(This post is a reproduction of a message included in the "From the Arendt Center Blog" section of our Amor Mundi newsletter dated 2/15/15.)
We are pleased to announce that Michiel Bot, one of our post-doctoral fellows, has received the Witteveen Memorial Fellowship in Law and Humanities at Tilburg University for the summer of 2015! Congratulations, Michiel!
More information about the fellowship can be found here.
Thursday, April 7, 2011: “Revenge and the Art of Justice”
Roger Berkowitz - Associate Professor of Political Studies and Human Rights; Academic Director, Hannah Arendt Center for Politics and the Humanities, Bard College.
Roger Berkowitz gave a talk at Haverford College in April 2011. Focusing in on the conceptual relationship between revenge and justice, Berkowitz begins his talk with the story of the Massie trial, a 1932 criminal case which drew national attention. Thomas Massie’s wife was gang-raped by five men who were released by a hung jury in a Hawaiian court. After the trial, Massie conspired with his mother-in-law to kidnap and torture one of the rapists, who died during his violent interrogation. Clarence Darrow himself traveled to Hawaii to defend Massie from the subsequent charges brought against him. Darrow, in the course of his defense, makes two claims about revenge: first, though illegal, it can be just; and second, it is sourced in our animal nature and as such is a fundamental part of human life itself.
**This post was originally published on June 11th, 2012**
"The alternative to forgiveness, but by no means its opposite, is punishment, and both have in common that they attempt to put an end to something that without interference could go on endlessly. It is therefore quite significant, a structural element in the realm of human affairs, that men are unable to forgive what they cannot punish and that they are unable to punish what has turned out to be unforgivable."
-- Hannah Arendt, The Human Condition
George Zimmerman returned to jail in 2012 two days after his bond was revoked for intentionally deceiving the court about his financial situation. The speed and promptness of this re-incarceration stands in marked contrast to the six weeks that passed between Zimmerman's lethal shooting of Trayvon Martin and his arrest and arraignment on charges of second-degree murder.
HannahArendt.net, an online peer reviewed journal has issued a call for papers for their upcoming 'Justice and Law' edition being released in August of this year.
With this topic we wish to participate in current debates insofar as they deal with the juridification of politics as a form of depoliticizing socio-political problems and/or to identify phenomena of dehumanization and exclusion, where the dual nature of justice and law is overlooked.
Francis Fukuyama has a new essay up on “The Decay of American Political Institutions.” Fukuyama begins with a basic point that is undeniable, and is artfully made manifest in George Packer’s National Book Award Winning The Unwinding: “Many political institutions in the United States are decaying.” There are many reasons for that failure. But in Fukuyama’s analysis, two reasons stands out: First, the American penchant for addressing political problems through law, and second, the legalized corruption of interest groups. What unites these two culprits in Fukuyama’s grand synthesis is that both are born out of what he sees as a fundamentally American distrust of government.
Distrust of government means, Fukuyama writes, that American politics has elevated the judiciary to a position of power unlike other democracies. And this has led our political institutions to decay.
The decay in the quality of American government has to do directly with the American penchant for a state of “courts and parties”, which has returned to center stage in the past fifty years. The courts and legislature have increasingly usurped many of the proper functions of the executive, making the operation of the government as a whole both incoherent and inefficient. The steadily increasing judicialization of functions that in other developed democracies are handled by administrative bureaucracies has led to an explosion of costly litigation, slow decision-making and highly inconsistent enforcement of laws. The courts, instead of being constraints on government, have become alternative instruments for the expansion of government. Ironically, out of a fear of empowering “big government”, the United States has ended up with a government that is very large, but that is actually less accountable because it is largely in the hands of unelected courts.
Fukuyama knows bureaucracy can be problematic—the rule of nobody, in Arendt’s formulation—but at least bureaucrat rule is rule. In his telling, the problem is that U.S. has developed a huge bureaucracy that we don’t trust and thus limit through lawsuits, injunctions, and constitutional challenges. So we have the worst of both worlds, a large unelected and anonymous bureaucracy that is itself disempowered and neutered by an even more powerful unelected and anonymous judiciary.
Because there is “too much law,” the bureaucracy doesn’t work. What is more, the combined power of an anonymous bureaucracy and an anonymous judiciary has led to our present crisis of representative democracy, one in which Americans of all political persuasions feel that government is a foreign occupying power that is unanswerable to them. This leads in turn to a distrust of all government, a cynicism that “further reduces the quality and effectiveness of government by reducing bureaucratic autonomy.”
The fact that Americans distrust government means that they place increasing judicial and legislative roadblocks in front of governmental decisions. There is the famous multiplication of agencies and competing authorities, which offers multiple points for influence by lobbyists. As long as so many different agencies have the power to veto or slow down governmental action, government is stymied. “The longstanding distrust of the state that has always characterized American politics had led to an unbalanced form of government that undermines the prospects of necessary collective action. It has led to vetocracy.” Lobbyists thus have an outsized power to capture authorities and disproportionately impact legislation, which furthers cynicism about government. These problems are deeply ingrained in American values and in our Constitution, which makes them unsolvable. Which is the depressing note upon which Fukuyama ends his essay:
Americans regard their Constitution as a quasi-religious document. Persuading them to rethink its most basic tenets short of an outright system collapse is highly unlikely. So we have a problem.
What is striking is how Fukuyama is unable to find resources in the American Constitutional system that might reinvigorate our political institutions. It is as if the American distrust of government means that American democracy is unsalvageable. At times of partisanship, it will lead to Civil War or sclerosis. There is no alternative.
It is a mistake—although one commonly made—to understand the U.S. Constitution as one dominated by a mistrust of governmental power and thus marked by institutions designed to limit governmental power. The genius of the American Constitution, as Hannah Arendt argues, is not the limitation of power, but the multiplication of powers. More important than the three branches of the Federal government in Arendt’s account is the preservation of multiple levels of federal, state, county, city, and village power. The Congress’ power was limited not simply by the President and the Judiciary, but by the states and local authorities. The grant of powers to Congress was limited and expansion of national power was to be constrained by the power of local institutions.
What Arendt saw in a way Fukuyama ignores is that Americans don’t distrust power so much as they distrust the concentration and centralization of power. It his been quintessentially American for citizens to engage in government, especially local government, and to take active part in public debates about political questions. From their arrival in the New World, Americans formed councils, engaged in public affairs, and empowered democratic institutions. The federalist elements of the Constitution provide ample support for vibrant democratic and local institutions.
Beyond the judicializaiton of politics and the rise of a corruption by lobbyists, another cause of the present decay of American politics is the increasingly national approach to government and the hollowing out of local institutions. There are many other causes for the increasing concentration of power and the loss of local institutional power, but there are plenty of resources for reinvigorating local self-governmental institutions in the American political tradition and in the Constitution itself. Yes, “we have a problem.” But there are always ways forward.
Francis Fukuyama’s analysis of our current political decay is powerful and important. It is your weekend read.
“Having said this, I must deal immediately and at some length with the question of violence.”
“Sometimes ‘violence is the only way of ensuring a hearing for moderation.’”
—Hannah Arendt citing Conor Cruise O’Brien, On Violence
Nelson Mandela gave one of the great speeches of 20th century at his trial before the South African Supreme Court in Pretoria in 1964. Mandela’s speech is best remembered for the ringing conclusion in which he articulates the ideals of free and democratic life as that “ideal for which I am prepared to die.” Six months after Martin Luther King Jr. delivered his “I have a dream speech” from the Mall in Washington, DC, Mandela ended his own speech before being sentenced to life imprisonment with these words:
During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.
Mandela died yesterday and he will be rightly remembered for both his vision and his courage.
I want to focus on another aspect of his legacy, however, the question of violence. Often forgotten by those who quote only the final paragraph of Mandela’s speech, much of his speech is an exploration of the need for and proper revolutionary use of violence. Indeed, after a brief introduction in which Mandela reminds the Court that he holds a bachelor’s degree, that he is a lawyer, and that he was raised to revere his tribal forebears who fought in defense of their fatherland, he comes to the question of violence. “Having said this,” he says, “I must deal immediately and at some length with the question of violence.”
What follows is one of the most thoughtful and subtle reflections on the strategic and moral complications of violence we have. It is worth citing at length, and even this summary barely does Mandela justice. But here is Mandela’s argument for a limited campaign of violence in response to the violence of the South African state:
I do not, however, deny that I planned sabotage. I did not plan it in a spirit of recklessness, nor because I have any love of violence. I planned it as a result of a calm and sober assessment of the political situation that had arisen after many years of tyranny, exploitation, and oppression of my people by the whites.
I admit immediately that I was one of the persons who helped to form Umkhonto we Sizwe, and that I played a prominent role in its affairs until I was arrested in August 1962….
In order to explain these matters properly, I will have to explain what Umkhonto set out to achieve; what methods it prescribed for the achievement of these objects, and why these methods were chosen. I will also have to explain how I became involved in the activities of these organisations.
I deny that Umkhonto was responsible for a number of acts which clearly fell outside the policy of the organisation, and which have been charged in the indictment against us. I do not know what justification there was for these acts, but to demonstrate that they could not have been authorised by Umkhonto, I want to refer briefly to the roots and policy of the organisation.
I have already mentioned that I was one of the persons who helped to form Umkhonto. I, and the others who started the organisation, did so for two reasons. Firstly, we believed that as a result of Government policy, violence by the African people had become inevitable, and that unless responsible leadership was given to canalise and control the feelings of our people, there would be outbreaks of terrorism which would produce an intensity of bitterness and hostility between the various races of this country which is not produced even by war. Secondly, we felt that without violence there would be no way open to the African people to succeed in their struggle against the principle of white supremacy. All lawful modes of expressing opposition to this principle had been closed by legislation, and we were placed in a position in which we had either to accept a permanent state of inferiority, or to defy the government. We chose to defy the law. We first broke the law in a way which avoided any recourse to violence; when this form was legislated against, and then the government resorted to a show of force to crush opposition to its policies, only then did we decide to answer violence with violence.
But the violence which we chose to adopt was not terrorism…..
I must return to June 1961. What were we, the leaders of our people, to do? Were we to give in to the show of force and the implied threat against future action, or were we to fight it and, if so, how?
We had no doubt that we had to continue the fight. Anything else would have been abject surrender. Our problem was not whether to fight, but was how to continue the fight. We of the ANC had always stood for a non-racial democracy, and we shrank from any action which might drive the races further apart than they already were. But the hard facts were that fifty years of non-violence had brought the African people nothing but more and more repressive legislation, and fewer and fewer rights. It may not be easy for this court to understand, but it is a fact that for a long time the people had been talking of violence - of the day when they would fight the white man and win back their country - and we, the leaders of the ANC, had nevertheless always prevailed upon them to avoid violence and to pursue peaceful methods. When some of us discussed this in May and June of 1961, it could not be denied that our policy to achieve a non-racial state by non-violence had achieved nothing, and that our followers were beginning to lose confidence in this policy and were developing disturbing ideas of terrorism.
It must not be forgotten that by this time violence had, in fact, become a feature of the South African political scene. There had been violence in 1957 when the women of Zeerust were ordered to carry passes; there was violence in 1958 with the enforcement of cattle culling in Sekhukhuniland; there was violence in 1959 when the people of Cato Manor protested against pass raids; there was violence in 1960 when the government attempted to impose Bantu authorities in Pondoland. Thirty-nine Africans died in these disturbances. In 1961 there had been riots in Warmbaths, and all this time the Transkei had been a seething mass of unrest. Each disturbance pointed clearly to the inevitable growth among Africans of the belief that violence was the only way out - it showed that a government which uses force to maintain its rule teaches the oppressed to use force to oppose it. Already small groups had arisen in the urban areas and were spontaneously making plans for violent forms of political struggle. There now arose a danger that these groups would adopt terrorism against Africans, as well as whites, if not properly directed. Particularly disturbing was the type of violence engendered in places such as Zeerust, Sekhukhuniland, and Pondoland amongst Africans. It was increasingly taking the form, not of struggle against the government - though this is what prompted it - but of civil strife amongst themselves, conducted in such a way that it could not hope to achieve anything other than a loss of life and bitterness.
At the beginning of June 1961, after a long and anxious assessment of the South African situation, I, and some colleagues, came to the conclusion that as violence in this country was inevitable, it would be unrealistic and wrong for African leaders to continue preaching peace and non-violence at a time when the government met our peaceful demands with force.
This conclusion was not easily arrived at. It was only when all else had failed, when all channels of peaceful protest had been barred to us, that the decision was made to embark on violent forms of political struggle, and to form Umkhonto we Sizwe. We did so not because we desired such a course, but solely because the government had left us with no other choice. In the Manifesto of Umkhonto published on 16 December 1961, which is exhibit AD, we said:
"The time comes in the life of any nation when there remain only two choices - submit or fight. That time has now come to South Africa. We shall not submit and we have no choice but to hit back by all means in our power in defence of our people, our future, and our freedom."
This was our feeling in June of 1961 when we decided to press for a change in the policy of the National Liberation Movement. I can only say that I felt morally obliged to do what I did….
Four forms of violence were possible. There is sabotage, there is, there is terrorism, and there is open revolution. We chose to adopt the first method and to exhaust it before taking any other decision.
In the light of our political background the choice was a logical one. Sabotage did not involve loss of life, and it offered the best hope for future race relations. Bitterness would be kept to a minimum and, if the policy bore fruit, democratic government could become a reality. This is what we felt at the time, and this is what we said in our manifesto (exhibit AD):
"We of Umkhonto we Sizwe have always sought to achieve liberation without bloodshed and civil clash. We hope, even at this late hour, that our first actions will awaken everyone to a realisation of the disastrous situation to which the nationalist policy is leading. We hope that we will bring the government and its supporters to their senses before it is too late, so that both the government and its policies can be changed before matters reach the desperate state of civil war."
The initial plan was based on a careful analysis of the political and economic situation of our country. We believed that South Africa depended to a large extent on foreign capital and foreign trade. We felt that planned destruction of power plants, and interference with rail and telephone communications, would tend to scare away capital from the country, make it more difficult for goods from the industrial areas to reach the seaports on schedule, and would in the long run be a heavy drain on the economic life of the country, thus compelling the voters of the country to reconsider their position.
Attacks on the economic life-lines of the country were to be linked with sabotage on government buildings and other symbols of apartheid. These attacks would serve as a source of inspiration to our people. In addition, they would provide an outlet for those people who were urging the adoption of violent methods and would enable us to give concrete proof to our followers that we had adopted a stronger line and were fighting back against government violence.
In addition, if mass action were successfully organised, and mass reprisals taken, we felt that sympathy for our cause would be roused in other countries, and that greater pressure would be brought to bear on the South African government.
This then was the plan. Umkhonto was to perform sabotage, and strict instructions were given to its members right from the start, that on no account were they to injure or kill people in planning or carrying out operations.
It is strange today to hear politicians of all stripes praising Mandela for his statesmanship when they, for years, condemned his embrace of violence and arrested those in the U.S. who—following Mandela’s own tactics—chained themselves to fences to oppose the U.S. government’s support of the apartheid regime in South Africa. It is true that Mandela lived numerous lives. As a young man, he was part of a royal tribal household. As a young adult, he was a lawyer. Later he was a non-violent leader. Still later, he turned to limited and rationalized use of violence. For 27 years he paid for his crimes in prison and then emerged a statesman, one committed to reconciliation, freedom, and multicultural democracy. Finally, when he stepped down from the Presidency after one term he helped assure South Africa’s democratic future and became an elder statesman in the truest sense of the word.
To understand the complexities of Mandela’s limited turn to sabotage (as opposed to terrorism in his words), it is helpful to consider Hannah Arendt’s essay On Violence, originally published in the New York Review of Books in 1969. Violence, writes Arendt, is at root instrumental. It is a means to an end. And sometimes, violence can yield positive and even moderate results, Arendt claims, citing Conor Cruise O’Brien: “Sometimes ‘violence is the only way of ensuring a hearing for moderation.’”
As did Mandela, Arendt well understood that violence can be a useful and important means in struggles for justice. She points to numerous of examples where violence has worked to promote justice: “France would not have received the most radical bill since Napoleon to change its antiquated education system if the French students had not rioted; if it had not been for the riots of the spring term, no one at Columbia University would have dreamed of accepting reforms; and it is probably quite true that in West Germany the existence of ‘dissenting minorities is not even noticed unless they engage in provocation.’” Violence can, and often does, make injustice visible to a citizenry that is blind to it. Because violence can “serve to dramatize grievances and bring them to public attention,” violence can serve the cause of reform and also of justice.
We must take Arendt and Mandela’s point seriously. Violence is a means to an end. Violence can work. “No doubt, ‘violence pays.’” Violence can yield results.
But Arendt is not an advocate for violence. Violence can pay, she writes, but “the trouble is that it pays indiscriminately.” And this is where the use of violence becomes dangerous.
The danger in using violence as a means is that when “applied to human affairs,” violence as a means has a tendency to overwhelm whatever good ends towards which it aims. Too often, violence will lead those in power to respond with sham reforms designed to end violence. They will seek the path of least resistance, instituting reforms that are often the wrong reforms. Arendt offers the example of the way that the student university protests of the 60s led to new courses in Swahili and “admitting students without the necessary qualifications” instead of real reform of the entire educational system.
What is more, violence—precisely because it is effective—has a tendency to promote more violence in response. If violence in the name of justice doesn’t achieve its ends quickly, the likely result is not justice, but more violence: “The practice of violence, like all action, changes the world, but the most probable change is to a more violent world.”
To read Mandela’s speech from 1964 is to encounter someone who thought through the promise and danger of violence in precisely the rational way that Arendt call for. The question we should ask is whether the turn to violence by the ANC in South Africa—even the limited, rational, and property-oriented violence Mandela embraced—promoted or retarded the cause for reform? Was it the ANC’s violence that led, 30 years later, to the reform of South Africa? Or was it Mandela’s dignity in prison and his emergence as a force for peace and reconciliation? Let’s celebrate Mandela as a hero this week. But let’s also ask: Was he right about violence?
Hannah Arendt considered calling her magnum opus Amor Mundi: Love of the World. Instead, she settled upon The Human Condition. What is most difficult, Arendt writes, is to love the world as it is, with all the evil and suffering in it. And yet she came to do just that. Loving the world means neither uncritical acceptance nor contemptuous rejection. Above all it means the unwavering facing up to and comprehension of that which is.
Every Sunday, The Hannah Arendt Center Amor Mundi Weekly Newsletter will offer our favorite essays and blog posts from around the web. These essays will help you comprehend the world. And learn to love it.
Magnus Carlsen—just 22 years old—beat Viswanathan Anand (the reigning world chess champion) this week at the World Chess Championships in Chennai, India. There has been much excitement about Carlsen’s victory, and not simply because of his youth. As Joe Weisenthal writes, Carlsen’s win signifies the emergence of a new kind of chess. Behind Carlsen’s victories is what is being called his “nettlesomeness.” I encountered the idea in an essay by Joe Weisenthal, who himself quotes Tyler Cowen: “Carlsen is demonstrating one of his most feared qualities, namely his “nettlesomeness,” to use a term coined for this purpose by Ken Regan. Using computer analysis, you can measure which players do the most to cause their opponents to make mistakes. Carlsen has the highest nettlesomeness score by this metric, because his creative moves pressure the other player and open up a lot of room for mistakes. In contrast, a player such as Kramnik plays a high percentage of very accurate moves, and of course he is very strong, but those moves are in some way calmer and they are less likely to induce mistakes in response.” Read more about nettlesome chess and humanity on the Arendt Center Blog.
Lincoln Caplan has an excellent essay on Judge Learned Hand in the NYRB this weekend. Hand was one of the most influential legal minds in the United States. Here is Caplan: “To Hand, law’s role is to help shape common purpose and reflect the will of the people as part of the compact between them and their government. He was a small “d” democrat. Case by case, he saw his job as weighing competing views of the law and its application to the facts and working his way toward the best outcome in the circumstances. His psyche, outlook, and practice aligned to make him a model of a restrained judge…. “The spirit of liberty,” he said, “is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded….””
Matthew Davis, in a piece that's part memoir and part profile, describes his relationship with the Syrian writer Khalid Khalifa, who is, even now, still working from Damascus. Although Davis's description of his time in and eventual deportation from Syria is striking, and his worry for his friend is palpable, in his conclusion he suggests something that is too easily forgotten: life, for Khalid and Damascus both, goes on, even as Syria appears to be crumbling. “Ever since the war began in January 2011, I had little doubt that Khaled Khalifa would remain in Syria, in Damascus, his paradise, to help usher in the new ideas he spoke passionately about in Iowa City. More than two years on, however, I wonder whether this ending will change, too. Khaled’s health is failing; he is depressed; he has been barred from leaving the country. I get none of this from him, only those close to him. From him, I get positive emails, an optimism as much at Khaled’s core as his rotund gut and passion for writing. Khaled’s fourth novel was recently published in Cairo. I’ve also heard that Qasabji is still open, Nabil still serving arak and beer, albeit at a higher price.”
Reviews of the movie "Hannah Arendt" have been thinly veiled opportunities to rehash old scores and attach Arendt once more for her reputed sins. That is why David Rieff’s review in The Nation this week is welcome. It offers meaningful praise for the film, with detailed accounts of what Rieff likes, while also offering serious-minded criticisms. From there, Rieff moves on to the question of the controversy itself. Rieff has little love for Arendt or, in the end, “Hannah Arendt.” I may disagree on both accounts, but he is fair-minded. “For entirely understandable and legitimate reasons, both philosophical and (though she almost certainly would have denied it) biographical, Arendt believed that the Shoah was not only the greatest crime in human history (a claim for which an argument can unquestionably be made), but an unprecedented one. The concluding pages of Eichmann in Jerusalem are suffused with her fear that, as she put it, “once a specific crime has appeared for the first time, its reappearance is more likely than its initial emergence could ever have been.” For Arendt, Eichmann was nothing less than a new type of criminal, one who “commits his crimes under circumstances that make it well-nigh impossible for him to know or feel he is doing wrong.” But it is not clear that she was right.”
William Weaver, the esteemed translator of Italian works including novels by Umberto Eco, Alberto Moravia, Eugenio Montale, Oriana Fallaci, Ugo Moretti, Carlo Emilio Gadda, Elsa Morante, Pier Paolo Pasolini and Italo Svevo died this past week. “Bill Weaver,” as he was known on campus, taught at Bard from 1992-2002. I never met Weaver, but he looms large in the world of the Hannah Arendt Center. The Center is housed in what we refer to as the “Mary McCarthy House,” because Arendt’s close friend Mary McCarthy lived there during both her stays teaching at Bard College. But most of my senior colleagues still refer to our dwelling as the “Bill Weaver House,” since Weaver lived there for 10 years and hosted many a dinner party there during his time on campus. As Bard’s President Leon Botstein wrote, “His contribution to the literary and cultural life of the College was extraordinary. It is through him that the College received the endowment that created the Bard Fiction Prize.” You can read his obituary in the New York Times, which quotes from this 2000 interview in The Paris Review. “Some of the hardest things to translate into English from Italian are not great big words, such as you find in Eco, but perfectly simple things, buon giorno for instance,” he said. “How to translate that? We don’t say ‘good day,’ except in Australia. It has to be translated ‘good morning,’ or ‘good evening,’ or ‘good afternoon’ or ‘hello.’ “You have to know not only the time of day the scene is taking place, but also in which part of Italy it’s taking place,” he continued, “because in some places they start saying buona sera — ‘good evening’ — at 1 p.m. The minute they get up from the luncheon table it’s evening for them. So someone could say buona sera, but you can’t translate it as ‘good evening’ because the scene is taking place at 3 p.m. You need to know the language, but, even more, the life of the country.”
The movie "Hannah Arendt" has just been released on DVD and features an extensive insert booklet produced by the Hannah Arendt Center!
Become a member of the Hannah Arendt Center and get your copy in time for the holidays!
Learn more here.
The jury trial is, as Alexis de Tocqueville understood, one essential incubator of American democracy. The jury trial is the only space in which most people will ever be forced to sit in judgment of their fellow citizens and declare them innocent or guilty; or, in a civil trial, to judge whether one party’s wrong requires compensation. The experience of being a juror, Tocqueville saw, inculcates in all citizens the habits of mind of the judge; it “spreads to all classes respect for the thing judged and the idea of right.” Juries, he wrote, are “one of the most efficacious means society can make use of for the education of the people.”
If the experience of sitting in judgment as a juror is a bulwark of our democratic freedoms, we should be worried. As Albert W. Dzur writes, the jury trial, once the “standard way Americans handled criminal cases,” is now largely absent from the legal system. The jury trial “has been supplanted by plea agreements, settlements, summary judgments, and other non-trial forums that are usually more efficient and cost-effective in the short term. In addition to cost and efficiency, justice officials worry about juror competence in the face of scientific and technical evidence and expert testimony, further diminishing the opportunity for everyday people to serve.”
Dzur offers a clear case for the disappearance of the jury trial:
[J]uries in the United States today hear a small fraction of cases. In 2005 the Bureau of Justice Statistics reported that juries heard 4 percent of all alleged criminal offenses brought before federal courts. State courts match this trend. Legal scholars Brian J. Ostrom, Shauna M. Strickland, and Paula L. Hannaford-Agor discovered a 15 percent decline in total criminal jury trials in state courts over the last 30 years, compared with a 10 percent decline in criminal bench trials, in which a judge issues the verdict. They also found a 44 percent decline in civil jury trials compared with a 21 percent decline in civil bench trials.
So what does the retreat of Jury trials signify? For Dzur, the answer is that the jury system is an important part of our justice system because it performs a “constructive moral function,” by which he means that juries “force widespread sobriety about the real world of law and order.” Juries can challenge “official and lay attitudes regarding the law. This sobering quality of juries is particularly needed now.” Here is how Dzur characterizes more fully the “sobering quality of juries”:
A juror treats human beings attentively even while embedded within an institution that privileges rationalized procedures. Not advocates, prosecutors, or judges, jurors are independent of court processes and organizational norms while also being charged with judicial responsibility of the highest order. Their presence helps close the social distance between the parties and the court. The juror, who contributes to what is a political, juridical, and moral decision, becomes attuned to others in a way that triggers responsibility for them. Burns notes how jurors’ “intense encounter with the evidence” helps them engage in self-criticism of the “overgeneralized scripts” about crime and criminal offenders they may have brought with them into the courtroom.
In other words, juries are institutional spaces where citizens have the time to attentively consider fundamental moral and legal questions outside of the limelight and sequestered from public opinion, government pressure, and the media circus. Since juries are the institutions where we practice moral judgment, Dzur argues that the loss of juries means that “we are out of practice. Lay citizens no longer have opportunities to play decisive roles in our justice system.”
The recent jury decision in the George Zimmerman case is an example of a jury resisting popular calls for guilt and making a sober judgment that the facts of the case were simply not proven beyond a reasonable doubt. Juries can also resist the government, as might happen if Edward Snowden would return to the United States and put himself on trial before a jury. Such a jury could, and very well might, exonerate Snowden, exercising its fundamental right of jury nullification in the interest of justice. Snowden’s refusal to return is, in some part, a result of the diminished practice of moral judgment reflected in the diminishment of the jury.
Jury judgments are at times surprising and can, in extraordinary cases, go against the letter of the law. But the unpredictability of jury verdicts makes them neither irrational nor thoughtless. They are often intolerant and unfair, but this makes them neither racist nor unjust. Amidst the unquestioned hatred of all discrimination, we have forgotten that discrimination, the art of making relevant distinctions, is actually the root of judging. In our passion for rationality and fairness, we sacrifice judgment, and with judgment, we abandon our sense of justice.
What acts of judgment exemplified by juries offer are an ideal of justice beyond the law. Plato called it the idea of the good. Kant named it the categorical imperative. Arendt thought that judgment appealed to common sense, “that sense which fits us into a community with others.” What all three understood is that if morality and a life lived together with others is to persist, we need judgments that would invoke and actualize that common moral sense, that would keep alive the sense of justice.
For your weekend read, take a look at Dzur’s report on the loss of the juries. Also, you might revisit my own essay on this theme, “Why We Must Judge,” originally published in Democracy: A Journal of Ideas.