Harrumph. As a trained lawyer, I would beg that you distinguish between "the law" and "the findings of a jury". My evidence law prof in South Africa was old enough to have been at the Bar when SA still had the jury system. In his view getting rid of it was for the best, and after he entertained us with some details of some of his cases, we were forced to agree. These included a woman who apparently decided to murder her husband because he was having an affair. Evidence proved that she purchased a gun, and then practiced at a shooting range until her instructor testified that she was of Olympic standard in marksmanship. She then staked out the flat where her husband met his paramour. As they were leaving, she shot his girlfriend dead at point-blank range. Her husband had obviously recognised her and by this stage was 100 metres up the street, running for his life. This presented no problems for the defendant: she dropped him with a single shot. None of this evidence was contested in any respect.

The jury, notwithstanding the judge's instructions on premeditation and murder, voted to convict for manslaughter. In conversation with one of the jurors, my professor discovered that the jury initially intended to find her not guilty. However, when one juror pointed out that if they did this, "no man would feel safe on the streets of Johannesburg", they decided to go for manslaughter, in the face of probably the clearest evidence of premeditated murder that any court has seen.

Lawyers don't like juries, who have the power to overrule lawyers? You surprise me. These atrocious against-the-evidence decisions are the key to jury nullification. Without them, we wouldn't have freedom of religion or of expression in this country. Excuse me if I fail to regret that we couldn't have had all our court cases decided by professional vested interests for the last few centuries.

Anyway the law referred to in "The law is an ass" is surely the whole system, not legislation.

Some lawyers don't like juries because juries are easily swayed on emotional grounds, because they are often incapable of applying a judge's instructions, because they often find on the facts to produce the outcome in law that they want, and because they are too often bored, coerced, and generally unwilling to do the job they are supposed to do. These lawyers do not dislike juries because juries can overrule them: in the alternative system, they can be overruled by a judge, and thus nothing would be gained on that score.

These lawyers believe that there is little point in having judges, with years of legal study and decades of legal experience, reduced to umpires, while untrained lay people decide the case.

There are lawyers who love juries. This is because they can bend juries to their will, by playing on their emotions and by using other methods that have nothing to do with the merits of the case.

I don't believe that it is the job of the courts to make law, but if freedom of expression and of religion in England emerged through the evolving interpretation of the common law then I don't see why this could not have been done equally by judges. Certainly in South Africa elements of the judiciary played a key role in limiting the power of the apartheid government, by interpreting the law as strictly, and literally, as possible, and insisting on "common-sense" interpretations that were of course at odds with the intention of the Government.

I concur that the characterisation applies to the whole system; I thought I was being slightly ironic, or at least more light-hearted, than I apparently came across as.

Hey, just because you're being light-hearted, doesn't mean I won't reply.


> These lawyers do not dislike juries because juries can overrule them: in the alternative system, they can be overruled by a judge

Ah, but a judge is a professional lawyer. What lawyers dislike is being overruled by bloody amateurs without law degrees.


> I don't believe that it is the job of the courts to make law ...

It isn't. However, it is the duty of the public to overturn unjust laws. That's what the jury are for: they're not a part of the court; they're a part of the public, there to limit the power of the court and of the government. That's what lawyers don't understand: they get frustrated because they see the jury as a malfunctioning part of the court. In fact, the whole point of the jury is to throw a spanner in the works when the court becomes a malfunctioning part of society.

> ... but if freedom of expression and of religion in England emerged through the evolving interpretation of the common law ...

That's not what happened. It wasn't an evolving interpretation: it was outright destruction. Juries simply refused to convict defendants who were clearly and undisputedly guilty of their crimes — preaching Catholicism, printing leaflets critical of the government, harbouring escaped slaves, selling bottles of wine during Prohibition, etc. The men could confess and they'd still be found not guilty, making it impossible for the government to uphold the law in question. And a good thing, too.

> ... I don't see why this could not have been done equally by judges.

Judges may sometimes interpret the law a tad innovatively, but they don't refuse to convict the guilty.


> Certainly in South Africa elements of the judiciary played a key role in limiting the power of the apartheid government

You're not serious? I can't think of a worse example of your point. Judges slightly limited the power of the Apartheid regime, keeping it slightly less atrocious than it might have been? Wow. How long do you think Apartheid would have lasted if every verdict had been decided by a jury pulled from a representative cross-section of South Africa's population? Comparing the judge-only system with South Africa's previous all-white-jury system is meaningless, because juries from which people with the wrong skin colour are excluded aren't actually juries. They're just groups of people.


> they are often incapable of applying a judge's instructions

Good, because those instructions are frequently unconstitutional.

"It is not only his right but his duty...to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." — John Adams

> they often find on the facts to produce the outcome in law that they want

Quite. That's a feature, not a bug.

You think it's a coincidence that our current leaders are trying to phase out jury trials at the same time as they introduce the ID-card laws?

On the other hand, there is the Port Authority of New York and New Jersey, which is now on the hook because it's 68% responsible for a terrorist attack. I will grant you that it is always hard to love the Port Authority, but it seems to me that declaring the victim of an attack the (mostly) guilty party is more than a little silly. It's not like the PA left banana peels on the floor for people to trip on.