The informality of legal discourse
October 16, 2007
Any discourse expressed in natural language is informal. Legal discourse is no exception: any set of laws and any set of facts can be determined by a judge to be consistent with any verdict. Judges, therefore, wield power. Since in a democracy power can only legitimately be wielded to produce results that express the preferences of the people, it follows that in a democracy judicial decisions must be made by a representative body.
Classical Athenian democracy followed this pattern. In the Athenian system, there were no professional judges or lawyers: court decisions were made by a large jury chosen at random from the citizen population. Judicial power in present-day Western style government systems, on the other hand, is extremely concentrated. The single judge (or handful of judges) handling a case has enormous decision power. It is quite unlikely that any single person or small committee would see eye-to-eye with the majority of the population on a wide variety of issue.
Beyond that, the body of judges is selected in a way that makes representation of public preferences highly unlikely. The pool of candidates is restricted to lawyers. Appointment to a judgeship is mostly done by co-optation (current judges select new judges), by appointment by politicians, or by a combination of both. In some cases there may be a popular confirmation vote, but those are usually a formality since the voters have very little information about judicial decisions.
Even in the diminishing number of cases which is decided by a jury, judges retain a decisive role in making decisions by disqualifying jurists, by making various decision on what the jury may or may not hear, and even by simply overruling the jury. Of course, appeals courts and the supreme court do not use juries, so judges always have the last say if juries misbehave. (A page on the website of the International Society of Individual Liberty makes the interesting claim that there has been a gradual encroachment on the independence of jurists. Right wing U.S. ideologists tend to mythicize the past and to venerate the U.S. government in its mythicized original form, so the veracity of this account should not be taken for granted.)
Like with other institutions of our government, the judicial system is rigged to represent elite ideas and interests rather than popular ones. A constant drumbeat of propaganda is employed to legitimize the judicial system, despite the obvious clash between its arrangement and the professed democratic ideals of our society.