Melissa Schwartzberg on Democracy, Judgment, and Juries
Melissa Schwartzberg of Columbia recently visited Illinois to present political theory work on juries (working paper). Schwartzberg frames her work using the question “Are juries democratic?” While the paper never truly addresses this question, it does highlight several dimensions by which we might categorize specific insitutions, all of which we would label as juries. This is clearly a work in progress, and my comments are directed towards improving this work.
To start with, it was inevitable I would be (slightly) disappointed by the paper. To me, the most interesting aspect of the American jury system is the use of random selection as a means of constituting the body. The “cradle of democracy”, Athens, used random selection to fill many magisterial posts, as well as large juries, but election dominates as the method for selecting representatives in modern democracies. I was hoping to see a theoretical consideration of why random selection may be justified for juries but not for elections (or a critique of such thinking), but Schwartzberg explicitly sets aside the random selection of juries, focusing on other elements.
While I do not have a problem with focusing this research (there are only so many hours in the day), I find the dismissal symptomatic of a larger difficulty in the paper. Schwartzberg defines three dimensions upon which one could classify a particular institution: situated versus non-situated (i.e. do jurors bring private information (situated) to the court room or are they all blank slates with regard to the case at the start); isolated versus discursive (i.e. do jurors cast their in isolation or discuss among themselves the merits of the case); decision rule, which Schwartzberg limits to majority versus super-majority. Schwartzberg provides interesting historical facts and theoretical implications of the different ends of the three scales, but ultimately I am left wondering why focus on these three? Moreover, if these aspects are allowed to vary, what key elements of a jury remain fixed? What is the core essence of a jury that makes it a jury? Juries vary widely in many more dimensions than the three Schwartzberg lays out (Hans (2008)).
Were I approaching this problem, I might first divide jury characteristics into two domains: who constitutes a jury and how the jury reaches a verdict (defining a jury as a group of decision makers deciding the outcome of a courtroom trial). Schwartzberg’s three dimensions span these two categories. As we can’t reasonably divorce potential jurors from their private information, nor prohibit them from using it, situatedness becomes a question of who. Whether jurors cast votes in isolation and how those votes are tabulated is a question of how. It might make sense to take either who or how as given, but I would like Schwartzberg to better justify selecting these particular three dimensions that span what, in my opinion, is a higher level of categorizing juries.
A more careful consideration of these two domains may also help with my final critique. While Schwartzberg asks if juries are democratic, I cannot find in the paper a definition of what it means for an institution to be democratic. Schwartzberg wishes to engage with proponents of “epistemic democracy,” which I understand to mean the belief that democracy is good because it makes the right decisions more often than other forms of government. But I do not know that we can invert that belief into a definition: is democracy the system of government that makes correct decisions more often than the alternatives? From a theoretical perspective, one could imagine a philosopher king who, through his wisdom, always makes the “correct” decision, but I do not think we would consider this government a democracy. From my perspective, democracy is defined by who rules, the people perhaps channeled through representatives. While probably insufficient from a theoretical perspective, this definition highlights the importance of considering who constitutes juries as a central characteristic.
As I mentioned earlier, this is a work in progress and is already quite well developed. I think addressing my concerns would make from a stronger paper, one which I am interested to read in the near future.
