, Volume 5, Issue 1, pp 93-95

Why America Still Needs the Jury Trial: A Friendly Response to Professor Dzur

Rent the article at a discount

Rent now

* Final gross prices may vary according to local VAT.

Get Access
This is an excerpt from the content

Professor Dzur has noticed that my account implicitly places the trial in opposition to other dominant modes of social ordering in America and argues that this creates important tensions which should be preserved.

I have tried to make this point in a more philosophical idiom in (Burns 2004), reprinted in The Role of Social Science in Law, ed. Elizabeth Mertz (Hampshire: Ashgate 2008).

(For us, after all, “justice is conflict.”

Hampshire (1999).

) Those modes of social ordering are in large part “instrumental” in nature. Their general philosophy is utilitarianism and their jurisprudence is legal realism. Some conservatives of libertarian leanings, who celebrate the liberal values implicit in formalism, sometimes criticize the latter as “social engineering”. The trial offers a yet third way between instrumentalism and formalism,

I described the relationship of this understanding of the trial to realism and formalism in Burns (2001).

the nature of which can be discerned only through a careful