Benjamin Studebaker

One of the popular arguments for democracy as opposed to expert-driven, sophiarchist government is the notion that democracy is good for the same reasons that juries are good as opposed to judges. David Estlund makes just such an argument in Democratic Authority on the basis that all reasonable people can accept the jury model but not a system of judges due to uncertainty regarding the knowledge of the judges and that, by extension, all reasonable people can accept democracy but not government by experts. Today I aim to challenge this line of argument with a more critical examination of judges and juries and how we use them.

There are two assumptions at the basis of Estlund’s argument for democracy:

1. Juries are preferable to judges.
2. The reason that juries are preferable to judges is due to their lack of expertise and for no other reason.

Both of these must be true in order for democracy to be superior to sophiarchy via this argument–if the advantage of juries does not derive from the fact that juries are drawn from the population rather than from experts, then the advantage of juries is not analogous to the proposed advantage of democracy. If, for instance, your reason for preferring juries is that juries involve multiple people who come to consensus, the question is begged as to why such a system would not be better if the members of the jury were experts.

It is this point that is most important in establishing where the jury analogy goes wrong. When someone says “juries are better than judges” there are two elements that are being talked about in combination that must be separated from one another:

1. Quality of agents–expert or non-expert
2. Decision structure–individual decision or group consensus

This gives you four permutations for the justice system:

Usually, the choice we are offered is one of scholar judge versus random jury, but why not the other two options? Why not establish a legal system that uses a person chosen at random for judge, or a group of judges making decisions via jury?

In the case of the random judge model, the answer is that it is an obviously ridiculous way to make decisions. If any person at random could be called upon to serve as judge, the quality of justice would vary wildly and it would be very easy to dispute the outcomes produced. Of course, we often use scholar judges, and the use of scholar judges is a rather sophiarchist policy. Often (though not always) they are appointed rather than elected, and even when elected voters usually know very little about them. Since it is obvious that we get a better result from the sophiarchist scholar judge model than by the random judge model, does it not follow that even if you prefer the decision apparatus of the jury that we would be better served if the jury were comprised of scholars than its present composition of random citizens? Is not a random jury every bit as ridiculous in comparison with a scholar jury as the random judge was against the scholar judge?

Estlund appears to be arguing that we should choose random jury over scholar jury because, while some of us might dispute the value of the qualifications of the experts, none of us can doubt that the random jurors have indeed been randomly selected. What value does this random selection have for us, however? Take Harper Lee’s To Kill a Mockingbird example, that of the traditional “all white jury falsely convicts black on basis of prejudice” case. Juries can freely act on the basis of illogical, emotional whims, provided that those whims are shared by all the various members of the jury. I find trusting in a group of random individuals to make a unanimous good decision to be more troublesome than trusting in a group of legal scholars to do so. Even though you might dispute the qualifications of the legal scholars, there can be no doubt that the scholars are at least somewhat more familiar with the law than their random counterparts, that a group of them are at least somewhat more likely to reach the correct decision via the jury method than a group of random people.

The thing is, our society knows that this is true on some level. That’s why the Supreme Court is made up of legal scholars and not random citizens, who employ a voting model as a compromise between the judge and jury models (no single justice decides a case, but not all justices need agree to reach a verdict). Notice how we do not permit juries to use the vote to reach decisions, but require them to reach consensus–it is evident from this that we do not trust the expertise of our juries as far as we trust the expertise of our judges. Even a 5-4 Supreme Court decision is binding; a split jury is a hung jury.

Of course, the Supreme Court has received criticism for politicising its decisions from both the left and the right, but is this not a product of the justices having been politically appointed by presidents and confirmed by congresses with political objectives of their own at the heart of those very appointments and confirmations? The president does not just choose a good judge; the president chooses a judge whose interpretation of the laws is in accordance with his own political viewpoint to whatever degree the congress of the day will permit, and the court is said to be “controlled” by the left or by the right at various times. This is the result of the corrupting of what would otherwise be a sophiarchist process by democracy–when experts are selected by the democracy, the judgement of expertise is no longer grounded on display of expertise but on appeal to the people or their representatives. Occasionally judges who are subject to the vote promise to be tough on crime to get preferential treatment from voters in local elections (and they might do the reverse, were that popular with the electorate). All of these processes serve merely to bias our judges in favour of specific elements of the population and their viewpoints to the exclusion of others.

It is evident from all of this that Estlund is plainly wrong–we are more trusting of judges than we are of juries, and, to the extent that we like juries, our appreciation predominantly comes from the consensus requirement rather than the non-expertise requirement. Unless you would legitimately prefer the random jury to the jury of scholars, you should find very little convincing about jury-based substantiations for democratic theory.