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Revue internationale de droit pénal

2001/1 (Vol. 72)

  • Pages : 638
  • ISBN : 9782865869909
  • DOI : 10.3917/ridp.721.0355
  • Éditeur : ERES

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1. When you consider the pros and cons of lay judging and especially when you want to establish the arguments for lay judges you have start with the tradition. Even though there were professional judges in Ancient Greece 600 years B.C. and later in the Roman empire, lay judging is the original form of rendering justice; justice was carried out by an assembly of all free men in ancient times, at least if and when the verdict did not depend on the judgement of gods or of the chief of the tribe.


One cannot begin to speak about lay judges in a more scientific way until there are skilled professionals to compare them with and professional judges in the modern sense first appear in the 12th century, along with the appearance of the universities. From that point on, there appears a division between career judges and lay judges in Europe, and the proportion of these cathegories during different periods depends on the political struggle in each country. In brief, it could be said that the stronger the king, the stronger and more stable the element of lay justice. This sounds lika a contradiction, but the explanation is that in a stable national state justice may have been used as means of political oppression, but jurisdiction itself has never been a battleground.


On the other hand, where courts were used as a political weapon by different feudal kings, princes, bishops etc., the presence of judges elected by the people was more limited. And therefore, in most European countries, lay judges were also out of the picture for some time during their history.


You may say that Great Britain is an exception, an example of continous lay participation and this is true. But some remarks must be made. The right, according to Magna Carta, to be judged by your peers meant only the right for the nobles not to be judged in the same courts as the ordinary people. In the 16th and 17th centuries, beeing prosecuted was the same as being condemned - it was a formal procedure and it almost never happened that the jurors went against the judge, at least not until the famous trial agaist William Penn in 1690.


A better example is Sweden. In Sweden - and in Finland, which was a part of Sweden until 1809 - judges elected by the people have taken part in the courts for more than a thousand years, without interruption. We can claim not only that the Swedish tradition of lay judging is longer and more glorious than the English jury system, but also that the Scandianavian court is the cradle of the English jury. It is often said that the scabini system in the German-Roman Empire during the 9th century is the origin of the jury - and that it was brought to England by William the Conqueror - but, firstly, the scabini were not really judges, but rather the emperor´s local investigators of crime. Secondly, when William arrived, the jury already had existed for more than 150 years in the part of England that was under Danish jurisdiction, where Danelagen applied. In disputes regarding land and property the Vikings used a court called frändestämma, with 12 judges, 6 elected by each party. This is really the origin of the jury, at least according to Scandinavian research.


In Sweden the jury system (of the Vikings) was abandoned long before it got its modern shape in the 18th century. In the 13th century the courts were formed within a mixed system, with one judge - in the beginning with the king´s representative and in the 17th century with a career judge - and 12 permanent lay judges, elected by the people. Today the number of lay judges has been reduced to 3, but the mixed system remains.


Tradition is important, in Sweden and elsewhere. But tradition is no argument in itself - the importance of tradition is that one must have strong reasons to change the system.


Are there such reasons ? Yes, there are. But the reasons are not strong enough. The science of jurisprudence has not yet been able to prove that justice is done better without lay judges. The existance of lay judges means : a) that judging is still a primitive procedure; or b) that judging contains an element that cannot be considered as scientific.


The key question when deciding about having lay judges or not is this : Is judging science or politics ? A lot of people would say ”both” in answer to that question, but no matter what the answer is, two statements could be made : 1. legal science has not shown that judging would improve in a significant way without lay judges and; 2. it is not realistic to get rid of lay judges where there is a long tradition of lay judging.


In Sweden lay judges are elected by the political parties and politicians are not very keen on abolishing political functions. The self-interest of the politicians create conservatism and a defence of the status quo in the organisation of the courts. In other countries, for example where you have the jury system, the lay element is considered an important part of the distribution of power, a part that cannot be taken away without serious damage to that balance.


As a legal researcher in England or the USA I think one has to accept the existence of the jury system. And you get nowhere in Sweden if you suggest that lay judges should be removed. That does not mean that we lack an intense discussion about the advantages and disadvantages of the system, and in a monography with the title ”Lay judging” (1996) [1][1] Lekm?n som domare. I have tried to analyse and present the advantages and disadvantages of lay judging.

2. A philosophical argument for lay judges is that justice can only be defined in a layperson’s terms.


This argument is a common defence for the jury system and could be developed as follows :

Law means power and is built on values - if you let professional judges take over you give judging a false - neutral, objective - perspective, a natural lawperspective. A court with professional judges only conceals the fact that a verdict is a functionally defined expression of ”a repressive political mechanism”.


When lay judges are used it is revealed that a court articulates power, that justice is a blunt exercise. There is room for some discretion. The risk of erroneous judgement is part of the system and there are no possibilities of scientific verification. The conclusion : judging is a pragmatic, not a scientific, task.


An important argument against lay judges is their lack of juridical competence. We live in a society that has become more and more specialized. When you´ve got a tooth-ache you go to the dentist, when your car breaks down you leave it with a mechanic - why should you then be judged by your neighbour ?


The reason must be that the majority of people still want the community to decide who is going to be cast out from and who can stay in the community - the main task is not to establish the facts, it is to condemn or not condemn. And that´s why a person like O.J. Simpson could be found not guilty.


Another argument for lay judging is that lay judges give legitimacy to the system justice expresses a higher political quality if citizens participate. It is more easy - for the condemned and for the public - to accept a verdict if justice is administered by their peers, at least by equals in the sense of laypersons. If there were no lay judges in the court the verdict could be regarded as the fruit of an impersonal apparatus of power.


But against that one can object : lay participation is only a democratic alibi, at least in mixed courts, as the space for maneuver of the lay judges today is limited by the standards of the law : it is only when the law does not give the answer that lay judging can have a real impact on the verdict. Law is made in the parliament, not in court.


4. A fourth reason for lay judging could be called ”democratic control” - the judging function is performed by a mini-parliament, where different interests and values are represented. Professional judges are thereby controlled in the mixed system and partially put aside in the jury system.


Against that there is a very strong argument concerning mixed courts : if the lay judge is in court to judge, he cannot really perform a control function as that would be to control himself. In the history of lay judging it is possible to distiguish four different functions:


It is only in the third and fourth role that the lay judge can express his opinions in a way similar to democratic decisionmaking. It is only in the fourth role that he also has the right to put the law aside if he thinks that the law isn´t adequate in a certain case. In the first three forms the lay judge is a hostage of the professional judge.

5. An argument for lay judging considers the lay judge to be a link with the common sense of justice.


This argument contains a presumption that the professional judge does not know this common sense of justice, but the lay judges do. Is that so ? I cannot answer that question, but it opens up some new questions :

a) What is the common sense of law ? Isn´t that same value not expressed by the law ?


No, probably the common sense of justice is an argument to stretch the law, to allow for the possibility of revenge or leniency, of cultural patterns, etc.

b) Is there space for common sense in judging today ?


Yes, probably, but the laws are more and more detailed, we have more and more relevant precedents and in most legal systems there is a possibility to change a verdict in a higher court, where there are no lay judges. If, for example, the lay judges want a much more severe punishment than the precedents indicate the higher court will change the verdict.

Do lay judges represent the common sense of justice ?


Maybe American jurors are, but the permanent members of mixed courts are not. Often they represent the same establishment as the career judges and, if not, the values of the other judges get internalized after a while.

d) If the lay judges are selected for every individual trial - can they represent the common sense of justice ?


That depends on the selection process and the number of judges selected. If common sense was homogenous one single judge would be sufficient. But as common sense varies with class, sex, age, ethnical group, education, etc., you need a certain number to get a spectrum of the population. In theory you need at least 3 lay judges to get a demographical spectrum, in practice you would need at least 6 - or better 12 jurors - to cover three different age-groups and all the other important demographical factors.

f) Should the lay judge express the common sense of justice ?


That depends on the function, but an argument against lay judging is that it is very hard to get a well-balanced representation. Another argument against letting the common sense of justice into the criminal trial is that the law could be expressing a higher moral standard than the common interpretation thereof and that the directive will of the legislator (the elected parliament) will be lost by using lay judges.

6. Another argument for lay judges is that they bring a broader life experience into the court.


The discussion is thereby widened and the evaluation of evidence is improved. This argument, too, contains a presumption that career judges are isolated from the real world or at least that lay judges can provide other experiences than the professional judges. Probably the argument only says that it is an advantage to have broader life experience in court, less important in what form. But it can also be assumed that ordinary people as judges have less difficulties to understand ordinary people who participate in the trial.


An argument against lay judging is that there is a risk of subjectivity, of a more emotional point of view. Research on lay judges shows for tendency for judgement to be based on intuition and emotion, often called ”the bleeding heart syndrom”. In approximately 10% of cases the sympathy profile gives indications showing that the lay judge thinks that the defendent would not be able to perform the crime of which he is accused, or at least not to perform it in the described, for example, cruel, way.


Other research shows that lay judges have difficulties with the question of relevance and that they mix the question of guilt with the question of punishment. They also have a tendency to free the accused, not by using a higher standard of proof, but as a result of reluctance to shoulder such heavy responsability and probably because of the severe punishment that would be the consequence of a guilty verdict.


In Sweden, as a contrast, lay judges have the opposite tendency, to find the accused guilty. My explanation of the fact is that in practice no convict stays in prison for more than 15 years, no matter what the crime is, and that lay judges in Swedish courts often have a long court experience (as they are elected for 4 years and are often reelected for new periods).

7. Close to the argument of broader life experience is the argument for lay participation as a safeguard against technocracy.


Justice must be understood by the people and lay judges prevent the law from getting too far away from the people´s views of crime and punishment. The idea is that no crime, no criteria for criminal acting and no principle of evaluation should be so complicated that the man in the street cannot understand it. Lay participation prevents justice from becoming a matter for skilled lawyers only.


Against this argument stands the fact that the lay element is an obstacle to the development of method. The methological standard of deliberation remains the same year after year, century after century. If there are methods for improving the security of the evaluation of facts in court, these methods cannot be used as the the judges do not know them. Lay judges, and, to a greater extent, jurors not only prevent the possibilty of using modern tecniques, but also prevent the development of such methods. While other sciences move forward, legal science remains on the same spot as it was some 500 years ago.


The crucial question is once again : is, or, can judging be a science ?


I am not going to try to answer that question, but would like to point out the differences between a judgement based on common sense and a judgement based on legal science.


If you think that it is enough to have the qualities of a lay judge you need no professionals. If you think that all tasks can be solved in a professional way you need no lay judges. Probably you will come to the conclusion that you need both. Even a professional judge has to use experience founded on common sense to arrive at his verdict. Does that mean that you need lay judges, too ?

8. A milder form of the anti-techocratic argument is that lay participation in court makes the proceeedings more easily understandable.


The judge has to speak to the level of the lay judges and therefore also to the level of the parties and other persons involved in the trial. In the mixed court the judge has to make himself, and the law, clear to his partners, the lay judges, during the deliberation. In the jury system, participation as a juror is an instrument of civil education.


Against this pedagogic argument it can be said that justice could become trivialized, that complex circumstances have to be explained in a too simplified way, that standardised tools will be used instead of more scientific tools.


9. If we now try to sum up the pros and cons of lay judging we will find that most or all the arguments for, could be gathered under the subtitle democratic argument, and all arguments against lay judges could be sorted under the subtitle technocratic argument.


It has been very hard to find judicial arguments for lay judges - they are not as good as professional judges in judging.


Although research demonstrates that it is only in difficult cases that lay judges have a tendency to let their personal opinions and feelings decide the verdict, there are such cases and in the jury system erroneous verdicts are not rare. If you examine jury verdicts from a lawyer´s point of view the professional judge would have made another decision if he was in charge in one case out of four or five. [2][2] See Kalven/Zeisel, Baldwin & McConville and others.... To put it in other words : If you use the professional conclusion as a standard the jury arrives at a wrong verdict in 20-25% of the cases.


How can this be tolerated ? It can be tolerated because most of these verdicts are in favour of the defendant. The jury finds him not guilty, when the judge would have found the evidence sufficient to prove the case ”beyond reasonable doubt”. In the mixed court the best you can say about lay judges, from the scientific point of view, is that they do no harm.


As we have seen now, all arguments about lay judging have two sides; one democratic side and one technocratic. Which has the greatest weight ? I think a lawyer - or at least a legal scientist - must answer : the technocratic argument. There are no good scientific reasons to keep lay judges within the legal system.


And still we have them. The reason must be political. Therefore we come to the last dichotomy.


10. I think on of the main arguments for lay participation in Sweden is the fact that lay judges are less expensive (per head) than professional ones. I think all Swedish lawyers would agree that the examination of proof would improve and consequently the error margin would shrink if we could use four professional judges instead of one professional judge and three lay judges in criminal cases. I think lawyers in Italy would agree : the quality would improve if you changed la Corte d´Assise, having eight career judges in each trial instead of two professional judges and six lay judges.


This example illustrates another reason. It doesn´t seem to be realistic to have eight professional judges in a first instance trial, but at the same time it must be better to have more judges than one. The discussion during the deliberation is important, not only to examine the proof but also to check the rationality of the decisions and to control the power of justice. And if you increase the number you can - to a certain extent - increase the experience and knowledge, improve the discussion. The conclusion : if you have at least one professional judge, the other contributors to the debate could be laypersons. [3][3] In the jury system it could be questioned that professional...


An argument against lay judges is that they are less efficient than the professionals, that the lack of legal training makes the trials longer than necessary.


And now, summing up the advantages and disadvantages of lay judges, we see a division between a political and a scientific argument.




1. tradition

political conservatism

2. justice can only be defined in a layperson´s term

lack of juridical competence

3. legitimacy

a democratic alibi

4. democratic control

political opportunism

5. a link to the common sense of justice

no real representativeness

6. broader life experience

risk of subjectivness

7. safeguard against technocracy

no development of method

8. pedagogical reasons


9. less expensive

less efficient

10. Political

scientific reasons


The final conclusion, from my point of view, is this : As long as judging cannot be performed in a completely scientific way there is room for lay judges in court.

  1. The problem with the jury system is that it hasn´t enough space for modern professionalism.

  2. The problem with the mixed courts is to define and promote the functions of the lay judges.

  3. The problem with mixed courts in Sweden is that lay judges are formally equal to the professional judge, their function and responsability are the same. But in practice they cannot fulfill their function, cannot take their responsability. They are obliged to follow the law - but they don´t know the law. So, most of the trial they remain silent, knowing that everything they say could be used against them.



Professor of Procedural Law, Juridical Stockholm University, Stockholm, Sweden.


Lekm?n som domare.


See Kalven/Zeisel, Baldwin & McConville and others.


In the jury system it could be questioned that professional judges whether for example three career judges instead of 12 jurors, would cost more. Other factors seem to have a stronger relevance.

Plan de l'article

  1. 2. A philosophical argument for lay judges is that justice can only be defined in a layperson’s terms.
  2. 5. An argument for lay judging considers the lay judge to be a link with the common sense of justice.
    1. a) What is the common sense of law ? Isn´t that same value not expressed by the law ?
    2. b) Is there space for common sense in judging today ?
    3. Do lay judges represent the common sense of justice ?
    4. d) If the lay judges are selected for every individual trial - can they represent the common sense of justice ?
    5. f) Should the lay judge express the common sense of justice ?
  3. 6. Another argument for lay judges is that they bring a broader life experience into the court.
  4. 7. Close to the argument of broader life experience is the argument for lay participation as a safeguard against technocracy.
  5. 8. A milder form of the anti-techocratic argument is that lay participation in court makes the proceeedings more easily understandable.

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