Ximena Vengoechea

It is said that we need juries because accused persons have the right to be judged by their peers. It is the way we have done for centuries, after all. The system works, juries are by and large discerning and, as defence advocates, in juries we trust.

However, there is more to it than trust. The issue with juries is about checks and balances within the exercise of judicial power. A question often asked, and more so in times of COVID-19 is, if the Romano-Germanic systems can operate without juries, why do Common Law jurisdictions need them?

The answer goes to the core of what differentiates both systems: In the Romano-Germanic, civilian tradition the judge is subordinated to the law. The law, being the expression of the sovereignty of the people, is supreme. It is also hierarchically codified, starting with what Hans Kelsen denominated in his Pure Theory of Law as the “Grundnorm”. Only in the absence of a norm issued by Parliament there can ever be anomy within the system.

In these systems, the judge is a mechanical ‘applicator’ of the norm; a mere “Paragraphen-automat”, a term coined by the legal sociologist Max Weber in 1922. The judge must perform the adjudication process within the confines of the black letter of the law. Only exceptionally, and due to ambiguity or multiple possible interpretations the judge will adopt a teleological approach, look at comparative law, jurisprudence and doctrine as subsidiary sources. That way the judge’s power is circumscribed, held accountable and controlled. Should the judge ever feel slightly creative, the decision will be quashed or declared null, and the judge will face scrutiny for abuse of power or prevarication.

On the contrary, in Anglo-Saxon jurisdictions, judges make the law. In fact “Judge-made law is an independent source of law in common law systems”, as stated by Lord Hodge, Deputy President of the UK Supreme Court in his address to the Max Planck Institute of Comparative and International Private Law Hamburg, Germany in October of last year. It is not until the applicability of the statute hits the courts, that we as practitioners may not be entirely sure of the meaning and scope of a particular provision. Having statutory norms does not prevent us from anomy.

Unlike in civilian systems, judges in common law jurisdictions often exercise their discretion. It is enough for them to be satisfied one way or another for a decision to be held reasonable and therefore binding by an appeal court. In fact, decisions on the law are the province of the judge. And that is a lot of power to be held by one person. Were our judges mere applicators of the law, there would be no point in exercising advocacy or persuasion before the courts.

In criminal trials, where the liberty of the accused is at stake (with all its collateral implications for the accused and their family, for complainers and for society at large), juries provide those necessary checks and balances on the exercise of power by the judge. We do not do this by entrusting complex legal matters to lay persons, no. In a trial, it is for the judge to issue the legal directions. The judge remains throughout the ‘master of the law’.

What juries do however as ‘masters of the facts’, is to determine the factual matrix upon which the judge will make a subsequent, subordinate adjudication. That way juries fulfil a fundamental role in Common Law democracies: they circumscribe the power constitutionally attributed to the judge. And that is an indispensable, built-in guarantee required to ensure the prevalence of the rule of law.