Academic journal article Law & Society Review

Presidential Address: Trial by Jury: Story of a Legal Transplant

Academic journal article Law & Society Review

Presidential Address: Trial by Jury: Story of a Legal Transplant

Article excerpt

Introduction

The word transplant" conjures up diverse images, whether it is a team of doctors crowded around an operating table during an organ transplant, or rows of small tomato plants recently inserted into newly tilled earth. For comparative law scholars, the term signals something completely different. Decades ago, the Scotsman Alan Watson (1974) generated the concept of a legal transplant, which continues to be a major focus of comparative law scholarship (Graziadei 2006; Riles 2006). According to Watson, a legal transplant is the common phenomenon of one country adopting, in whole or in part, another country's established law, legal procedure, legal institution, or legal system. Some see this as the single most important phenomenon in the development of law, for example: "the growth of law is principally to be explained by the transplantation of legal rules" (Ewald 1995:489). The notion has been employed to explain the dissemination of legal procedures (Brake and Katzenstein 2013), plea bargaining (Langer 2004), and a host of other legal phenomena across the globe. This essay employs the concept of legal transplant as a vehicle to describe the global spread of trial by jury.

The concept of a legal transplant has been ubiquitous in the field of comparative law, but also contentious. Scholars differ in their views of the extent to which culture and society affect the transfer of laws and legal procedures (for a review of the debate, see Goldbach 2015:92-95). Even the "transplant" terminology is contested (Graziadéi 2006:443). Some scholars of comparative law maintain that the word is at the very least misleading because it suggests that an organ, plant, or legal procedure transplant might function exactly the same in its new body, garden, or country as it did in the previous one (Legrand 1997; Merryman et al. 1994). From this perspective, the idea of legal "translating" more correctly captures the ways in which legal systems import, borrow, or export their laws, procedures, constitutions, or institutions to other legal systems (Berkowitz, Pistor, and Richard 2003; Langer 2004). These scholars believe translation is a more apt metaphor because it allows one to distinguish between two countries' laws that may be textually identical but function in completely different manners.

I am an outsider to the field of comparative law. I am trained as a social psychologist, running experiments, analyzing surveys, and interviewing participants. But like many others in the interdisciplinary Law and Society Association, my research focus on juries and lay participation has lured me into fields well beyond my initial training, in this case, the domain of comparative law. From my outsider's perspective, I find the concepts of transplanting and translating to be thought-provoking metaphors for the movement of the jury in global legal systems: its introduction and its flourishing, as well as its abolition and its decline, around the world.

My essay about the jury as a legal transplant presumes the importance of society on legal movements, and has two emphases. First, I try to understand the societal, political, and legal circumstances and actions that have led to the adoption, expansion, and decline of lay citizen participation in law (Hans 2007, 2008; Thaman 2007; Thomas 2016). Trial by jury is a frequent topic in popular culture. It is regularly featured in movies, television shows, books, and other popular media, particularly in the United States (Abramson 2000:498-500; Hans 2013:392-94; Marder 2007; Papke et al. 2007). Further, research on how the jury functions as a decision making body is voluminous (Baldwin and McConville 1979; Devine 2012; Diamond and Rose 2005; Goodman-Delahunty and Tait 2006; Kovera 2017; Vidmar and Hans 2007). Much jury research is focused on how a jury or another lay fact-finding body functions within a single country at a particular point in time. There is a relatively modest amount of work that engages generally in historical and international comparisons and that specifically contrasts different forms of lay participation (Hans et al. …

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