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Why America Still Needs the Jury Trial: A Friendly Response to Professor Dzur



Crim Law and Philos (2011) 5:93­95 DOI 10.1007/s11572-010-9105-6 BOOK REVIEW Robert P. Burns Published online: 7 October 2010 Ó Springer Science+Business Media B.V. 2010 Professor Dzur has noticed that my account implicitly places the trial in opposition to other dominant modes of social ordering in America and argues that this creates important tensions which should be preserved.1 (For us, after all, ``justice is conflict.''2) Those modes of social ordering are in large part ``instrumental'' in nature. Their general philosophy is utilitarianism and their jurisprudence is legal realism. Some conservatives of libertarian leanings, who celebrate the liberal values implicit in formalism, sometimes criticize the latter as ``social engineering''. The trial offers a yet third way between instrumentalism and formalism,3 the nature of which can be discerned only through a careful description of what actually occurs at trial and is consistent with neither instrumentalism nor formalism. The ``consciously structured hybrid of languages'' and practices in the trial serve to elevate common sense and so mediate ``democracy and justice'' in ways that resolve, though only practically and in individual cases, the tensions between those values. (I wrote in A Theory of the Trial that the devices of the trial were Plato's



Criminal Law and PhilosophySpringer Journals

Published: Jan 1, 2011

DOI: 10.1007/s11572-010-9105-6

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