“When it becomes serious, you have to lie”
Jean-Claude Juncker, President, European Commission
Whilst we recognise the role of juries in dispensing justice, namely establishing the truth and working together with the state, their role in facilitating democracy is less well known. Yet without juries and jury trials our understanding of democracy, together with sovereignty of the people, would be very different. Perhaps ‘democracy’ would resemble the European Union’s version, that it is a figment of the ruling establishment’s imagination and the sovereignty of the people something that, if it is recognised at all, can be ignored when inconvenient to their aims.
Alexis de Tocqueville wrote in Democracy in America about the influence of jury service on the education of citizens in social responsibilities towards society. Yet jury service goes further because it is an acknowledgement that the state cannot operate alone; the citizenry are required to actively participate and the collective decision of the jury (about truth and, therefore, guilt) is the correct one. The state in particular recognises the skills (listening, analysis and consensus evaluation), trustworthiness (honesty and integrity) and commitment (to justice and the rule of law) of the people.
The electorate is a somewhat larger jury, whose decision on the right political party (or parties) to form the government is largely accepted by everyone including the state apparatus. Without this longstanding tradition of an active, participatory citizenry through juries, whose collective judgement is ‘truth’ (hopefully based on factual evidence) and respect for the rule of law there can be no functioning democracy as we understand it.
Historically there is also a close connection between a ‘jury’ and the limitation of state power. In Magna Carta (1215), in the forerunner of a rudimentary Parliament, is a council of 25 nobles to keep the sovereign in check (adherence to the Charter although the full story is more complex). There was also a real jury (of fellow men) to prevent abuse of absolute power through imprisonment or worse of freemen, a term open to successively wider interpretation. In time, as jury trials evolved, the need to review evidence and establish the facts became the foundation of determining guilt or innocence and therefore of dispensing justice.
The Roman law, which had considerably more influence on the Continent, was somewhat different from our common law in establishing guilt or otherwise. It amounted to listening to the rhetoric of the ‘for’ and ‘against’ orators (lawyers etc.) and accepting the best presented one – the classical definition of rhetoric was ‘the art of pleading well’. Establishing ‘facts’ as such did not come into it and our modern usage or understanding of ‘facts’ became commonplace only after 1660 and the founding of the Royal Society. Previously ‘facts’ were deeds, derived from the Latin facio ‘I do’, and still occurs in expressions such as ‘accessory after the fact’.
Currently the electorate cannot operate as a jury in determining the most appropriate form of government and rule of this country in the EU Referendum (UK based democracy or Brussels based authoritarian corporatism) because it is being denied the necessary factual evidence. The state, in the form of the government apparatus has instead of working with the jury (the electorate) to further democracy, prejudiced its judgement by distorting the evidence. Consequently we are left, as in Shakespeare’s works, to establish the truth through tokens or signs and the rhetoric or claims being proposed by the advocate, as in the Roman law tradition.
In summary, our view of democracy, sovereignty of the people and the need for the electorate to be able to judge on the basis of facts is not necessarily shared in the ruling establishment of the EU arising through their different historical evolution and precedence. Part of this difference comes from the world of Roman law and the reduced role of trial by jury which, where it exists, is much more limited. Electorates can in this EU world be legitimately misled by rhetoric (or deceived by lies) since the most eloquent are the final arbiters of truth. And as we regularly see, the will or sovereignty of the people can be ignored in a way that is naturally alien to us arising from our longstanding traditions.
Could we ever change this different EU vision to more closely align with ours; to in effect achieve a paradigm shift of assumptions, objectives, knowledge and experience amongst the ruling elite? Can Mr Cameron’s brilliant Oxford educated rhetorical skills (the triumph of style and superficiality over logic and substance) have failed so far? So he, his cronies, fellow travellers and the ruling elite have turned on us, spreading fear and despondency in order to get their way, and in doing so are prejudicing the operation of democracy. The jury can no longer have any reasonable doubt – the facts so far don’t speak for remaining.