Tuesday, April 14, 2015

Dubber on "The Schizophrenic Jury and other Palladia of Liberty"

Markus D. Dubber, University of Toronto Faculty of Law, has posted The Schizophrenic Jury and Other Palladia of Liberty: A Critical Historical Analysis.  As it happens, a student just discussed with me the inappropriateness of such uses of "schizophrenia."  I suspect the metaphor is inapt in this case, even though I'm sure it is a terrific paper.
The jury’s history is interestingly schizophrenic, even paradoxical. On one side is the history of the jury as palladium of liberty, often along with other such palladia, notably habeas corpus. On the other is the history of the jury as instrument of oppression. On one side is the jury as English, local, indigenous, democratic; on the other is the jury as French, central, foreign, autocratic. This paper reflects on this paradox, regarding it as neither sui generis nor in need of resolution. Instead, it critically analyzes the jury’s schizophrenic history from the perspective of New Historical Jurisprudence, as an illustration of the fundamental tension between two modes of governance, law and police, which ultimately are rooted in the distinction between autonomy and heteronomy that has shaped the conception and practice of government since classical Athens.