020)

​

Smith, D., ‘The Historical and Constitutional Contexts of Jury Reform’, Hofstra Law Review, volume 25, issue 2, Winter 1996, p. 380-505, https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1958&context=hlr, (accessed 10 July 2020)

Wikipedia Contributors, ‘Common Law’, Wikipedia, https://en.wikipedia.org/wiki/Common_law, (accessed 10 July 2020)

Willers v Joyce and another (in substitution for and in their capacity as executors of Albert Gubay (deceased)) [2016] UKSC 44,

https://www.bailii.org/uk/cases/UKSC/2016/44.html, (accessed 10 July 2020)