Jury Duty

ARISTOTLE ASKED, "As a free people, how ought we order our lives together?" The important word here is "ought": politics and the law is a matter of morality, and if we consider morality to be our conformance to the natural moral law, then our opinions on the matter can be either right or wrong, or somewhere in between. The matter of justice, if we believe that justice is a real, objective thing, requires conformance to the truth, and if we think that truth is objective, and potentially knowable, then we have to consider how we can come to the truth. The alternative to this is raw power and force: victory goes to the strong or the fortunate.

I was on jury duty last week. The trial was canceled, so I never got beyond the jury selection process. While downtown for jury duty, I brought my camera, so here are photos of some of the many courthouses in downtown Saint Louis.

It seems that the natural legal system consists of more-or-less established judges who decide conflicts based on long tradition and reason, and it seems that also some form of jury or another is also fairly common in all times and places. Now in small, traditional societies, dispute resolution tends to be done informally, since in all probability everyone in town knows everyone else fairly well, so only major disputes have to be settled in some more formal way. This seems to be the natural situation; however, greed and ambition leads to conquering empires and tyrants, and the law being based merely on force. Often we hope that common sense and a love of the truth will lead the law back to its more natural form.

When there is a conflict between men, and we hope to settle it peacefully, the major question is that of truth: what actually happened? Only if we know the facts of the situation can we then apply the law or custom to help settle the conflict. Many disputes come down to a "he said, she said" situation where individuals in the conflict have their own version of what happened, but we also have physical evidence, witnesses, documents, and such forth that can be used to help determine what actually happened.

The foundation of the American legal system, common law, mainly dates from the late Middle Ages in England, and that is where our particular jury system developed. Our modern jury system is used to help determine the facts of a dispute. The jurors, and not the judge, have to determine if witnesses are telling the truth, or whether or not evidence really proves guilt. A similar jury system developed in ancient Greece. Other legal systems usually place the burden of finding the truth on the judge.

Legal systems go back to the very remotest of antiquity, and often remain in force for ages. Consider, for example, the Law of Moses, still observed by the Jews and even in part by Christian society. In the Orient, the Law of Confucius has been quite durable, and even is finding a modern resurgence in China. Roman Law remained in force in the West for more than a thousand years, and after the fall of the Western Empire, continued to be used in the Byzantine East for another thousand years. Roman Law remains the basis for modern continental European civil law and the Church's canon law. Under this system, judges have the responsibility of finding facts, and sometimes even act as detectives, investigating crime scenes and such.

Even after the fall of the Empire in the West to the barbarian Germans, Roman Law continued to be used in individual communities and by the Church. But the invaders tended to be men of pride and ambition, and their laws were based more on force than on truth, and so the laws of the West quickly became degraded by the whims of the rulers.

The Germanic and Viking invasions brought the Trial by Ordeal. The barbarian kings loved a spectacle and had little use for learning or the truth. In one kind of ordeal, a defendant was bound and thrown into water; if they were innocent, they thought, they would sink, and if guilty they would float. [Note, that is not a typo: if you sink you are innocent.] In another ordeal, a defendant had to pluck a stone from a vat of steaming hot water; if they were successful, they were declared innocent. The justification for this was superstitious, hoping that God would prove guilt or innocence by performing a miracle, and the State forced priests to participate in these trials. Theologians, of course, were appalled by this tempting of God, and there is absolutely no religious justification for this kind of trial. It should be noted that opposition to trials by ordeal was a major motivation for the pursuit of the freedom of the Church from the State. Pope Innocent III eventually was able to condemn the practice. In the religious pluralism that developed after the Reformation, trial by ordeal became popular once again, including with the Puritans in New England.

Pope Innocent III, in rejecting trials by ordeal, instead encouraged the old system of compurgation, which was the forerunner of the modern jury. In this system, a defendant could establish innocence or nonliability by providing a required number of persons (usually 12) who would swear that he was telling the truth. This system, which works quite well in small communities where everyone knows each other, but otherwise has obvious problems, was eventually abolished by the 19^th century.

Trial by Combat was another barbarian innovation. Here, disputes were settled by fighting, with the strongest usually winning. This system was imposed by the nobility, who loved to watch a good battle. Trial by combat was a Germanic innovation, and was repugnant to both the Roman and the Mosaic Law. Trials by Combat were brought to England by the Norman Conquest, although trial by jury became available a century later. The last English trial by battle was in 1583. Commoners had to go through the courts to participate in trials by battle, and the legal system eventually strongly discouraged actual battles: disputants in court were assisted by seconds, or squires, who would negotiate with each other in hopes of averting battle. These squires led to the general English practice of using lawyers in court, and this is why lawyers often use the title Esquire. Trial by combat remained popular among the aristocracy, especially for property disputes. Unlike commoners, the aristocracy did not have to go before the courts, and this eventually led to the practice of dueling, which only fell out of favor by the mid 19^th century.

In our current age, the jury system is showing severe problems. Theoretically, jurors are chosen at random from the pool of registered voters, but the practice of venue-shopping allows a plaintiff to select the best geographic area to bring about a lawsuit. For example, lawsuits against a business can be filed wherever that business operates, so lawyers can select a friendly jurisdiction where victory is assured. The recent innovation of awarding large punitive settlements, far above actual legal damages, has distorted our civil law into a legal extortion racket. The ability of a criminal defendant to get a fair trial by jury is often debated: it can hardly be claimed that a person is typically tried by a jury of his actual peers. Finally, modern legislatures tend to be timid and do not want to create controversial laws: instead, new laws are written vaguely enough to ensure that the final law will be settled in the courts with specifically-targeted lawsuits brought by activists.



Notes on photos: the Civil Courts building is topped by an imitation of King Maussollos's tomb at Halicarnassus, one of the seven wonders of the ancient world. The giant modern federal courts building is a sign of a new trend towards federalizing law; more cases will be tried in federal, and not state courts.