Trial by Jury

In discussing "Animal Rights" Steve Wolfer wrote in reply to my claim that trial by jury is not a "natural right" but only a social custom:

MEM: "Where in the stars or in your nature is it written that you must have a right to trial by jury? The Hebrews had judges. The Romans had tribunes. In Athens the jury that convicted Socrates was drawn from 500 citizens. The roots of our 12-person juries are in the Danish towns of England. How is any one objectively moral or immoral? All are social conventions. You have no inherent, innate, natural right to a trial by a jury. It is quite arbitrary."

SW: You went on to say that these laws (e.g., regarding the number of jurors) are all social conventions and are not objectively moral or immoral. That is only partially true. They aren't totally untethered from reality, or from morality. For example, take the decision to exercise retaliatory force by a government that is done in response to evidence that a person committed murder. That person is presumed innocent until there is a verdict of guilt based upon adequate evidence and where that ruling was arrived at by a process that provides rational confidence in its fairness and accuracy. We create laws to implement our individual rights. It may be arbitrary that we have 12 jurors and not 10 or 14, but the legal principle is sound. We don't want the state to have the sole say in a decision of the facts that is more safely arrived at via a jury of our peers. It is common sense to want significantly more jurors impaneled than just 1 or 2, and we also don't want a hundred because of how cumbersome that would be. There are principles that are not arbitrary yet allow a latitude in their implementation. You are looking at the details of the implementation and not the underlying principles.

The ancient Athenians had no problem with a jury of 500. We put 100 times that many people in a stadium. Today, many millions are connected via the Internet. The jury of 12 is a custom from Danes living in England, nothing more.

In ancient Athens, because it was a democracy (literally), any citizen could prosecute any other. The government was not an entity separate from the people. When conquerors occupy a land, the government is distinct from the people.

So it was in England. The coroner was established to deal with the problem of dead Normans. If a body was found, the coroner determined if the victim was a Norman. If so, an investigation and trial followed. If the victim was a Saxon, nothing was done.

You can see why the Saxons would insist on some kind of protection, especially those who were of status equal to the Normans. Over the centuries, the custom developed that the government (crown) was made to be a plaintiff in court. The king's men had to find a court of competent jurisdiction, obtain a writ, be accompanied by a sheriff, and identify their accused transgressor who would be brought to a court where his own neighbors would hear the king's claims, and the defense of the accused, and decide the facts.

Our legal system today still shows vestigial attributes of that time. However, the court is no longer separate from the government, but integral to it. Jurors are paid (poorly) for their time, making them temporary government employees.

As nice as English traditions are, they are only habits, and are not objectively established as the only or best ways to do things.

It could be said that in an Objectivist society, the government would indeed be the sole agency to engage in retaliatory force, and therefore, juries and courts are unnecessary. As in Athens, the legislature and the courts would be one and the same. Rather than an adversarial combat, all cases would be considered from many points of view. Compromises would be reached, perhaps through committees, and a bill of law would be passed declaring the judgment of the state in this matter. If the legislature could not marshall facts, then no bill of law would be written. A bill written and discussed might not come to a vote by many means. And if it came to a vote, a majority (or super majority) might not be had. The accused would be free to go.

Alternately, like the Hebrews, an Objectivist society could have no legislature and only judges who make law. When people have a dispute they take it to a judge, a specially trained, licensed, and authorized individual who acts for the government as mediator, arbitrator, negotiator, or adjudicator, as needed.

Torts would not exist distinct from crimes because according to Objectivism, the only way to violate someone's rights is through force or fraud. By implication every challenge of contract (tort) assumes a charge of fraud or a claim of denial of obligation by engagement of force.

In a constitutionally limited government based on individual moral natural inherent innate (but not intrinsic) rights, a complete and thorough police investigation would be sufficient. No "trial" would be necessary. The police procedures would begin with the patrol officers, go to the detectives, and be passed to the prosecutor who would review the investigation and make a determination based on the facts. The statements of the accused - including alibis and contrary evidence and challenges to the facts asserted by the police - would also be part of that investigation. (Scientists routinely consider alternate hypothesis and empirical evidence contrary to the claims of their published research. Criminology and criminalistics are both sciences. So, the scientific method is sufficient for criminal justice.)

In our society today, the accused can forego a jury trial and be delivered to a judge. ("If you are innocent, get a judge; if you are guilty, get a jury.") Moreover, many kinds of cases are taken directly to judges and do not go to juries. Appeals are one example. Administrative law (such as the public utilities commission) are another example. Misdemeanors and minor civil infractions go to "night court" or "traffic court" without going to a jury. While it might be argued that these minor, trivial cases are not important enough for a jury, no standard differentiates them, except coincidence and accidents: some places have them and others do not. Usually, they grow up in urban areas where the density of the population stresses the ability of the government to provide the highest levels of jurisprudence. And to the accused, the consequences are always important. It might be argued that in a Objectivist society, where everyone's time is recognized as valuable, such juryless courts could be convenient.

(Edited by Michael E. Marotta on 10/23, 4:13am)

Post 1

Tuesday, October 23, 2012 - 7:46pm

Michael,

I take ideas seriously and I'm not always convinced that you do. Are you recommending that juries have 500 or 500,000 people each? Do you think that the many, many juries that are meeting nearly every week day in many courts in most cities and counties in our country? I hope not. If the answer is, "Yes", then I maintain you don't take ideas seriously. If the answer is, "No," then why are you still talking about these numbers?

Didn't you get what I was saying about the details NOT being the principle?
-----------------------

You wrote:

It could be said that in an Objectivist society, the government would indeed be the sole agency to engage in retaliatory force, and therefore, juries and courts are unnecessary.

Even though implementation is mostly details, the principle here is to protect the individual from government transgressions and that would be helped by having juries made of peers - I mentioned that in my post. I said, "We create laws to implement our individual rights. It may be arbitrary that we have 12 jurors and not 10 or 14, but the legal principle is sound. We don't want the state to have the sole say in a decision of the facts that is more safely arrived at via a jury of our peers. It is common sense to want significantly more jurors impaneled than just 1 or 2, and we also don't want a hundred because of how cumbersome that would be. There are principles that are not arbitrary yet allow a latitude in their implementation. You are looking at the details of the implementation and not the underlying principles."
-------------------------

You wrote:

...the court is no longer separate from the government, but integral to it. Jurors are paid (poorly) for their time, making them temporary government employees.

I don't agree. The pay is too small, there is no permanence to the job and there is no incentive to take the government's side. (Another instance of the details NOT being the principle.)
--------------------------

You wrote:

As nice as English traditions are, they are only habits, and are not objectively established as the only or best ways to do things.

I disagree. Like I said, there can be many variations on the details that will, none-the-less, still uphold an objective principle of law. There is no logic that says only one particular implementation will meet the requirement of being an objectively good. I don't see these as merely habits but rather as good ideas that we chose to keep because of their value in up-holding a principle - a protection.

I'm not saying that the particular details that have evolved here are the only way to go. I'm always open to better ways to implement the underlying principles. Libertarians are often good at seeing new ways to implement valued principles.
------------------------------

At the beginning of your post you suggest we could have juries with tens or hundreds of thousands, and at the end you suggest we could have no juries at all because it would be more convenient. The purpose of the jury in our system is to determine the facts of the case. And we want peers to decide that. Your idea of the government being the jurors and doing away with trials does not appeal to me.
-------------------------------

You gloss over one of the purposes of torts. It is a way to settle disagreements without anyone resorting to initiation of violence. Doing away with torts would NOT be a good idea.

Post 2

Wednesday, October 24, 2012 - 8:10pm

SW: I take ideas seriously and I'm not always convinced that you do. ...
At the beginning of your post you suggest we could have juries with tens or hundreds of thousands, and at the end you suggest we could have no juries at all because it would be more convenient.

I play with ideas. I am very serious about play. It is not mindless. Play is hard work, as many who have studied creativity have demonstrated about innovative, inventive, original thinkers.

What I do not take too seriously is tradition. I am a radical for capitalism. That means that I question institutions and social arrangements, seeking objective (rational and empirical) justifications for them. As far as I know, no institutions were imposed on us by Martians. So, every arrangement must have served some purpose originally. Even so, a tradition may be inappropriate here and now, or it may never have been morally right. In India, widows threw themselves on the funeral pyres of their husbands. It think that's a bad idea, no matter how it is justified, even if it is claimed to be her "natural right."

So, I question trial by jury, see where it came from, what purpose it serves, and whether and to what extent it may still be an objective solution to a social problem.

You seem to have dropped a word or phrase:

Do you think that the many, many juries that are meeting nearly every week day in many courts in most cities and counties in our country? I hope not. If the answer is, "Yes", then I maintain you don't take ideas seriously. If the answer is, "No," then why are you still talking about these numbers?

MEM: It could be said that in an Objectivist society, the government would indeed be the sole agency to engage in retaliatory force, and therefore, juries and courts are unnecessary.
SW: Even though implementation is mostly details, the principle here is to protect the individual from government transgressions and that would be helped by having juries made of peers - I mentioned that in my post. I said, "We create laws to implement our individual rights. It may be arbitrary that we have 12 jurors and not 10 or 14, but the legal principle is sound. We don't want the state to have the sole say in a decision of the facts that is more safely arrived at via a jury of our peers. It is common sense to want significantly more jurors impaneled than just 1 or 2, and we also don't want a hundred because of how cumbersome that would be. There are principles that are not arbitrary yet allow a latitude in their implementation. You are looking at the details of the implementation and not the underlying principles."

First of all, in an Objectivist society, why would it be necessary to protect the individual from the government? That would only be a requirement of a mixed-premise or worse kind of society. The argument of the constitutional minimalists is that a properly written document based on Objectivist law would protect us from an oppressive government. In an Objectivist society, only the guilty would want to be protected against government.

What the innocent would want, of course, is protection from error. On that basis, the jury system fails horribly. Right now, over 80 thousand innocent people are in prison and for each of them a guilty person is among us. Millions have been sentenced unjustly for victimless crimes.

"It is common sense to want ..." is based on the authoritarian assumption that everyone else thinks like you. Whatever you want must be "common" sense. If that were true, Steve, that whatever you think is "common" sense, we would be living in a better world, indeed. Moreover, you cannot mean that some sense being "common" is all that is claimed for it to be right. Religion is common sense. So is war. Slavery was common sense. You do not mean that. You just mean that you never questioned it.

The statement, ""We create laws to implement our individual rights. It may be arbitrary that we have 12 jurors and not 10 or 14, but the legal principle is sound." is a contradiction. If an action is arbitrary it cannot be sound on principle.

The principle you claim (implicitly) is citizen oversight of the government. The jury system does not instantiate that principle into practice any longer. It did at one time -- when a hundred people lived in a village, when everyone knew everyone else, at least by reputation, back when John Adams put his reputation on the line defending the British soldiers of the Boston Massacre and the jury of Boston exonerated all but two of them.

Realize that civilians arrested the soldiers, but obviously, the arrests were allowed, rather than moving in more troops. All sides agreed to the rule of law, under which even the government is subject. Understand this: under English practice juries were often unwilling to convict the guilty because they objected to the harsh punishments, such as drawing and quartering for counterfeiting or hanging for theft. The English jury system worked to limit government power. Over time, like taxes and regulations for the common good, and national defense, the jury system changed into something else.

And not only are we here today with a system that no longer works, it cannot be justified on the basis of objective political science. Many other arrangements seem equally effective, likely even better.

MEM :the court is no longer separate from the government, but integral to it. Jurors are paid (poorly) for their time, making them temporary government employees.
SW: I don't agree. The pay is too small, there is no permanence to the job and there is no incentive to take the government's side. (Another instance of the details NOT being the principle.)

I agree that you you are letting the details hide the principle. Juries are not truly independent of the government, but in and of the government. You are called to jury duty. You can be locked up (sequestered) for the duration of the trial. Personally, I would honor that call. I believe that it is a proper obligation to which a citizen should look forward -- and I do not trust the government. However... this is not about me. The call to duty and sequesting are violations of the natural rights you so vigorously defend elsewhere.

The purpose of the jury in our system is to determine the facts of the case. And we want peers to decide that. Your idea of the government being the jurors and doing away with trials does not appeal to me.

Read what I wrote. I suggested several other mechanisms for triers of fact. The prosecutorial decision is, in effect a "trial" in the same sense that a scientific experiment is a "trial." I recommended trial by the legislature, as in Rome and Greece, with no special jury. We could also have specially trained judges, professions at adjudication, arbitration, mediation, and negotiation. We do not need juries, though, also, I grant, an Objectivist society could have them, and rather than being hapless citizens dragooned into government service, they could be paid contractual professionals.

SW: You gloss over one of the purposes of torts. It is a way to settle disagreements without anyone resorting to initiation of violence. Doing away with torts would NOT be a good idea.
Read what I wrote: Torts would not exist distinct from crimes because according to Objectivism, the only way to violate someone's rights is through force or fraud. By implication every challenge of contract (tort) assumes a charge of fraud or a claim of denial of obligation by engagement of force.

Every violation of contract is potentially a case of force or fraud. The Uniform Commercial Code was created by professional jurists to resolve the many conflicts when neither force nor fraud is involved, but only uncertainty or error. In an Objectivist society - see Ayn Rand on government funding - you could pick your court and pay for the service. However, you would not have the right to evade the law in cases of force or fraud because those are crimes because they violate the "natural rights" of the victims to property and therefore to life.

Post 3

Wednesday, October 24, 2012 - 9:26pm

Michael,

You wrote:

...in an Objectivist society, why would it be necessary to protect the individual from the government?

You don't design a government that only works when society is perfect - forever. You design government to protect against it evolving in the wrong direction.
-----------------

The argument of the constitutional minimalists is that a properly written document based on Objectivist law would protect us from an oppressive government.

That is only part of the answer. There are other parts.
-----------------

In an Objectivist society, only the guilty would want to be protected against government.

You can't have your cake and eat it too. If it is a perfect Objectivist society then there are no guilty. If there are guilty, then this isn't your perfect Objectivist society. The fact is that nearly everyone has a reason to want the government to protect them rather than to be their oppressor. And even if it was perfect at some point in time, then they'd want it to stay that way.
------------------

I said, "It is common sense to want significantly more jurors impaneled than just 1 or 2..." and you want to make a great disquisition on the nature of common sense. Let me put it this way, "It is GOOD sense to want significantly more jurors impaneled than just 1 or 2..."
-------------------

You wrote about what I said,

[Your] statement, "We create laws to implement our individual rights. It may be arbitrary that we have 12 jurors and not 10 or 14, but the legal principle is sound." is a contradiction. If an action is arbitrary it cannot be sound on principle.

You are wrong - it is not a contradiction. For example, putting a murderer in prison for 40 years versus 41 years is an arbitrary difference, but putting them prison is the sound implementation of a good principle. Can't you see that?

Post 4

Sunday, October 28, 2012 - 7:50am

Steve, the principle is that a trier of fact must exist. I gave several examples of alternatives to the traditional jury system. You say that a jury of 12 random people is "good sense." Do you know that a jury might be six, here and now in American law?

In a society where the government is explicitly founded on principle of Objective law because the wider culture consists of very many influential people who are rational and empirical in their philosophies because they are benevolent in their metaphysical relationship with life, fear of the government or fear of much of anything would be hard to understand. Certainly, we fear the government only because we know that so far, evil people and well-meaning but misguided people alike have powers which they should not. Remove that, and what is there to fear? Error is possible, but a fear of it would be irrational.

I am not sure why you insist on defending the present jury system (of 12, not 6). Many alternatives are possible. Considering the number of guilty people released - a prime reason for the jury system, according to some (better that 100 guilty men go free...) - and the number of innocent people in prison to day (80,000 by one estimate) and considering that the modern jury does nothing of its original intentions when juries were created (in the Dark Ages), I fail to see your infatuation with it.

(Edited by Michael E. Marotta on 10/28, 7:58am)

Post 5

Sunday, October 28, 2012 - 1:55pm

Agree with Steve about this: the point of a "trial by a jury of one's PEERS" is that people who are not functioning as government agents get to try the facts (and, in theory, try the law too, though most judges attempt to suppress that inconvenient fact).

Do away with this check on government power, and tyranny will eventually result.

There are significant problems with the current system, where the government tries to subvert this check on their power:

1) Voir dire and pre-emptory strikes of potential jurors

2) Temporary enslavement of jurors via conscription

3) The above-mentioned attempt to suppress jury nullification of bad laws

4) Allowing people employed by government, who thus presumably would usually side with the government, on juries

Post 6

Sunday, October 28, 2012 - 2:24pm

Michael,

There are many principles in play. You mentioned, "a trier of fact must exist" - That is certainly a primary principle, but there are many other principles.

There also must be a trier of law who decides if the alleged facts fit the law and if the requirements of jurisdiction have been met.
There is a benefit in separating the trier of fact and the trier of law.
The trier of fact shall be drawn from a population of peers as protection against the state abusing the power of the court to deprive people of property, liberty or life.
Anyone who faces a penalty of significant magnitude shall have a right to trial by jury of his peers.
Adult citizens shall have the right to participate in the jury system in that discrimination against participation shall not be based upon gender, occupation, race, ethnicity, etc.
The court shall hold the responsibility for ensuring the process used to empanel a jury effectively provides a fair and impartial jury.
Both sides in an adversarial hearing shall have equal and defined rights to challenge potential jurors.
The court and both contesting parties shall work to ensure the jurors are properly informed of the applicable laws and alleged facts.
Where the accused faces severe penalties the jury's decision must be unanimous.
Where a unanimous decision is required, the number of jurors must not be so great as render that requirement unlikely, nor so few as make it too easy.

You asked me,

Do you know that a jury might be six, here and now in American law?

Yes, I know that - I assume you are talking about Florida, and there are many other variations under different American laws: In most states Grand Juries usually have 23 people and decide by a majority - but that isn't a trial. In some states a civil trial uses an 8 person jury and in American Samoa it is unconstitutional to have a jury of any size (all trials are bench trials with the Judge as trier of fact and law).
-------------------

Michael, you continue to talk about some utopia where everyone is extraordinarily rational and well informed and all laws are objective. Well, If things in your magical kingdom are so very, very perfect then there will not be crime to be punished or civil disputes that need resolving. But if there is a possibility of a single crime or a single civil dispute then a need exists for a structure and a set of processes that provide just resolutions. And it would never be a good idea to assume government will always exercise power justly or in minimal ways and that plays a key role in the design of those structures and processes.
--------------------

I'm not "infatuated" (your silly word) with juries of 12. I am open to any alternative that would do a better job of trying the facts while keeping that power out of the hands of the state. Your suggestions have not seemed like improvements to me.
--------------------

For all of the reasons stated above, I believe that we are better off with a jury of peers or a bench trial - where the accused decides which, and that the jury be required to reach a unanimous decision, and that the number of jurors be between 7 and 12.

Post 7

Sunday, October 28, 2012 - 2:26pm