Last Sunday, March 9, Roger Berkowitz and Walter Russell Mead sat down with SCOTUSblog founder and publisher, Tom Goldstein, as part of the Arendt Center’s “Blogging and the New Public Intellectual” series in New York City. The series engages in ongoing discussion with the nation’s leading bloggers in an attempt to analyze this form of political and cultural writing and its impact on modern society.
As a litigator, Goldstein has argued 31 cases before the Supreme Court, and teaches at Harvard Law School. He and Amy Howe founded the SCOTUSblog in 2002, which covers the Supreme Court and all of its cases in detail. Goldstein related the evolution of the now highly respected and heavily trafficked blog:
There is a lot less traditional press coverage creating the opportunity for more blogging. Just to play out the example, five years into the blog’s history, blogging was still regarded as ‘ehhh.’ By year eight or nine, the press corps was very actively citing us and others as experts in the field. At year twelve, we’re regarded as the competition.
With the success and reputation of the blog, however, has come responsibility. Walter Russell Mead noted that the more people listen to you, the less you can say. Goldstein agreed:
If I say something in the blog about the Supreme Court, a lot of people are going to think of it as true. Maybe they shouldn’t. If they knew me better, they probably wouldn’t. But, if I say, “Someone is going to retire.” or “This case was wrongly decided.” the Supreme Court press corps pays enormous attention to the blog…There is a kind of cadre of readership, an echoing effect out from the blog. Something that gets said on the blog becomes conventional wisdom. And that means that I have to be more careful.
Goldstein also reflected on the way that trolls and those who comment on blogs have made him lose some of his faith in humanity. For many years SCOTUSblog struggled to maintain a communal feeling through comments on blog posts, but they finally abandoned the effort in the face of racist, slanderous, and hateful trolls. As Goldstein said, "What people are willing to say when anonymous is extraordinary.”
Watch video of the discussion here.
Thanks to Josetxu V for sending us this thought on thinking.
"Beginning to think is beginning to be undermined. Society has but little connection with such beginnings. The worm is in man´s heart. That is where it must be sought. One must follow and understand this fatal game that leads from lucidity in the face of existence to flight from light."
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.
The Nobel Laureate J.M. Coetzee has published an open letter on the recent threats to universities and to the humanities in particular. He warns against the idea that the humanities should be thought of as teaching basic literacy or “skills”, in the parlance of recent jargon that dominates committees discussing educational reform. “There is nothing wrong with arguing that a good humanistic education will produce graduates who are critically literate, by some definition of critical literacy. However, the claim that only the full apparatus of a humanistic education can produce critical literacy seems to me hard to sustain, since it is always open to the objection: if critical literacy is just a skill or set of skills, why not just teach the skill itself? Would that not be simpler, and cheaper too?... I believe, you will have to make a stand. You will have to say: we need free enquiry because freedom of thought is good in itself. We need institutions where teachers and students can pursue unconstrained the life of the mind because such institutions are, in ways that are difficult to pin down, good for all of us: good for the individual and good for society.”
Recently, the New Statesman asked several prominent artists and scholars what revolution means to them. Some, like filmmaker Judd Apatow, poet Fatima Bhutto, and cartoonist Molly Crabapple, give long answers. Others keep it short; Chinese artist Ai Weiwei answered, simply "The revolution is a bridge that connects the past and the future. It is necessary, unpredictable and inevitable." The revolutions of the modern era were central to Arendt’s writing and thinking and she held up the American Revolution in particular as the great example of a liberation movement that succeeded in founding a free body politic. It is helpful to recall her own definition of revolution, if there is one: “The modern idea of revolution, inextricably bound up with the notion that the course of history suddenly begins anew, an entirely new story, a story never known or told before, is about to unfold, was unknown prior to the two great revolutions at the end of the eighteenth century…. Crucial, then, to any understanding of revolutions in the modern age is that the idea of freedom and the experience of a new beginning should coincide.”
In an interview about his new book Year Zero: A History of 1945, Ian Buruma describes his ambivalence about heroes: "You need heroes sometimes in periods of crisis. You need them when you’re being occupied by the Nazis and in similar situations. But heroes tend not to be very nice people. They can be. There are of course heroic resistors who do it out of sheer decency but there are a lot of adventurers. To be a hero, especially when it involves violence, means you have to be pretty ruthless. Churchill was a hero but he was absolutely ruthless. The British people were absolutely right to cast him out in 1945. Clement Attlee was the man you needed then just as Churchill was the man you needed instead of Chamberlain and Halifax."
Lee Siegel looks at two new studies arguing that reading fiction promotes empathy. “The results were heartening to every person who has ever found herself, throughout her freshman year of college, passionately quoting to anyone within earshot Kafka’s remark that great literature is “an axe to break the frozen sea inside us.” The subjects who had read literary fiction either reported heightened emotional intelligence or demonstrated, in the various tests administered to them, that their empathy levels had soared beyond their popular- and non-fiction-reading counterparts.” But Siegel wonders whether we should promote literature on the practical ground that it fosters empathy: “Though empathy has become something like the celebrity trait of emotional intelligence, it doesn’t necessarily have anything to do with the sensitivity and gentleness popularly attributed to it. … There is, for example, no more empathetic character in the novel or on the stage than Iago, who is able to detect the slightest fluctuation in Othello’s emotional state. Othello, on the other hand, is a noble and magnanimous creature—if vain and bombastic as well—who is absolutely devoid of the gift of being able to apprehend another’s emotional states. If he were half as empathetic as Iago, he would be able to recognize the jealousy that is consuming his treacherous lieutenant. The entire play is an object lesson in the emotional equipment required to vanquish other people, or to protect yourself from other people’s machinations. But no one—and no study—can say for sure whether the play produces more sympathetic people, or more Iagos.”
November 20, 2013
The Letters Between Hannah Arendt and Alfred Kazin
A Lunchtime Talk with Thomas Wild and Matthius Bormuth
The Hannah Arendt Center
Learn more here.
November 26, 2013
Spaces of “Politics” - Aspects of Transnationality in Arendt's Thinking
A Lunchtime Talk with Stefania Maffeis
The Hannah Arendt Center
Learn more here.
This week on the Blog, Jeff Champlin revisits Bonnie Honig’s classic article on Arendt and Derrida on the question of constitutions. We look again at Roger Berkowitz's essay on Arendt's understanding of the difference between thought and action. Elsewhere, Arendt Center Visiting Scholar Cristiana Grigore appeared on Al Jazeera.
On Thursday and Friday Oct. 3-4, the Hannah Arendt Center will host its 6th Annual International Conference, “Failing Fast: The Educated Citizen in Crisis.”
At a time of blistering technological and cultural change, reformers want schools to prepare students for the future—but which future? And despite the polarizing polemics over curricular change and the learned arguments mounted by the most earnest reformers whatever their politics, we must admit that we have no idea where our increasingly virtual reality will take us next month, let alone in a decade. Which skills and knowledge will be needed? What brain enhancements will be available? Handwringing in the public square over whether children should still be taught cursive is much ado about nothing when, if futurists are correct, we soon may no longer need to learn how to die.
If we can no longer count on the ways of the past to guide us in a brave—or terrifying—new world, education must evolve with it. As such, thinking people must ask themselves how that evolution should be handled, considered, and undertaken.
In “The Crisis in Education," Hannah Arendt writes: "education can play no part in politics, because in politics we always have to deal with those who are already educated.” Arendt worried that when politicians talk about educating voters, they are really seeking unanimity. Political education sounds like indoctrination, which threatens the plurality of opinion at the core of intellectual life and the politics that protects it.
Against politics in its basest form, Arendt saw education as “the point at which we decide whether we love the world enough to assume responsibility for it.” The educator must love the world and believe in it if he is to introduce young people to a world worthy of respect. In this sense, education is conservative—it conserves the world as it has been given. But education is also revolutionary, insofar as teachers must realize that the young people they nurture are newcomers whose fate is to change the world. Arendt argued that teachers must humbly teach what is; in this way they prepare students to transform what is into what might be.
Arendt shares Ralph Waldo Emerson's view that “He only who is able to stand alone is qualified for society.” Emerson’s imperative of self-reliance resonates with Arendt’s imperative to think for oneself. Education, Arendt insists, must risk allowing people their unique and even unpopular viewpoints, eschewing even well intentioned conformism and seeking, instead, to nurture independent minds. Education prepares the youth for politics by bringing them into a common world as courageous, independent, and unique individuals.
In the early years of our republican experiment, the American yeoman farmer participated in Town Hall meetings. Today, few of us have the experience or the desire to govern. Are we suffering an institutional failure to make clear to graduates that participation in governance is a personal responsibility? Or is our withdrawal from politics the conscious result of modern individualism now liberated from the demands of politics by a virtual technological reality? Whatever the cause, elites imagine that the common people are no longer qualified for self-government; and the people increasingly distrust the educated elite that has consistently failed to deliver the dream of a well-managed technocratic welfare state.
In the most literate and technologically advanced society in all history, we have produced citizens who are politically sterile. If it’s true that we learn by doing, most Americans have little experience with politics. With the exception of serving on juries, few engage in civic service. Voting is the only public activity demanded of citizens in our democracy. It takes little effort; and still, few vote. The old ideal of the citizen democracy is in crisis.
“Failing Fast: The Educated Citizen in Crisis” asks how we can re-invigorate the cultural and educational institutions that have nurtured public-spiritedness that is the bedrock virtue of American constitutional democracy. In an increasingly global world, do we need a common public language? Is college education necessary for engaged citizenship? Should politically involved citizens have knowledge of the arts and practical skills like building and fixing things? What, in the 21st century, is an educated citizen?
We invite you to join us for the Conference. You can register here.
If you can’t make it to Bard in person, you can watch the conference via live webcast here.
And to prepare for the conference, here are a series of essays and blog posts from the last 12 months on the topic of education. These essays are your weekend reads.
“Culture is being threatened when all worldly objects and things, produced by the present or the past, are treated as mere functions for the life process of society, as though they are there only to fulfill some need, and for this functionalization it is almost irrelevant whether the needs in question are of a high or a low order.”
--Hannah Arendt, “The Crisis in Culture”
Hannah Arendt defines the cultural as that which gives testimony to the past and in preserving the past helps constitute our common world. A cultural object embodies the human goal of achieving “immortality,” which as Arendt explains in The Human Condition is not the same as eternal life or the biological propagation of the species. Immortality concerns the life of a people and is ultimately political. It refers to the particular type of transcendence afforded by political action. In “The Crisis of Culture,” Arendt shows how culture has a political role insofar as it creates durable and lasting objects that contribute to the immortality of a people.
The danger Arendt confronts in “The Crisis in Culture” is that mass culture makes art disposable and thus threatens the political ability of cultural life to produce lasting and immortal objects. The source of her worry is not an invasion of culture by the low and the base, but a sort of cannibalization of culture by itself. The problem is that mass culture swallows culture and subsumes it under the rubric of need. The immortal is degraded to a biological necessity, to be endlessly consumed and reproduced. Durable cultural objects that constitute a meaningful political world are thereby consumed, eroding the common world that is the place of politics.
Arendt’s point is first that mass culture—like all culture under the sway of society— is too often confused with status, self-fulfillment, or entertainment. In the name of status or entertainment, cultural achievements are stripped down and repackaged as something to be consumed in the life process. She would argue that this happens every time Hamlet is made into a movie or the Iliad is condensed into a children’s edition. By making culture accessible for those who would use it to improve themselves, the mass-culture industry makes it less and less likely that we will ever confront the great works of our past in their most challenging form. Eventually, the watering down of once immortal works can make it difficult or impossible to perceive the importance of culture and cultural education for humanity and our common world.
However, Arendt does not offer simply a banal critique of reality television as fast-food. We might recognize a more insidious form of the risks she describes in the new intellectualism that marks the politics, or anti-politics of the tech milieu. What has been termed Silicon Valley’s anti-intellectualism should instead be understood as a forced colonization of the space potentially inhabited by the public intellectual.
The prophets of the tech world see themselves as fulfilling a social and political duty through enterprise. They unselfconsciously describe their creations as sources of liberation, democracy, and revolution. And yet they eschew politics. Their abnegation of overt political activity is comprehensible in that, for them, ‘politics’ is always already contained in the project of saving the world through technological progress.
We see such exemplars of technological cultural salvation all around us. Scholars and cultural figures are invited to lecture at the “campuses” of Apple and Google, and their ideas get digested into the business model or spit back out in the form of TED talks. Even Burning Man, originally a ‘counter-cultural’ annual desert festival with utopian pretensions, has been sucked into the vortex, such that Stanford Professor Fred Turner could give a powerpoint lecture titled, “Burning Man at Google: A cultural infrastructure for new media production.” The abstract for his article in New Media & Society is even more suggestive: “…this article explores the ways in which Burning Man’s bohemian ethos supports new forms of production emerging in Silicon Valley and especially at Google. It shows how elements of the Burning Man world – including the building of a sociotechnical commons, participation in project-based artistic labor and the fusion of social and professional interaction – help to shape and legitimate the collaborative manufacturing processes driving the growth of Google and other firms.” Turner’s conclusion virtually replicates Arendt’s differentiation between nineteenth century philistinism and the omniphagic nature of mass culture:
In the 19th century, at the height of the industrial era, the celebration of art provided an occasion for the display of wealth. In the 21st century, under conditions of commons-based peer production, it has become an occasion for its [i.e. wealth] creation.
The instrumentalization of culture within polite society has given way to the digestion and reconstitution of culture in the form of gadgets meant to increase convenience. Would-be cultural objects become rungs on the hamster wheel of life’s progress. Progress as the ultimate goal of technological cultural innovation is a vague concept because it is taken for granted due to the self-contained and self-enclosed nature of the industry. Where it is defined, it is demonstrated through examples, such as the implementation of the smart parking meter or the use of cloud networking in order to better administer services to San Francisco’s homeless population.
In a recent New Yorker article on the tech revolutionaries, George Packer writes, “A favorite word in tech circles is ‘frictionless.’ It captures the pleasures of an app so beautifully designed that using it is intuitive, and it evokes a fantasy in which all inefficiencies, annoyances, and grievances have been smoothed out of existence—that is, an apolitical world.” Progress here is the increasingly efficient administration of life.
When tech does leave its insular environment and direct its energies outward, its engagements reflect both its solipsism and focus on utility, which for Arendt go together. The Gates Foundation’s substantial investments in higher education impose the quantitatively verifiable standard of degree completion as the sole or main objective, which seems odd in itself, given Gates’ notoriety as a Harvard drop-out. The efforts of the Foundation aim less at placing Shakespeare in the hands of every fast-food worker, and more towards redirecting all of cultural education toward the development of a cheap version of utilitarian aptitude. Such tech intellectualism will ask, “What is the point of slaving over the so-called classics?” The claim is that the liberal arts vision of university education is inseparable from elitist designs, based on an exclusive definition of what ‘culture’ should be.
“What is the use?” is the wrong question, though, and it is tinged by the solipsistic mentality of a tech elite that dare not speak its name. The tech intellectual presents the culture of Silicon Valley as inherently egalitarian, despite the fact that capital gains in the sector bare a large burden of the blame for this country’s soaring rate of inequality. This false sense of equality fosters a naïve view of political and social issues. It also fuels tech’s hubristic desire to remake the world in its own image: Life is about frictionless success and efficient progress, and these can be realized via the technological fix. “It worked for us, what’s the matter with you?”
For Arendt, culture is not meant to be useful for employment or even the lofty purpose of self-cultivation; our relationship to culture nurtures our ability to make judgments. Kant’s discussion of taste and “common sense” informs her notion of the faculty of judgment in art and politics. In matters of taste, judging rests on the human ability to enlarge one’s mind and think with reference to an “anticipated communication with others” and “potential agreement.” Common sense, as she uses it, “discloses to us the nature of the world insofar as it is a common world.” Culture and politics are linked in that both can only exist in a world that is shared. She writes:
Culture and politics, then, belong together because it is not knowledge or truth which is at stake, but rather judgment and decision, the judicious exchange of opinion about the sphere of public life and the common world, and the decision what manner of action is to be taken, as well as to how it is to look henceforth, what kind of things are to appear in it.
That culture and politics are about enacting judgments, rather than truth or technique for the advancement of biological life, is a point that is clearly missed by the tech intellectuals. The establishment of utility as the sole goal of higher education represents only one section of a general lens through which the world appears only as a series of practical problems to be figured out. In this paradoxical utopia of mass accessibility, insulation, and narrow-mindedness, applied knowledge threatens to occupy and pervert culture at the expense of political action and care for our common world.
The Arendt Center is on vacation this week. We will be back next week. Enjoy one of our more popular weekend reads from the archives.
Earlier this month I attended a lecture by Matthias Lilienthal, the former artistic director of Hebbel am Ufer (HAU). HAU as it is affectionately known in Berlin is an organization with three performance spaces in the Kreuzberg district of Berlin, and is one of the largest, best funded, and risk-taking performance theatre complexes in the world. As one of the most important and innovative avant garde theatre directors, Lilienthal has "created, instigated and nourished many of the most important developments in theatre in recent decades," according to Tom Sellar of Yale who introduced him.
Lilienthal was interviewed after his talk by Gideon Lester, my exciting new colleague who now is director of the theatre program at Bard.
While Lilienthal is an artistic director and has a background in the theatre, he calls himself a "booker" of talent more than an artist or a curator. He is committed to theatre that has social and political impact. His mission is to constantly create friction. Friction means in his telling, "to be polemic against society and be an urban laboratory for the future." That said, Lilienthal insists that he remains an artist, someone who in his words cares most about the aesthetic experience his works bring about.
Lilienthal discussed a number of his past projects to explain what he means by a theatre of friction. One of the most famous and interesting is FOREIGNERS OUT! SCHLINGENSIEF'S CONTAINER, a performance, installation, and movie that he produced in collaboration with the filmmaker Christoph Schlingensief.
FOREIGNERS OUT! premiered in Vienna in the summer of 2000, at a time of great anti-immigrant sentiment in Austria—it was shortly after the xenophobic politician Jörg Haider came to power in Austria. Schlingensief and Lilienthal put two large containers in the public square in front of the Viennese Opera house and filled them with 15 asylum seekers. Above the asylum seekers, the artists hung a sign that read: "Foreigners Out." They then gave the Austrian population the opportunity to vote which foreigner to expel from the country. Over 10,000 Austrians voted every day and the first person sent home was a Nigerian woman.
Lilienthal speaks of a "hysterical longing for reality in today's theatre." Much of his work and the work he "books" mixes reality with theatre. His most famous performance piece, performed all over the world, is "X Wohnungen" or "X Apartments." Artists are asked to create artistic experiences that last up to ten minutes and take place in private apartments or houses. In one example that Lilienthal showed a clip from during his talk, audience members in groups of two are led into apartments of immigrants in Cologne where they are told to kneel in front of doors with keyholes. Through the keyholes they watch a Muslim woman in a burka and hijab strip naked and recline on a couch. They are then interrupted, given tea and told to go out.
Lilienthal explains that "we are playing a private reality, with voyeurism and with exhibitionism." His participatory performance art is "a kind of playful treatment of reality. You are playing with prejudgments against migrants. You are playing with your own voyeurism." The effort is partly to create discussions about Islam, religion, and sexuality. But it above all, in his words, to "to bring together experiences of reality."
Lilienthal was quite critical of the New York art scene, arguing that NYC artists are too commercial and that there is no meaningful artistic forum in the U.S. as there is in Germany. His point is that his HAU stages have, in his telling, become the center of German and European art worlds, presenting all the most interesting and most important artists from around the world under a single umbrella. He lamented the fact that there was no similarly dominant and unifying artistic space in NY or in the U.S. New York, he said provocatively, in the East Village, is a provincial state.
Lester asked Lilienthal what would he have done in NYC had he accepted a job here? He answered, (I am paraphrasing here),"I would have presented art that offers a polemic against society. I would like everyone to know me and then I would have been... perhaps they would kill me after a year."
There is something both noble and anachronistic in Lilienthal's Socratic dream to create art so full of friction and power that he would be killed for it. It is a noble dream because it imagines that art, like philosophy, might still have the power and importance to be seen as a threat to the state or the society. It is anachronistic because art and philosophy have long since lost such centrality.
When I asked Lilienthal about this, his answer was that it was different in Berlin, where the arts are more central and given more public financing and public attention. But I don't accept the argument that the arts are so much more important in Berlin than in NYC. In Berlin, as everywhere today, the intellectual world is just no longer governed by a unified aesthetic or a single dominant medium. There is a mass culture, but the premise of the mass culture is consumerism. Everybody buys what they want and art connoisseurs consume what they like. Most intellectuals and educated people now consume art and news that is hardly distinguishable from middle or low-brow tastes; indeed, the distinction between high and low is now illegitimate. But more important even than that, is the fact that those who do like the best art or best philosophy or best theatre or the best philosophy do not agree on what the "best" is.
One sees this fracturing of culture everywhere. The New York Times was, for a period of time, the arbiter of what mattered in the United States. That is no longer the case and has not been so for decades. It is not the Internet that brought about the factionalization of cultural and political opinion, but, on the contrary, the loss of any single or dominant opinion made the cacophony of voices and platforms on the Internet appealing and powerful.
Similarly, philosophy is broken into analytic and continental schools, and within each there are esoteric sub-schools so specialized that advanced papers and thinking can be read and understood by only dozens of people around the world. The same fission occurs in literature and art as well. Who now feels the need to read all the books profiled in the NY Times Book Review or the New York Review of Books? The selection criteria are ever more arbitrary and there are no longer any acknowledged gateways to culture.
There are, of course, still important artists and writers, but they appeal to ever-more specialized and localized crowds of followers. Lilienthal's dream of a unified artistic world with a single influential cultural world is long gone. And this is true in Berlin as well as in NYC. We will never again have a situation where the chattering classes are all reading the same books and seeing the same shows. The culture is simply too diffuse and differentiated and democratized. There are no measures of quality that are widely accepted. So what we have are simply sub-groups and sub-genres and sub-cultures.
A version of this argument is made by Peter Sloterdijk in his essay Themes from the Human Zoo. Sloterdijk writes:
Because of the formation of mass culture through the media—radio in the First World War and television after 1945, and even more through the contemporary web revolution—the coexistence of people in the present societies has been established on new foundations. These are, as it can uncontrovertibly be shown, clearly post-literary, post-epistolary, and thus post-humanistic. Anyone who thinks the prefix `post' in this formulation is too dramatic can replace it with the adverb `marginal'. Thus our thesis: modern societies can produce their political and cultural synthesis only marginally through literary, letter-writing, humanistic media. Of course, that does not mean that literature has come to an end, but it has split itself off and become a sui generis subculture, and the days of its value as bearer of the national spirit have passed. The social synthesis is no longer—and is no longer seen to be—primarily a matter of books and letters. New means of political-cultural telecommunication have come into prominence, which have restricted the pattern of script-born friendship to a limited number of people. The period when modern humanism was the model for schooling and education has passed, because it is no longer possible to retain the illusion that political and economic structures could be organized on the amiable model of literary societies.
What Sloterdijk rightly sees is that literate means of cultural analysis have lost their once-dominant place in the social and political formation of society. Books and theatre and artworks have been replaced by mass entertainments and diversions, so that literate works are relegated to sub-genres of importance only to their particular fans and followers. Art and philosophy, therefore, become socially and politically marginal.
Instead of seeking to bring back a unified culture of art in which artists matter to the social and political worlds, as Lilienthal dreams, it would be more radical and more honest to admit that we live today in a world in which those who make art, write literature, and think philosophy matter ever less. To think the challenges of doing art and thinking in a world immune to the charms of art and thought is the challenge we are faced with today.
Matthias Lilienthal's talk is fascinating and, as you can see, provocative, which is justification enough to spend one hour this weekend watching him. Thanks to Theatre Magazine for posting the video of the talk. Here is your weekend read.
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.