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One of the Anglo things that is commonly criticized in continental Europe is the judicial system. The complaint is usually formulated as "I wouldn't want to delegate the question of guilt to twelve randos that have no understanding of the law". My usual rebuke used to be "if the prosecutor can't explain to random person what the defendant did wrong, what good is this law he's allegedly broken?"
But recently I understood that the benefit of the jury system goes deeper. Most people (citation needed) want to be law-abiding, upstanding citizens. Let's say the laws are so complex that only a judge with a law degree can determine whether someone has broken the law or not. How then can anyone else be sure they are a law-abiding citizen? We want that IQ 85 guy in an ill-fitting rented suit to know deep inside if he's guilty or not. If the law is an overwrought monstrosity that overwhelms the jury, their reasonable doubt about the circumstances of the case is the intended outcome. Laws that govern everyone must be clear to everyone.
This is strawman of the position that it brings laicism into the law. But it is not only about understanding, it brings whole new baggage. There are things like emotional appeals and courtroom theater, there are issues with outside influences by pressure campaigns or even threats to jurors who did not select this as a career. There are issues with tribalism where jury plays favorites or who are set against them, there is a reason why Jim Crow juries is a term. Who knows how jury system will work in Somali communities. There is of course other stuff, we are far from 18th century and juries are there to decide complex fraud schemes, patent litigation and other stuff. It is not just about stealing groceries.
The biggest bonus is ability to insert local values, however this also works against you. If you are known in community as fraudster by hearsay, then good luck. The biggest advantage is extra check on judiciary corruption, however it is also double edged sword as there is no written deliberation of their verdicts and it introduces system uncertainty. This also provides incentive toward frivolous litigation - what if you randomly get a "good jury" and make some free money? Even better if you strike gold and you are sympathetic victim against nameless corporation or goblin like Alex Jones, then you can get 1.4 billion in damages for defamation, basically using the judicial system as class defining wealth transfer.
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The counterpoint is that this principle only works in a culture which values the rule of law, which is increasingly not the case. If it becomes difficult to find 12 random people who will be willing to make a decision based solely on the law and the relevant facts of the case, then the justice system itself becomes unviable.
If you live in a society that doesn't value law to such an extreme, I don't think your issue is with the jury system anymore to begin with and instead just with greater society. Like as a metaphor, if you're hooking up your brand new hose to a sewage pipe, the sewage water that comes out isn't the fault of the hose. The jury/hose itself is fine, it represents the views/water of general society/the water supply.
I think the idea is you shouldn't at all recommend the use of hoses for water supply if all you have is sewage. It's a bit paternalist, but you can say you should have the elites interpret the laws until the general public reaches their level.
I understand why, say, reactionaries would endorse that. But in America, complaints about the rule of law are strongly correlated with “silent majority” populism. Lawlessness is allegedly fueled by elites, even if it’s perpetrated by an underclass.
That has something to do with the outpouring of Mamdani hate. He’s a singular figure, which makes him one of the enablers of lawlessness.
I think there is a strain of populist thought, which I don't think is completely wrong, that technocratic liberalism as-implemented has so overweighted seemingly sympathetic cases as to be obviously, if indirectly, negative to the majority. "Harm reduction" sounds like a nice idea, but in practice means giving addicts clean needles to use and leave on playgrounds, and while it might reduce acute harm to addicts is not reducing harm to playing kids: the diffuse cost was ignored or swept aside. Asylum laws sound nice and probably do help the people claiming it, but the state seems to assume the side effects on the rest of us are negligible: if you believe that I have an election to sell you. Ditto for soft-on-crime policies and police abolition. Across the board bureaucrats seem to have a clear blind spot for the diffuse side effects of policies on the rest of us outside of a few groups that get special hyper-focus on disparate impacts and treatments.
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Justice still has to be rendered. Even among totally disloyal subjects. Or you lose your claim to sovereignty to the first entity that starts rendering it.
Colonial powers don't tend to have jury trials, but they do have courts.
A personal sense of "justice" imposed on a society that disagrees with your notion is just tyranny. The jury draws from the beliefs and thoughts of the general public in the same way that the hose draws from the water supply. The population itself gets to decide morality and edge cases.
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Jury system is not that bad in itself, a priori, for exactly the reasons you specify. I am more perplexed by the aftergrowths, such as exclusionary rule, and all ideas in the same concept-space neighborhood, that information presented to the jury should be managed on basis of whether some procedural rules were violated or not. I think it was a gigantic mistake by the US legal minds that unfortunately has spread to other Western countries, too, and can result in great injustices.
Any information that is likely to provide information pertaining on facts should be permitted as evidence. What if the cops or prosecution violated some rules to obtain the evidence they present, or did not utter a magical incantation while arresting a defendant? They should suffer the legal consequences for violations, but as long as the information obtained is good and has provenance that it is good, it should be allowed in. A judicial system loses its soul and becomes a mere court system when it loses a sight that it should identify people who are guilty or innocent of crimes, not to manage its own rules.
The exclusionary rule is good because it is better to prevent abuse than to punish it. More so the more power we give to potential abusers. Cops are given a lot of power, so they should have to make extra sure that they use it correctly.
In other words, we really mean it! Don’t take our stuff without asking!
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They will almost never suffer any consequences. That's true, empirically, even when the information is excluded. When the information is not excluded, the incentives are VERY strong for them to violate every rule in order to get convictions. Complaining about the exclusionary rule and suggesting punishments for cops/prosecutors who violate defendant's rights to get a conviction is equivalent to saying defendant's rights don't matter.
You are asserting many things in a short comment, and perhaps all your claims are true in the Anglo / US context. But, you know, I read your message thrice and didn't find any empiracal backing that there is a causal relationship that is not just path dependent happenstance. In Scandinavian system I am familiar with, it appears that cops and prosecutors are far too soft despite that the courts generally are allowed to consider all relevant information, whether it was lawfully or unlawfully obtained.
Despite all the procedural chicanery that you claim is necessary to protect defendants' rights, the US and to lesser extent other English-speaking countries are only ones I have heard about with a problem with parallel construction and asset forfeiture. Perhaps you have an issue of not policing the police and prosecutors sufficiently, and opting for weird procedural hamstringing that gets in the way of getting guilty people to jail is not helping as much as it should.
We have parallel construction BECAUSE we have the exclusionary rule. If you don't have the exclusionary rule you can simply introduce the unlawfully-obtained evidence, the defendant is convicted, then nothing else happens. Asset forfeiture (itself a civil procedure) has nothing to do with any of this.
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The other thing that annoys me about crim pro is that it inevitably protects the rights of guilty but not of the innocent. So the police violate your rights but don’t find evidence because you didn’t commit the crime? Sucks to suck. But they do the seem and find evidence you are guilty? Excluded.
In both situations, the police and the department (via vicarious liability) ought to be civilly liable. But evidence ought not be excluded.
Of course, this can create an incentive for police to trample rights viewing any civil suit as a cost of doing business. Perhaps that can be solved via exponentially growing settlements.
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I think there's a game theory element to it. Remove the incentive for cops to violate the fourth amendment "just this one time" and take one for the team, or (more likely) pass off a new recruit as the fall guy. I'd be pretty damn upset if my fourth amendment rights were violated and I was consoled with "but don't worry, that guy who did it got fired." Excluding this evidence instead makes such a violation a worthless act.
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The issue here is the incentives though, especially with regard to the 4th amendment but also including any other rules. If we assume the police want to convict people they dislike, and violating rules results in a slap on the wrist, then the police are incentivized to violates rules to gather more data. Which is less about protecting the actual criminals and more about violating the rights of the dozen of innocent people they get along the way.
If the police illegally storm and search a dozen homes with no warrant, and one of them has drugs, then that's one additional drug conviction. Even if they've technically broken the law, the prosecutor can choose not to pursue the issue and the police chief can secretly congratulate the violators and they've got their extra conviction. If, instead, that extra drug conviction is completely invalid for the police to benefit themselves or the prosecution by violating rules. The point is not that that one drug offended deserves to go free because the police didn't catch him the right way, the point is that a dozen non-criminals got searched in the meantime and we want to remove any incentive for that to happen. The small injustice of messing with jury evidence is a means to align the incentives and create more justice in general.
Well this is implicitly the perplexing part of the solution. Why choose indirect incentive hacks when the direct incentive hacking -- the officer who commits a crime should be personally liable for those crimes, as any other citizen -- would be much more direct incentive?
Contra common but incorrect belief, police in the US do not enjoy immunity from criminal liability. If the cops murder you, that's still murder, etc...
The problem is twofold. First that many civil rights violations aren't actually crimes. If the police search you unlawfully, they're not guilty of any crime, they just acted improperly and any evidence they found would be thrown out. You might be entitled to damages, but probably not. Second is that in the event an officer does commit a crime in the course of their responsibilities, the legal system will generally bend over backwards to excuse them. Police are of the strong opinion that they don't make mistakes or commit crimes, prosecutors are strongly incentivized to be on good terms with the police, and juries will extend officers the extreme benefit of the doubt.
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Because it almost never happens. For obvious reasons of incentives.
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If the law can't be written and explained in simplified english than it shouldn't exist. Ditto for whatever congress gets up to, if the congress critters can't stand up and recite it rote from memory it doesn't get voted on.
There are areas of law which are technical and complex for good reasons - the examples I normally give are aviation safety and bank capital adequacy. "We shouldn't have bank capital adequacy regulation" is a position which is only taken seriously by the kind of nutcase who thinks we shouldn't have fractional-reserve banks. "We shouldn't have aviation safety regulation" is taken seriously by a libertarian fringe, though as far as I can see not by most pilots. (It is the general aviation orgs who lead the lobbying effort against privatising ATC in the US).
Spending bills are, of course, technical and complex because the government they fund is. (And would still be even if the government stuck to core functions - the military budget is the most complex and technical of the lot.)
No private sector CEO could recite from memory his organisation's full internal rulebook in a complex, technical, safety-critical area. Any CEO who tried would be considered dangerously irresponsible. Above a certain size of organisation, the CEO wouldn't be able to recite the budget down the the line item.
That said, laws can and should be written clearly such that a 110 IQ non-lawyer with a passing familiarity with any relevant technical content can understand them.
The rate of credit can be set by the market, and so can industry standards. Just because bureaucrats really think that they are improving the world because giving them power to do things is better than not doing things doesn't mean it's true.
The debate as to whether the Federal Reserve system magnifies or smoothens the business cycle and its crises is still wide open and the stranglehold of the FAA has so totally destroyed personal aviation that we don't have flying cars despite the technology having been widely available since the 1910s. You can insinue Milton Friedman was a crank, that doesn't make it true.
Bureaucrats want to be the ruling class, and their political formula is "the world is complex, so you need us experts to synthesize rules to handle that complexity, therefore we rule".
All well and good for bureaucrats. But like all political formulas, this is total bullshit. It's exactly as true as the divine right of kings. Which is to say that it's only politically true. And only inasmuch as the bureaucrats are good stewards of their imperium.
But it is plain to see now, to anyone with eyes, that they are terrible stewards.
Thus these empty boasts about the inherent need for the legions of bureaucrats and their superior claim to necessity ring as hollow as ever. No you don't need these people, in fact the chaos of their disappearance, however regrettable, would be a vast improvement over their continued rule.
The FAA has surely mangled personal aviation, but the lack of flying cars is probably better laid at the feet of the NHTSA. In order to be light enough to make any sense flying, flying vehicles have to be pretty fragile. Far too fragile for the NHTSA to approve letting them get in accidents at 70MPH on the interstate.
I haven't been continuing to follow it, but in the last decade and a half or so, I remember seeing a variety of start-ups make minor headlines about how they were getting into the flying car space. I always chuckled when I would dig into their materials and see that they were already claiming at the beginning that they'd be limited to something like 25-45MPH on the road. They're just not going to get a plethora of buyers with that type of restriction, even assuming they could make the rest of the product pretty decent and also survive FAA.
To eyeball some numbers, possibly the lightest passenger vehicle to barely squeek by highway safety standards would be the Smart Fortwo. The curb weight includes fluids, but was originally around 1600lbs. Eyeballing light aircraft (unfortunately, only listing empty weight), we'll start from that weight. After all, we've gotta add wings (eyeballing at least 150sqft of them; not sure where we're going to put them while driving), flying-to-driving-and-back-to-flying mechanisms, including shifting our powertrain to a propeller, flight control equipment, not sure if our suspension will survive landing, etc. Are we going to need STOL ability? Most potential flying car owners aren't gonna get hype about having to drive to their local airport anyway to take off... and then find another local airport to land. I think we're gonna need at least a couple hundred horsepower, but the Smart came with like 45-60hp to start (maybe 100hp later1, but it's not clear from the wiki article how much that affected the weight). But we're definitely going to get beefier, and that comes with additional powertrain weight, fuel weight, etc. Weight truly is the most predominant factor in aircraft design.
Maybe an Elon Musk tier person could thread the needle (and I guess he made comments to that effect in the last year), but I think it's still gonna be hard. I sort of doubt heavy batteries with an electric drivetrain is going to solve this problem, either.
1 - As an added note on the timeline for when technology existed, engines were much less efficient long ago.
The FAA wants very much to keep the number of pilots outside commercial aviation to a minimum. Which is why they have Nintendo-hard ("decode this 1950s aviation weather report about a typhoon. You have 10 seconds"... and that's for drone pilots too) and sometimes unwritten barriers (e.g. the rule that one must have the proper attitude towards authority) to doing so. NHTSA might make it hard to produce flying cars, but the FAA makes it impossible that they could ever catch on.
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The right to a jury trial can be waived in the US system, which I understand is not uncommon in areas where lay jurors' understanding could make results unpredictable or unsympathetic. But it's a choice the defending party gets to make (well, there is also arbitration law, but that's separate).
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I find it amusing you cite privatizing ATC as proof when other countries have private ATC and it seems to function just fine. But color me shocked that a union sticks up for unions.
They function even better, they don't shut down when the government shuts down.
I do find it amusing how in the land where everything is private, especially healthcare, ATC is the one exception.
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Even in those areas I'd argue the average man on the street would understand with the spirit of the regulations. 'Planes stay up in air, good' and 'Banks are doing complicated financey shit but need to keep a certain fraction inside to mitigate turbulence' are things that most people would like broadly agree with, I'd imagine?
Yes - it is certainly possible to write banking and aviation laws that an intelligent layman can understand and put the technical detail into agency regulations. (The UK does this). There is an open question about when the technical detail should go into primary legislation (which means that at least the legislators on the relevant committee will need to understand it) - for instance the EU puts most of the technical content of its bank capital adequacy rules into primary regulation in a way the UK and US don't. The Anglosphere tradition is that the only time you have to put the detail into primary legislation is tax law, and even there the US has delegated significant tariff-setting powers to the President (with the Trump tariff litigation being about whether this delegation should be interpreted broadly or narrowly).
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