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.)
Don't Let It Go 
Hi Amy,
Good post. I agree with you.
I have only one thing to add, and that is that I think the right to a fair trial, now *assuming* that demands a jury of peers, then it is a right that follows, ultimately, from the right to life. There is, on the other hand, no such thing as a right to an army. I think that is the essential difference. Therefore the right to a fair trial, with all that demands, is *not* a “positive” right to others life. No, it is what the legal implementation of the right to life actually demands in a free society. A comparison: A child has a right to food. This is not a “positive” right. It is what the legal implementation of the right to life actually demands when it comes to children. So parents who choose to have children have also agreed to take care of them. They have chosen these obligations, implicitly, by becoming parents. Does this make them “slaves”? The government is not “initiating physical force” on them by forcing them to feed their children or face charges (or find someone who is willing to take care of their children). In a similar fashion one can argue that have you by choosing to live in a free society accepted certain obligations such as a jury duty.
I wrote, by the way, about the jury duty on my Swedish blog some days ago: http://svanberg.wordpress.com/2011/05/17/juryplikten/
Thanks, Carl, I like your analogy here and agree that it may be helpful. Too bad I can’t read Swedish 🙂
Carl, what is your opinion of the voluntary “peer judge” system in place in Sweden? Could that be a viable alternative to a compulsory jury system?
The problem with this is that one chooses to have children, but one does not choose to be born in a country. The social contract is not based on Objectivist principles.
One does not choose to be born in a country, but once one is living in a country, he will be subject to the jurisdiction of that country’s government. Which means he might be accused of a crime and arrested at any time, even if he’s innocent. (He need not choose to pay whatever voluntary tax entitles him to bring a case in the civil courts, of course.) So perhaps this is why our Founding Fathers thought we should have a right to a jury trial in a criminal case — it’s a check on the government’s abuse of its criminal jurisdiction. And maybe agreeing to serve on a jury every so often in exchange for, say, registering to vote isn’t the same as consigning oneself to slavery? I’m still thinking about this issue, but I still tend to think this is not the same sort of “social contract” that some use to justify taxation or the military draft.
It is quite clear the difference in your approach to this issue – and Peikoff’s also of course. It is the very same difference which characterized some previous recent disputes, e.g. the GZM (Ground Zero Mosque).
It is that your approach is eloquently and richly contextual about a complex issue, factoring in a range of variables which must be considered to reach a reasonable conclusion. These variables are reflective of the facts, of the actual reality of the issue which is complex.
The other approach is mostly rationalistic and divorced from reality and thereby consigns these important issues basically to the category of floating abstractions, reminding me more of Kant (or libertarian dogma) than of Ayn Rand.
I am very glad you decided to take this issue on because I was thinking of doing so myself and I never could have done as thorough or insightful a job of it as you have.
Thanks, Fred, I don’t know about thorough, as I haven’t resolved the issue, but hopefully thorough enough to make the points I set out to make: my objection to Hsieh’s manner of disagreeing with Peikoff, and that there’s more to this issue than one might think on first glance.
Amy I think you are right to emphasize the phrase “complete, complete opposite.” It’s wrong on a couple of levels to use that phrase. First, as you point out, Peikoff was tentative in his commentary and therefore it’s gratuitous to be so adamant. Second, what would a “complete opposite” view of Peikoff’s (tentative) view be? If his view is that the government can require participation in jury duty, the opposite is not the position that the government can only ask for volunteers. The opposite would be something like: there should not be a jury system, or there should not be courts. We could strike this up as just being hyperbolic or inflammatory for the sake of excitement or drama. But once again we are seeing the same person express disdain for Peikoff’s views. “Respectfully, I disagree with Peikoff’s tentative commentary” would be fine. But to characterize his view as the “complete, complete, opposite” of one’s own view, is not that. It makes it clear to me that, again, the minor issue at hand is not the issue at all. There is a deeper disdain for Peikoff that is demonstrated.
I also strongly disliked Hsieh’s manner of stating her disagreement with Dr. Peikoff in this podcast, and I wish she would reconsider her approach to doing this kind of thing (not just on this topic, but on others). It doesn’t do justice to the fact that this is a serious topic, and that Dr. Peikoff’s opinion should be considered seriously (even if one disagrees with it).
I understand why Dr. Peikoff might have taken the position he took on jury duties. He sees the objection to jury duty as coming from a rationalistic libertarian streak among some Objectivists who see any of the necessary functions of the state as unjustifiable coercive. Against such people, it is important to emphasize the necessity and propriety of the state, including its monopoly on the use of force. This monopoly has many implications that libertarian-sympathizers don’t like (no private armies, no vigiliantiism, a strong foreign policy, no anarchy, etc.)
However, I think that emphasizing the necessity and propriety of the state against anarchists doesn’t imply conscription, or taxation . . . or mandatory jury duty. Interestingly, I think it does imply the subpoena power. A material witness is in possession of unique evidence needed to prosecute a criminal. The material witness is in the exact same position as an innocent bystander in a hostage situation. If the police, in attempting to free the hostages, accidentally shoot one, the hostage taker is culpable. They have initiated force against that hostage and others, and the police are merely acting in retaliation and are not to blame if the hostage is hurt. In a similar way, a material witness has had information forced into his head by someone’s act of initiating force. When the police issue a subpoena, they *are* using force against the witness, but it’s retaliatory force, and justified.
I don’t think a similar case can be made that the use of force against jurors is justified retaliatory force. Jury duty is far too much like being a police officer or a soldier. Any number of people can perform the job, and there is no reason to think that a criminal or aggressor’s use of force has already made them automatic victims of retaliation against that initiation.
So I think that mandatory jury duty is very different from the subpoena power. I don’t think that your arguments succeed in showing there is no difference. First:
“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.”
I can’t get around the fact that you are relying here on a version of the “tacit consent” theory that is commonly invoked by social contract theory, which has been used by statists for centuries to justify any number of unjustified state interventions. It’s the same idea used recently by Harry Binswanger’s opponent in the “First Principles” debate to justify taxation. Dr. Binswanger objected to it, and has since that time on his email list written a scathing critique of social contract theory.
If you agree that juries are minimally necessary for the functioning of government, surely you must also agree that the police are. But the police require salaries. And if living under a proper government amounts to consenting to do what is necessary to maintain it, then surely taxation to pay their salaries would be necessary and proper, as well. But Ayn Rand doesn’t come to that conclusion about taxation (neither do you). If anything paying the salaries of the police (and the judges) is *more* necessary than jury trials. It’s not obvious as a matter of philosophy that we need juries; it’s more obvious that someone must administer justice. We could just have judges. But then we would need to pay them. So your argument would justify taxation to pay them.
You could respond that if your argument justifies taxation, those subject to this requirement are “not being forced, [but] merely being required to carry out what is (or is akin to) a contractual duty.” This, of course, depends on your ability to justify a social contract theory, which I think is difficult to do. It also depends on explaining why there would be no force involved in the enforcement of such “contractual” obligations, which is what I think you try to do here:
“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.”
But Amy, this is exactly the same point that every leftist makes in order to argue that taxation is not really coercive. They say the police won’t come and beat us up if we don’t pay our taxes. We’ll just have to pay a fine. But the usual Objectivist response to this is: what happens if you don’t pay the fine? You go to jail. What happens if you resist when they try to take you to jail? They use physical force.
I also think Diana’s point that you can’t force a mind is incredibly important. If we need juries at all, we need them to provide justice. Justice is impossible without objective thinking. You cannot force objective thinking. You say that compulsory jury duty wouldn’t force people to think, only to pay a fine. You’re right of course: you *can’t* force a mind to think. But the point is that someone who becomes a juror only to avoid the fine is not the kind of juror we want. If we don’t want a conscript army because they would lack the motivation to fight for freedom, we certainly don’t want a conscript jury to dispense justice. The time required of such jurors may be minimal, but the impact on the defendants will be quite real, perhaps even more direct than the impact of a conscript army.
Still, I agree with you entirely about Diana’s manner of raising her objection.
Thanks, NS, there’s a lot to consider and I’m still mulling over the issue. My main points were to say that I objected to the manner of the disagreement, and to show that the issue is not an easy one. Once we have a government to which we have delegated the ability to retaliate when force is initiated, then there is a potential for anyone living under that government to be prosecuted unfairly. If we agree that a right to a jury trial is the best way to ensure justice is done in this context, one might reasonably think that we have an implicit agreement to serve on juries for each other, just as we have agreed to delegate our right to self-defense (with certain limited exceptions). Anyway, my thoughts on this are still half-baked, as I am way more concerned about our country even surviving for the next few years for this to be a pressing issue for me. Let’s hope we all get to see the day where we need to decide what to do about this!
NS nailed the point I was going to raise, which is that I too saw the “social contract” premise in Amy’s second question. Dr. Binswanger’s post on the subject was recent and is still fresh in my mind, and in it Dr. Binswanger specifically rejects the notion of any “agreement” between government and those it governs.
I do not believe that Carl Svanberg’s analogy regarding children applies here, on that grounds that unlike jury duty, child-bearing is a clear-cut choice of action (assuming the option of abortion) which, by its nature, incurs the obligation to raise the child to adulthood. As I put it, “having a child” is a single commitment to act which is 18 years in duration. Parenthood isn’t a “contract” in the usual sense of two parties reaching an agreement, insofar as the child is not legally obligated to his parents (certain recent absurdities to the contrary notwithstanding), but the parents ARE legally obligated to the child by their choice to bring him into the world.
More fundamentally: “You must do X, or else” is duty as Kant conceived of it — a causeless, unchosen obligation. To ground jury duty in reality, causation must be shown — i.e. what action choice on the part of the potential juror incurs the responsibility to serve on juries? Unfortunately, Dr. Peikoff’s podcast also posits the “tacit consent” theory noted by NS, in his formulation of “signing up” to a government.
Ironically, such a case could be made against me; my choice to emigrate here from Canada could plausibly be cited as incurring such an obligation. In fact, I’ve been asked to serve three times. However, as a non-citizen, I am not permitted to serve.
Did Dr. Binswanger’s post deal specifically with the questions of juries, or just social contract theory more generally? Since I’m not a subscriber to his list, I haven’t read it. What I am trying to figure out is whether the jury issue is more like the subpoena issue, or instead is the same as military service or compulsory taxation.
Amy: Regarding the subpoena power: the key differentiation between jury duty and the subpoena power is similar to why I said that Carl Svanberg’s parenthood analogy doesn’t apply: there is a clear causal link present in the subpoena power. As I understand it, the state cannot apply it willy-nilly and randomly summon people to court. For obvious reasons, it would only seek to subpoena individuals who the State has *reason to believe* are in possession of information relevant to the case. That knowledge “involves” such individuals; they can make a difference in helping the court reach the *correct* verdict, something which is plainly in everyone’s rational interest for the same reason that governments as such are. For this reason, I agree with the notion of the subpoena power, so long as there are standards of evidence by which this power is objectively constrained.
Note that the basis of this approach is that of rule-of-law, which by definition excludes any issue of “consent”, tacit or otherwise; there is no opting-out of law, because there is no “opting out” of respecting individual rights.
Jury duty, on the other hand, IS applied in a literally “willy-nilly” fashion, being drawn randomly from DMV lists etc… just like the military draft. (Now there’s an interesting side question right there — in the relative absence of government records of individuals that is likely under laissez-faire, how exactly is the government supposed to select people? Would Selective Service exist?) I submit as evidence my three-time selection despite being unqualified.
This brings us full circle right back to my primary point: in the absence of causality, i.e. an identifiable, specific action — the “opt-in” — on the part of a person who has allegedly *incurred* jury duty (in which case it would be jury responsibility) this obligation, being unchosen, is causeless and arbitrary in precisely the same manner as taxation and the military draft — or Social Security, for that matter.
Regarding Dr. Binswanger’s article: He dealt with social contract theory in general, not the jury duty question. I will ask for permission to send you a copy of that article.
In the meantime, my best effort to encapsulate his argument, is this: Rights are non-negotiable. You cannot relinquish your individual rights (they are “inalienable”), and there is no such thing as invoking one’s individual rights to sanction enslaving oneself. This is grounded on the objective facts that give rise to individual rights in the first place. “I enslave myself” can have no moral or legal force.
Social contract theory, for its part, rests on the opposite premise that individual rights can be used to sanction the surrender of individual rights. (An aside: so does the hierarchy-reversing libertarian “self-ownership” concept espoused by Rothbard.)
I am in complete agreement with Dr. Binswanger’s core premise as applies to the question of “tacit consent” to jury duty. To be frank, I cannot see how the “tacit consent” argument used here can fail to “leak” into justifying statism in general.
If my three key arguments stand:
1. The “tacit consent” argument contradicts the objective foundations of individual rights
2. The subpoena power differs from “duty” or any sort, in that it has a basis in causality — there is objective cause for a particular individual to be subpoena’ed
3. That given points 1 and 2, jury duty is therefore understood as being a literal “duty” in the Kantian sense of being unchosen and causeless in regard to the particular individual being imposed upon
… I therefore close by saying that jury duty, like any duty, is clearly a violation of individual rights, and that Dr. Hsieh’s case, far from being “rationalistic”, is the one that has solid grounding in Objectivist principles.
I grant that this issue of juries isn’t really that important in the current situation we find ourselves in, and I understand why you may be inclined to focus elswhere. My position is that the “little issue” is beside the point if one is not as careful in checking one’s premises in regard to it, as one does for the “big issues”. As Objectivists, we ought to be as conscientious and ruthless with our premises in the little issues as we are for the big ones.
On that grounds, I close by saying that I am inclined to agree with Santiago, in that checking the “social contract” premise is a much bigger deal than the jury impaneling issue itself — and, absent that premise, Diana Hsieh’s position is far from “rationalistic”: it is solidly grounded on Objectivist principles.
What I need to think about more, and won’t be able to do for several hours (and perhaps a few days, because I have a stack of exams to grade) is whether there is an objective reason to summon a jury of one’s peers, similar to that behind a subpoena. And again, I did not object to Diana’s disagreement itself, nor did I call it rationalistic. My objection was to the manner of the disagreement. More later.
My apologies for the funky editing there, as I “closed” twice 😛
Amy: My apologies, I should have made clear that my defense of Diana against the “rationalism” charge is directed to others in this thread. (Fred Wiess, I’m looking at YOU.)
I understand and await your further comments on the issue of whether there can be found an objective, causal basis for jury responsibility (which is what it would be, if you succeed in finding such.)
As far as Diana’s manner is concerned, my position is this: Diana did not pursue the “tacit consent” angle IIRC, so one could argue that the “complete opposite” comment was over the top in regards to the particular approach she took. I noted that myself, but it struck me as in keeping with Diana’s enthusiasm for ideas, and well within the bounds of ordinary personality variation. I happen to *like* her enthusiasm, so I’m perhaps much more forgiving of such things than others. I would have taken that up with her privately, myself, as I see that issue as being much more minor than that of jury implementation in a far future free society.
That being said, it is clear to me that “complete opposite” IS an apt discussion of the relationship between Dr. Peikoff’s “signing up” premise as I understood it, versus Dr. Binswanger’s invocation of individual rights to reject “social contract” as I understood that.
I was going to make a few points, but found them all eloquently expressed by others. A very nice thread!
Slacker. 😉
I think your point here about citizen juries being a protection against government power is very important. If it did in fact turn out that making jury duty mandatory was necessary to achieve this then I don’t see any way around it. I would much prefer to have some people forced out of a few hours of their time than see an innocent man rot away in jail for years.
Again, I have to keep saying that I haven’t reached a conclusion on this, but I was thinking about the idea that, if juries are only voluntary, and therefore are probably paid more than a nominal amount by the government, perhaps they would be biased in favor of the government? It is a concern, and one we’d have to address if we were to decide what to do about this, someday.
Thanks, Luke.
Thank you for writing such an eloquent post on a complex issue.
However, I’d much prefer to see the issue of mandatory jury duty avoided simply by offering handsome compensation to incentivize volunteers. This could be achieved more easily with the abundant wealth a true free society would produce.
I also don’t like Hsieh’s manner of disagreement, especially on an issue as relatively minor as this one. Given this alongside her other conflicts with Dr. Peikoff, I strongly suspect that she’s trying to undercut his influence among Objectivists.
I don’t have anything against Diana Hseih’s outspokenness. I think if she disagrees with something, she ought to come right out and say she disagrees with it and state her reasons, which I think she did. Unfortunately, I think Dr. Peikoff’s response and Hseih’s response are answering the question form two different contexts, so maybe she should have realized this and stated the difference in the context as the basis of her disagreement (juries as they are now versus how they might be and ought to be in a totally reformulated judicial system). A lot of Objectivists try to make arguments from a totally individual rights context, and I’m not sure the idea of a “social contract” fits in with that. I do agree that as it stands now, they have to draw from a pool of peers, and with the payment for jury duty being so low, it comes across as force.
I’m 53 years old, have lived in many states as an adult, and have only been summoned to jury duty five or six times, and considering most of those didn’t even wind up being a complete trial because they settled out of court, I can’t say I have been unduly inconvenienced, and besides, I was paid fully by my employer. So, I think some people blow this issue out of proportion. And, when one considers that the law of $6 per day was made when the dollar was worth something, adjusted for inflation, that’s over $100 per day — and if it was paid in gold dollar or silver dollar coins, it would be a lot more than that! In short, I think some libertarian minded Objectivists tend to “go for the throat” for everything they think is a violation of individual rights, when that is not necessary.
Originally, juries were part of the checks and balances on the government power — it gave the people a chance to consider specific laws and how these were applied in real life, without having to become a lawyer and studying the laws as a profession. And I think something like that would be necessary in a free country, or else the law could become totally detached from the people. So, even though I am against the idea of a “social contract” on principle; some things have to be expected of the people in order for justice to be served. I don’t know the details of how this would be worked out, but certainly, if they paid that $100 per day or six gold dollars or silver dollars per day, there would be a lot less griping about it.
I do agree that as it stands now, they have to draw from a pool of peers, and with the payment for jury duty being so low, it comes across as force.
Assessing “forcibility” is not contingent on the amount paid. See: eminent domain.
This forum set-up is not very good for finding specific replies to specific posts, so Amy, if you are going to set up a discussion forum in the future, I’d recommend something other than the current WordPress forum.
At any rate, I agree with Jim May that force is not contingent upon being paid for it afterwards. That is, if someone comes up to you and punches you in the face and then gives you $100, he still committed the initiation of force; the fact that he paid you for it afterwards doesn’t change the facts of the initiation of force. He gives the example of eminent domain, and I agree that this is force even though the government will pay you the “market value” of your property after taking it away from you against your will. Likewise with current jury duty. Even if they did pay you a reasonable pay on the return of your time, it would still be the initiation of force — i.e. they made you come down to the courthouse with the threat of force if you don’t show up, even if they did pay you for your services afterwards.
I guess what I should have said is that $100 per day is a decent salary and would induce people to come to court to serve on a jury without the need of threatening one with force if one does not show up. I don’t think this is similar enough to forcing one to give up information relative to a trial. It is more predicated on the idea that we have a “duty to justice” or a “duty to the State” and I think we need to work on eradicating this whole irrational concept of duty — and especially duty to the State. There is no such duty in a rational code of ethics and politics.
“This forum set-up is not very good for finding specific replies to specific posts, so Amy, if you are going to set up a discussion forum in the future, I’d recommend something other than the current WordPress forum.”
Thomas, WordPress has one great virtue: it’s free. The only thing I have to pay for is the upgrade so that I can host my mp3 files on it. Since I don’t make any money on my blog, I don’t spend much on it. But perhaps I should set up a “donate” button and, if I get enough in contributions, go for a host upgrade. 🙂
For civil cases, I think court funding could include a voluntary tax on all contracts of, say, 1% of the value of the transaction. That entitles you to the courts as needed for that contract. If you did not pay it, there would be a much steeper cost involved in litigation. (Effectively you buy insurance ahead of time or not–your choice.) I also think it might be a good idea that all judgments be taxed a small percentage–which could be paid for by the losing party.
Jurors would be compensated better, and if you didn’t want to serve, you could pay a fine that would go into a fund to finance jurors’s compensation.
For criminal cases, I think that those found guilty should be charged by the government and their assets liquidated according to a schedule. Funds would cover at least part of the operating expenses of criminal courts.
Set up right, the aim would be to have voluntary jurors. But if there were deficiencies, then people would be required to serve. When you consider how few cases there would be, with objective laws, the burden of jury duty (if it were to exist at all) would be infinitesimal.
The right to a jury trial — and therefore the compulsory element — would come into play only in criminal cases, presumably. And yes, there are plenty of ways to voluntarily fund the proper functions of government. I just hope we get to see the day where we have to figure out which method is best!
I am somewhat concerned about the combination of paying jurors too well and making service voluntary, but I guess this wouldn’t have to be an issue, so long as the government is not allowed to skew the selection process, no juror is allowed to serve too frequently, etc.
There shouldn’t be an absolute right to a jury trial. If there’s no jury, then a judge will have to make his own decision in the case, and maybe judges should be making more decisions instead of juries anyway–I’m not sure. People have to decide to be judges and serve on juries, just like they have to decide to serve in the military if there is a threat. Yaron Brook once made a very good point on the broader issue of what happens when something important is not being done, should the government get involved. He said that if a country is being attached militarily and there are not enough people to sign up for the military, then that type of society does not deserve to be saved. It was in one of his Q&A’s I believe on arc-tv.com.
Another point is that the mechanism of compulsory jury selection, of having that simple, convenient option available, makes people lazy and passive. Not having that “backdrop” or “safety net,” being free to figure it out, is necessary for society to even have a chance of developing an operable, voluntary justice system.
I like the idea that those who insist on the criminal trial, having had due process and having been found guilty, ought to pay something of the expense of the trial. However, if you pay jurors out of this fund, do they not have an incentive to find the accused person guilty?
Another idea. The plaintiff in civil court must finance the juror’s compensation. They could purchase jurors’s insurance from a company: that company guarantees to pay for the juror fees should they arise. Anyway, the point is that solutions exist that we cannot know yet, but in a capitalist society that protected rights, this is a really minor issue that could be solved easily.
Agreed.
I don’t think the primary issue is financing the courts, because basically, if you want something, you have to pay for it one way or the other. The government has no money on its own except through taxation or voluntary contributions — and in a free society, I think plenty of people would voluntarily pay for the upkeep of justice, since it effects everyone in that society. The primary issue in this concern (of Dr.Peikoff versus Hseih) is can the government force you to dispense justice? Dr. Peikoff seems to be saying yes, within a context, and Hseih is saying no in her context.
I think it may well come down to the fact that one has to pay for justice one way or the other — there would be no free lunch in a capitalist society. Everything would be paid for and the government wouldn’t provide for things that were not paid for (there would be no deficit spending under capitalism, though there might be borrowing). So, in a sense, one could pay for the jury and court system either with one’s money or with one’s time. That is, if you voluntarily paid for the jury system, you might could get a waiver from serving on the jury. If you could not pay, then you would have to volunteer your time (with pay) or lose access to the court system. And I don’t think this would place too much of a burden on the poor and uneducated, because the rich or those well off, would also have to be concerned with issues of justice. So, in a sense, serving on a jury would be a way of paying for justice; you are just doing it with time instead of with money, but you would have to contribute something because there is no free lunch and no free trials in capitalism.
So, it would not be a social contract in the usual way this is thought of, but rather if you want justice to be upheld and can call on it when you need it, then you would have to pay either with money or with time.
Regarding Diana Hsieh’s treatment of Dr. Peikoff, Diana has been a big defender of Dr. Peikoff in the past. I am not certain but it may be the case that the debate over the Ground Zero Mosque may have changed that. Dr. Peikoff did refer to Diana negatively in one of his podcasts with the “Phd with a podcast” comment.
However, I don’t think we should ascribe hostile intentions to Diana over this. Yes, one can take issue with the “complete, complete opposite” statement but I think that we should extend the benefit of the doubt to Diana and not jump to conclusions that she has hostile intentions toward Dr. Peikoff. That is not warranted.
I think some points are relevant to the comparison to the social contract in this case. I don’t think Amy’s is a social contract theory (at least not in the traditional sense), and I think the issue bears on the propriety of mandatory jury duty. Amy will know much more about this subject than I do, but I wonder whether we’re on the same track. This is my understanding of Leonard Peikoff’s position.
A legal contract presupposes both parties have a right to whatever they are contracting about. To be legally objective, we first need a founding document (e.g., the Constitution) defining such rights, which is not itself a contract, and which establishes the procedures for adjudicating contracts. (The idea that a government arises from each contracting with each does use a stolen concept, or else equivocates on “contract.” I also think tacit agreement is very slippery, and unnecessary for making this argument.)
The existence of a government as such does not violate the rights of men who don’t choose to recognize and deal with it. A government qua government (i.e., considered as the sum of its legitimate functions or powers) is initially only a set of legal abstractions. It’s not possible to implement the system in reality without men and resources¾but the men and the resources themselves do not constitute the government. The government is a set of capacities, realizable by interchangeable men and resources.
Apart from the consent of all participating parties, the use of the necessary resources by any government would indeed require some kind of rights violations. Therefore, while the existence of a government as such does not require the consent of the governed, its material implementation (i.e., the “how” of protecting rights) does, and therefore it must be left to each man to decide whether he wishes to participate or not, his choice thereafter determining the extent of his financial and/or participatory obligations.
For those who don’t participate, their interests depend only on their not violating the rights of men who do participate (either directly, or by the non-objective use of retaliatory force in the geographic region, which is an objective threat to citizens). Such people can carry on in complete ignorance of government and of law, so long as they never use force. For those who do agree, however, part of the agreement (this part being the real “contract,” rooted in a Constitution’s provisions) is the agreement to contribute materially or by participation. (The terms can be included in the contract.)
A person who opts out of the government pays no taxes and serves no jury duty, but he does not receive protections from the government (except perhaps police and military, for epistemological reasons). A person who opts in agrees to pay for services rendered, and to serve on a jury as determined by the terms of his contract. All contribution (and association) is voluntary, the “social contract” is not invoked to foist unchosen obligations onto men, and all citizens serve jury duty, or else pay those who do.
I think I agree with you that The Constitution is not a binding contract on the American people — it is only binding on the Federal Government and sets the boundaries of the government. It doesn’t govern the people, who are free in their lives so long as they do not initiate force, it is there to govern the government. So, I don’t think one can say that The Constitution binds the people to anything, and the people do not have to swear to uphold The Constitution, because it is not about them, it is about restrictions on the government.
But I do like the idea that in order for one to be covered by the courts of law, one has to pay for it one way or the other — either with money or with time. See my earlier note for more details.
The philosophy of Jurisprudence should tell one how to make jury duty plausible, more equitable, and “enjoyable”. Some possible answers follow.
1. Construct juries to have 7 members, not 12. This lowered number of jury members would prevent “a hung jury”. and cut the number of jurors almost in half. With the money saved the courts could make a wage or atleast increase the present one. Jury duty is not slavery and should not go unpaid. Thus, this would take some of the financial “sting” away from missing gainful employment.
2. If payment cannot be made for jury duty there might be other solutions. Those who are on welfare and do not have work would be first in line for jury duty. Could these welfare recipients do all the jury duty needed by our court systems? I do not have the statistics to know the number of these possible jurors. The list and the number of welfare recipients should be found at the Unemployment Bureau. Possibly, they would have to be on welfare for at least a year to qualify for this. Performing this jury duty would be one form of payment that non-productive, welfare recipients could make for the productive– those who pay for their unemployment. Another source would be immigrants who wish to gain citizenship here. It could be a requirement for American citizenship –to perform jury duty at least once before receiving their citizenship paper. This may be akin to the present use of military service as a way to American citizenship.
3. Jury duty is selfish and moral to perform- it is self motivational. One would want a jury of one’s own peers to protect the right to a fair and speedy trial–especially a trial of one’s own [or a loved one’s]. Juries prevent courts from becoming rubber-stamps for the politicians in power. I believe that is one of the nightmares of all dictatorships. The accused have no such thing as the right of trial by jury in Jong Il’s North Korea, for example.
4. Another motivation is: juries also prevent kangaroo courts. Truly, the founding fathers were brilliant in understanding this constitutional matter.
These are a very few, brief, and non-philosophical ideas that might be added to the solutions that present-day courts are utilizing to solve this dilemma of jury duty. Of course, it would be great if we could consult further with a real Judge Narragansett [or perhaps with a John Jay. ]
My “gut feeling” is to maintain Dr. Peikoff’s philosophical opinion on this matter of Jurisprudence. I know with certainty his strong position on reason and justice. Ms. Hsieh might have erroneously misapplied her argument and, therefore, not understood Dr. Peikoff’s judgement.
Lastly, roughly nine months ago I was called to perform jury duty concerning a suit brought against Jackson Convenience stores here in Reno, Nevada. [A matter concerning their gas pumps and a breakaway mechanism.] One of the attorneys was well-known– via his many tv commercials. And, I truly did not find the experience unpleasant. Of course, I was not selected and did not have to endure the ensuing trial.
Best premises, Dr. Peikoff.
Interesting:
Do you think jury duty differs from taxation? It seems that a court needs both money and jurors if we are to have any sort of right to a free trial.
Regarding the more interesting point about the manner of the argument, would it be fair to summarise your objections as:
1. Dr. L. Peikoff did not commit to a firm philosophical position in his podcast, indicating that he did not have a strong opinion, his answer was more an act of speculation.
2. In categorising her position as the “complete, complete” opposite, Diana misrepresents Peikoff by implying he is strongly in favour of mandatory jury duty
That’s how I took it, Roberto. But I left it for people to listen to the segments and decide for themselves.
I disagree that the issue is as complicated as you seem to think it is. In fact, I am surprised that people are having trouble with this at all, since the arguments for it seemed so clearly just minor variations on the whole Social Contract justification for taxes and conscription.
Did Ayn Rand say or write anything about jury duty? I’d have presumed she meant to include it in “the law courts” and “[citizens’] ‘government obligations’” in the essay “Government Financing in a Free Society.” No? Is the proposal that jury duty might be an exception to the principles there?
A thought occurs to me: a premise that needs checking is the idea of “a right to a jury trial“, where it is a jury of one’s peers etc.
As I understand it, the actual right involved is the right to justice, not to any particular implementation thereof — in much the same way that we have the right to property, but this does not translate into any automatic claim on any particular good; we still have to acquire a claim to a particular item via trade or production.
While there are many sound arguments for why jury trials are a good implementation of said right, this is a derivative issue. If there were discovered a different method of trial that was found to work better without juries, than we ought to do that.
So, a case can be made that so long as there is “a right to trial by jury”, then there is implied a *duty* on the part of others to provide it. But the pattern therein ought to be immediately recognizable; one person’s “right” to a particular good or service necessarily obligates, without “opt-in”, someone else to provide it.
I therefore question the validity of the “right” to a jury trial, on the same grounds that all positive “rights” are invalid; it is a duty cloaked in the language of rights.
Yes, this is a good thought. A right to a jury trial, or food, or whatever, is incorrect.
I made a similar argument in a comment on this thread:
You are right that the jury trial per se is not the right, but the right to due process under the law. However, the jury trial is simply the method our Anglo-Saxon ancestors hit upon, going clear back to the Middle Ages. It was a common law right first, then a formal right in English law coming out of the clash between absolute monarchs like Charles I and Parliament in the 1600s. Folks on this thread are right to see the jury trial as a check on the potential abuse of power by the magistrate.
I would like to think that if the jury trial were the method we wanted to keep, that a realistic payment and the request for volunteer citizens would produce an ample showing of jurors, especially from the retired.
DH’s conclusions on jury service and her separate conclusion against publicly paid defense counsels for indigent defendants reflect her not considering these trial issues in the context of the defendant’s right to a fair trial.
Related to the charge of jury service being an unreasonable compulsion, at least here in Virginia, individuals can opt out of jury service with cause; the principle of respecting the life of the potential juror is established and can be procedurally modified where deficient without violating the defendant’s fundamental right to a fair trial by hindering their civil right to a jury.
Related to the essential nature of a jury to a fair criminal trial, I cite Jefferson’s Louisiana policies for transforming the former subjects of Spanish tyranny into citizens fit for republican government. While extending limited civil rights to the residents of Louisiana, the right to a trial by jury was one of the first; in Jefferson’s judgment, participation in a jury was an essential mechanism for educating the Louisianans in self. I observe that unstable Latin American republics liberated from despotic Spanish rule do not have juries, thus this right may contribute to a republic’s longevity by checking executive authority and demagoguery.
For reference on establishing republican governance in Louisiana, including multiple comments on trial by jury, see excerpts from Dumas Malone’s Jefferson & His Times Vol 4
Part 1: http://www.youtube.com/watch?v=kTQhaXSAULg
Part 2: http://www.youtube.com/watch?v=27iLueZrqdU
Pingback: On Jury Service
Regardless of which position on jury duty is correct, I thought the Noodlecast hosts were rude and disrespectful towards LP:
“…[LP’s] answer, which *really* shocked me I have to say…” [29:00]
“this is not the attitude of a rights respecting person” [34:15]
“there’s such a deep contradiction in here, it bugs the hell out of me” [37:49]
“it just hurts my head to even think about it” “mine too” [38:01]
I’ts ok to agree or disagree with anyone you want, but at least have some manners.
I’ve outlined some thoughts on politeness in intellectual disputes here:
http://sarrionandia.com/blog/?p=252
Another observation I made some time ago. James Madison once said: “Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” There is a good reason why he said this. Study history. Induce.
http://www.usconstitution.net/madisonbor.html
I enjoyed and agreed with some of the points and issues raised here by the participants. Here are some questions I think relevant to resolving the issue.
1.) If you were personally accused of a serious crime and preparing to stand trial, is it obvious to you in advance whether you would prefer a judge (or a panel of judges) or a jury in evaluating the evidence presented? It is not clear that a jury is an absolutely necessary component of a proper government–i.e., to dispensing justice, especially in highly technical or complex cases. (Jurors are often ignorant and/or biased.)
2.) If you select a jury, would you prefer a jury you know to be comprised of jurors who have chosen to participate, or have been conscripted into serving, at your trial, and may not be there if not for governmental compulsion and/or penalties (e.g., fines)?
3.) If the right to a jury is a necessary component of a proper government, does that necessarily justify coercion against any specific person to implement in reality? Do all necessary components of a proper government similarly involve compulsion? Certainly they do not, in the case of police or a standing army. Is there an essential difference here?
4.) Does one person’s “need for justice” place a claim (however small) on someone else’s time, resources, etc.? I may need proper justice to be recognized as innocent of some crime for which I am falsely accused, but why does that need justify a claim on any other person, if that person has not explicitly consented and agreed to serving on a jury at my trial? I do not see how this is different from, say, needing a soldier for protection and then specifically enlisting you to protect me against your will on the grounds that soldiers are needed for a proper government and you happen to live in the government’s geographic domain. The degree of inconvenience involved to the person facing compulsion is not material.
Regards,
Ryan Jamieson
This is a cross-post, but I wanted to throw in my two cents.
Let’s compare it to taxation. In a truly free society, taxation would be voluntary (cf Ayn Rand). The corollary of this would be that all functions of the state would be voluntary.
So, would compulsory jury duty be permissible? For the same reason taxation would be permissible – it is necessary to implement in order to transition to a free society. Ideally, jury duty would be voluntary, like taxation (Peikoff hints at this).
If one, however, attempted to eliminate taxation or compulsory juries today, it would prevent the government from functioning and as a result make it impossible to reform. This is Peikoff’s point, which Diane both misrepresents and rejects.
This assumes, however, that both juries and juries of regular citizens are required for justice. The Lawyers/Parties in the case can choose to hire professional juries which are not part of the legal system. Whole juries or individual jurors could be independent and reviewed by the “market,” like how food and medicine would be. This resolves the need for regular citizens as jurors, and delegates labor to a knowledgeable juror who will have a history of working objectively. Diane claims this is not a specialized labor but she is wrong, in the same way that a product reviewer, detective, lawyer, and judge are all specializations.
Alternatively, I still see no reason why a judge or group of judges can settle a case. Peikoff also affirms this as a possibility in his podcast. The answer is to be found through a definitive presentation of the philosophy of law (yet to be written).
In the end it boils down to this: you either say “perfect society now” and prepare to accept immediate destruction or failure, or you say “functional reform” and push it towards the goal.
If you expect the US to adopt the former, you better have a lot of money, guns, and votes.
As for a moral foundation for the latter: “We are forced into this position due to the ancient, on-going, tradition of force against the individual, which we are working to correct.”
I left the following comment on Diana Hsieh’s blog (where I post frequently). I thought I would cross post here since there are some really well thought out comments here and it would be nice to be part of the discussion:
“I just listened to Diana’s podcast segment (from last week) on compulsory duty and Amy Peikoff’s detailed response. I have to place myself in the camp of the Peikoffs’, especially Amy’s who makes some really good points.
Diana’s contention is that compulsory jury duty violates individual rights and is consequently an initiation of force. However, a government exists to protect individual rights and more precisely, for situations in which it is not clear who has violated whose rights. In fact, if it were always clear whose rights were being violated we would not even need a government. We could outsource government in an anarchocapitalist model and just pay a company the best price to enforce justice.
In cases where it is not clear who has violated whose rights (which is what happens in real society) it is necessary to have due process and a trial. In situations like these the concept of “initiation of force” cannot apply since no one knows who has initiated force and who has retaliated. The situation must be treated as sort of an emergency situation and the solution is to stop using more force and hold a trial to either find out who is guilty or to reach a “settlement.”
In all legitimate functions of government (national defense, law enforcement), one cannot use the argument that “such and such should not be allowed because it violates individual rights. Government, by definition, has a monopoly on force and is a precursor to the existence of individual rights. The legal concept of rights is not too meaningful outside of a legitimate government. It is for this reason that I agree with Dr. Peikoff’s formulation–if jury duty can be proven to be a legitimate aspect of government there is not harm in making it compulsory. Yes, this also implies that “violation of rights” is not a strong enough argument to argue against either compulsory taxation or a military draft.
The proper way to determine whether either of these three are moral or practical is political philosophy or the philosophy of law. My personal positions are:
1. Oppose military draft. However, if a situation came like say the USA was reduced to the size of Iowa or something and the only moral and free country in existence then making a military draft and compulsory military duty would make more sense.
2. Would love to implement voluntary taxation if someone could tell me a method that would be both just and fair. Till then I’ll stick with the compulsory model in USA.
3. Jury Duty is a complex question. I think it depends on how badly people want to do it. If no one wants to then its better to make it a law so that everyone has to fulfill their obligation equally. If a bunch of people are willing to do it for adequate pay then I don’t really see any need for compulsory jury duty.
Diana makes a really good point about the fact that the mind is free and cannot be forced. Thus, making jury duty compulsory would be counterproductive. I think thats a great argument for voluntary jury duty (and voluntary anything really). However, the case for compulsory jury duty rests on the recognition that the burden for government should be distributed equitably on everyone’s shoulders and should not just rest on the few who care the most.
Sajid Anjum”
Pingback: Happy Blogversary to Me! | Don't Let It Go
I live in Arizona, I got my second summons to jury duty, after first receiving a failure to appear card in the mail. I don’t want to do this, I’ve never been to a court house in my life nor have been arrested or had a traffic ticket. It is not right to me as an american citizen that courts try to make you go to do something you don’t want to do. I don’t care about anything to do with jury duty or the justifications of why or what constitutes it. I find it insulting that our government forces people to go do these things and threatening them about penalties if they don’t go. I simply cannot afford to drive over 40 miles every day with my vehicle needing work and cannot afford to fix that either right now. My ac doesn’t work my radiators cracked and my steering column is broke on one side. They don’t care about that at all, I told them this on the phone and the bitch doesn’t care I even told them well, I don’t want to do it and she said I can’t excuse you cause of that. It is not right to make someone who is not willing nor do I care about the system, its twisted and eveyone knows it. I obey the laws but this has to be a violation of rights some where. I don’t want to do it I’m not going to do it, and they cannot make me do it. I’ll sue the state if thats what it takes. I don’t have much in the way of money, and cannot drive around everyday cause our courts say you have to. I know nothing about the court or court house (s) I’ve never been to one, and by the time I pay all my bills I can’t afford to pay for parking I don’t even know about their parking situations. I cannot pay for parking for a whole day anyhow. I can’t afford to drive down town by the middle of the month. Like I said I don’t have much in the way of money. No ones hiring here right now, and its hard for everyone. You try living off of only $674.00 a month (SSI) and get a summons for jury duty, can’t do it. Buses don’t run up here, my vehicle needs work and over heats if I don’t keep putting water in my radiator: and I cannot afford the parts I need. I cannot drive more than 60 miles at one time with out worrying about blowing my radiator. I know everyone has a right to a fair jury but the government or state should have no right to force american people to do jury duty whome are not willing to do jury duty and therefore may not give accurate or willing answers: but I want no part of it, I’m not one to judge and never will. I’m a very private person I don’t go anywhere and I don’t care what my neibors are up to, I mind my own business.
Here I am, late to the party again. I seem to find these things long after the group has moved on, much like finding the hot night spot or the popular restaurant. But, as I read Amy’s excellent post, and the thread, and thought about it afterwards, I had an idea or two. I decided that I wanted to set them out. Maybe someone will notice and give me some good feedback. Hell, they might even say it makes some sense.
The issue of jury duty is vital. To protect individual rights, the right to life, means at the very least that someone who violates those rights is brought to justice. Justice means, at the very least, that the right person is found guilty of being the violator, the law breaker. Justice requires a rational, objective (not meaning that those two terms are really different from each other) method of establishing the truth, which should be some sort of trial, and the judgment of men. Here, Amy’s point about avoiding the use of government employees for this purpose is a major issue. Again, at the very least, the accused should have the option of not using government employees. So the need for a trial with objective decision makers follows from having a government that protects rights. It follows from the existence of the rights of the resident, the victim, and the accused.
How then are we to find those decision makers? It does seem, which is to say that it is a contradiction to force people to be decision makers, in all senses. In addition, the “social contract” idea fails due to its involuntary nature. I also think that the issue is obscured by the very nature of the way the activity is expressed: jury duty. A duty is not something we should have in a free society. How about “jury responsibility”? That has a different appeal, doesn’t it.
One fact that was mentioned in this thread but was glossed over was that, at least as far as I know from where I have lived, prospective jurors were selected from the voters. If you weren’t registered to vote, you weren’t selected to be on a jury. I think that this may be important.
Think back to the founding of our country. The Founders did not specify the requirements for voting within the Constitution. It was left to the states. From my recollection, the states required that voters be landed. That is, to vote you had to have a stake in the community, have responsibility, and have a certain level of success. Not just anyone could vote (they also made the mistake of allowing only males to vote, but this mistake was corrected). Since then, the democracy movement has destroyed the requirements to vote, but that was wrong.
Further, the choice to become a voter is an individual one. One can be a citizen, or even just a resident, and one’s rights are protected. But to become a voter is to step forward to be involved in selecting the people who will actually enact the laws. A voter is part of the total legal system.
So, this is my idea. When one becomes a voter, one is assertively accepting the responsibility of the nature and function of the legal system of a free, rights-protecting nation, and part of that responsibility is assuring that when those laws are broken, only the guilty is convicted. Being on a jury, being the decision maker in a trial, is a responsibility accepted when one steps up to become a voter.
Yes, Bob, jurors are selected from registered voters in many/most (?) jurisdictions, and registering to vote is what I had in mind as constituting consent to be part of the jury pool. (Although, I, too, apparently neglected this “hot spot” for too long.) Then the question is, do people think it is a fair trade-off, or that somehow the right to vote should come with no additional strings attached? Regardless of whether you get to vote for those who occupy positions in government, the government should be protecting–and not be violating–your rights, so it seems like it would be acceptable to put you in the jury pool if you choose to register to vote.
Thanks for your contribution!
I am viewing voting as a significant responsibility. Today it is viewed sort of like the action of th flash-mobs that are attacking convenience stores lately. “Vote for this guy and get goodies.” Voting had more status and meaning when you had to qualify. The responsibility should be emphasized, and the additional task for jury responsibility is a consequence. This way it also meets all of our requirements, i.e., it is voluntary, not a duty, not paid, and actually contractual. Explaining to new voters that Jury responsibility is a consequence of the registration to vote is important. Perhaps the responsibility of voting could be expanded. Maybe there should be a charge for registrating. Say, if you want to vote, you must also support the government that you are helping to guide, fork over $100, or $5000, or something. One science-fiction writer had citizens required to enlist in the military to earn the right to vote. Miss Rand, in an answer to a question about rewriting the Constitution said that it was the job of a Constitutional lawyer, i.e., someone who understands the issues. I certainly do not qualify (nor does Hsieh), so I would defer to professional judgment.
The question was posed somewhere above about whether AR ever spoke to this issue. I cannot pretend to have a good answer for that in terms of her public comments and non-fiction writing (while I have read her non-fiction works, I have not read all of her newsletters and such as yet–nor all the transcripts of her public interviews), but it seems to me she “discusses” it in at least two very prominent places. I mean, of course, in the trial of Howard Roark in the Fountainhead and in the play Night of January 16th. Now what does she tell us directly in these two works of literature about juries? Nothing really. The message, as I see it, is implicit and I believe informed by AR’s appreciation of the historical evolution of the jury system and why, while related to the search for justice in any particular concrete case, is actually fundamentally concerned with the freedom of all individuals in society. I will address the historical evolution in an extended blog post on my own blog in a couple of weeks. But as to the implicit message within these works, I think it quite plain–a jury of your peers in a trial for your life is one of your only institutional mechanisms to protect yourself against the application of laws either unjust in themselves, or arbitrarily enforced by a corrupt government. Now it would involve in these literary examples a willingness to negate the application of a standing law to acknowledged facts–but juries are not subject to reversal or prosecution for such an action and this, I believe, is an essential check against tyranny when most others have withered or vanished.
The key to understanding juries as a part of citizenship in the republic is that serving on a jury is one part concrete judgment in the particular case; ten parts maintaining a wall against unjust prosecutions of legitimate laws and unjust prosecutions of unjust laws. I think my forthcoming essay will make this far more obvious in the description of how the founding fathers conceived of this and the historical reasons for why. Of course a jury can err on the side of tyranny, but there are further checks (appeals, pardons, etc) against those errors–there is happily no way for the state to appeal jury rulings lodged against its unjust indictments and laws.
As for the underlying question of whether its ok for the government to compel you to serve on a jury–keep in mind, the government is us, if we can come up with an alternate scheme to voluntarily staff all the juries needed to conduct fair and impartial trials then lets see it an debate it and possibly enact it. It’s hardly a terrible burden to be called forth to sit in judgment of a fellow citizen charged with a crime (keep in mind, liberal political theory has always maintained that a crime against one is an implicit crime against all–and in principal it is: it was Locke who called the act of murder a declaration of war on civil society) and to make sure the prosecutors and judges are performing their own tasks properly–which is clearly in your own interest. It’s also clearly in your own interest to make sure criminals are convicted. This use of state power to make sure everyone who is qualified is equally eligible to serve on juries neither picks your pocket–they pay you–nor breaks your leg. It strikes me as, frankly, silly to attack a bulwark established over a bloody series of trials, wars, and centuries to protect individuals from arbitrary arrests, prosecutions, and convictions as some manner of tyrannical subterfuge. Might it be inconvenient? Yes. Might you have to temporarily abandon some productive enterprise? Yes. Such is life, and it would take a particularly interesting person to put the small amount of time they’ll ever have to put into jury duty (considering it’s immeasurable benefits to their invaluable liberties) in the balance and claim what they were doing before (and can resume after) was “more important.”
Furthermore, we need to have a very serious discussion about real world situations in self-governed societies, particularly during existential emergencies and things like drafts and compulsory taxes. This is not a life boat question–whereas life boat situations are extremely rare, crises in the history of governments, particularly republics–and wars–are very common events and have been shown time after time to be deadly to the independence of free states and the rights and liberties of their citizenry. I’m not suggesting an abandonment of principle, but to speak glibbly about a country deserving conquest and the loss of liberty because, without drafting and taxing, the people living there would not volunteer to fight or pay enough is not useful and in light of what it means in reality, is horrific. Anyway, more on this later.
While I agree with Amy that jury service will never rise to the level of a PROFESSION, my own limited participation has left me convinced that a strong case can be made for treating it as a TRADE.
Right now, the time and convenience of jurors are treated with an indifference bordering on contempt. If jurors were paid market wages (whatever it would take to secure enough volunteers), that would have to change.
Such a policy might also offer advantages in the administration of justice, for example, jurors who had seen “lawyer tricks” over and over again, instead of once every several years, might be less susceptible to them.
In such a case, “the devil is in the details,” and – for one example – steps would have to be taken to ensure that the government didn’t pay these lucrative wages only to those eager to render “guilty” verdicts.
Compulsory participation with the option of paying a fine is still a serious imposition despite this being a civic duty. “Choose” to live under a government…that’s funny talk. Look into the process of permanently leaving the US or becoming sovereign it’s not simple and has many obstacles in fact. Anyhow, when jailing is put on the list of possible remedies for not complying, only the OCD patriotic would look past that or explain it away. As a sole proprietorship I tend to bring in a minimum $50 a day but, if I am not available it’s $0 earned guaranteed. So 10, 15, 20, 30 a day juror pay is a major inconvenience and makes me a highly disgruntled juror.
Not sure if this idea has been raised yet but here goes.
The government could offer all citizens of adult age a written contract, which they may voluntarily choose to sign or not to sign.
The contract guarantees that they’ll be entitled to a jury in the event that they’re brought to trial, on the sole condition that they must agree to serve on a jury when requested. (The number of times in their life that they may be asked to serve and other specifics are delineated in the contract.)
Those who are brought to trial without having signed the contract are instead to pay for the jury out of their own pocket.