Subsidiarity and the Criminal Jury

American Journal of Jurisprudence 67 (1):33-56 (2022)

Abstract

The institution of trial-by-jury is a puzzle in the modern criminal justice system. It has dubious merits as a mechanism for applying facts to law. If anything, it represents a challenge to the very idea that decision-making should be consistent and transparent. Yet the emphasis on the relative ineffectiveness and inefficiency of the jury as a trier of fact may miss the point. The jury does not function merely as a verdict-generating machine, or as a procedural safeguard for individual defendants. It ensures that the local community, with its customs, norms, and ways of life, is not simply trampled upon by a remote federal legislature. The legitimizing significance of the jury, in other words, arguably lies in its role as a kind of law-finder. With this in mind, we may do better to view it, not principally as a liberal institution, but as a manifestation of the principle of subsidiarity.

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References found in this work

Survey Article: Subsidiarity.Andreas Follesdal - 1998 - Journal of Political Philosophy 6 (2):190-218.
Against Subsidiarity.Trevor Latimer - 2018 - Journal of Political Philosophy 26 (3):282-303.
The State and Its People.Richard Ekins - 2021 - American Journal of Jurisprudence 66 (1):49-67.
The Federal Condition: Towards a Normative Theory.Nicholas Aroney - 2016 - American Journal of Jurisprudence 61 (1):13-31.

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