Democracy, judgment, and juries

The democratic character of juries has long been heralded. Aristotle famously identified a democratic citizen as one who is eligible to serve as a juror (dikastes) as well as a member of the Assembly, and the Athenian jury is frequently invoked as the fundamental democratic institution of Athens, partially because it heard the political trials that served as a means of political control. In the modern era, Tocqueville highlighted the role of jury service in enabling the moral and intellectual development of citizens, giving them the “habits of mind” that “best prepare the people to be free” and could temper the risk of tyranny of the majority. Contemporary democratic theorists focus on the jury as a model of robust deliberation, in part because (optimally) citizens find themselves in conversation with people from different perspectives and backgrounds, and seek to draw on these benefits in designing citizens juries to evaluate policies. Today, scholars and civic groups promoting jury service emphasize its democratic potential to transform citizens self-understanding and engagement. Although there can be no doubt that the jury is an important political institution, it is less clear whether it is a democratic one as such. To make an obvious point, eligibility for jury service has often been restricted - indeed, in the United States, participation on a jury was essentially limited to “key men,” or elite members of a community, until the 1960s, on the grounds that jurors ought to possess superior intellectual and moral faculties. More significantly, the aim of a jury is explicitly epistemic - it seeks to determine guilt or innocence - and the activity of other democratic institutions is only controversially so. Although, following David Estlund, one might argue that democratic legitimacy derives from procedures tending to produce correct outcomes, few today would argue that modern legislatures should set aside preferences and interests entirely and aim at truth, or even seek in a Rousseauian fashion a uniquely correct answer to the question of the content of the general will.