Cain and Abel, Albrecht Durer.
We aren’t ready to talk about Nancy Grace quite yet. To get that right, more background is required. But first, some ancient political philosophy.
For all judges, sovereign and subordinate, if they refuse to hear proof, refuse to do justice: for though the sentence be just, yet the Judges that condemn without hearing the proofs offered are unjust judges and their presumption is but prejudice…In like manner, in ordinary trials of right, twelve men of the common people are the judges and give sentence not only of the fact but of the right…but because they are not supposed to know of the law themselves, there is one that has authority to inform them of it in the particular case they are to judge.
Leviathan, Thomas Hobbes, 1651
Hobbes is famous for observing that man organized into societies to avoid killing one another dead. Norms of behavior were established to govern our baser instincts. In the best examples of how it’s done, we have been regulating ourselves using citizen juries chosen by lot.
Thus the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it how to rule well.
Alexis de Tocqueville, Democracy in America, Page 287
In 1881, Oliver Wendell Holmes, Jr. (Justice of the United States Supreme Court from 1902 to 1932), published a book of his law lectures titled The Common Law. In it, he reviews the history of our common law going back to ancient times and inherited from England. Summarizing the law of negligence, he wrote
The standards of law are standards of general application …When men live in society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point is necessary to the general welfare.
The Common Law, Oliver Wendell Holmes, Jr. at Page 108.
These are the rules applied by juries in civil cases throughout our country every day. Negligence rules require every man (and woman) to exercise an ordinary capacity (prudent care) to avoid harm to his neighbors (what Holmes describes as a “moral basis”). Juries use their common sense and ordinary sensibilities acquired by experience in applying these rules.
A few decades before Holmes’ book, Alexis de Tocqueville published his seminal work on early American society, Democracy in America. He originally meant to study our criminal justice system but ended up writing the definitive work on the birth of our democracy.
When … the jury acts on civil causes, its application is constantly visible; it affects all the interests of the community; everyone co-operates in its work; it thus penetrates into all the usages of life, it fashions the human mind to its peculiar forms, and is gradually associated with the idea of justice itself … In whatever manner the jury be applied, it cannot fail to exercise a powerful influence upon the national character; but this influence is prodigiously increased when it is introduced into civil causes. The jury, and more especially the civil jury, serves to communicate the spirit of the judges to the minds of all the citizens, and this spirit, with the habits which attend it, is the soundest preparation for free institutions. It imbues all classes with a respect for the thing judged and with the notion of right. If these two elements be removed, the love of independence becomes a more destructive passion. It teaches men to practice equity; every man learns to judge his neighbor as he would himself be judged. And this is especially true of the jury in civil causes, for while the number of persons who have reason to apprehend a criminal prosecution is small, everyone is liable to have a lawsuit. The jury teaches every man not to recoil before the responsibility of his own actions and impresses him with that manly confidence without which no political virtue can exist. It invests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge towards society and the part which they take in government. By obliging men to turn their attention to other affairs than their own, it rubs off that private selfishness which is the rust of society.
Alexis de Tocqueville, Democracy in America, Page 285.
Which brings us back to the Holmes lectures on how these norms and rules developed in Common Law.
Be the exceptions more or less numerous, the general purpose of the law of torts is to secure a man indemnity against certain forms of harm to person, reputation or estate, at the hands of his neighbors, not because they are wrong but because they are harms. The true explanation of the reference to liability to a moral standard in the sense which has been explained is not that it is for purpose of improving men’s hearts, but that it is to give a man a fair chance to avoid doing the harm before he is held responsible for it. It is intended to reconcile the policy of letting accidents lie where they fall, and the reasonable freedom of others with the protection of the individual from injury.
The Common Law, Oliver Wendell Holmes, Jr.
Bad things happen to good people. In my experience, the more common and ordinary you happen to be – the more likely you are to be harmed (by accident, by defective products, by Hospital or doctor negligence, by failing aircraft, by dangerous drugs). That trend isn’t changing anytime soon, as our society grows increasingly more crowded and stratified – with money, power and influence collected at the very top. As we have seen, powerful interests are constantly changing the rules to immunize themselves while putting the cost of harms caused by their businesses onto the victims. Bailouts and legal reforms protecting monied interests from taking responsibility are the norm.
Citizen juries may be the last line of defense, together with our vote, to affect the direction of society. Make sure your lawyer has the backround, experience and comprehensive knowledge necessary to achieve success for YOU.
