07 December 2008

Interesting Speech: Wimpfheimer on Jury Duty & Shapiro's Article

I just came back from the gym, where I read Barry Wimpfheimer's Rabbi May I? Taking Responsibility for Psak in a Post-Feminist Age that he delivered on 11 February 2007 which was sent my way a few days ago. I wanted to quote a couple of interesting parts of that speech.
The first of which is part of how he starts out his address, speaking on being a juror. I found this interesting, as, although I've never served as a juror before, I did go down for jury duty, but had it postponed until July. So it will be interesting to consider what he wrote regarding jury duty (pp. 2-4):
The practice of American law often operates within what I would call a fallacy of law as truth. What I mean by this is that despite the fact that all the participants in a legal drama are fully aware of the fact that American law is a construct shaped by precedents over a long period of time and subject to the whims of multiple authors and interpreters, lawyers and judges pretend that there is a single entity called “the law.” It is almost as if this law is personified and has agency such that a lawyer can say that “the law” demands that you side with my client or a judge can write that “the law” wants to be fair to all ethnic groups. Even legal academics are not above this fallacy; certain types of scholars will write articles articulating a uniform philosophy of law on the basis of many disparate cases even in different areas of law and different jurisdictions. Sometimes, American legal practitioners are aware of the fallacy under which they operate but employ it because it is productive value and sometimes they are unaware of the fact that it is a fallacy at all.
As a juror in a courtroom, though, one cannot but be affected by the fallacy. Within the courtroom, the jury is socialized to believe that the trial is about the pursuit of a single true and correct ruling demanded by “the law.” Each lawyer turns to the jury and attempts to convince it that the law requires the jury to find for their client or for the state.
In other words, each side presents its case as if “the law” compels the jury unequivocally to find for it. The presence of the presiding judge further socializes the jury into this notion of a single legal truth by occasionally interrupting the proceedings to decide on minor bits of procedure—sustained or overruled.
Thus when it comes time for the jury to reach a verdict, it is possible as a juror to think that the process is like a test in school: there is a correct answer which they are expected to try to figure out. The jury deliberates on the opposing narratives of what “the law” demands before deciding which one is the single truth.
If we reflect on these issues further, though, we can realize that the very process of the trial is evidence that the fallacy of a single legal truth is a fallacy. If each side can frame its case through an interpretation of the law that finds unequivocally for its interests it should be clear to us that the notion of a single legal truth in American law is always just a productive heuristic device.
In fact, if the purpose of the trial would be to determine the correct answer, the American system should eliminate the jury completely. Since the judge is better schooled and usually smarter than the aggregate juror, we would be more likely to get the correct answer if the judge figured it out on her own. If we had a math competition and needed to get the correct answer, would we have the expert teach a novice and have him answer the question or would we have the expert answer the question herself?
What is the purpose of a jury? One purpose is to dissipate some of the power that had historically been located in a judge’s hands. Now if law was just a computation, it wouldn’t so much matter that the law was in one person’s hands; but since determining a legal ruling involves subjectively choosing from among multiple options, there is a significant degree of subjectivity involved in such an act and that subjectivity is dangerously empowering. So the American system relieves the judge of the power to rule and hands that power to a jury of one’s peers. In the course of doing that, the structure of judge and jury makes manifest the distinction between the legal fallacy of a single legal truth and the reality of a subjective determination of a verdict from among multiple options. In other words, while the jury may think that its purpose is to figure out the one true legal answer, the very structure of a jury system testifies to the fact that they have more than one possible choice. Moreover, because the jury system relieves the judge of this subjective choice it places responsibility for that choice squarely on the jurors. This means that whereas the judge through her rulings from the bench contributes to the fallacy of a single truth and to justice as an exercise in figuring out what “the law” requires, the jury symbolizes the fact that a verdict requires someone to take responsibility for multiple options within the law. The trial jury embodies the taking of responsibility for a legal choice.
A juror’s responsibility is no light matter. Jurors must weigh the evidence and bear in mind that a decision to convict could ruin a man or woman’s life, while a decision to acquit could have disastrous consequences for the community. It is sometimes easier for jurors to think of their role as determining “the law” as truth so that they do not have to feel the responsibility of their choice. But when you issue a mixed verdict that puts worldly realities at odds with legal truths, the burden of one’s responsibility is often too much to bear. My fellow jurors turned to the judge because they wanted him to reassure them with the voice of law as truth that they had done good, but also because they wanted to share or dump the responsibility for their choice back on the judge.
Another piece that was interesting, relates to the issue of women's aliyot and Rabbi Mendel Shapiro's piece thereon (pp. 14-15):
When Rabbi Mendel Shapiro wrote his original article on the topic, he wrote it along the lines of a contemporary American Law Review piece which only exacerbated his attempt to construct a single-truth argument permitting the practice. Along the way, Shapiro wanted to argue that every layer of Jewish law—rabbinic, medieval, modern—can provide support for the practice. In my opinion, though the piece is excellent, this type of argument opens itself up for critique—a critique that has recently emerged. Several articles have now come out in response to Shapiro and much of the critique has focused on a specific reading of a certain Rishon or Aharon. In my view, though, such attacks miss the point. Shapiro’s article provides a wide audience with access to the knowledge necessary to take responsibility for its practices. One need not satisfy every halakhic opinion; the existence of rabbinic texts justifying the practice allows a community to take responsibility for its own practices and follow that position. Because the counter-argument cannot eradicate all support for participatory minyanim, they do not pose a challenge to their continued implementation.

1 comment:

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