In the June 2018 issue of Current Affairs magazine, Brianna Rennix and Oren Nimni discuss the horrors of the judicial branch of the Western system of government, where professional judges each rule their “tiny fiefdoms and everyone who enters must cater to their whims”.
[A] lot of seemingly “impartial” legal standards—like the famous “what would a reasonable person do” standard—are inherently subjective, so that it’s hard to say what an “impartial” application would even mean. The law is full of attempts to determine what “reasonable” behavior would be in a particular situation. It should shock no one (except lawyers) that people often have wildly divergent views of what “reasonableness” means in any given situation. For courts, the “reasonable person” standard has a disturbing tendency to align with whatever best suits the positions of those in power. Think of all of the police officers whose shootings of unarmed black people have been deemed “reasonable”—and then say you want a judicial system run by “reasonable” or “impartial” judges.
At the end, they consider some alternatives. The first among their “more radical solutions to the judge problem” is “no more judges”:
But how can you have a legal system without judges, you say? Well, in Ancient Athens (immediate chorus of boos) no, hear me out (boos continue) look, I am not proposing ancient Athens as a civilizational ideal, I am just exploring an alternative institutional design (boos increase in volume) IN ANCIENT ATHENS, judges were essentially administrative functionaries, with no real decision-making power. Cases were decided entirely by enormous juries of 201-501 people, who were assigned to cases by random lottery and received a small fee for their services. A simple majority vote, without deliberation, determined the verdict. In the words of legal historian Adriaan Lanni, “the Athenians made a conscious decision to reject the rule of law in most cases, and they did so because they thought giving juries unlimited discretion to reach verdicts based on the particular circumstances of each case was the most just way to resolve disputes.”
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Interesting Yoram, thanks a lot. Three points to make:
(1) Clarification: I wonder about the 200-500 number. Is knowledge of the number uncertain today or was there a rule which determined the number.
Also, for this esteemed community, the matter of “no deliberation” could be debated:
(2) I find deliberation quality depends strongly on the format and rules of deliberation. Modern technology can aid greatly to better deliberation, ensuring structure, unity of argument and iterative deepening root cause analysis.
(3) Even expert witnesses presenting their side of the case, inasfar as they react to each other’s arguments, are a form of deliberation, so maybe we should rephrase into “additional deliberation by jury members”.
As an aside, the sentence about “reject the rule of law” is (hopefully) misleading, it may not help our cause. What we could aim for from such an institution are verdicts “in the full spirit of the law” as opposed to just “the letter of the law”. Interestingly, jury laws in Austria prevent just that as the scope of the jury decision elements is quite limited and does not allow a holistic response.
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Regarding the “rule of law”: the idea that the Athenians “rejected the rule of law” is based on a very distorted view of what “rule of law” means – the same view that Rennix and Nimni rightly pillory.
The Athenians saw the law as meaning what they – the Athenian people – want it to mean. (And indeed, why would it be anything else in a democracy?) That is very different from seeing law as unimportant. If they thought it was unimportant they would not bother with the entire procedure of legislation.
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indeed, all members of a randomly selected court had to take an oath to abide by the law, and only when there was no applicable law seek justice as best they could. Many scholars have argued that in Athens the courts, rather than the Assembly, were sovereign, because the courts could overrule Assembly decisions. Some scholars have even framed the Athenian system as one in which the LAW itself was deemed to be the sovereign.
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Terry:> Some scholars have even framed the Athenian system as one in which the LAW itself was deemed to be the sovereign.
I think that’s only true of 4th century Athens (and it’s a minority of scholars). Aristotle certainly didn’t concur with that view!
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Trial juries in the US, Canada and elsewhere have the power to reject the application of laws. In Canada this famously happened in the cases that were brought against Dr. Henry Morgetaler in the 1970s for providing abortions. Juries refused to convict even though it was clear the abortions were against the law.
This is called jury nullification. It is espoused by the great 19th century legal theorist Lysander Spooner, whose views on this have been discussed on this blog. https://equalitybylot.com/2017/05/18/lysander-spooner-trial-juries-and-legislative-juries/#more-9816
Politicians and judges have put in place steps to prevent jury nullification, such as making it illegal to tell juries they have the right to reject laws, and such as allowing jury packing (that is, excluding jurors who seem likely to exercise their nullification right),
My own view is that judges need to be chosen by jury, not by politicians, nor by popular election. https://dissidentvoice.org/2016/08/why-americas-judges-should-be-chosen-by-citizen-juries/
In addition, I think it highly desirable that split constitutional law decisions of the US Supreme Court be referred to fairly large juries to decide whether the majority opinion of the judges or the minority opinion will prevail. So, for example, instead of the 5 to 4 split decision in Citizens United and in the recent gerrymandering case (last month) being decided by the five judges in the majority, it would go to a jury which would decide whether the court’s majority or minority interpretation of the constitution would prevail. The judges or their chosen advocates would make their respective cases to the jurors, being given equal time to do so (as was the case in an Athenian trial), and then the jurors would decide by majority vote.
This would put a much needed check and balance on the Supremes, with the informed judgement of the people deciding which constitutional interpretation of the justices of the court would prevail when those justices were unable to agree.
This, together with judges being chosen by jury, would bring the 3rd branch (judiciary) into accord with informed rule by the people regarding constitutional law cases.
The jurors would be asked to base their decision on their interpretation of the constitution, not on what they might prefer independently of the constitution. This is of course the same thing that is asked of judges.
I don’t think regular citizens are competent to write constitutional law decisions. But I do think they are competent, in the form of a jury, to decide between the minority and majority opinions of the Supremes in cases such as the two I mentioned. This would I think strike a good balance between judicial expertise and the informed rule of the people with regard to constitutional law.
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See also: “Japan’s New Lay Judge System: Deliberative Democracy in Action?” https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2081&context=facpub
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And here’s a good book on jury nullification: https://www.cato.org/jury-nullification (available for free download)
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*** Simon Threlkeld wrote : « I don’t think regular citizens are competent to write constitutional law decisions. But I do think they are competent, in the form of a jury, to decide between the minority and majority opinions of the Supremes ». Interesting proposal towards an hybrid constitution.
*** But what if there is a majority opinion and various minority opinions ? Does Simon exclude this case ? Preferential vote by a big jury is not a problem, with modern technology. The problem for an hybrid model belongs to political principles. May a jury prefer an opinion proposed by only one Judge among nine ?
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Andre, I concur with your line of thought and my answer is yes.
Yes to a large “judicial jury” choosing by preferential vote or single transferable vote which of several different opinions of the Supremes would be the one to go into effect. Yes to an opinion being put forward by only one of the justices being among the options for the jury to decide on.
The Supreme Court is able to refuse to hear an appeal if less than four of them vote in favor of hearing it. As we cannot, as democrats (with a small d), have that kind of back door disenfranchisement of the people over constitutional law decisions, we need something in place to prevent it. Option 1: if the Supreme Court declines to hear an appeal, then if the judges below had different opinions a judicial jury would decide which of those opinions would go into effect. Option 2: if the Supremes decline, then as long as one of them is in favor of hearing the appeal, the matter goes to a judicial jury which decides by majority vote whether the Supremes will hear the appeal and sets a deadline (also by majority vote) for them to hear it by.
Judicial oligarchs may find it cheeky for ordinary mortals without priest-like robes to be able to set the agenda of the Supreme Court and have the final say when they don’t agree, but in an actual democracy they’d just have to get used to it.
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Simon/Andre
Presumably the Supremes would act as advocates for their view before the judicial jury?
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Yes, they could either advocate their own decision/opinion to the judicial jury, or have someone else do so on their behalf.
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Given that supreme courts deal with highly-politicised constitutional issues it’s vital that the sortition process for a judicial jury should be beyond reproach. The reason that conservative evangelicals voted for Trump is because he promised (and delivered) a conservative majority in the Supreme Court, and many of them would dearly love to overturn Roe v. Wade and other progressive shibboleths. Given that one of the decisions of the Irish Constitutional Convention was to legalise same-sex marriage and remove blasphemy laws, it’s alarming to hear that the “sortition” process actually involved a recruiter phoning up friends of friends to see if they would like to participate in the citizens’ assembly.
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*** About the rule of law in ancient dêmokratia, Keith Sutherland (July 29, 2 :11pm) says that Aristotle « certainly did not concur with that view »
*** Actually, we must consider a fact. When Aristotle and Plato speak about « dêmokratia », sometimes their description is that of the Athenian democracy where they lived, but they can likewise consider the ideal type of democracy, taken from the big number of Greek democracies they knew ; and as they were foes of democracy, this ideal type includes easily what they consider the worst features.
*** Examples from Plato. The lively and very funny description of the democratic anarchy in Rep. VIII, 562-3 seems a satirical sketch of Athenian life. But when the same author in Rep. VIII 557a describes the typical advent of democracy as the result of a bloody class warfare between the rich and the poor, he knows very well it is not a suitable description of the Cleisthenic mutation. Here, the Athenian case is not taken as ideal type.
*** When Aristotle in the Politics describes the democracy in its final/perfect form he does not say that his model is Athens. Because as a foreigner he does not want to attack directly the City where he is guest ? Maybe. But anyway that allows him to describe a model without taking into account some features of contemporary Athens.
*** It allows Aristotle to describe democracy as a regime without any element of « rule of law », without taking into account the institutional devices the 4th century Athenian democracy had established to guarantee the « rule of law », as the graphê paranomôn (illegality proceedings), allowing to crush an illegal decree and to punish its proposer.
*** Aristotle knows the graphê paranomôn, he mentions it about the debate on the legitimacy of slavery (Pol. I 1255a) : the right to make and possess slaves is arraigned by some thinkers who say « that it is monstrous if the person powerful enough to use force, and superior in power, is to have the victim of his force as his slave and subject ». These thinkers, says Aristotle, attack the ordinary customary rule allowing slavery in the name of a higher ethical rule, as in Athens the decree of the assembly may be attacked in the name of the (higher) law. Aristotle knows the graphê paranomôn, but he forgets it when he is describing his ideal type of democracy. He does not want to consider the changes in 4th century Athenian democracy.
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