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Subsidiarity and the Criminal Jury

Subsidiarity and the Criminal Jury The institution of trial-by-jury is a puzzle in the modern criminal justice system. It has dubious merits as a mechanism for applying facts to law. If anything, it represents a challenge to the very idea that decision-making should be consistent and transparent. Yet the emphasis on the relative ineffectiveness and inefficiency of the jury as a trier of fact may miss the point. The jury does not function merely as a verdict-generating machine, or as a procedural safeguard for individual defendants. It ensures that the local community, with its customs, norms, and ways of life, is not simply trampled upon by a remote federal legislature. The legitimizing significance of the jury, in other words, arguably lies in its role as a kind of law-finder. With this in mind, we may do better to view it, not principally as a liberal institution, but as a manifestation of the principle of subsidiarity. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Jurisprudence Oxford University Press

Subsidiarity and the Criminal Jury

Plaxton, Michael
American Journal of Jurisprudence , Volume 67 (1): 24 – Apr 21, 2022
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Publisher
Oxford University Press
Copyright
© The Author(s) 2022. Published by Oxford University Press on behalf of University of Notre Dame. All rights reserved. For permissions, please email: journals.permissions@oup.com.
ISSN
0065-8995
eISSN
2049-6494
DOI
10.1093/ajj/auac005
Publisher site
See Article on Publisher Site

Abstract

The institution of trial-by-jury is a puzzle in the modern criminal justice system. It has dubious merits as a mechanism for applying facts to law. If anything, it represents a challenge to the very idea that decision-making should be consistent and transparent. Yet the emphasis on the relative ineffectiveness and inefficiency of the jury as a trier of fact may miss the point. The jury does not function merely as a verdict-generating machine, or as a procedural safeguard for individual defendants. It ensures that the local community, with its customs, norms, and ways of life, is not simply trampled upon by a remote federal legislature. The legitimizing significance of the jury, in other words, arguably lies in its role as a kind of law-finder. With this in mind, we may do better to view it, not principally as a liberal institution, but as a manifestation of the principle of subsidiarity.

Journal

American Journal of Jurisprudence – Oxford University Press

Published: Apr 21, 2022

Keywords: Criminal Law; Juries; Subsidiarity

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