It came to my attention yesterday that Diana Hsieh, in her May 15 podcast, expressed total disagreement with an answer Leonard Peikoff gave, in July 2010, to a question regarding compulsory jury duty. Peikoff was asked whether he thought compulsory jury duty was appropriate and he replied that, provided the right to a jury was a necessary component of a proper government (something he said he was not deciding in his answer), then he did not have a problem with compulsory jury duty, that he thought it was something you agree to when you agree to live under the government.
Hsieh said her view was the “complete, complete opposite” of Peikoff’s. She said that compulsory jury duty was both immoral and impractical, that it was the same issue, in essence, as is presented by compulsory taxation or the military draft. Immoral, she said, because you would be initiating force against the jurors, and impractical because you would be asking them to think, and no one can be forced to think. In addition she thought there would be plenty of voluntary jurors, and they should and would be paid (she did add that there should not be professional jurors, however, as this would imply that there was some special skill involved, which there isn’t). Finally she said that, if enough people don’t volunteer, then criminals would just go free, and conflicts wouldn’t be resolved, and that this result would be motivation enough so that people would volunteer to be jurors.
Here, as with previous issues, my problem is not so much with the fact of Hsieh’s disagreement, but the manner of it. Take for instance her characterization of her position in relation to Peikoff’s: she said hers was the “complete, complete opposite”. If one person says he doesn’t have a problem with something, that is not the “complete, complete opposite” of a position that is utterly condemnatory of that thing. Peikoff made clear that he did not have a strong position on this issue, that he considered it something to be figured out when we were at least within striking distance of achieving a proper form of government. In fact he added, at the end of the segment, that he hoped his listeners lived long enough so that this was an issue we’d actually have to consider! As for the rest of my problems with her manner of expressing her disagreement, I leave you to listen to the podcast segment (it starts at 28:13) and draw your own conclusions.
Now, I’d like to offer some arguments in favor of compulsory jury duty, to show that there is more to this issue than might appear on first glance.
First, you have to decide whether you think it’s plausible that a proper government would provide for a right to a jury trial in a criminal case. Our government provides for this, but that doesn’t mean it’s necessary. I haven’t thought about it much, but I do tend to think it’s a good thing, as you would not want to face criminal penalties — perhaps up to and including capital punishment — without at least having the option of having your case presented to and decided by a jury of your peers, rather than by employees of the government. For purposes of this post, I’ll assume that there’s at least a decent case for this being a legal right that would be granted by a proper government.
The second question then is, if a proper government would grant such a legal right, can you say that, by choosing to live under such a government, you can be seen as consenting to serve on such a jury, when called to do so? If you choose to live under a government, must you agree to do at least the minimum that is required for it to perform its proper functions? If so, then I would say you are not being forced, you are merely being required to carry out what is (or is akin to) a contractual duty.
Third, what would this actually look like in practice? Would they actually come and drag you into court and force you to sit there at gunpoint? No. You would presumably be given the option of serving on the jury when called (or, at least serving at some point soon after that because you’d have various deferral options, ways to get excused, etc., as you do today), or paying a fine instead. Those people who have more money than time to spare could just pay the fine. So, on this model, you would not be forced to think; rather you’d be asked to either carry out your (quasi-) contractual duties or pay damages.
Are there any practical reasons we would want it this way, vs. a system of entirely voluntary juries, such that this is something that might be part of the minimum that is required for government to perform its function? Perhaps. The Sixth Amendment says we have a right to a trial “by an impartial jury of the State and district wherein the crime shall have been committed.” What if the number of voluntary jurors in your “district” is very small, and is demographically homogenous, because only a certain demographic has the time to spare and wants to get paid for jury service? Would you get a fair trial? If you have to pay a lot to get an impartial jury, because no one wants to do it otherwise, then does the accused pay for that?
Finally, I think significant distinctions can be made between jury service and military service. The need for a military is supposed to be exceptional. Whereas our own era is characterized by a seemingly interminable war with Islamic Jihad, there have been eras in history — and I hope there will be eras in the future — in which we enjoyed peace for decades at a time. By contrast, there seems to be a small minority of criminals at any given time in any society, and so the need for juries is routine by contrast. I also think one can see the jury requirement as a check on government itself, so that criminal prosecution does not become a means of eliminating dissenters, an issue that’s also ongoing and routine. Further, being in the military is a profession, one for which minimal physical capabilities and substantial training are required, and therefore one for which longer terms of service make sense. As Hsieh noted in her podcast, being on a jury is not something that rises to the level of a profession. It is something that, by its nature (making factual determinations and applying the law), requires no special training or physical ability: anyone with a functioning brain can serve on a jury for a limited time period without changing careers, etc. Finally, while military service includes the possibility of physical injury and even of losing one’s life, serving on a jury is not typically expected to entail this risk. All of this is to say that I think there are substantial differences between jury service and military service such that they should not necessarily be lumped together when considering whether they should be compulsory. (I am, of course, opposed to the draft, as well as to compulsory taxation.)