The Dignity, Rights, and Responsibilities of the Jury: On the Structure of Normative Argument
Robert P. Burns
Northwestern University - School of Law
September 19, 2011
Arizona State Law Journal, Forthcoming
Northwestern Public Law Research Paper No. 11-59
Many theorists follow an inevitably circular method in evaluating legal institutions and practices. "Considered judgments of justice" embedded in practices and institutions in which we have a high level of confidence can serve as partial evidence for the principles with which they are consistent, principles that can then have broader implications. Conversely, principles that we have good reason to embrace can serve as partial justification for institutions and practices with which they are consistent. This is the heart of Rawls' notion of "reflective equilibrium," where we "work at both ends" to justify institutions, practices, and principles. This method is applicable to discussions about the nature of the jury trial. Critics of the trial may complain about current practices allegedly inconsistent with a particular vision of the trial, such as Justice Scalia's "rule of law as the law of rules." On the other hand, current trial practices may provide reason to doubt political visions or principles with which they are inconsistent and may, in turn, be justified competing visions or principles. This short essay explores these structural issues in a response to an essay by Jeremy Waldron, "Dignity, Rights, and Responsibility."
Number of Pages in PDF File: 23
Keywords: jury, trial, social theory, Rawls
JEL Classification: K10, K19, K40, K49Accepted Paper Series
Date posted: September 24, 2011
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