The debate between judge and jury is one that has been active for many decades, it wouldn’t be a stretch of the imagination to say that it is as old as law itself. In order to address this question this essay will look, at least passingly, at the different systems of law, it will then consider and counter the argument for the precedence of a jury, and propose its own argument for the precedence of a judge. This essay aims to demonstrate that precedence of the judge is the best judicial system, at least in the South African context. This essay is written from, and considers the matters within, a South African context. Its recommendations are based on this context, and may not be the best option in other contexts.
The author is not an expert, or even a student, of law. The author has had one module on media policy, ethics, and law, and has done moderate reading on the subject matter, however. As such, neither the author nor this essay claims to be an authority on the subject, but merely to present arguments, as they have been found in source material for and against both cases.
Two kinds of law
In order to accurately address the issue of judge vs. jury it is necessary to first understand the context within which they function, namely, the codes of law and constitutions that guide their functioning and decisions.
In general, there exist two different systems of law: common law, and civil law. Common law refers to a system of law that functions through custom and judicial precedent. Essentially, under common law judicial rulings are informed by what previous courts have ruled in similar cases. There are no, or at best few, statutes that inform the presiding power’s decisions. This means that current verdicts are largely at the discretion and interpretation of the power presiding over the case at hand.
Civil law, on the other hand, refers to a system of law that has been codified. Typically, this takes place in the form of a constitution, with a bill of rights and other relevant, referable works. These laws can and must be referred to, in order to inform and guide current verdicts. All evidence and relevant information is considered against the guidelines established by these core principles and laws. Verdicts thus rest less with the interpretation and at the discretion of the presiding power, but with what is written in the relevant legal work.
The South African Context
South African law is a rare, if not unique, mix of the common law judiciary structure, with the civil law, well, law. Any declaration by a higher court, is binding to a lower court, which is in line with typical common law based judiciaries, however, all the courts, from the smallest local magister’s court, to the Constitutional Court, are all subject to the Constitution, the country’s highest legal authority.
South Africa has a codified set of legal works, the Constitution being the primary script, by which its judiciary is governed, and by which it makes its rulings. As such South Africa has a civil law system. On top of that, South Africa is lauded as being the country with one of the ‘best’ constitutions in the world.
For the Jury
One of the biggest arguments proposed for the use of the jury, is that it protects against corruption. Single judges are, by this argument, susceptible to bribery. Counter to this susceptibility, the argument states that the short term that jurors serve, secures them against bribes, as they are not known to those whom might seek to influence the outcome of the case.
This essay, however, argues the opposite. Judges are individuals in the public eye. They are known, and their integrity rests completely within the reach of the public. Through the open trial system in South Africa, the public can observe all judicial proceedings, and hold the judiciary accountable. Jurors, on the other hand, are anonymous, and are largely not held accountable to the public.
The author has noted other arguments for the jury, however, these arguments are pursuant to the personal values of the individual, and do not reflect objective realities, and will thus not be considered.
For the Judge
There are several arguments for the judge. This essay will propose only the most powerful.
First, consider that South Africa has a civil law system, not a common law one. What this means is that, as explained, the laws are codified, the basic principles of the judiciary are gathered in referenceable legal works, and it is by their authority that verdicts are reached.
From this, come the following arguments.
The first is the complexity of the law. Laws are notoriously complex and difficult to understand. To the general public, they are also generally boring to read, and thus not carefully studied. Since these laws are the guidelines by which verdicts must be reached, it is best to use a judge, one who has literal decades of experience and expertise with these laws and their application.
Second, judges, by pressure of position, public scrutiny, and their peers, are driven to consider solely the evidence, and the applicable laws when judging a case. Juries operate primarily on their opinion of the accused and the accuser, public opinion, and media coverage.
Third, judges must present legal arguments for their judgements. In most judiciaries, not only are juries not required to argue the case for their verdict, but are prohibited from making public the reasoning behind their judgement. Judges, on the other hand, are required to present reports that outline the reasoning behind their verdicts. They must explain the laws they referenced, their interpretations, and the reasons for their interpretations of these laws, and their final verdict. This thorough report gives clear and solid material from which appeals may be constructed, should the defendant so wish.
Pursuant from these considerations and evidence, it is the humble opinion of the author of this essay, that the best system to use in the judiciary, is that of the judge. Not only is the judge better trained, has more experience, and is pressured to objective consideration, but the jury is inherently insecure and its legitimacy questionable. Considering further the racial divides that still exist even today in South African society, it is only prudent that juries not be reinstated.