Judging The Jury

November 19th, 2011   Submitted by Wendy McElroy

For my previous article introducing the topic of free-market justice, please click here.

The individualist-anarchist view of justice is based on a two-pronged approach: (1) eliminating the state; and (2) replacing it with voluntary associations in which defense is viewed as a commodity or service, like education. Defense associations would function in a manner similar to modern insurance companies. Beyond a basic coverage, customers would choose the particular level and type of service they desire, just as they currently choose the deductible on their car insurance and whether or not to cover collision damage.

Would such a system include trial by jury?

That is, would a panel of randomly chosen members of society sit in judgment on disputes in order to render a decision not only on the facts of a case but also on the justice of the law being applied?

The answer is that juries would almost certainly exist in some form, just as panels of legal experts, arbitration procedures, appeal processes, and other mechanisms useful to justice would almost certainly be offered as an option by one defense association or another. But it is not clear if juries would be commonplace or a rarely offered service. Moreover, a free-market jury is likely to differ in significant ways from the ones of today.

Anarchist Thinking On Trial By Jury

Trial by jury evolved as a bulwark against oppressive state laws and unjust court rulings. If a jury were allowed to judge both the facts of a case and the justness of the law, including its application, then presumably at least one member would refuse to convict on flimsy evidence or under unjust conditions. This refusal is what is called jury nullification.

In America, 19th-century individualist anarchists differed on whether trial by jury was a natural right or merely an effective strategy against the state. (The most vocal advocate of the natural-right position was the legal theorist Lysander Spooner.) But trial by jury as a natural right is a difficult libertarian argument to sustain, because it requires the active participation of other people.

All natural rights involve a corresponding duty to respect them on the part of others. In other words, if trial by jury is yours by right, then it is the duty of others to provide it — by being compelled, if necessary — or else your rights are being violated. But natural rights do not impose positive duties upon those who are just peacefully living their lives. This fact alone seems to exclude trial by jury from the category of natural rights.

The publisher Benjamin Tucker was far more effective in arguing for trial by jury as a “safeguard against oppression” — that is, as a strategy. He looked specifically to jury nullification as the advantage to freedom offered by trial by jury, and he was critical of other functions.

For example, he raged against juries serving “at an expense to themselves and to the taxpayers, for no other purpose than to afford the bench an opportunity to place the responsibility for its own injustice on their shoulders.” Thus, Tucker saw juries as a tool that could also be used by the state as well as against it.

Trial By Jury, Beyond The State

The historical purpose of a jury would be rendered obsolete by a free-market justice system. The state is gone. The modern jury as a defense against oppressive state law is no longer relevant.

Moreover, a jury’s presumed right to judge the justice of the law may also be irrelevant. In a voluntary society, the “laws” being enforced would either protect person and property from aggression or be a matter defined by contract. In this context, for a jury to pass judgment on the propriety of the law would be akin to allowing them to pass judgment on the propriety of voluntary interaction itself.

Nevertheless, juries as a protection against badly applied laws — that is, against inappropriate court decisions — might be valuable. The individualist anarchist Victor Yarros once explained,

The anarchists, as anarchists, work directly, not for a perfect social state, but for a perfect political system. A perfect social state is a state totally free from sin or crime or folly; a perfect political system is merely a system in which justice is observed, in which nothing is punished but crime and nobody coerced but the invader.

Does trial by jury provide protection against the “sin or crime or folly” to which all societies — and even the court systems of voluntary societies — are prone?

A Probable Role For Free-Market Juries

Several important free-market objections can be raised against the modern version of trial by jury, but they also can be resolved — and, perhaps, easily so. For example, compelling people to serve on a jury is clearly a violation of their rights. But jury duty could be volunteered by the civic-minded, or it could be induced by discounts offered by defense associations to volunteers.

An entirely different factor is likely to limit the role of free-market juries: economics. Juries would be expensive to convene, to compensate (if only for expenses), and to maintain for however long a trial and deliberation takes. This is especially true as the jury presumably would function under the auspices of a judge. It would be considerably less expensive to have a judge alone conduct the trial.

Even a small group of legal experts, say, three of them, who were intimately familiar with the law would probably be less expensive, partly because their familiarity would translate into efficient, timely action. The anarchist Steven T. Byington maintained that he could not imagine juries being called often in “any society where things are done on a business basis.” Byington speculated on how competing defense associations would handle disputes instead. He wrote,

Defensive associations will have their judges, and their treaties as to the method of arbitration when two associations are on opposite sides of a case, and these tribunals of one or three professional judges will settle all cases where some one does not distinctly demand a jury. I suppose a case will almost never come before a jury except on appeal.

In short, free-market juries might exist primarily as part of an appeal process. Anyone who was unsatisfied with the decision rendered by the judges or the panel of experts might well have the procedural right to avail himself of a second trial before a jury, which he would pay for at his own expense. If the unsatisfied customer is unable to pay in assets, then he could pledge a well-defined period of his labor.

The foregoing is speculation, of course.

For an introduction to free-market justice, see my previous article, “One Anarchist’s Compressed Take On Justice.”

14 Responses to “Judging The Jury”

  1. JFNo Gravatar says:

    “if trial by jury is yours by right, then it is the duty of others to provide it”

    Does that necessarily follow? I have a right to eat (to sustain my life), but it is not the duty of others to provide me food. I have a right to eat that which I have provided by my own effort (either directly or through trade).

    Similarly, can we not say that I have a right to a jury trial, as long as I can provide a jury?

    It might be better to say that I have a right to specify how my disputes will be adjudicated. But I do not have a right to have others bear the cost of that adjudication.

    This leaves open the meta-problem of what happens when two parties to a dispute can’t agree on how the dispute should be adjudicated. I don’t have a solution for that.

    • JF asks…“if trial by jury is yours by right, then it is the duty of others to provide it” Does that necessarily follow? I have a right to eat (to sustain my life), but it is not the duty of others to provide me food.

      The difference between your right to eat and an alleged right to trial by jury is that your eating does not require the participation of other people but a jury trial involves other people providing a service. If they agree to provide that service to you, then, of course, you have acquired a right to it by virtue of contracting with them. By contrast, natural rights do not require a contract for me to make a claim. Quite without a contract or your agreement, it is wrong for you to murder me because I have natural right to live peacefully and unmolested. This one difference between a natural right and a right acquired by contract.

    • WorBluxNo Gravatar says:

      Jury duty or service was one of the duties involved in allegiance (service in the courts and military in exchange for protection of said military and access to said courts). Now without a political body you can’t have precisely that arrangement, but you could have something similar. Agree to serve in a jury for up to two weeks every three years, in exchange that that a jury may be assembled should you request it to judge accusation against you that are valued at more than some arbitrary amount.

      Direct payment of the losing party is another option, which would discourage the enforcement of laws that are unpopular or unreasonable laws or as well as discouraging unreasonable or trivial application of laws that are generally popular and reasonable.

      For torts and crimes I believe the option of a jury trial is required by natural law as it prevents the application of a rule unless substantially the whole of the community agree with it.

      For disputes arising out of contract a jury is less vital so long as there is no allegation that the contract is unreasonable in itself. Where the question is to the specific meaning of the contract and not it’s fundamental fairness, then using experts of that industry or business will save time, expense, and delay.

  2. StormNo Gravatar says:

    This has been an issue on my mind for some time. My first thought though is that there will not be any singular system, but rather varied solutions to justice, the final being that of refusing to associate with the person that the individual deems to be guilty. Without the state stores need not allow such persons inside to shop, and certainly other property owners could likewise bring pressure on such individuals to make right the harm that they have done to others.

    Before that stage though as you note, there would need to be some impartial or seemingly impartial review of the facts of the case. Juries are ill equipped for this task, though they give the impression of impartiality, though they may work well in the appeal process you describe since they would be working as a check on the power of the judges or other adjudicating body.

    • Hi Storm. Actually I have little confidence in juries (as they exist) to be objective, informed or rational. Perhaps an educated jury pool, as HR suggests, would alleviate some of my concerns… The main advantage I see of a sequestered jury is that it is less likely to be corrupt than a judge or other permanent officials in a court. Evenly so, I am among those who would opt immediately for my case to be heard by legal experts rather than a jury. Nevertheless, a jury used as a ‘court of appeal’ paid for by the appellant would serve as a check on bad or corrupt adjudications. If requested by the failed defendant, then I can’t see any reason why they wouldn’t function in this manner.

  3. HReardenNo Gravatar says:

    I think perhaps there should be professional jurors who would be people who want to serve on juries and are knowledgeable about the law and have demonstrated that they are knowledgeable about the law and commited to justice even when the law is in error.. One of the biggest problems with the current jury system is that both sides in a case don’t want intelligent people serving on a jury but rather people they believe they can easily suade. It seems that the more intelligent a person is the less likely tey will be choosen to serve on a jury.


    An example of a free- market court: http://youtu.be/zSZ4_3NIU6s?t=8m12s
    A 19th century free-market DRO

  4. gdpNo Gravatar says:

    From an abstract mathematical viewpoint, a “Jury” is related to what is known as an “Ensemble of Weak Classifiers.” Given a set of independent opinions, as long as each opinion is at least slightly more likely to be correct than incorrect, it is mathematically possible (under certain circumstances) to combine or “fuse” these opinions (e.g., by some sort of “voting” or other judgement-combination procedure) to yield a “more reliable” opinion. However, there are limits to how much reliability can be gained by such “fusion” procedures — and as previously noted, the method only works if the “voters” are “independent,” and if each voter is at least somewhat more likely to be “right” than “wrong.”

    Note that under the most common implementation of a “Jury Trial,” in which juries “deliberate” if they do not reach consensus on a first vote, the “independence” criterion for the validity of ensemble-based classification improvement is now violated. Thus, it becomes possible for the members of a jury to become dominated by, say, the position of the most charismatic or dogmatic member of the jury, instead of by the position best supported by the evidence. Thus, the current implementation of “Deliberative Jury Trial” does not guarantee that the decision of the Jury will be any more “correct” than that of any randomly chose individual. One defense against “non-independence” is to require “unanimity” of judgement rather than simple majority, since even one “holdout” against an unjust “majority opinion” can prevent an injustice.

    Of course, the opposite is also true: One biased “holdout” against justice can likewise stymie justice if “unanimity” is required. However, in State-held “criminal cases” as opposed to “civil” disputes between individuals, it is generally accepted that a “false positive” (wrongful conviction of an innocent accused person) has far more serious overall consequences than a “false negative” (wrongful acquittal of a guilty person) — albeit the true victims of an agression might disagree with this latter claim! It is not immediately clear how this balance between “false conviction” and “false acquittal” would shift under a purely private adjudication system in which there would be no “criminal” trials by a State, but only “civil disputes” between individuals — e.g., would “proof of aggression beyond reasonable doubt” be required, or merely a “preponderance of evidence”? In a “free-market” judicial system, would some cases still require a “higher” standard of proof than others? If one party insisted on “beyond reasonable doubt” as a standard, whereas the other party insisted that “preponderance of evidence” be used, how would this conflict be resolved? (Quite possibly “Natural Law” theorists have already argued these questions; I am embarrassed to say that I am not sufficiently familiar with the body of literature to know what has already been said in the past. :-()

    Jury Trials also suffer from a fundamental problem of “Prejudice:” If the vote of the majority of members of the jury is already a foregone conclusion regardless of the evidence presented, a jury may simply “amplify prejudice” in cases where only a simple majority is required — albeit again, such a result is mathematically less likely if unanimity is required rather than simple majority, as long as the level of prejudice is not universal.

    Thus, while it is possible that a “Jury Trial” could in principle increase the mathematical likelihood of a correct judgement, it is not a foregone conclusion that it necessarily do so. And on some level, the concept of a “Jury” relies on the assumption that the mythical “randomly selected average person” is likely to be a “fair” judge of what is just and unjust. (Of course, if the composition of a society is such that the so-called “average person” is not likely to be a “fair” judge of what is “just” and “unjust,” then the individuals living within such a society are already likely to be facing some fairly serious problems in receiving justice!)

    Note that all of the above observations are equally true of all forms of “voting” in general — not just voting in “Jury Trials.”

    • Seth KingNo Gravatar says:

      Thank you for this in-depth analysis. Is what you’re talking about at all like “Who Want To Be A Millionaire?” where the contestant can ask the audience? Correct me if I’m wrong, but isn’t the audience usually right? There are ways of mathematically deducing if the audience’s choice is right by the margin of difference between the picked one and the others, standard deviation and such?

      If you remember, the audience does NOT communicate with one another before the vote. It is strictly independent.

  5. John KindleyNo Gravatar says:

    Wow, it appears that Victor Yarros later in life became a real “traitor” to the cause. The Wikipedia article on him you linked to doesn’t mention this, but an article by Roderick Long linked to from the Wikepedia article does and demonstrates his later incoherence.

    I think you’re basically right about the jury. I might quibble slightly with this: “Moreover, a jury’s presumed right to judge the justice of the law may also be irrelevant. In a voluntary society, the ‘laws’ being enforced would either protect person and property from aggression or be a matter defined by contract. In this context, for a jury to pass judgment on the propriety of the law would be akin to allowing them to pass judgment on the propriety of voluntary interaction itself.”

    In a “government” of “laws” rather than “men” (i.e., legislators and other law-makers and “rulers”), the “jury” or “judges” would still need to “determine the law and the facts” (i.e., what Justice requires) in the case before them. This determination should presumably be informed by how similar cases have been decided in the past. The real value of a “jury” of 12 is in its numbers and in the requirement that they be unanimous in convicting a defendant of a crime “beyond a reasonable doubt” before depriving him of liberty. Most people accused of a crime would want this protection rather than having their case decided by a fewer number of judges, and it seems that a society which valued liberty more than our own would be hard-pressed to justify denying such traditional protection to defendants. Of course, the number 12 is not inscribed in the natural law, and how a free society might go about forming such juries to decide cases remains an interesting question.

    • HReardenNo Gravatar says:

      Not all cases require a unanimous decision of guilty by the jurors for a conviction.

      • John KindleyNo Gravatar says:

        Not all jurisdictions require juror unanimity in all criminal cases for a conviction, but I think most do, and I think this element is part of the traditional conception of trial by jury. Also, not all juries have to have 12 members.

        I like your idea of a pool of professional jurors / judges from which juries could be formed. (It would be good to eliminate the distinction between judges and jurors. The selected jurors could choose from among their number a “foreperson” to also preside over the trial and act as “judge.” The jurors could themselves rule on such questions like the admissibility of evidence.) This would of course get around the problem of impressing into service randomly selected individuals for little or no pay who may or may not be qualified to sit in judgment over others. How the jurors voted in previous cases would presumably be available to the litigants and eliminate a lot of the guesswork that is now inherent in the voir dire crapshoot. You could have juries of 3 or 12 or any number in between (or more than 12?) depending on the seriousness of the case.

      • John KindleyNo Gravatar says:

        I’m actually okay with the idea of a conviction despite one lone holdout voting to acquit. Two (or more) holdouts, on the other hand, is almost by definition a pretty clear indication that their doubt is “reasonable.” By the way, this is one area where are current system of justice is a complete farce and contradicts the constitutional principles on which it’s supposed to be based. If 10 jurors vote to convict and 2 vote to acquit, that’s not an acquittal but a hung jury, and the defendant can be tried again, in spite of the constitutional prohibition against Double Jeopardy. Hell, if 11 jurors vote to acquit and 1 votes to convict, it’s a hung jury and the defendant can be tried again.

  6. Samuel AdamsNo Gravatar says:

    Robert Heinlein provided a number of thoughts on this and related subjects in his delightful novel The Moon is a Harsh Mistress.

    In one scene, the protagonist enters the courtroom of a professional jurist to speak with him on an unrelated subject. The jurist isn’t in, but a gaggle of people have a case to be brought before a court. The protagonist agrees to judge the case, and asks both parties if they accept him as judge. After some explanation (one party is an alien), both parties do.

    As it is a capital case, both parties agree to accept the cost of a jury. The protagonist then yells out into the corridor, “Jury Duty!” and offers payment. The jurors are assembled, and the case continues.

    We might also look at the Roman concept of the “jurisconsult”. He was both an attorney and a judge in the modern sense of both terms. Quite often they consulted to one side, and then offered a settlement to the other, and it would be accepted. I.e. arbitration. Much of the Codex Justinianus is a codification of Roman jurisconsult law.

    While the subject of adjudication in an AnCap society is interesting, I would also be interested in our author’s thoughts on minimizing litigation (civil and criminal) in an AnCap society.

  7. RJ MillerNo Gravatar says:

    I am really impressed with how far this site has come since the Walter Block interview that was featured on LRC!

    Regarding juries in free market legal systems, the way I see it is that the role between judge and jury could be blurred somewhat. In my mind, the ideal system would be one in which each case would appear before multiple judges/jurors.

    The number involved would be contingent on the nature of the case itself; if it was something insignificant, like petty theft, it may only require a single “judge.” Murder or large scale financial fraud would be a different story. Perhaps a dozen or more arbiters would be needed.

    The advantage to allowing multiple people to make a judgement on a given case is that it gives incentive for the judges/jurors to get the case right – or lose out in future contracts to the competitors.

    The majority could decide someone was innocent in a murder case, but if new evidence to the contrary came up that indicated otherwise, the dissenter(s) would get the biggest payoff.

    Those that do not do a good job of reviewing the evidence would not be in the business of law for long – given that those that do would get the most contracts and get the most support for their decisions.

    Competition between judges on a single case means that it would be a lot harder for bribery to be successful. You would have to bribe a whole committee, and if any of them went public about judicial bribery taking place, they would undercut their competitors credibility and thus their future contracts as well.

    Honestly leads to more job opportunities if providing law is not limited to a single provider in a given territory. Profit does not pervert justice.