The Schizophrenic Jury and Other Palladia of Liberty: A Critical Historical Analysis

16 Pages Posted: 13 Apr 2015

See all articles by Markus D. Dubber

Markus D. Dubber

University of Toronto - Faculty of Law; University of Toronto - Centre for Ethics

Date Written: April 12, 2015

Abstract

The jury’s history is interestingly schizophrenic, even paradoxical. On one side is the history of the jury as palladium of liberty, often along with other such palladia, notably habeas corpus. On the other is the history of the jury as instrument of oppression. On one side is the jury as English, local, indigenous, democratic; on the other is the jury as French, central, foreign, autocratic. This paper reflects on this paradox, regarding it as neither sui generis nor in need of resolution. Instead, it critically analyzes the jury’s schizophrenic history from the perspective of New Historical Jurisprudence, as an illustration of the fundamental tension between two modes of governance, law and police, which ultimately are rooted in the distinction between autonomy and heteronomy that has shaped the conception and practice of government since classical Athens.

Keywords: jury, lay participation, mixed courts, English jury, American jury, German jury, French jury, New Historical Jurisprudence, autonomy, police, law

Suggested Citation

Dubber, Markus D., The Schizophrenic Jury and Other Palladia of Liberty: A Critical Historical Analysis (April 12, 2015). Available at SSRN: https://ssrn.com/abstract=2593563 or http://dx.doi.org/10.2139/ssrn.2593563

Markus D. Dubber (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

HOME PAGE: http://www.law.utoronto.ca/faculty-staff/full-time-faculty/markus-dubber

University of Toronto - Centre for Ethics ( email )

6 Hoskin Avenue
Toronto, Ontario M5S 1H8
Canada

HOME PAGE: http://ethics.utoronto.ca

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