Skip to main content
×
×
Home

Justifying the Jury: Reconciling Justice, Equality, and Democracy

  • MELISSA SCHWARTZBERG (a1)
Abstract

The jury is a paradigmatic example of a democratic institution that may be justified strictly on instrumental and epistemic grounds: its ability to yield just outcomes. Yet why should we have confidence in its ability? The jury's reliability derives from the jurors’ status as local experts (hierarchical equality), as well as near-universal eligibility and selection by lot (horizontal equality): This dual egalitarianism is a condition of the jury's epistemic value. Yet ordinary citizens thereby acquire an interest in epistemic respect or recognition of their presumptively equal competence to judge. The instrumental value of the jury and intrinsic (respect-based) value of jury service may thus be reconciled; although trade-offs between just verdicts and respectful treatment are possible, the jury's ability to attain just verdicts may be improved by reforms generated by concerns about respectful treatment of jurors. This framework sheds light on the justification of democratic institutions more generally.

Copyright
Corresponding author
Melissa Schwartzberg is the Silver Professor of Politics, New York University, 19 W. 4th Street, 2nd Floor, New York, New York 10012 (ms268@nyu.edu).
Footnotes
Hide All

I am grateful for the financial support and educational opportunities provided by the Andrew W. Mellon “New Directions” Fellowship, undertaken at New York University School of Law, and the Laurance S. Rockefeller Visiting Faculty Fellowship at University Center for Human Values at Princeton University. I gratefully acknowledge comments from Kevin Elliott, Jeffrey Lenowitz, Bernard Manin, Ryan Pevnick, Susanna Rinard, Anna Stilz, and Daniel Viehoff and from audiences at the Oxford Political Thought Conference, the Emory University Department of Political Science, Fordham Law School, and the LSR Fellows’ seminar at Princeton. An earlier and different version of this paper, focusing on the civil jury, was presented at Harvard Law School; Washington University in St. Louis; University of California—Berkeley; CUNY Graduate Center; Tulane Law School; the University of Chicago; the Ecole des Hautes Etudes en Sciences Sociales; and the New York University School of Law. I appreciate comments from audiences and discussants that clarified my argument and that led me to abandon that paper's framework in favor of the one adopted here. I am also grateful for the advice of APSR political theory editor Leigh Jenco and the anonymous reviewers.

Footnotes
References
Hide All
Alexander Michelle. 2010. The New Jim Crow. New York: The New Press.
Anderson Elizabeth. 1999. “What Is the Point of Equality?Ethics 109: 287336.
Anderson Elizabeth. 2012. “Epistemic Justice as a Virtue of Social Institutions.” Social Epistemology 26 (2): 163–73.
Arneson Richard. 2004. “Democracy Is Not Intrinsically Just.” In Justice and Democracy, eds. Dowding Keith, Goodin Robert E., and Pateman Carole. Cambridge: Cambridge University Press.
Bates Robert, and Lien Donald. 1985. “A Note on Taxation, Development and Representative Government.” Politics and Society 41 (1): 5370.
Brennan Jason. 2016. Against Democracy. Princeton: Princeton University Press.
Carter Ian. 2011. “Respect and the Basis of Equality.” Ethics 121 (3): 538–71.
Christiano Thomas. 2008. Constitution of Equality. Oxford: Oxford University Press.
Christiano Thomas. 2009. “Debate: Estlund on Democratic Authority.” Journal of Political Philosophy 17 (2): 228–40.
Cohen Joshua. 1986. “An Epistemic Conception of Democracy.” Ethics 97 (2): 638.
Darwall Stephen L. 1977. “Two Kinds of Respect.” Ethics 88 (1): 3649.
Dewey John. 1991. The Later Works: 1925–1953, vol. 11. Carbondale, IL: Southern Illinois University Press.
Donovan James M. 2010. Juries and the Transformation of Criminal Justice in France in the Nineteenth and Twentieth Centuries. Chapel Hill: University of North Carolina Press.
Elster Jon. 1986. “The Market and the Forum: Three Varieties of Political Theory.” In Foundations of Social Choice Theory, eds. Elster Jon and Hyllund Aanund. New York: Cambridge University Press.
Engel Steven A. 2000. “The Public's Vicinage Right: A Constitutional Argument.” 75 N.Y.U.L. Rev. 6, 1658–719.
Estlund David. 2008. Democratic Authority. Princeton: Princeton University Press.
Fricker Miranda. 2007. Epistemic Injustice: Power and the Ethics of Knowing. Oxford: Oxford University Press.
Fricker Miranda. 2013. “Epistemic Justice as a Condition of Political Freedom?Synthese 190 (7): 1317–32.
Gowder Paul. 2016. Rule of Law in the Real World. New York: Cambridge University Press.
Guerrero Alexander. 2014. “Against Elections: The Lottocratic Alternative.” Philosophy and Public Affairs 42 (2): 135–78.
Hay Douglas. 1988. “The Class Composition of the Palladium of Liberty: Trial Jurors in the Eighteenth Century.” In Twelve Good Men and True, eds. Cockburn J. S. and Green Thomas A.. Princeton: Princeton University Press, 305–57.
Hersch Joni and Kip Viscusi W.. 2004. “Punitive Damages: How Judges and Juries Perform.” Journal of Legal Studies 33 (1) 1–36.
Hirst Derek. 1975. The Representative of the People? Voters and Voting in England under the Early Stuarts. Cambridge: Cambridge University Press.
Kalt Brian. 2003. “The Exclusion of Felons from Jury Service.” American University Law Rev 53: 65–189.
Kuskowski Ada-Maria. 2013. “The Development of Written Custom in England and in France: A Comparative Perspective.” In Law, Justice, and Governance: New Views on Medieval English Constitutionalism, ed. Kaeuper Richard. Leiden: Brill.
Landemore Hélène. 2013. Democratic Reason. Princeton: Princeton University Press.
Langbein John H. 2003. The Origins of Adversary Criminal Trial. New York: Oxford University Press.
Levi Margaret. 1988. Of Rule and Revenue. Berkeley: University of California Press.
Manin Bernard. 1997. Principles of Representative Government. New York: Cambridge University Press.
Masschaele James. 2008. Jury, State, and Society in Medieval England. New York: Palgrave Macmillan.
North Douglass, and Paul Thomas Robert. 1973. The Rise of the Western World: A New Economic History. Cambridge: Cambridge University Press.
Nussbaum Martha. 2009. “The Capabilities of People with Cognitive Disabilities.” Metaphilosophy 40: 34.
Oldham James. 1983. “The Origins of the Special Jury.” The University of Chicago Law Review 50 (1): 137221.
Peter Fabienne. 2008. “Pure Epistemic Proceduralism.” Episteme 5 (1): 3355.
Rawls John. 1971. A Theory of Justice. Cambridge, MA: Harvard University Press.
Raz Joseph. 2001. The Seeley Lectures: Value, Respect, and Attachment. Cambridge: Cambridge University Press.
Satz Debra. 2007. “Equality, Adequacy, and Education for Citizenship.” Ethics 177, 623–48.
Scheffler Samuel. 2010. Equality and Tradition: Questions of Value in Moral and Political Theory. New York: Oxford University Press.
Schlosser Ralf W., Baladin Susan, Hemsley Bronwyn, Iacono Teresa, Probst Paul and von Tetzchner Stephen. 2014. “Facilitated Communication and Authorship: A Systematic Review.” Augmentative and Alternative Communication 30 (4): 359–68.
Schwartzberg Melissa. 2014. Counting the Many: The Origins and Limits of Supermajority Rule. New York: Cambridge University Press.
Schwartzberg Melissa. 2015. “Epistemic Democracy and Its Challenges.” Annual Review of Political Science 18: 187203.
Sen Amartya. 1999. “Democracy as a Universal Value.” Journal of Democracy 10 (3): 317.
Stasavage David. 2011. States of Credit: Size, Power, and the Development of European Polities. Princeton: Princeton University Press.
Stone Peter. 2011. Luck of the Draw. Oxford: Oxford University Press.
Strayer Joseph R., and Taylor Charles H.. 1939. Studies in Early French Taxation. Cambridge, Mass.: Harvard University Press.
Waldron Jeremy. 1999. Law and Disagreement. Oxford: Oxford University Press.
Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

American Political Science Review
  • ISSN: 0003-0554
  • EISSN: 1537-5943
  • URL: /core/journals/american-political-science-review
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 47
Total number of PDF views: 62 *
Loading metrics...

Abstract views

Total abstract views: 534 *
Loading metrics...

* Views captured on Cambridge Core between 6th February 2018 - 19th February 2018. This data will be updated every 24 hours.