Juries are unrivaled social instruments. During public ceremonies, civilization overcomes its worst problems by self-applications of the Golden Rule. It’s too bad the positive influence of juries has been hedged about by legal constraints, lawyers’ selectivity and ill-advised micro-management. Jury trials would work best if the following principles were applied beforehand.
· Jury selection should be random and irreversible except on humanitarian grounds. There would be no voir dire or challenge except to exclude the insane and felons serving out their terms.
· All evidence would be admissible to juries, including coerced testimony. Any suggestion of unnecessary coercion in evidence gathering would draw disciplinary review on the police in question. Let juries decide what information is prejudicial, whether lawyers have been misleading and which police misdeeds require counter-punishment. In many cases, an verdict of innocence pronounced for a suspect mistreated by the police would authorize a corresponding investigation of the police in question.
· Juries would be responsible for sentencing. Penalties, fines and additional surveillance might be proportional to the number of votes with respect to a Defendant.
o Innocent: Twelve jurors for
o Innocent by Majority: From eleven to seven for
o Retrial with a new Jury: Split Decision
o Guilty by Majority: From eleven to seven against
o Guilty: Twelve against
Just an example; another might be:
o Innocent: Twelve or eleven for (to neutralize the random sadist)
o Innocent by majority: From ten to eight for
o New trial: From seven to five for
o Guilty by majority: From eleven to nine against
o Guilty: Twelve against
Even though ancient Jewish judges used to let a detainee off if he was found guilty by unanimous vote; something to think about. The presumption of innocence should be jurors’ primary inspiration and expectation. Judges would urge it on them as the most promising benchmark of justice.
Jury decisions would be subject to review only if members of the same jury summoned a higher court and another jury based on appeals addressed to them by the condemned, care of the first Court in question. A simple majority of jurors could demand this retrial.
Judges and lawyers would be subject to disciplinary review initiated by the juries they served poorly. This last is very important. Fewer than a dozen Federal Judges have been dismissed for cause under historic standards of discipline.
The future World Court – empowered with decision-making over global issues of mass life and death – should base its decisions and disciplinary reviews on the deliberation of untampered juries. Almost every trial, criminal and civil, should go before a jury.
In The Shield of Achilles (Alfred A. Knopf, a division of Random House, New York, 2002), Phillip Bobbit conducts a systematic analysis of international law and its claim to legitimacy. Without going into detail, suffice to say that international law’s latest claim to legitimacy appears to be based on States agreeing to submit to its jurisdiction.
More and more frequently, these States have failed to satisfy their claim to legitimacy by failing to protect their constituent population (national citizens) from terrorism, for example or failing to improve its living standards despite diminishing resources. Due to these failures, the latest incarnation of nation-states is being replaced by market states whose only claim to legitimacy is the unearned profit they may pass on to financial (info) elites. This is Mr. Bobbit’s thesis in a nutshell.
Since his work was published in 2002, these market states have exposed their illegitimacy through various swindles, district gerrymandering, environmental disasters, abuses of disaster capitalism, financial meltdowns and massive transfers of illegitimate wealth upwards (growing exponentially over time, with increasingly ruinous effects on host nations).
Unlike prior regimes, their ascent to power has not yet required an epochal war (unless that of the Western world against the Muslim Ouma). This would last several generations under the aegis of prior regimes, during which various contenders would take sides; win or lose intermittently; and drop out, change sides or be replaced by previously neutral newcomers. It would end with a near-universal peace treaty that would define the new constitutional arrangement and political relationship to be shared by the states involved, more or less in accordance with the wishes of the victors.
This model would pretty much confirm Learner’s thesis: we submit to a Darwinian evolution for more insidious and deadly weapon states.
An outline of Mr. Bobbit’s brilliant analysis would include:
The Treaty of Augsburg (1555) – the Princely State
The Peace of Westphalia (1648) – the Kingly State
The Treaty of
Utrecht (1713) – the
The Congress of Vienna (1815) – the State-Nation
The Treaty of Versailles (1919) – the Nation-State
The Peace of Paris (1991) – the Market State
Almost bloodlessly and practically overnight, the latest variety has confirmed its unfitness to rule. After an unbroken series of failed tests, it has shown itself as ill equipped to go on ruling as the Soviet Communist regime proved to be during its collapse. Failed states cannot justify their own legitimacy, much less that of international law.
So we find ourselves back on square one. Two fundamental questions remain to be answered:
“…If the body of international legal rules cannot uniquely determine the legality of a particular act by the parties it is supposed to govern, how can it be law? And if international law is law, why doesn’t it seem to have any effect?” p. 642.
If the legitimacy of international law cannot be based on that of adherent states since they are undergoing their own form of decomposition and retain none for themselves, what is left? The cleaver for this Gordian knot is trial by randomly selected juries in an adversarial court of law.
In support of their case within the confines of this court, the advocates on each side could call upon any argument, philosophical position, historical treaty, etc., that Mr. Bobbit lists with such diligence. They could use any fact, norm, precedent, agreement, document, contract and myth that would uphold their argument. They could call upon any intellectual point of view, permutation and quibble without limit: all of them equally valid and admissible as long as they were relevant to the case at hand. No philosophical school or administrative criterion could claim dominance over the others; each would prove equally acceptable within this adversarial setting. As in other juried procedures, over-long and elaborate presentations would work against those who presented them, compared to clearer summaries granted a more sympathetic hearing.
None of them would confirm or deny the legitimacy of that ruling. Only the judgment of a duly appointed jury could do so, followed by the judgment of history. If these juries were selected randomly in an honest manner, their decisions and those of history would turn out to be identical, matching the objectivity of their judgment.
In essence, arguments for or against international law between states are equally applicable to civil law between individuals within a state or to criminal law between individuals and the state. After all, a nation-state is a colonial aggregate of individuals with its own history, needs and aspirations, as well as social/cultural equivalents; just like individuals are colonial aggregates of cells with their own … etc. According to our precedents within the state, arguments against international law are void.
Contradictions are even more apparent in the case of international law. This is because, unlike in-state law, there is (as yet) no higher power to call upon for final resolution. Otherwise, the same parameters apply and the best solution for the individual would be the best one for the collective.
The law gains legitimacy when it upholds justice more often than its opposite; preferably, much more often; ideally, always. This said, it does not matter what system of justice is established; what checks and balances it may claim; how philosophically seductive and elegant it may appear to be; or how well educated, well paid or elite in status are its officers.
Claimants, their advocates, state patrons and allies, as well as officials of the court: all of them may be insane, venal, biased, criminal or fascistic militants (for whatever reason), they may pervert justice to fulfill their warped priorities. Psychopaths specialize in this kind of gradual infiltration and eventual takeover.
Mr. Bobbit and the constitutional scholars he invokes have tied themselves in knots trying to create a top-down system of justice so philosophically perfect as to avoid all these liabilities. In short, a black box capable of issuing indisputably pure justice regardless of circumstance and antagonists.
This project is doomed to fail: any weakness not already revealed would be uncovered at some later date and exploited in a process of Darwinian selection until the entire system collapsed from those ill effects.
The solution is not top-down perfection but bottom-up reliability. No better way can be found to avert this abuse than a duly constituted jury of randomly selected peers doing their best to fulfill their naïve sense of justice, preferably guided by a judge deprived of decision-making powers but mandated to provide jurors with the best advice they could ask for. This combination would provide the key to justice, be it during a contractual dispute, the punishment of an individual (both of which tended to result in vendettas and more crime in the absence of such an arrangement), or the settlement of international quarrels (which often flash off in war in the absence of this kind of settlement).
These days, jury empanelment might as well take place in a three-ring circus. Like old-school lion tamers, law school graduates whip down every juror. Court officers “screen acceptable juror candidates” for days on end, even though the courts are less and less forthcoming with swift justice. Anyone coming from a forbidden background (like law enforcement and the military) gets rejected from jury duty. Other causes for dismissal include ethnicity, poverty, firmly held views on crime and punishment or a prior history of police or criminal victimization. None of these causes for dismissal would be relevant on PeaceWorld.
Basically, nowadays, every juror goes on trial before the suspect. It doesn’t matter how often the officers of the court fall over themselves to deny this fact.
A simple test exists for every courtroom procedure. Assuming you were on trial, would you care whether members of your jury were subject to voir dire or not? Think hard, lest justice be disserved.
Currently, that lesson consists in being summoned from one’s home or job for indefinite periods, being grilled on delicate personal matters, rejected over arbitrary legalisms and bullied by supposedly omniscient, deliberately misleading court officials. Many people take great pains to dodge this boring, intrusive and demanding chore. They consider themselves justified to shirk this duty and believe that those who fulfill it are fools.
Weapon managers applaud this perversion of justice. Courts stigmatize responsible citizens as powerless pawns of central authority. In complex, formal ceremonies, perfectly acceptable jurors are stripped of their privacy then branded incompetent and superfluous to the needs of the State.
What a perfect lesson in citizenship!
This is one of the many ways weapon mentality ensures that most citizens become civic autists.
We should make amends.
There is no better protection against political reaction – or its flip side, chaosism – than randomly selected juries. In addition, jury duty is a primary lesson in the sacred school of citizenship. As such, it must never be tampered with, lest we corrupt the entire constitutional system — as we are doing now.
In truth, the duty of juror should be the sacred obligation of every good citizen. "Show up in good faith, do your civic duty and be honored for it." Period.
Any lesser endeavor is a disgrace.
Local jury members might share the same prejudice against a certain kind of defendant or case. This was the original reason for voir dire in cases decided by juries in the United States: to counteract practically universal race prejudice. In those cases, protocols were established to permit a change of venue to avoid local prejudice. These should be reinforced. However, random jury selection would never be compromised for that reason again.
No doubt clever lawyers will corrupt change-of-venue protocols, just as they’ve warped the random selection of juries to achieve a bias that’s been paid for (as in the TV show “Bull”). In that case, new protocols will become necessary. In the meantime, simplicity and elegance above all, please!
The more momentous the court decision, the greater the call for randomly selected juries and the more exactingly their unhampered conclusions should be documented and enforced. Jury trials should remain open to the public yet never become public spectacles.
During civil lawsuits, potential jurors are eliminated from duty if they disclose some understanding of the complaint — job-related, school-learnt or self-taught. Law school graduates eliminate the best-informed jurors from juries. Unqualified jurors with no help from informed insiders must rule on complex issues. They are at the mercy of any distortion court officers may dream up.
Judges worsen this confusion. They refuse to answer juror requests for clarification of the law (which should be their primary responsibility). They reject pertinent evidence as inadmissible. They forbid note taking and other juror initiatives. Finally, they override jury decisions whose outcome disturbs their prickly sense of propriety. This kind of elitist jury tampering would never be unheard-of again.
In addition, when civil litigants agree to settle during a trial, they often drop the original complaint. The participants agree to seal the details of their case in secrecy that no one may review — especially not the public and the press. In these cases, the courts have conspired with litigants to deny significant information from the public. In this way, great social evils get tabled for decades, saving some judicial time but jeopardizing the future safety of innocents. The public must suffer from this denial.
Courts should seek the greatest public good. Any lesser pursuit is license for escalating banditry.
Legal settlement agreements should expose serious problems of corporate malfeasance to public scrutiny. Otherwise, out-of-court settlements should have taken place earlier, before any formal trial. Court intervention should open wide the doors of public transparency. Actually, this suggestion would speed up many civil disputes since most of them would be settled out of court, hermetically and in private, long before they became matters of public transparency.
Ladies and gentlemen of the court, please note. The Law is not intended to deter crime, not to prop up current power structures, not to identify and punish the guilty or any such paranoid nonsense.
Sociologists have come to agree (what a miracle!) that the only thing that legal systems hold in common, when compared to custom and religion, is the imposition of penalties. That is not really the case. The primary function of good law is to liberate the weak from capricious penalties imposed by the strong. Custom and religion have never delivered on that promise, on the contrary.
The weak would protect themselves best by serving the Law as honest jurors and letting this sovereign process protect them.
During every court session, judges should avoid beating their jurors over the head with the obligations of jury duty and penalties for having failed to obey them. Instead, they should refresh their spirit with the support of the Golden Rule: “Do unto him what you would have done unto you. Judge him according to your wish to be judged under the same circumstances.” One of Christianity’s greatest contributions to law and civilization, even though this rule has been broadcast by faiths much older and more varied than juvenile Christianity.
The best body of law would unlock doors both material and behavioral — as in: “We don’t feel the need to lock our doors at night or when we leave home.” Insofar people do not assume such things spontaneously, the Law has failed. No police intervention all by itself, no matter how forceful, can pull us out of this tailspin into chaos.
A mature weapon state is also a state of terror where medieval gates are bolted shut every night, where police and criminal elites are the only ones who carry weapons amidst a citizenry of disarmed peasants as vulnerable and suspicious as they are dangerous and suspect.
The contrary would embody a universal militia virtuously dependable and well-armed, a police force that rarely felt the need for guns, and a criminal element that wouldn’t dare flash them — not our constantly renewed yet centuries-senescent weapon tyranny.
A peace society would replace terror with physical abundance and inexpensive mediation (preferably free of user fees and funded as a relatively affordable branch of law enforcement) of such superior quality, sophistication and user-friendliness that public confidence and personal security reigned supreme.
Randomly selected juries would uphold the Law and secure justice — like no-one and nothing else could. Such a jury-driven system would mature over time, gathering strength and clear-sightedness as it became commonplace.
As demonstrated by current weapon states, juries deliver certain justice more dependably than law school Mandarins; no matter how well trained, overpaid, technically competent and elite in status these Mandarins might seem be. Sovereign juries would work better.
Ladies and gentlemen of the court, please get used to these ideas.