As is often the case Woj's ideological prejudice against common people leads him to a statement that is contrary to what we know about juries and what we know about the history of juries.
First, it is know doubt that the jury process is prone to "demagogy." But demagogy is simply an appeal to sentiment or prejudice, and if you like the prejudice or sentiment that is being appealed to then it is not called demagogy, it is called "persuasion." Read Cicero. When he is acting as a demagogue he calls his speech a good persuasive argument. When a "populare" uses demagogy it is called an appeal to popular prejudices and disruptive to the Republic. One could write an "ethics of rhetoric" to tease out these issues. (This is a book suggestion for anyone who has the chops for this kind of enterprise.)
But that is hardly the point. Judges, elites, professionals, caste and class conclaves and committees all have their own prejudices and the jury system is simply a "check" against elite or professional prejudices. Woj, writes of "the diminished if not altogether eliminated benefit of providing checks and balances" of the jury system without a thought about how the jury functions as a check on elites of all kind.
In Republican Rome the jury system was politically constructed as a "check" on the political rulers and their abuses. During the long "revolution" in Republican Rome - roughly from the Gracchi to the consolidation of power by Augustus - the contention over the jury system was precisely over whether the jury would be controlled by the senate or open to wider class influences. The jury system was a demagogic tool. Of course! But it was often a tool of both "conservative" and "populare" advocates to provide a check on the dominant senatorial faction.
There were similar functions of the jury system in Athens. Trials in Athens were meant to pit one elite individual or faction against another elite individual or faction, so as to make sure that no one particular elite group gained the upper hand for a long period of time. For example, elite members of Athens were encouraged to bring suits against other elite members claiming non-contribution to civic festivals and thus increasing the amount of wealth in the city's coffers. In other words the jury system here too was a part of a system of checks and balances.
Further the origin of the jury system arises from an alliance between local people and the king in order to undermine the absolute power of the local landlord. I have written about this in a post to on this list to Justin and Jim, so I have no need to repeat the story here. The point here is that in a system that might have led to absolutist control by local landlords the development of the modern jury system came about to provide a "check and balance" of the local landed elite.
The function of independent juries and of Grand Juries in the U.S. was meant to be a check an balance against central authority of various kinds. For instance the Grand Jury is supposed to be a check against arbitrary persecution by prosecutors. Unfortunately, the Grand Jury system is very weak and the check against arbitrary prosecution has fallen by the way. The independent jury was also supposed to provide check against central authority in other ways. Juries were supposed to provide a counter-balance to centrally made laws. Thus, for example, during the pre-Civil War period it was not likely that a jury in a Quaker community would convict a person for illegally harboring a slave.
I have written about the decline of the concept of "local justice" on my web log if anyone is interested. I don't skip over the racism of Southern juries and their ideas of justice. But the decline of ideals of local justice mostly had to do with the standardization of law across multiple jurisdictions. This standardization was driven by the emergence of a national market, by the alliance between corporate lawyers and big corporations, and only marginally be a desire to protect minorities from demagogy. In other words the decline of "local justice' and the independence of the jury was a campaign run by people who would mostly agree with Woj that average people should not have much of a hand in deciding the law.
Various aspects of this story is well told by two books for those who are interested. "We, the Jury" by Jeffrey Abramson and "The Transformation of American Law" by Morton Horwitz. There is also various histories of corporate law firms that tell other aspects of this story.
The sad thing is that a strong jury system is supposed to act as a check and balance against big centralized organizations (which now days includes corporations) who try to assert control over small communities. It is those who propagandize against the jury system in manner of Woj, who have tried to strip the jury of its "democratic" and "republican" function.
Jerry Monaco
-- Jerry Monaco's Philosophy, Politics, Culture Weblog is Shandean Postscripts to Politics, Philosophy, and Culture http://monacojerry.livejournal.com/
His fiction, poetry, weblog is Hopeful Monsters: Fiction, Poetry, Memories http://www.livejournal.com/users/jerrymonaco/
Notes, Quotes, Images - From some of my reading and browsing http://www.livejournal.com/community/jerry_quotes/