Acprof 9780199874095 Chapter 5

Democracy in the Court
Punishment, Participatory Democracy, and the

Jury
Albert W. Dzur
Print publication date: 2012

Print ISBN-13: 9780199874095
Published to Oxford Scholarship Online: September 2012
DOI: 10.1093/acprof:oso/9780199874095.001.0001

Lay Contributions to Justice
Albert W. Dzur
DOI:10.1093/acprof:oso/9780199874095.003.0005
Abstract and Keywords

As demonstrated in the previous chapter, a core strand of political thought
emphasizes citizen attentiveness and attachment to the law as stabilizing and
legitimating forces. To develop these points in the contemporary criminal justice
context, this chapter draws on Duff’s normative theory of the trial, which shows
meaningful punishment to require attentiveness and attachment in the form of
moral deliberation, emotional connection, and communication. Closely related is
the critique of professional distance between courts, victims, offenders, and
communities offered by Braithwaite, Christie, and other restorative justice
proponents who seek informal participation to reconnect to communities. The
jury, underutilized today and overlooked by restorative justice advocates, is a
tool for fostering public moral deliberation inside and outside the courtroom.
This chapter makes clear, however, that the co-creation of justice and co-
responsibility for punishment fostered by the jury as a force of rational
disorganization are different from the politicized courtroom imagined by
nullification proponents. The participatory democratic courtroom advocated
here may foster ambivalence but not distrust regarding officials and it demands
attention to individual cases and attachment to real human beings, not ideology.
Keywords: Braithwaite, Christie, communication, courts, Duff, jury nullification, offenders, public
deliberation, restorative justice, victims
The power of judging, so terrible among men, is to be attached neither to a

certain state nor to a certain profession.
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—Montesquieu
Love of the Laws

It takes time to understand why classical republican thinkers like Montesquieu
held as a self-evident axiom that virtue is more necessary in participatory
regimes, that it is disastrous to increase the numbers of those participating and
increase the scope of collective decisions in the absence of high levels of core
moral character traits in the general population. The principle, or guiding force,
of a republic, according to Montesquieu, is political virtue: “love of the laws and
the homeland. This love, requiring a continuous preference of the public interest
over one’s own, produces all the individual virtues; they are only that
preference. This love is singularly connected with democracies. In them alone,
government is entrusted to each citizen.”1 This theme of the higher moral
standards and expectations of citizenship is amplified in Rousseau, who noted
that democracy required “many things difficult to combine” such as “great
simplicity of morals to preclude excessive business and thorny discussions; next,
much equality of ranks and fortunes, without which equality of rights and
authority could not long subsist: Finally, little or no luxury.”2 Jefferson, touting
agrarian virtues, is squarely within this line of thinking when he claimed that the
regular American citizenry of small-holding farmers are (p.86) interested in
law and order and therefore “may safely and advantageously reserve to
themselves a wholesome control over their public affairs, and a degree of
freedom,” which would be dangerous in less virtuous and less egalitarian
Europe.3
These higher standards can strike contemporary eyes as a bias against

democracy, a backhanded compliment of the sort Madison offered in Federalist
papers 10 and 51 when, echoing Rousseau, he implied that democracy was a
government for angels and not men, for people with heavenly self-restraint and
public-spiritedness. Why should standards and expectations have to increase
exactly for democracy to be a good form of government—as opposed to, say, in a
monarchy? The traditional answer has to do with the social foundations of
defensive power: courage in defending the state against internal and foreign
usurpers. While the monarch can encourage through the inducements of honor
and the despot through fear, in a republic it is the sense of shared ownership of
the commonwealth that motivates valor. Jefferson eloquently and passionately
conveyed this defensive power of co-ownership thus:
Where every man is a sharer in the direction of his ward-republic, or of

some of the higher ones, and feels that he is a participator in the
government of affairs, not merely at an election one day in the year, but
every day; when there shall not be a man in the State who will not be a
member of some one of its councils, great or small, he will let the heart be
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torn out of his body sooner than his power be wrested from him by a
Caesar or a Bonaparte.4
If, however, citizens in a republic are shut out of its operations, if they begin to
see the state as someone else’s, as not really theirs, they will not be as ready to
lay down their lives to protect it. Each citizen of a republic therefore bears a
tangible responsibility for voting, deciding, and acting with regard to the public
good. The triumph of selfish coalitions and factions weakens the generalized
commitment of citizens to the state and thus imperils everyone’s security.
What appears as a prejudice against democracy is, rather, the recognition that
lawmaking, law executing, and the law itself are crucial social bonds in a
republic. This binding is attenuated once a people, loving other things, becomes
careless—cool and merely respectful—about the law and unconcerned about its
potential to favor, overburden, and thus divide. Virtue in a participatory regime
is thus, literally, love of the laws.
This concept of a civic sensitivity to the law’s vulnerability to private bias is

reworked in contemporary political thought, which is concerned (p.87) with
legitimacy, not security. The ultimate source of legitimacy is the people acting as
a collective, but law must be right as well as popular; it must be the product of a
process or a population attuned to issues of justice and equipped with rational
powers and moral discernment. If the law is only popular and not right, a
republic becomes a triumph of one faction over another. Because citizens are
lawgivers as well as law abiders, they have a special obligation in a republic to
be vigilant to the possibility that their laws are unfairly burdening some over
others, that their laws are exclusionary or discriminatory. The cost of a lack of
vigilance is the lack of legitimacy for those unfairly burdened, discriminated
against, and excluded, not to mention those materially unaffected but morally
disgusted. These are the moral dimensions of popular sovereignty: accepting a
civic responsibility for the law of the land.
If, as many of the leading lights in American political thought have held
following the path of classical republicans, the legitimacy of the state derives
from both popular consent and right, then the forums in which populism meets
moral reflection are crucial indeed. Tocqueville was correct to suggest that the
jury performs a critical political function in American democracy, not simply as
an adjudicatory institution, but as a transformative public forum for citizens to
develop their sense of justice and civic awareness. As we have seen, however, he
was mistaken to assume this forum was dependent upon a hierarchical mode of
legal professionalism. The jury makes the majority’s law right, in his view, by
taking direction from judges who have a superior sense of justice. In contrast, I
have been arguing that in a democratic republic the citizens themselves make
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the law right: Political virtue, the love of the laws, must be a widespread passion,
beating not just in the hearts of the official magistracy.
This chapter examines how this process works at the ground level of the
criminal trial. It explores the view of the jury as a place for multivalent
communicative reason directed to fact finding and law application, but also to
increased responsibility: greater understanding and ownership of the law and its
effects for jurors, defendants, and court professionals. Can the jury trial be a
place where citizens own up to the law, become responsible for the law as their
law, stand up for what is right in it and object to what is not? My view is that the
criminal trial has to be just such a forum to be legitimate and to fully accomplish
its raison d’être.
To address these questions I consider two theoretical accounts of the criminal

trial that argue for its role as a forum for public moral deliberation. At a time of
such casual punitiveness in America and elsewhere it is easy to forget that
incarceration delivers specific amounts of pain to people (p.88) tried and
convicted of serious offenses. Antony Duff and Nils Christie insist that for
criminal justice to be legitimate the deliberative potential of the trial must be
increased, providing necessary meaning that punishment would otherwise lack.
Both thinkers are highly critical of deliberative deficits in modern, overly
professionalized proceedings; like many in the restorative justice movement,
they are concerned about the way that formal rules, abstract concepts, rigid
roles, and restrictions on the participation of victims and offenders in trials
diminish the normative potential of the trial. Out of this critique come
expectations for criminal trials that point to the increased relevance of lay
participation through the jury.
Criminal Trials as Sites of Moral Dialogue

Trials are rational procedures in that their ideal product, like a good argument,
is a reasonable verdict regarding a given offender: guilty or innocent of the
charges brought forward.5 The formal rules governing the admissibility and
introduction of evidence, the protocol to follow in questioning witnesses, the
instructions for the jury on standards of proof, and other norms of due process
that have evolved over time are indeed rights held by citizens not to have their
liberty encroached upon, but they also construct a communicative process of
reason giving culminating in a justifiable outcome.6 Even the adversarial system
ideally serves to make sure that the strongest possible case is brought against a
defendant and assessed against the strongest possible set of counterarguments.
One central insight of Antony Duff’s work is that criminal trials must also serve
as places of moral deliberation. Duff offers a powerful argument against
mainstream approaches in criminal justice, the utilitarian, consequentialist
account that justifies the pain delivered to convicted offenders inasmuch as it
protects potential future victims of crime by providing a deterrent threat, and
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the retributivist paradigm that justifies penal harms because they right wrongs
and even the score with offenders. One paradigm looks to future harms while
the other demands recompense for the past. Both express valid human reactions
to theft, physical assault, murder, and other offenses that require that attention
be paid to the status of the victim as well as to the condition of public safety. The
victim of a crime should feel that the balance has been righted and citizens
should feel that crime is under control; these are well-established purposes of
criminal justice.
Yet neither conventional view incorporates the offender fully in the process of
moral deliberation. As a co-owner of the civic world he has (p.89) made worse
off, he must be reminded of his duties to others in a way that is not fully
expressed in these conventional views. Duff rightly insists that punishment is
acceptable only as a form of communication with an offender meant to confront
him as one who has acted as a noncitizen, as one who has harmed or failed to
show concern for a fellow citizen, and to reorient him to communal norms and
the obligations of co-ownership. Absent this kind of communication, a criminal
trial simply reinforces his thoughtless, alien worldview. From the victim’s
perspective, of what value is a criminal trial and penalty that simply doles out an
established measure of penalty with no acknowledgment that the offender has
had a chance to truly contemplate the harm caused to another person? From the
society’s perspective, of what long-term value is a criminal trial and penalty that
seeks mere compliance to the law and not coresponsibility for it?
The kind of communication Duff advocates can be understood in comparison

with expressivist and moral education theories of punishment, which also
emphasize communication. As Joel Feinberg states, punishment for expressivists
is “a conventional device for the expression of attitudes of resentment and
indignation, and of judgments of disapproval and reprobation.”7 Unlike merely
regulatory infractions, zoning violations, and parking tickets, criminal charges
that trigger punishment convey public moral judgments about actions that are
not merely unacceptable but immoral and shameful. Expressivism, however,
appears oblivious to whether and how the receiver of the communication is
making use of the information. It is also unconcerned with counterinformation,
or ideas that could call into question the morality or rationality of community
norms.
The moral education theory, by contrast, proposes that punishment do more than
communicate communal reprobation, but must seek to instruct an offender
about the wrongfulness of her conduct. What is critical, writes Jean Hampton, is
that the criminal justice process be conducted in such a way as “to benefit the
person who will experience it, a way of helping him to gain moral knowledge if
he chooses to listen,” and any punishment that emerges should be “done for him,
not to him.”8 This is a form of teaching, not conditioning, and is meant to
“provide us with moral reasons for our choosing not to perform these actions”
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that should be accepted by rational moral agents.9 The criminal trial sends
moral messages intended to educate offenders and the larger community in the
moral meaning of the actions in question.10
Both expressivism and moral education theories mistakenly presume that the
community and the state know significantly more than the offender about what
is right and what is wrong. In both theories the offender (p.90) is placed in the
position of mere receiver of information and moral lessons rather than one who
must have an equal chance to participate in the communication. This asymmetry
clashes with the overarching impulse of treating the offender as an equal
member of an ongoing self-governing collective.
Duff is clear that the criminal trial must treat the offender as a fellow citizen by
being communicative in a two-way sense and being quite literally a forum of
moral deliberation. A criminal trial should seek to fix blame but also to
incorporate the offender into this process to remind as much as penalize, to
remind the offender of the values the law embodies that he also shares, to regain
his assistance in defending the polity from lawbreaking:
The criminal law and the criminal trial are, like moral criticism,
communicative enterprises which seek the assent and the participation of
those whom they address: the law seeks the allegiance of the citizen as a
rational moral agent, by appealing to the relevant moral reasons which
justify its demands; the trial seeks to engage the defendant in a rational
dialogue about the justice of the charge which she faces, and to persuade
her—if that charge is proved against her—to accept and make her own the
condemnation which her conviction expresses. Laws and trials respect the
citizen as an autonomous agent: they aim to guide her conduct by offering
her relevant reasons for action.11
Because the “central and essential purpose” of the criminal trial is to engage “an
alleged offender in a critical examination of his conduct, and of expressing and
justifying to him and to others an appropriate judgment on that conduct,” the
“structure and procedures of a trial” must be adequately dialogical and
contemplative to “assist and be consistent with this communicative and
justificatory purpose.”12
As a forum for communication and moral deliberation, the trial must be

conducted in such a way that the offender can come to a heightened awareness
of the meaning of the offense. It cannot be purely instrumental: as a platform of
great power to scare an offender into future compliance or as a vehicle of mere
recompense for the victim. Neither vision of the trial shows it to be interested in
seeking the assent and not merely the obedience of the offender.13
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Duff’s account of what makes criminal trials legitimate conveys robust

expectations for their structure and process. Prosecutorial strategies, defense
countermoves, procedural rules, and the esoteric language of the law (p.91)
typically hinder rather than foster “a disinterested attempt to engage the
defendant in a critical examination of his conduct” and indeed appear as “an
attempt to coerce the recalcitrant or the unfortunate into conformity with the
beliefs and wishes of those whose sectional interests the law actually serves,
through a procedure in which they cannot be, and are not, seriously expected to
participate.”14 The very language of the law should be but typically is not
“accessible both to the lay participants in the criminal process—defendants,
jurors, and lay magistrates—and to the wider community in whose name the
criminal process is conducted.”15 In all these ways mainstream trials fail to live
up to standards of legitimacy not once in a while but as a regular feature of
organizational life.
Inclusion in dialogue and full expectation of participation in the process of blame

fixing are central parts of a legitimate trial.
Insofar as a trial does not aim to establish and communicate a justified

judgment on the defendant’s conduct, in the light of laws which have a
justified claim on her allegiance; insofar as she finds her trial, and the laws
on which it depends, unintelligible or alien, and not because of any
deficiency in her own attitudes or concerns; insofar as she is not enabled
to understand and participate in her trial: her trial becomes a travesty.16
Exclusion in all the ways normally exhibited by mainstream trials reduces the
meaning and significance of the verdict for all parties. Of what use to the victim,
offender, and society is a process that contributes little to the offender’s
acknowledgment of the offense, his owning up to his offense?17
Even more fundamental for a criminal court is the background legitimacy of the
law as something the defendant recognizes as his. Inclusion and participation
thus must go all the way down, for in the absence of a political community that
treats citizens as co-owners, there can be no rightful expectation that one who
violates the law should feel ashamed and seek to make amends. How can he own
up to violating a law that has not treated him as a co-owner?
Three kinds of exclusion should concern us, Duff argues, because if severe
enough they mute and indeed disqualify the law’s claim to speak as the whole
community’s voice.18 Material exclusion has to do with the denial of fair share of
what John Rawls has called primary goods, such as health care, and equal access
to the basic structures of society. Normative exclusion is when people are
treated as though the core values of the community do not apply to them and do
not convey obligations for them. Linguistic exclusion is when the formal
discourse of the community—the (p.92) language of law and politics—is
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incomprehensible and foreign to them.19 To be rightfully held liable for criminal

punishment, a person must be bound by the laws in question; yet this is not the
case if the agent has been excluded severely enough in any of these ways.20
“Someone who is not bound by the law, because she has been unjustly
disadvantaged and excluded by the polity whose law it is, is not bound to regard
the law as a source of authoritative requirements.”21 A court in a society marked
by exclusionary practices of these kinds that affect a particular offender simply
“lacks the standing to try his case, to call him to account in this way, at all,” Duff
writes. “Those injustices negate an essential precondition of criminal liability by
negating the claim that he is answerable to the political community through its
courts.”22
How to respond to the problem that many people in contemporary America are,
in fact, excluded, sometimes severely, in one or more of the ways discussed, and
many people bear the burdens of the law unfairly? Duff admits that because of
exclusion and disadvantage, current punishment practices lack justification to a
significant degree.23 What is needed therefore is much greater sensitivity in
community practices and government institutions to these kinds of exclusion and
disadvantage, as well as the political will to correct and remedy them.24 Such
attunement and commitment place heavy, but morally necessary burdens on the
individual citizens who make up the political community to radically change
their attitudes and conduct toward each other.25
I think Duff is right both in his analysis of the foundations of legitimacy for
criminal courts and about the necessarily communicative nature of criminal
trials. Yet I want to underscore in a way that he does not do strongly enough that
the high standards he has erected must be seen as perpetually aspirational.26
The interferences that disable moral communication, the exclusionary
tendencies that undermine the general legitimacy of criminal courts are
constant features of complex organizations and modern, indeed, perhaps all
societies. Vivian Gussin Paley, for example, noticed that already in kindergarten
some children are chronically excluded from play groups while more popular
children attract surplus playmates and must apportion time among the most
favored. Her democratic response to this tendency was vigilance and remedial
action; she worked with her class to make and enforce a “you can’t say you can’t
play” rule to shape their playground ethos and told stories about inclusion and
friendship.27
More to our point, this means eternal vigilance and remedial action on the part
of the citizenry to elements of the law as written, decided, and (p.93) executed
that treat fellow citizens as aliens, that unfairly burden some more than others,
that refuse to speak to some in intelligible terms. Inclusion is a matter of
ongoing concern for all citizens. Just how Duff’s expectations for a more
communicative trial and this critical democratic vigilance can be part of the
ongoing institutions and practices of criminal justice is therefore the pressing
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question. In particular, a greater role for laypeople within a more informal

setting would seem to be implications of both Duff’s critique and his ideals.
These elements are undeveloped in his account, but they take prominence,
indeed somewhat too much prominence, in Christie’s.
Reconstructing the Criminal Trial as a Public Thing

One way to be vigilant about injustice and exclusion that disqualify criminal
courts, at least for those so disadvantaged, is to radically alter the structure of
criminal proceedings and to radically challenge dominant conceptions of
criminal justice to purge them of the ways they treat offenders as aliens. If
Duff’s externalist answer to the problem of legitimacy is to resist and remedy
exclusionary practices and injustices outside the system that impact courts, the
minimalist answer of Nils Christie is to dramatically reduce the formal activity of
courts that, as Duff has admitted, can contribute to injustice and exclusion.
Christie compares a typical case in a public, participatory justice system in

Tanzania with one held in a professionalized, nonparticipatory system in
Scandinavia. In the former system, the parties involved are in the center of the
informal courtroom—a “relatively large house in a very small village”—and they
talk often and are “eagerly listened to.”28 Supporters of both parties, such as
relatives and friends, as well as members of the wider community, are present as
part of an audience but they also participate “with short questions, information,
or jokes.” The least active members are the judges, who, writes Christie, “were
obviously ignorant with regard to village matters.” By contrast, the real experts
are the fellow villagers present, who, writes Christie, “were experts on norms as
well as actions,” and “crystallized norms and clarified what had happened
through participation in the procedure.”29
The structure of the professionalized, nonparticipatory courtroom is the opposite

of this: “What is striking in nearly all the Scandinavian cases is the greyness, the
dullness, and the lack of any important audience. Courts are not central
elements in the daily life of our citizens, but peripheral.”30 (p.94) Courtrooms
are often part of administrative complexes far from the pathways of ordinary
citizens. The parties involved do very little participating; it is their
representatives and the judges who participate in the trial. These professionals
have, in Christie’s words, “stolen” the conflict between offender and victim that
brought them to trial and have made what is inherently a set of public issues a
series of routine professional decisions set apart from the ongoing cultural life of
the society.
In Christie’s view, the typical court process in Europe has led to a number of
negative consequences. The victim has no opportunity to communicate the real
meaning of harm in his own words to the offender since he is represented by
professionals who translate the harm into the sometimes incomprehensible legal
language that makes the most strategic sense in the context of the trial. He has
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also no opportunity to comprehend why the offense occurred, to understand

something about why the offender did what he did. The victim is left with
whatever stereotypes of criminals he brought into the trial.31 As for the offender,
he has lost an opportunity for giving reasons for the actions and for explaining
himself to the victim, thus missing a chance at achieving a degree of
forgiveness.32
The biggest negative consequence is for society, according to Christie, as

professionalism stunts community dialogue:
But the big loser is us—to the extent that society is us. This loss is first and
foremost a loss in opportunities for norm-clarification. It is a loss of
pedagogical possibilities. It is a loss of opportunities for a continuous
discussion of what represents the law of the land. How wrong was the
thief, how right was the victim? Lawyers are … trained into agreement on
what is relevant in a case. But that means a trained incapacity in letting
the parties decide what they think is relevant. It means that it is difficult to
stage what we might call a political debate in the court. When the victim is
small and the offender big—in size or power—how blameworthy then is the
crime? And what about the opposite case, the small thief and the big
house-owner? If the offender is well educated, ought he then to suffer
more, or maybe less, for his sins? … There is no end to it. And maybe there
ought to be none … Maybe decisions on relevance and on the weight of
what is found relevant ought to be taken away from legal scholars, the
chief ideologists of crime control systems, and brought back for free
decisions in the court-rooms.33
Society at large is the biggest loser in professionalized, nonparticipatory justice

because such a system prevents self-correction, prevents citizens from
recognizing and owning up to the extremely difficult moral judgments (p.95)
made every day in court, to the discretionary decisions made by police and
prosecutors prior to trial, and, most fundamentally of all, to the social patterns
and cultural understandings that make something a crime deserving punishment
and something else a minor fault or lapse in judgment deserving scolding.
The contemporary criminal court is the product of forces of separation that veil
modern, urban and suburban citizens from each other and indeed prevent them
from seeing each other, practically speaking, as full citizens. Even neighbors or
coworkers know very little about each other apart from the bare roles they play.
“We function each day, as migrants moving between sets of people which do not
need to have any link,” writes Christie.34 This depersonalization of our collective
life means we have limited information about others and therefore less ability to
understand their actions and settle the conflicts that crop up.
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These forces of separation lead us to turn to specialists to understand ourselves

and the state to fix our social problems. The division of labor inherent in
professional specialization makes what could be a collective decision something
for those with the proper training such as lawyers and criminologists. Social
separation and professionalization work together synergistically to help create
crimes that are discharged out of sight and out of mind. The modern criminal
court was made for crime. By contrast, consider how an offense is perceived
where social integration, not separation is present and where much rather than
little information is available. A child we know well has taken some money from
a purse while her family is visiting our house. We do not call this action a crime
and the child a juvenile offender because, as Christie notes, it does not feel
right. “We know the child from myriads of other situations. We know her usual
generosity, we know her care of siblings, her joys and sorrows. A label from
criminal law just would not stick; there is no space left on her forehead where
such a stigma might be branded.”35
Unlike Duff, who sees criminal trials as illegitimate for those offenders who have
been excluded from the basic structures of society but otherwise acceptable for
those treated as full citizens albeit under trial circumstances that permit
disinterested, rational, and normative communication, Christie is concerned that
criminal trials are part of an inherently exclusionary way of thinking about
harmful acts and therefore cannot be sanitized in the way Duff suggests. Duff’s
ideal trial is one where the communal norms are clear and nonexclusionary and
are communicated, received, and acknowledged by the offender. But Christie
recognizes that communal norms are always evolving and must always be
applied with some degree of self-reflectiveness. (p.96) For him the moral
deliberation of the trial must be marked by robust and inclusive dialogue even
under the best social circumstances.
Christie advocates what could be called a community court, which, along with
determining the facts of a case, would provide a forum for communication
between victim and offender, build and restore ties between individuals,
decrease the social distance that allows far too much to count as crime, and
above all increase the authority of laypeople to settle conflicts on their own.
Christie’s lay-oriented court is a domain of equals where parties represent
themselves. No judge is necessary if a solution is forthcoming, but if a judge is
required he or she should be an equal as well.36
After establishing along traditional lines that a law has been broken by the
defendant, the lay-oriented court would bring the details of the harm to the
victim to light and identify what, if anything, the offender might do to
compensate for the harm. Could a car thief devote time in service to the victim—
car washing or gardening, for example—in compensation for the time lost
because of the theft?37 This stage of communication, inquiry, and creative
thinking regarding restitution would ideally take time to be fully deliberative.38
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Only afterward would such a court consider if punishment was something

needed to supplement the restitution.39 In its final stage this community court
would seek to conclude its dealings with an offender in a reintegrative spirit:
Consider the information brought forward during the proceedings about the
offender’s situation to see if there were unmet needs—for education or health
care—that might be addressed.
Such a court attempts to uphold the most crucial norms of traditional,

professionalized justice, such as protections of the procedural rights of the
accused. Christie concedes that it may be necessary to admit lawyers into the
blame-fixing first stage of the community court. Yet he advocates a steadfastly
lay-oriented court: no court professionals, at least after the first stage, and real
lay judges; a system of rotation in which no person could participate as a
facilitator repeatedly unless all others in the community had taken part.40
A common criticism Christie invites is that such a court would no longer be a

criminal court, since by converting crime to conflicts Christie has transformed it
into a civil court. Yet, the criticism goes, there are some conflicts such as rape
and murder in which the community has a stake, where it would be bizarre to
say the victim (or victim’s family) should seek to foster a relationship with an
offender. Surely rape and murder are public and not merely private harms for
which the community and state bear responsibility to prosecute and punish.
(p.97) This criticism is off-target. Though Christie himself notes that his ideal
criminal court combines both civil and criminal court attributes, with a stress on
the civil dimension, I think a better way to construe his goal is that criminal
courts must be more civic, not more civil. In fact, Christie’s ideal court has much
in common with Jefferson’s conception of legitimate government as participatory
democracy, with every stage adding representatives and officials as an additional
step away from legitimacy. Rape and murder are indeed public offenses and not
merely civil conflicts. Read in a participatory democratic light, Christie is asking
the public to be continuously more attentive to what we call a crime and how we
respond to it. It is a public matter to attend more perspicaciously to the moral
elements of offense, policing, prosecution, punishment, reintegration: to all
dimensions of criminal justice. Lay members of community courts are amateurs,
but because of this they are more able to be morally attentive to the offense, the
offender, and the victim. Christie is not saying that the moral burdens of an
offense are to be removed from a deprofessionalized court; he is insisting they
be shouldered squarely by citizens themselves.
The Jury and Communication inside and outside the Court

Christie and Duff have offered persuasive reasons for courts to be more
inclusive, communicative, deliberative, participatory, and public. Though neither
discusses the role of juries in much detail, these have traditionally been the tools
available to courts to achieve such goals. Renewed institutional prominence for
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the jury may be more practical than the sweeping reforms suggested by these
two theorists: the major egalitarian socioeconomic changes urged by Duff and
the full-bore reconstruction of criminal justice into a community court system
favored by Christie. Much diminished in the contemporary courtroom, the jury
trial has institutional roots that can be reactivated and nurtured. As I have
stressed, it is a traditional institution with a participatory democratic core, thus
capable of drawing support from normally antagonistic political currents on the
Left and Right in reform circles in the United States and elsewhere.
Jurors do more than symbolize the value of inclusion; they help create an
environment that, while formal and professional, is also informal and lay
oriented. “The decision,” Robert Burns writes, “is placed in the hands not of one
person, but of a group of persons whom the parties have found acceptable and
who represent a cross-section of the community with experiences similar to
those of the parties and whose interests are not implicated (p.98) in the
resolution of the controversy.”41 Not advocates, prosecutors, or judges, jurors
are independent of court process and organizational norms while also being
charged with judicial responsibility of the highest order. They are therefore in a
position to be attuned to exclusionary tendencies in the courtroom in a way
insiders may not be.
Jury trials foster communication because they involve laypeople as decision

makers and not mere spectators. The age-old desideratum of a jury of one’s
peers is sometimes interpreted pluralistically, as a means of formally recognizing
subgroup differences: giving the common people the justice they deserve and
can comprehend.42 A better interpretation, however, and one in keeping with the
theories of criminal justice we have considered here, is to say that a jury of one’s
peers has value because it compels courtroom dialogue to be in the language of
everyday life rather than defaulting to the formal language of professionally
trained lawyers. Though jurors themselves do not engage in spoken dialogue
with the victim and offender, their presence ensures that this dialogue is
conducted using terms, concepts, and narrative forms that all will understand.
Long ago Aristotle considered two epistemic arguments for popular participation
in jury trials. First, the people have an advantage of collective wisdom when they
gather together. While experts must know everything about a given matter to
judge it well, individuals in a group need only bring partial knowledge of all the
different aspects of a case. As long as the group can utilize this division of
cognitive labor and join these perspectival attributes together, the group
functions at the same high level of decision making as the expert. Second,
because of a lived experience with the law that may be different from that of the
lawmakers, the people bring relevant practical reason into their public
judgments—as the sailor’s knowledge of her ship or the homeowner’s knowledge
of his house may differ from the designers and builders of these structures and
Page 13 of 23
yet be apt for any judgment of their performance. The wearer of the shoe, after
all, knows better than the cobbler where it pinches.43
Contemporary jury defenders draw on similar arguments to claim it has superior

deliberative potential because of the epistemic benefits of groups. A group of
twelve individuals can remember more details of evidence presented during trial
than one person would.44 Even in cases involving complex evidence, a group of
twelve including one high school science teacher, or an engineer, for example,
would be better equipped than a judge who avoided such topics in school.45
“Jurors with expertise on a topic,” write Neil Vidmar and Valerie Hans, “often
take a lead role (p.99) when the jury discusses that topic, and errors made by
one juror are frequently corrected by another juror.”46 As for practical
reasoning, members of the jury may well be more street-smart than the judge
and therefore better able to assess some kinds of evidence and to gauge the
credibility of witnesses.47
Moving beyond Aristotle, who was most familiar with the large juries of ancient
Athens, which did not deliberate as a group before casting their verdicts, today’s
advocates point out additional epistemic benefits resulting from the goal of
consensus, which presses jurors to confront each other’s biases and to search
for reasons and arguments that can transform the views of the evidence and
legal narratives one person or group holds into a view all can accept.48
Consensus forces the majority to work through the specific strengths of their
position with those in the minority, sometimes revealing previously unseen
weaknesses in the majority position.49 Nothing like the epistemic power of
dialogue and deliberation can occur when one person is in charge of reaching a
decision.
Jury trials are fundamentally public and participatory in the ways sought by the
theories we have considered. As we have seen, at important historical junctures
they have helped critically attune public reflections on law and order to reform a
justice system. In the face of criminal justice policy that appears mistaken or too
severe, or patterns of judicial behavior that are too rigid, jurors have used their
general verdict powers to both protect defendants and to signal the need for
change. The antebellum juries in the North that acquitted defendants who
assisted fugitive slaves, Prohibition-era juries that acquitted defendants who had
violated liquor laws, and Vietnam-era juries that acquitted draft violators were
all acting as public policymakers, not merely as critics or commentators. “At
times,” James Levine writes, “the jurors in effect become legislators—infusing
their responses to trials with their political beliefs about the proper direction of
public policy.”50 Even as draft laws grew more severe, signaling how the rule of
law should be applied, juries responded with acquittals that reflected a public
that had grown dissatisfied with Vietnam War policy.51 At such junctures, “jurors
judge laws as well as defendants—convicting more frequently when the public
approves of legal norms or the purposes they are serving, and convicting less
Page 14 of 23
frequently when the government policy being supported through the criminal
law is in disrepute.”52 As jurors learn about the law and its effects, they own up
to these and refuse to allow the law to become a professionalized, routinized,
specialized set of techniques that are applied to the social body by the ones who
know.
(p.100) Insiders, Moral Calcification, and the Roles of Outsiders

During a break in a recent criminal jury trial, a local prosecutor commented that
even though court professionals were more knowledgeable about the criminal
law, he believed the jury had the advantage of being less hardened. In his view,
the advantage to having a jury was the fresh perspective jurors brought into the
courtroom, in particular to hold open for perhaps longer than seasoned court
professionals the possibilities of learning something about the offense, the
offender, or the law that might transform a case type into something more
human.
What the prosecutor had in mind was the moral calcification that can occur in
complex organizations marked by formal rules, specialization, and social
distance and pressured by resource and time constraints. G. K. Chesterton, as
we have seen, was thinking of moral calcification when he wrote about courts as
workshops that gradually and naturally calloused the judgment of professionals.
Henry David Thoreau, too, was thinking about moral calcification when he wrote
the stinging lines “law never made men a whit more just; and, by means of their
respect for it, even the well-disposed are daily made the agents of injustice” in
his famous essay on civil disobedience. From the cold perspective of the state,
people are not fully rendered human beings but machines who serve with their
bodies, not with their reason or even their own will. We become the army, “the
militia, jailers, constables, posse comitatus,” Thoreau wrote.53 Those officials
who do serve the state with their reason and will are pressed by organizational
imperatives to substitute the state’s instrumental rationality for their own moral
wisdom: “Most legislators, politicians, lawyers, ministers, and office-holders …
serve the state chiefly with their heads; and, as they rarely make any moral
distinctions, they are as likely to serve the devil, without intending it, as God.”54
Thoreau was under no illusion that the American state would be purged of
immorality were it to end legal protection of slavery. The instrumental rationality
he pointed to was a mark of modern political organization, which, by its very
nature, rendered impossible the Montesquieuan standard of republican virtue:
to love the laws. James C. Scott has called the moral blindness of formal
rationality the problem of seeing like a state.55 Far from loving the law, Thoreau
believed that one could not even respect the law under modern circumstances.
The only way to reform, he suggested, was to resist, to refuse to add your body
and will and reason to the organization so that it would become one person
Page 15 of 23
weaker. Taken to the extreme, the dispiriting implication is that only the law of
the self is worth loving.
(p.101) One strand of sociological research on courts supports Thoreau’s

cynicism, drawing a picture of court insiders and regulars who share a common
interest in moving cases forward expeditiously, and whose ability to function
within the organization would actually be compromised by taking the kind of
moral interest in particular cases I have been advocating. Some call the
adversarial system a confidence game in which courthouse regulars dupe clients
into thinking they are their advocates while really serving the needs of the
organization that allows their careers to flourish. “It is the rational, impersonal
elements involving economies of time, labor, expense and a superior
commitment of the defense counsel to these rationalistic values of maximum
production of court organization that prevail, in his relationship with a client”
writes Abraham Blumberg.56 “Accused persons come and go in the court system
schema, but the structure and its occupational incumbents remain to carry on
their respective career, occupational and organizational enterprises.”57 This is
no conspiracy, only a natural, albeit dysfunctional, response to the limited
number of court personnel and other resources relative to the number of cases
most courts must process. If the ongoing relationships of court professionals as
insiders at sea together on a leaky boat can trump their commitment to
established legal norms of due process, then the prospect of achieving higher-
order moral discourse between victim, offender, and community may be limited
indeed.
The criminal court appears in the law and society literature as part of a larger
administration of justice complex in which “routine, stereotyped procedures are
essential” to handle the numbers of cases, as Herbert Packer colorfully
describes it, “an assembly-line conveyor belt down which moves an endless
stream of cases, never stopping, carrying the cases to workers who stand at
fixed stations and who perform on each case as it comes by the same small but
essential operation that brings it one step closer to being a finished product.”58
The finished product is hardly the achievement of a communicative moment or
social realization of shared norms, but a speedy determination.
Though mass production is an imperfect description of what is sometimes an

open-ended process with little centralization and hierarchy, it does capture what
many courtroom observers have noted for some time. Legal historians point out
that “hasty, routine, assembly-line justice” had become common practice by the
early twentieth century, as most trials took place as “quick and dirty affairs,
without lawyers and without much of the trappings of due process.”59
The moral calcification that permits the triumph of instrumental over

communicative rationality is the product not simply of the court being part of the
state, as Thoreau might have it, but the result of a number of factors (p.102)
Page 16 of 23
commonplace to law and society research about the courts: routinization,

complexity, relationships between insiders that trump close consideration of the
needs of outsiders, shared interests in saving time and resources among
insiders, and practices such as plea bargaining that reflect both these interests
as well as the concern for substantive values of due process.60 Though some
argue that such factors afflict courts more than legislatures, thus making
legislatures both more democratically legitimate and more capable of
substantive moral deliberation, in fact most of these problems impact legislative
bodies as well.61
By empowering outsiders, the jury trial injects a decalcifying antidote into the
circulatory system of modern criminal justice. Pressing courthouse regulars to
translate their language and share their ideas and experiences with lay citizens,
forcing significant interaction between professionals and laypeople, the jury
renders transparent the complicated norms, rules, and procedures best
understood in practice. The court is thus kept inside rather than outside the
public, and the laws upheld there are made less distant from both the citizens on
trial and those seated in judgment.62
To assert they increase inclusion, communication, deliberation, and public

participation is not to say that jury trials are more politicized or moralized than
bench trials. The jury does not deliberate politically, in that it does not judge a
case prospectively and in terms that it decides for itself—such as what is best or
most useful for the group. Though appropriate for political assemblies, this
would be a travesty in a juridical body. Nor does it deliberate morally, in that it
does not simply apply the values of jurors to assess the character of the
defendant. The jury’s role is not to reproduce the kind of deliberation done in
the legislature or in one individual’s conscience, but to engage “in highly
contextual moral evaluation,” as Burns puts it, “a kind of factfinding enormously
more serious than the clichés of mass political discourse and a kind of evaluation
continuous with the moral world, not the implicit norms of public and private
bureaucracies.”63 To see this I will conclude this chapter by distinguishing my
account from a defense of jury nullification.
Neither Schoolhouse nor Soapbox: Norms of Participatory Justice

A resilient tradition of American political thought holds the jury to be precisely
the body meant to resist the moral calcification of court professionals like judges
and prosecutors and to promote the ends of substantive (p.103) justice even
when these violate the formal legal rules laid down in the courtroom. Proponents
of jury nullification claim the jury has the power to disregard the judge’s
instructions on what law they should apply to the facts and should acquit
defendants, under specific circumstances when justice demands this, even if
evidence presented during trial proves the defendant broke the law in question.
The power exists by default because juries render a general verdict of guilty or
not guilty without being required to explain their reasoning, because they
Page 17 of 23
cannot be punished for their decisions, and because defendants cannot be tried
twice for the same offense. Whether juries are ever right to exercise their
nullifying power, however, is a more difficult issue. Pointing to the colonial juries
that refused to convict Peter Zenger in 1734 for libel against the colonial
governor and John Hancock in 1768 for violating British customs regulations,
the antebellum juries that refused to convict violators of the fugitive slave law,
the Prohibition-era juries that refused to convict liquor law violators, the
Vietnam-era juries that refused to convict antiwar protestors and draft evaders,
proponents of nullification argue that the practice has been a subterranean part
of American adjudication for centuries.64
The major justification for nullification is, as Roscoe Pound put it, to correct the
administration of law so that overly rigid laws are applied in a more flexible way
that bring them into alignment with community norms.65 Instead of necessarily
weakening the rule of law, scholars like Pound viewed the lawlessness of jury
nullification as a means of both upholding the law in principle and amending it
to better fit a specific case in practice. The jury brings the conscience of the
community into the courtroom and through nullification allows the people to be
the final arbiter of moral culpability.66 As Devlin has remarked more generally
about the British jury: “Trial by jury ensured that Englishmen got the sort of
justice they liked and not the sort of justice that the government or the lawyers
or any body of experts thought was good for them.”67
The goal of nullification proponents is to achieve a fully informed jury, one that
understands its ultimate power to judge a case by its own lights rather than
being steered entirely by the rules laid down by court professionals. Discussed
in more detail in chapter 8, some propose that juries be read some version of the
statement used in Indiana and Maryland, which holds that in all criminal cases
the jury has the right to determine the law as well as the facts.
Nullification is sometimes rejected for the reason that laypeople should not take
the law into their own hands and undermine the rule of law. If we are to be
governed by law and not men, critics argue, jurors must follow (p.104) the
laws as drafted by democratically elected legislators and laid out by publicly
accountable judges. But this criticism rejects summarily the contributions that
the discretionary power of jurors makes to the deliberative potential of the trial.
A better objection to nullification is to say that it is a mistaken conception of
what jurors are doing when they deviate from what the judge believes should be
the verdict. Nullification defenders characterize it as voting one’s conscience, as
a rare event, and as something that prevents injustice. Yet normal, routine legal
judgments also require conscience and flexibility. Not infrequently, for example,
jurors will take anticipated sentences into account and split the difference when
making a verdict.68
Page 18 of 23
Nullification raises the specter of the conscientious objector to the law who has
a fully formed opinion of what is right and wrong that she brings into court as a
juror. The participatory justice account I advocate, by contrast, posits the juror
who, while having sensitivity to the law’s effects on real people outside the court
—what we have alluded to as love of the laws throughout this chapter—also
shows attentiveness, moral attunement, care, and concern while in the court.
Participatory justice would not mean, as nullification advocates seem to endorse,
the idea of pressing preexisting political commitments in an otherwise relatively
unaccountable institution. The role of the jury is not politics by other means. The
civic responsibility I have stressed here and in previous chapters encourages
multiple sensitivities: to the particular case, defendant, law, harm, victim,
context as well as to the wider meaning of the judgment and the punishment.
John Rawls believed that participating in an ongoing association could foster the
growth of a sense of justice. As fellow members act in accordance with
standards of justice, social ties and trust strengthen between them and
emotional responses of anger and guilt emerge when such standards are
violated by others or by oneself. This attachment to group morality evolves from
“fellow feeling” into an interest in being a just person and in “public principles
of justice”: “While every citizen is a friend to some citizens, no citizen is a friend
to all. But their common allegiance to justice provides a unified perspective from
which they can adjudicate their differences.”69 The sense of justice, Rawls
wrote, “gives rise to a willingness to work for (or at least not to oppose) the
setting up of just institutions, and for the reform of existing ones when justice
requires it.”70 If, then, we understand our sense of justice as something that we
develop in public, through our association with others, and something we listen
to and apply in our public work as citizens, we should recognize the jury as a
process for moral development, not a platform for moral outrage.
Notes:
(1) Montesquieu, The Spirit of the Laws, trans. and ed. Anne M. Cohler, Basia
Carolyn Miller, and Harold Samuel Stone (New York: Cambridge University
Press, 1989), 36.
(2) Jean-Jacques Rousseau, Of the Social Contract, in The Social Contract and
Other Later Political Writings, trans. and ed. Victor Gourevitch (New York:
Cambridge University Press, 1997), 91.
(3) Jefferson, Letter to John Adams, October 28, 1813, in Jefferson: Political
Writings, eds. Joyce Appleby and Terrence Ball (New York: Cambridge University
Press, 1999), 190.
(4) Jefferson, Letter to Joseph C. Cabell, February 2, 1816, in Political Writings,

205.
Page 19 of 23
(5) Pollock has claimed that nonlawyers writing about courts mistakenly assume
that the product is the truth about a given offender and offense when it really is
about winning and losing. Frederick Pollock, Essays in the Law (Oxford: Oxford
University Press, 1922), 275. While he is right that the court is no philosophy
seminar, it is nonetheless a place of judgment with many deliberation-fostering
norms and rules.
(6) See Robert P. Burns, A Theory of the Trial (Princeton: Princeton University
Press, 2001).
(7) Joel Feinberg, “The Expressive Function of Punishment,” in Doing and

Deserving: Essays in the Theory of Responsibility (Princeton: Princeton
University Press, 1970), 98.
(8) Jean Hampton, “The Moral Education Theory of Punishment,” Philosophy &
Public Affairs 13 (1984): 214.
(9) Hampton, “Moral Education,” 212.
(10) Hampton, “Moral Education,” 216.
(11) R. A. Duff, Trials and Punishments (Cambridge: Cambridge University Press,

1986), 233.
(12) Duff, Trials and Punishments, 127.
(15) R. A. Duff, Punishment, Communication, and Community (Oxford: Oxford

(17) The themes of open dialogue in search of greater accountability from the
offender, the reduction of anger in the victim, and social support for both from
the community are prominent in restorative justice literature. See chapter 6
below.
(18) Duff, Punishment, Communication, and Community, 60.
Page 20 of 23
(27) Vivian Gussin Paley, You Can’t Say You Can’t Play (Cambridge, MA: Harvard
University Press, 1992).
(28) Nils Christie, “Conflicts as Property,” The British Journal of Criminology 17

(1977): 2.
(29) Nils Christie, “Conflicts as Property,” 2.
(35) Nils Christie, A Suitable Amount of Crime (New York: Routledge, 2004), 6.
(38) Ibid.
(39) Ibid.
(41) Robert P. Burns, The Death of the American Trial (Chicago: University of
Chicago Press, 2009), 27–28.
(42) Hegel writes of the “confidence which the parties feel in the subjectivity of
those who give the verdict,” a confidence “based primarily on the similarity
between them and the parties in respect of their particularity, i.e. their social
position, etc.” For him, the jury is an expression of “the right of self-
consciousness, insisting on its claims and dissatisfied if laymen play no part.”
Philosophy of Right, trans. T. M. Knox (Oxford: Oxford University Press, 1952),
144–145. Patrick Devlin makes a similar claim when he says that trial by jury
Page 21 of 23
provides “the ordinary man the sort of justice he can understand.” Trial by Jury
(London: Methuen, 1966), 25.
(43) See Aristotle’s Politics, Book III, Chapter 11. These arguments do not
indicate that Aristotle endorses democracy, of course. For a fine discussion, see
Jeremy Waldron, “The Wisdom of the Multitude: Some Reflections on Book 3,
Chapter 11 of Aristotle’s Politics,” Political Theory 23 (1995): 563–584.
(44) See, for example, Reid Hastie, Steven D. Penrod, and Nancy Pennington,
Inside the Jury (Cambridge, MA: Harvard University Press, 1983), 236.
(45) Randolph N. Jonacrit, The American Jury System (New Haven: Yale
(46) Neil Vidmar and Valerie P. Hans, American Juries: The Verdict (New York:
Prometheus Books, 2007), 340.
(47) See Devlin, Trial by Jury, 149, 158–162
(48) After hearing both party’s presentations, Athenian jurors just dropped their
verdict ballots off on their way out of the courtroom.
(49) Jonacrit, American Jury System, 61–63.
(50) James P. Levine, Juries and Politics (Belmont, CA: Wadsworth, 1992), 116.
(51) James P. Levine, “The Legislative Role of Juries,” American Bar Foundation
Research Journal 9 (1984): 627.
(52) Levine, “Legislative Role of Juries,” 633.
(53) Henry David Thoreau, Walden and Civil Disobedience, ed. Perry Miller (New
York: Penguin, 2004), 267.
(54) Thoreau, Walden and Civil Disobedience, 268.
(55) James C. Scott, Seeing Like a State: How Certain Schemes to Improve the
Human Condition Have Failed (New Haven: Yale University Press, 1998).
(56) Abraham S. Blumberg, “The Practice of Law as a Confidence Game:

Organizational Cooptation of a Profession,” Law & Society Review 1 (1967): 23.
(57) Blumberg, “The Practice of Law as a Confidence Game,” 20.
(58) Herbert L. Packer, The Limits of the Criminal Sanction (Stanford: Stanford
(59) Lawrence M. Friedman, Crime and Punishment in American History (New

York: Basic Books, 1993), 391.
Page 22 of 23
(60) Malcolm Feeley, The Process Is the Punishment: Handling Cases in a Lower
Criminal Court (New York: Russell Sage Foundation, 1979).
(61) For a critique of judicial power focusing on the limits of judges’ legalistic
reasoning and their inability to fully take up the moral questions at play in many
legal disputes, see Jeremy Waldron, “Judges as Moral Reasoners,” International
Journal of Constitutional Law 7 (2009): 2–24, and Waldron, “The Core of the
Case against Judicial Review,” The Yale Law Journal 115 (2006): 1345–1406.
Because he is mostly concerned with judicial review, but perhaps also because of
the scarcity of jury trials today, Waldron does not mention the jury or consider
how it improves both the democratic legitimacy of the courtroom and the moral
reasoning capabilities available there.
(62) As noted in chapter 4, Tocqueville wrote that the American jury “gives a
great outward strength to justice, it prevents the magistracy from becoming a
body outside the people and gives it immense and almost always useful power in
political questions.” Journey to America, ed. J. P. Mayer, trans. George Lawrence
(New Haven: Yale University Press, 1960), 297.
(63) Robert P. Burns, “The History and Theory of the American Jury,” California
Law Review 83 (1995): 1490.
(64) See Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine (Durham:
Carolina Academic Press, 1998).
(65) Roscoe Pound, “Law in Books and Law in Action,” American Law Review 44
(1910): 12. A related argument is that nullification checks prosecutorial power
when legislatures, for purely political reasons, “intentionally and pervasively
enact overbroad statutes that criminalize conduct that neither the public nor the
legislature believes merits punishment.” Richard H. McAdams, “Jury
Nullification Checks Prosecutorial Power,” in Criminal Law Conversations, eds.
Paul H. Robinson, Stephen P. Garvey, and Kimberly Kessler Ferzan (New York:
Oxford University Press, 2009), 551.
(66) Alan Scheflin and Jon Van Dyke, “Jury Nullification: The Contours of a
Controversy,” Law and Contemporary Problems 43 (1980): 111.
(67) Devlin, Trial by Jury, 159–160.
(68) Levine, Juries and Politics, 93–94.
(69) John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press, 1970), 474.
(70) Ibid.
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Democracy in the Court

Punishment, Participatory Democracy, and the

Print publication date: 2012

Democracy in the Court

Abstract and Keywords

The power of judging, so terrible among men, is to be attached neither to a

Love of the Laws

These higher standards can strike contemporary eyes as a bias against

Where every man is a sharer in the direction of his ward-republic, or of

This concept of a civic sensitivity to the law’s vulnerability to private bias is

To address these questions I consider two theoretical accounts of the criminal

Criminal Trials as Sites of Moral Dialogue

The kind of communication Duff advocates can be understood in comparison

As a forum for communication and moral deliberation, the trial must be

Duff’s account of what makes criminal trials legitimate conveys robust

Inclusion in dialogue and full expectation of participation in the process of blame

Insofar as a trial does not aim to establish and communicate a justified

incomprehensible and foreign to them.19 To be rightfully held liable for criminal

question. In particular, a greater role for laypeople within a more informal

Reconstructing the Criminal Trial as a Public Thing

Christie compares a typical case in a public, participatory justice system in

The structure of the professionalized, nonparticipatory courtroom is the opposite

also no opportunity to comprehend why the offense occurred, to understand

The biggest negative consequence is for society, according to Christie, as

Society at large is the biggest loser in professionalized, nonparticipatory justice

These forces of separation lead us to turn to specialists to understand ourselves

Only afterward would such a court consider if punishment was something

Such a court attempts to uphold the most crucial norms of traditional,

A common criticism Christie invites is that such a court would no longer be a

The Jury and Communication inside and outside the Court

Jury trials foster communication because they involve laypeople as decision

Contemporary jury defenders draw on similar arguments to claim it has superior

(p.100) Insiders, Moral Calcification, and the Roles of Outsiders

(p.101) One strand of sociological research on courts supports Thoreau’s

Though mass production is an imperfect description of what is sometimes an

The moral calcification that permits the triumph of instrumental over

commonplace to law and society research about the courts: routinization,

To assert they increase inclusion, communication, deliberation, and public

Neither Schoolhouse nor Soapbox: Norms of Participatory Justice

(4) Jefferson, Letter to Joseph C. Cabell, February 2, 1816, in Political Writings,

(7) Joel Feinberg, “The Expressive Function of Punishment,” in Doing and

(9) Hampton, “Moral Education,” 212.

(10) Hampton, “Moral Education,” 216.

(11) R. A. Duff, Trials and Punishments (Cambridge: Cambridge University Press,

(12) Duff, Trials and Punishments, 127.

(13) Duff, Trials and Punishments, 144.

(14) Duff, Trials and Punishments, 142.

(15) R. A. Duff, Punishment, Communication, and Community (Oxford: Oxford

(16) Duff, Trials and Punishments, 142.

(18) Duff, Punishment, Communication, and Community, 60.

(19) Duff, Punishment, Communication, and Community, 77.

(20) Duff, Punishment, Communication, and Community, 183.

(21) Duff, Punishment, Communication, and Community, 184.

(22) Duff, Punishment, Communication, and Community, 187.

(23) Duff, Punishment, Communication, and Community, 197.

(24) Duff, Punishment, Communication, and Community, 199.

(25) Duff, Punishment, Communication, and Community, 201.

(26) Duff, Punishment, Communication, and Community, 194.