Special Workshop Abstracts

Special Workshop Title:	Law and Social Theory
Author:	Thom Brooks, University of Sheffield
Paper Title:	In Defence of Jury Equity
Abstract:	Recently, the right to trial by jury has come under increasing threat by a number of judges and academics who favour curtailing the use of juries. One major problem for critics of jury trials is jury equity, i.e. when juries decide cases differently on occasion than professional judges would have done. Critics argue that when this happens, juries are effectively rewriting the law, something neither juries nor judges should do. What justifies the right of juries to refuse to adjudicate according to laws that might appear unjustified to them? This paper defends the notion of jury equity, arguing that critics who claim both judges and juries should always apply the relevant case law without reservation misunderstand the judiciary’s role, which is to determine the applicability of law. For example, consider the relationship between a national legislature and a local government. We might attempt to plot this relationship on a linear scale: on one side is the national legislature whose laws have universal scope; on the other side is the local government which can only legislate for a particular locality at the discretion of the national legislature. Both legislative bodies have the ability to legislate. The difference is that the scope of one is far wider than that of the other. Judicial courts might be thought of similarly. On one end of the scale might lie the constitutional courts; on the other criminal courts such as those that employ juries. Both judicial bodies have the ability to adjudicate. For instance, constitutional courts do not have the power to make new laws nor even to enforce laws. On the contrary, they only have the power to declare whether or not certain legislation ought to be recognised (i.e., constitutional). In this manner, the judiciary acts as a check on the executive and legislative branches by prescribing their scope of power. Constitutional courts have the ability to nullify or uphold universally any law. Juries have similar powers, but with much less scope. As a judicial body, the jury’s power extends to its particular jurisdiction only. For juries, this jurisdiction is the particular trial which confronts them. If we were to argue that juries lack a right to determine the applicability of laws limited to their particular cases, this bottom tier of the judiciary would lack the ability to function as a part of the judiciary. Indeed, we have no likewise expectations with other branches: we accept the right of local government to make laws limited in scope and local police to enforce law and order in their communities. Thus, juries in no instance can be said to usurp power from the legislature. Juries can only do what all judicial bodies are entitled to perform: determine the applicability of the law. The difference between the constitutional court and the jury is that the former determines the law’s applicability in all cases and the jury determines applicability in the particular case they have been selected for. It therefore makes a great deal of sense to see that the decisions of juries carry no precedent—as their powers to adjudicate are limited to a single case—whereas higher court decisions carry greater precedent, as their powers have wider scope.