"...as all history informs us, there has been in every State & Kingdom a constant kind of warfare between the governing & governed: the one striving to obtain more for its support, and the other to pay less. And this has alone occasioned great convulsions, actual civil wars, ending either in dethroning of the Princes, or enslaving of the people. Generally indeed the ruling power carries its point, the revenues of princes constantly increasing, and we see that they are never satisfied, but always in want of more. The more the people are discontented with the oppression of taxes; the greater need the prince has of money to distribute among his partisans and pay the troops that are to suppress all resistance, and enable him to plunder at pleasure. There is scarce a king in a hundred who would not, if he could, follow the example of Pharaoh, get first all the peoples money, then all their lands, and then make them and their children servants for ever." ~ Benjamin Franklin
Jury Trials: Are They Really 'More Libertarian'?
January 1, 2007
America didn't only gain the English language from its former British colonial masters. America also acquired the legal tradition of common law. If anything, the spread of common law around the globe was probably one of the greatest hallmarks of the British Empire.
One primary aspect of the common law legal tradition is the concept of trial by jury. Since the Middle Ages, English and later British people have enjoyed the freedom of being tried in front of a jury and having their innocence or guilt being determined by that body. Nonetheless, no system on this Earth is perfect and without flaw. I believe that jury trials do not warrant their revered status within libertarian circles and that a market anarchist/anarcho-capitalist society can healthily exist without their presence. In essence, I feel that jury trials are not necessarily "more libertarian."
OK, maybe "revered" is an inappropriate word in this context. Still, a principled libertarian may generally conclude that his libertarian brethren hold the ideal of jury trials in high regard. Libertarians champion jury trials since they are seen as 'a more transparent form of justice.' We would all recognise that government is force and such force undermines our self-ownership as human beings. So (as common libertarian rationale states) if we can limit the powers of judges, who are almost always appointed by the state, then we greatly limit the inherently forceful nature of government. Well, I do not believe this to be the case. The notion of jury trials is subject to a number of flaws, notwithstanding the rhetoric of these things aiding liberty.
The flaws of jury trials
I live in the United Kingdom, so I shall use the jury system of England and Wales as my primary example. I've never served on the jury before, and jury service is mandatory for all professions within the UK. Even lawyers and police officers now possess the ability to serve on the jury. Still, the negative aspects of jury trials are numerous:
1 - Personal prejudice
Prejudice is probably part of human nature. There cannot be many people who exist who don't hold something in a manner of contempt. Because of this, jurors would naturally translate their personal prejudices into their decision making and possibly could not be trusted to be wholly objective in their reasoning.
Imagine a black person was accused of a crime and a jury trial was arranged for him. Now also imagine if the jury was completely comprised of white people. Wouldn't an awkward situation arise from these circumstances? Granted, not every white person is racist or despises non-whites. Nevertheless, it is possible that individual jurors may hold preconceived notions of black people in reference to committing crime. In the UK, black youth often are stereotyped as yobs and petty criminals. Such values could influence their decision making, when attempting to ascertain innocence or guilt.
As libertarians, we would automatically recognise that a black person has an equal right to self-ownership with the rest of humanity. Our hypothetical defendant's self-ownership would clearly be diminished if he was convicted on the basis of petty prejudices and sent to the rape rooms (I mean prison really) as a consequence. Could any principled libertarian really condone these events?
2 - Intelligence and general wisdom/discernment
In England and Wales, there presently isn't an intelligence test one must take prior to serving on the jury. It probably isn't so far-fetched to assume that one's level of intelligence and wisdom is an advantage in determining the innocence or guilt of a defendant. Whilst I type this, I'm reminded of an episode of "The Simpsons" in which Homer Simpson is called to serve on a jury. Would you want a guy who didn't know how many "s's" are in the word "innocent"? But no, comparing the average man to Homer Simpson is overly harsh. OK, yes, not everyone says 'D'oh!' or wolfs down donuts.
In reference to one's self-ownership, again, it's feasible that a less intelligent person could make an error in reasoning, leading to an improper incarceration of a defendant.
3 - Case-hardened judges
It is often stated that judges are too "case-hardened," meaning they are desensitised to the rigours of trying defendants. However, one must realise that judges are often legally trained and in many cases are ex-lawyers. Since they possess legal training, they hold greater scope to ascertain the facts of a case. We know that in a trial, the self-ownership of the defendant is at stake. A judge, who determines innocence and guilt in addition to sentencing, can objectively make head or tail of the case's facts.
Remember that jurors are often lay people with no legal training at all. It is unreasonable to expect them to understand complex legal principles or legal concepts such as actus reus, mens rea, causation, etc. off the cuff. If a judge is proven to be corrupt or faulty in his role, then he can be replaced and sanctioned. A juror, since s/he is not employed by the state, cannot be recalled if their reasoning is erroneous.
4 - Judgement by "your peers"?
The people who coexist with you in your community aren't vetted for their maturity, integrity, rationality or judgement, when called for jury service. Human beings have individual personalities, talents and abilities. We are all unique. Ergo, how are "your peers" in a good position to judge you and determine your self-ownership if their reasoning skills aren't in parity? In reference to my second point, the best and brightest aren't selected for every jury trial.
Of course, in the free society, law courts would compete within the free market. Yes, some court systems may opt for jury trials. Still, jury trials would not be a necessity in the free society.
Judges who determine facts and sentences would prosper if they offer fair sentences and adhere to any legal training they receive. Those who do not would not prosper in the marketplace. Naturally, people wouldn't like to be burdened by unfair verdicts and shoddy "drumhead-like" trials. If court services can properly cater for consumer demands in that regard, then there is no reason why jury trials are necessary.
The DRO (i.e., Dispute Resolution Organisation) model formulated by Stefan Molyneux is an example of how private protection agencies and courts could operate in a free and voluntary society. DROs that offered fair verdicts would gain extra custom over those that didn't. Since DROs would be private concerns, they would exist within a free market, as all other goods and services would.
Points in favour?
Is there any good within jury trials? Can they successfully exist within a libertarian society? Base human nature would not be corrupted within "libertopia." So the negative aspects of jury trials would still be present. Also, in a completely voluntary society, how would one successfully vet those suitable to sit on juries? Maybe DROs could form links in this regard. The same dilemmas, as I've mentioned previously, would remain. DROs would not necessarily contain medical data on their clients or any kind of measure of their intelligence. No DRO would be bound to necessarily gather such information. If a specific DRO were too intrusive in collecting information on its clients, then it may lose custom in the marketplace.
Even as a market anarchist, I'm not a great fan of jury trials. I believe the concept has too many flaws and isn't pragmatic. In the free society, DROs could opt for jury trials if they choose. Nonetheless, I see no reason why criminal trials without juries cannot be successful within the free society.