23 Pages Posted: 24 Sep 2011
Date Written: September 19, 2011
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."
Keywords: jury, trial, social theory, Rawls
JEL Classification: K10, K19, K40, K49
Suggested Citation: Suggested Citation
Burns, Robert P., The Dignity, Rights, and Responsibilities of the Jury: On the Structure of Normative Argument (September 19, 2011). Arizona State Law Journal, Forthcoming; Northwestern Public Law Research Paper No. 11-59. Available at SSRN: https://ssrn.com/abstract=1932380