Juries, Democracy & Dworkin at Law & Society Blog

Juries, Democracy & Dworkin

Published by Manfred Gabriel January 4th, 2005 in Jurisprudence

Nico Artzi posted a comment on my efforts to explain Dworkin’s chain-novel idea in a democratic system. The hole in the common-law democratic legitimacy, which I think Dworkin is trying to fill, may not be a hole at all, according to Artzi. There is the jury:

The common law is developed not only through the decisions of judges (Herculean or of another type) but also through jury participation. Juries are, perhaps, the great democretizers not only of the judiciary but also of the entire system in which the judiciary operates. Juries are much more representative of actual classes, ethnicities, genders etc. than any other part of the regime (by which I mean political institutions). (Not to mention the fact that the compulsory element of the jury duty draws in those who otherwise do not participate in the political process as evidenced by measly voters turn-outs; paternalistically perhaps engaging larger constituencies.)

The point is well-taken, and I appreciate the little dig at the “(orderly, oh so orderly) Continental system” because it gives me a chance to say that I was writing about theory and concepts, and not about comparative merit.

That said, I think the story of the common-law jury is complicated, a lot more complicated, that is, than they let on in Civil Procedure and Constitutional Law courses. As a historical matter, of course, the jury did not develop as a democratic tool and it was well-established in England before the enlightenment and liberal revolutions. The fact that English common law does not provide a jury in civil cases and the guarantee in the U.S. constitution’s 6th and 7th Amendments suggest that the jury’s purpose is the preservation of civil rights. These civil rights were established in the bourgeois revolutions, particularly the French. Looking at that the advent of juries in France, it seems that the jury was meant to protect the bourgeoisie from the nobility (and clergy), and to my mind the jury retains a flavor of class struggle and liberty rather than of democratic legitimacy. In this, I don’t think I differ much from Artzi (although I view tort awards differently):

… otherwise-egregious jury tort awards may be viewed as a form of redistributive justice exacted by members of classes who cannot affect actual taxation legislation the way those who have access to, say, expensive lobbyers, can and do.

The democratic role of the jury in the U.S., to my mind, works upwards rather than downwards. I don’t think that the jury does much conceptually or even factually in terms of checks-and-balances (and much modern thought is being spent on keeping the jury in check and balanced). The great benefit and democratic role of the jury is the inclusion of citizens in the process of conflict resolution, the actual participation in the commonwealth of citizens. In the U.S. federal courts at least this is taken very seriously, and in my experience American jurors emerge from the jury box with an increased democratic sense and commitment. That may well be the deep difference between the continental and the U.S. style of legitimacy: Conceptual purity there, emotional commitment by the citizens here.