For centuries, American government has structured and functioned in varying degrees of democratic ideals. Currently, there is a trend in US litigation toward arbitration and consolidation of power to a singular person to which defendants directly appeal their case and attempt to gain favor. More readily, companies are including an arbitration clause in consumer, private, and industrial contracts in an effort to remove an individual’s power of jury litigation and replace it with a singular arbitrator with the power to award the case based on subjective interpretation of facts. This is a dangerous reversion to a European-style justice, where the participation rights of members in a free society are being eroded by a consolidation of decision making power.
The difference between the US common law structure and European civil law governmental structures is the exclusion of we the people from the decision making process. Historically, common law was a unification process by which England created a system of identical legal proceedings across jurisdictions. It became the standard that those who could afford to appeal directly to the King, such as his aristocratic friends, could raise above the law through preferential treatment and a kind of protected status. Of course, this left those who could not afford it at a severe disadvantage of being judged by laws in which they had no input. When colonizers settled the US they brought this mentality with them and founded our country with a more democratic vision of the common law establishment they were accustomed to. They did away with direct “appeal to the King” nepotism in favor of a system of trial by juries of equal peers.
As Americans, each individual has the right to participate in government and address grievances of its function, and the most intimate way many experience that is during a jury trial. Common law creates a system whereby a judicial decision sets precedent for future cases of the same type, which judges and juries may use in their decision making process. This allows the common law system a great deal of lateral movement and the ability to apply established laws to contemporary situations for which new laws may not yet have been composed. However, in a civil law system the laws must be maintained and enacted by the legislative branch of government and interpreted by judges alone. These judges are appointed to their bench for life and therefore become a more integrated part of the governmental power structure. Due to their long-term appointments the unfortunate reality is that they may ultimately be more likely to prevent the timely development and progression of adaptive laws. Therefore, new areas of law may be slower to “keep up with the times” as each law is applicable only in its specific situation.
During a jury trial, citizens use evidence, expert testimony, and witness opinion in concordance with the common standards of social convention to judge the believability of facts in a case. Jurors “decide” the facts in a case, and this is the essence of a jury trial. It allows participatory mingling of people’s perspectives in order to establish or reinforce the commonly accepted enactments of law. Decisions by juries are made from the collective common knowledge and wisdom of common people, and act as references for future juries; remaining in force until they are overridden by new interpretations, new “commonalities.” In this way, jury trials are the quintessential expression of equality in democracy, the truest form of democratic participation. When the people have an individual input and impact on the future laws of their land, while simultaneously being responsible to uphold a unanimous decision of their countrymen regarding what is best for the commonality, they are participating in the most intimate way with their government. It is a unique and substantial participation in the future of our country, representative of a moment in history and the common thoughts, rights, language, and ideology of the people and the time.
The shift away from true active participation results in mock trials, kangaroo courts where all involved know the outcome before proceedings begin, and that is certainly not the vision of the founding fathers. It is not the vision that countless men and women have given their lives to defend. In America, we are all equal and our government is structured to support this ideal. When power becomes consolidated it is always at the expense of someone’s rights, and the democratic process –we the people – will ultimately be the ones to suffer.