Strong and Weak Cases: the Trial in Context

Abstract

The trial is the focal point of the ideology of democratic justice. Though the trial per se is older than democracy it assumed a form with the emergence of the democratic state which expressed a historically specific ideology of justice. Its emphasis on proof by a reasoned case reflected the victory of eighteenth-century ‘rationality’ over the superstition of trial by ordeal. Established rules of evidence and procedure date largely from the same period, expressing the end of arbitrariness and the establishment of the rule of law. The banner of Magna Carta and trial by jury was raised by Coke in the battle against absolute monarchy under the guise of resurrected tradition but also expressing the modern ideology of control by ‘the people’, as indeed did the demand that the trial must be public. The double-sided idea that the accused is presumed innocent till proved guilty and that the burden of proof lies with the prosecutor indicated a new ideological relationship between the citizen and the state: the citizen’s liberty would be the norm and any interference or punishment by the state a matter for clear and public justification. This last double-sided idea is indeed depicted as the lynchpin of the ideology of justice.