Juries Then and Now
As some of you know, I have been studying cultural ethical systems for a lot of my life. This led me to do a considerable amount of research in the rise of juries, judges, and mechanisms for settling disputes in non-violent ways, especially those mechanisms that were outside of the priesthood and kinghood (both have been forms of government in various societies: our present government is merely an extension of the fallacies of force employed by earlier forms of government).
Early, prehistoric juries were made up of from two to several dozen people. That early prehistoric juries were anything other than a free market response to an apparent societal, tribal, or kinship system need is a ruse I find entirely unsupportable given what we know, anthropologically, of early social systems. These early juries were certainly not a response to government of any sort, but a societal mechanism for dispute resolution; a mechanism that served as an alternative to violence to resolve disputes. One of the problems with using violence to resolve disputes is that the violence often bred more violence.
Generally speaking, each side got to choose an equal number of people. Everything was done before the entire tribe or village. Naturally, each side would choose their kin and friends. Each side wanted a ruling in their favour. The community wanted peace and wholeness of anyone harmed restored, so everyone could get on with hunting and gathering.
But the jurors were answerable to the community as a whole, and the goal of the jurors had to be justice, fairness and peace restored to the community as a whole. The overriding concern was peace and order in the community. From these roots arose what we know as common law. From these roots—and you will find much about the formation of these roots in most religious writings–grew our societal laws and more significantly, our system of cultural ethics. Look at the Bible to find much on the evolution of the common law and systems of justice—which have continued to evolve in our western societies. Look to the Tao, and other books, to examine the evolution of systems of justice in eastern societies. Chase down some of the early written and oral traditions of the Earth’s peoples for more information on justice systems and cultural ethics of early peoples. It is fascinating to track how our ethical constructs developed.
Jurors were not invented to give serfs a veto against masters, nor invented to give peers a veto of the king’s whims, since juries predate both these societal constructs based of force and fear: jurors date back to earlier times than we have recorded history, and show up in early Greek mythology, in ancient Chinese legends, and in very early oral traditions of American (north and south) tribal justice systems.
Independent jurors, drawn from a random selection of voluntary participants, would, in a free, stateless society—usually hunter-gatherer societies early on—fulfill the same function as they did in prehistoric times: justice, fairness, restoration of damaged parties, and peace restored to the community or tribe or village.
L. Neil Smith and Robert Heinlein have both written about the future use of and composition of the independent jury in their works.
I wrote a long piece about the early, tribal, prehistoric role of jurors somewhere. When I find it, I will post it here or link to it.
In a free society, based on voluntary action by all humans, jurors might serve out of an individual sense of good will, curiosity, bias, or any other reason. To postulate that juries would be clumsy and expensive ignores the elegant mechanisms available in a voluntary society to engage individuals in common pursuits even while their individual motivations may be, and would be, myriad.
There is absolutely no evidence at all to support the notion that juries are a response to government any more than the notion that juries are a response to religion—a theory I have also seen offered. Humans, brilliant, creative creatures that we are, are quite capable of devising several alternative means to arrive at the same ends. Look around you. We do not all choose to employ the same means for most all of human functions, whether in societal constructs or in personal choices.
Jurors derive their right to serve as judges in disputes from the voluntary consent of those who choose to submit their case to the jurors. If individuals do not want to use a jury, they can have other choices, but let us not limit their choices to arbitration or judges just because we may not be able to discern the good in using a jury to settle a dispute.
Whether we are a stateless society, a tribal society, or a society oppressed by the force and fraud of kingships, priests, and politicians; jurors serve in varied capacities to protect individuals, restore justice and peace, and to assist in resolving disputes between those who submit to their combined judgment.
If anyone finds any corrections to my thinking, I would appreciate the information.