This article was published in the Winter 1998-1999 issue of Formulations
by the Free Nation Foundation
A Reconsideration of Trial by Jury
by Wendy McElroy

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In February 1997, Laura Kriho was convicted of criminal contempt and fined $1,200 for failing to volunteer unrequested information about her political beliefs during jury selection for a trial concerning methamphetamine possession. Among the specific information Kriho "withheld" from the Colorado court was her familiarity with the doctrine of jury nullification. According to this doctrine, a juror can nullify a law—that is, refuse to convict a defendant despite instructions from a judge—if she believes the law is unjust or that the application of the law in a specific instance is unjust. Jury nullification had been established in common law since 1670 when the English jury in the trial of William Penn refused to convict him for preaching Quakerism, and were imprisoned for doing so. In response, the English high court ruled that juries must be able to reach their own decisions without fear of punishment by the court. In 1735, jury nullification was affirmed in America when jurors refused to convict the publisher John Peter Zenger for printing material critical of the governor of New York.

Libertarianism tends to embrace jury nullification as a crucial aspect of trial by jury—the right to have your case tried by a randomly chosen group, usually numbering twelve. This "right" is championed by The Fully Informed Jury Association (FIJA), popular with modern libertarians. The 19th-century tradition tended to embrace the jury system as well. According to Benjamin Tucker, editor of the pivotal 19th-century individualist anarchist periodical Liberty, "The truth is that jury service is of much higher importance than the right of suffrage; but our newspaper wiseacres and reformers are not aware of that..." The venerable 19th century legal theorist Lysander Spooner is commonly considered to have penned the definitive position on the jury system in his treatise Trial by Jury, the first chapter of which is entitled "The Right of Juries to Judge the Justice of Laws."

Nevertheless, there are reasons to be uncomfortable with trial by jury. Although members of society have a right and, perhaps, a duty to judge the propriety of the laws under which they live, trial by jury means more than this. In 1804, Supreme Court Justice Samuel Chase declared, "The jury has a right to judge both the law as well as the fact in controversy." In other words, the jury weighs not only the propriety of the law, but it sits in judgment on a human being who is the defendant as well. It judges the man and the law.

Yet, under libertarian theory, no collective entity—no government, no group of twelve people—can claim a right unless such has been assigned to it by an individual, because all that exists are individual rights. It was on this very basis that both Tucker and Spooner argued against the legitimacy of a government established through anything less than a unanimous vote. How, then, does the collective entity called a jury come to possess the right to sit in judgment on a dissenting individual, whom it may well sentence to imprisonment or to death? It cannot be argued that the dissenter has relinquished his or her rights due to having aggressed, because the very point of assembling a jury is to assess whether aggression has occurred. Until the verdict is rendered, the defendant must be presumed innocent. Thus, the question returns: how can a collective entity have a right that a dissenting individual either does not possess or has not assigned?

The 16th-century classical liberal John Locke dealt specifically with this problem. Locke, believed that the need to protect the property of "life, liberty, and estate" in society was what led men to form a Government. In exchange for government's protection, men willingly relinquished the right to adjudicate their own disputes—that is, the right to try their own cases in court. Thus, trial by jury evolved as a means to resolve a Hobbesian state of nature (the war-of-all-against-all) so that co-operative society could exist.

Locke also developed a doctrine of tacit consent which bound even those who had not explicitly agreed to Government. That is, each person in society remained free to withdraw his implied consent by withdrawing back into a "state of nature" with relationship to other people. As long as the person chose to stay in society, however, he was deemed to have consented to its jurisdiction, including its right to adjudicate disputes. Within modern libertarian theory, the doctrine of tactic consent—of people tacitly relinquishing inalienable rights through silence or inactivity—has not been popular.

In Trial by Jury, Lysander Spooner did not spill a great deal of ink addressing the problem of how twelve people came to possess what he acknowledged to be an individual right: namely, the right of an individual to try his own case. In 1889, "Free Political Institutions: Their Nature, Essence, and Maintenance"—advertised as "an abridgement and rearrangement" of Trial by Jury, prepared by the anarchist Victor Yarros—began to run serially in Liberty. Yarros considered the question of how juries acquired the right to adjudicate cases to be so important that he repositioned text from Spooner's concluding chapter to the very beginning of the new work.

Yarros' "rearrangement" began with a statement of what Spooner called "free government": "The theory of government is that it is formed by the voluntary contract of the people individually with each other." From this observation, Spooner had contended that free government involved the belief that certain laws or conditions would be so obviously beneficial that all members of society would explicitly agree to them and to being taxed to support them. Clearly, Spooner considered trial by jury—which he called "trial by country" as opposed to trial by government—to be one of these overwhelmingly beneficial conditions to which all of society would agree. Indeed, the bulk of Trial by Jury is a rather persuasive presentation of why this legal procedure is and has formed a grassroots protection against oppressive government.

Yet Spooner's implied argument that all members of society would embrace trial by jury was refuted in the debate on this issue that ensued within the pages of Liberty. Adolph Herben, writing under the pseudonym of Basis in an article entitled "The Guiteau Experts", declared that he would rather have his case tried by experts than by twelve men who would be ignorant of important technical matters: if he had been Guiteau, he would have preferred experts on medical insanity. Basis considered it to be absurd to hang a person on the "mere opinion of twelve ordinary men". After all, a jury had convicted demonstrably innocent anarchists to death in the infamous Haymarket incident.

In Free Political Institutions, Spooner had anticipated precisely Basis' objection about jury ignorance, and answered, "the powers of juries are not granted to them on the supposition that they know the law better than the justices, but on the ground that the justices are untrustworthy, that they are exposed to bribes, are fond of authority, and are also the dependent and subservient creatures of the legislature..." As clearly as this statement may answer any objection to juries trying the law, it does not address the problem of how twelve people can rightfully try and punish another human being, especially someone, such as Basis, who openly protests the procedure. The Chicago radical George A. Schilling added his perspective by arguing: If trial by jury was based on the right of every individual to judge the law, did not juries—in practice—rob the individual of the very right upon which they drew for justification?

The egoist Steven T. Byington contributed an original article on "trial by jury" to Liberty, which began by quoting from an editorial run by the Times of Natal—an English speaking country in which racism made "trial by jury" for black defendants unjust. Moreover, judgments could not be obtained against whites who committed crimes against blacks. Byington claimed that in the presence of such prejudices, "trial by jury" became an instrument of injustice. The prejudice did not even need to be wide spread for it to have a disastrous impact on an anarchistic, or free market, jury system.

"If only ten per cent of the people were of this sort, more than sixty-four per cent of the juries would include one or more of these men to prevent a conviction. In order that there should be an even chance of twelve men taken at random being unanimously willing to judge according to certain principles, it is necessary that there be not so many as six per cent of the population who reject those principles." Byington raised a further and intriguing objection to trial by jury based on "the need for certainty in some kinds of laws, where it has been reasonably said that certainty is sometimes more important than justice." For example, some publishers preferred there to be a clear standard of obscenity by which they could predict the legality of an article rather than to depend on the unpredictable decision of twelve men. If, as Spooner had suggested, there were conditions and laws so beneficial that all people would assent to them, trial by jury obviously did not fit into this category.

Perhaps the most interesting of Byington's objections to trial by jury, however, was a procedural and practical one. He maintained that the voluntary defensive associations which would arise in an anarchistic society would be unlikely to adopt the jury system because it was clumsy and expensive. A defensive associate who preserved the jury system would operate at a distinct disadvantage, probably having to charge considerably more than its competitors. He speculated on how justice would be provided in a "society where things are done on a business basis." Byington wrote,

"[D]efensive 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..." Moreover, being practical men of business, those who ran the defensive associations would probably institute a policy stating that cases "clearly identical with ones" previously adjudicated required no jury. "If any defensive agency persistently followed the contrary policy, of demanding juries in such cases whenever its clients asked for them, it would go bankrupt with litigation..." Conclusion

From the preceding analysis, it is obvious that trial by jury is not necessarily a natural issue for libertarians to champion. Whether a jury system appears desirable seems to hinge on the observer's viewpoint. If the jury is seen to sit in judgment on the law, it may well be an effective strategy against oppressive government. If the jury is seen to sit in judgment on other and unconsenting human beings, the procedure seems to be at odds with libertarianism because it is difficult to understand where a collective entity derives such a right if it is not assigned by the individual.

Perhaps Byington resolved the debate by observing that, as a procedure, trial by jury had not evolved within a "society where things are done on a business basis," and any system of justice that did so evolve would be unlikely to embrace it. Moreover, to the extent a free market justice system existed, the jury system's current function of mitigating oppressive laws might lose much of its value. In place of this strategic advantage, the disadvantages of trial by jury might loom large: its expense, the unpredictability of its verdicts, the problem of dissenting defendants, the widespread tendency toward prejudice... In short, trial by jury may be a procedure that can be justified only in the presence of oppressive government. It may be an object lesson in how a free market society should not look to structures and institutions that evolved in response to oppression, but seek instead to sculpt their own. D

Wendy McElroy is the author of XXX: A Woman's Right to Pornography, and The Reasonable Woman: A Guide to Intellectual Survival. Her next book is entitled 19th Century Individualist Feminists: the Forgotten Roots of American Feminism. She is a contributing editor to The Freeman, The New Libertarian, Free Inquiry, and Liberty magazines. Much of her writing can be found posted at her web site:


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