Juries and Emerging Democracies

Brent T. White, Putting Aside the Rule of Law Myth: Corruption and the Case for Juries in Emerging Democracies, 43 Cornell Int’l L.J. 307 (2010), available at SSRN.

One prevailing idea is that democracy, which fosters economic development, requires the rule of law. In other words, the rule of law will remedy the economic woes of emerging democracies. Another prevailing idea is that juries are antithetical to the rule of law. Because foreign companies are less likely to invest in a country with juries, which do not follow the law, emerging democracies should not establish juries. Brent White boldly questions both of these ideas in his article Putting Aside the Rule of Law Myth: Corruption and the Case for Juries in Emerging Democracies.

White’s proposal comes at a time in the United States—the country with the most extensive jury trial right—when juries are in decline, with jury trials occurring in approximately only 2% of criminal cases and 1% of civil cases. So, you might ask, if juries do not seem necessary in an established democracy, why should juries be the answer in emerging democracies?

White uses Mongolia as a case study, including interviews that he conducted of people there, to support his conclusion in favor of juries. He first describes how the current extensive corruption in Mongolia—bribery pervades society, including every aspect of government—was caused in part by international “shock therapy.” After almost seventy years under Communist rule, Mongolia became a democracy in 1990 after the dissolution of the Soviet Union, which had provided significant monetary support to Mongolia.  International financial institutions (“IFs”) came to Mongolia and attempted to fill this gap. There were requirements, though. Shock therapy required countries, including Mongolia, to privatize and reduce the government’s size and power to receive aid. The result was less equality and more poverty than under Communist rule. Moreover, while corruption is often said to derive from the Soviet period, Mongolians reported that corruption became more widespread after the IFs came in. For example, in the aftermath of communism, when shares of publicly owned companies were quickly sold as demanded by the IFs, those in the know exploited others to acquire valuable assets to the result that a small percentage of the population became wealthy.

White goes on to describe the IFs’ attempt to promote the rule of law in Mongolia through the judiciary. But the IFs did not directly attack corruption in the judiciary—the seventh biggest bribe takers. To indirectly address corruption, the IFs worked on other reforms, including the establishment of the judiciary as a separate branch and as the ultimate authority to decide the law. But these reforms did not lead to the reduction of corruption. Indeed, problems continue to pervade the Mongolian judiciary, including a lack of transparency with few published decisions and a public perception that corruption by judges is widespread. All of this occurs with the support of IFs, which, White argues, provide computers and other building infrastructure, which legitimizes corruption.

White states that the problem in the judiciary is part of the larger societal acceptance that bribery is necessary in daily life. As White writes in a more recent essay, while Mongolians want less corruption, they “must survive in the society in which they live—and this frequently means disregarding the law.” And despite the existence of much legal behavior in the country, the negative rule of law myth remains that all actions are the result of improper, corrupt behavior.

With the lack of political will to address judicial corruption, the education of citizens has been promoted as a key component to the development of the rule of law. White criticizes the assumptions of such programs. Those assumptions—“first, rule of law is necessary for significant economic growth; second, rule of law is a prerequisite to democracy; and third, fostering a rule of law culture will plant the seeds for the actual rule of law in the future” (PP. 349-50)—lack empirical support. He explains that context is everything, because a country may not be able to follow the rule of law. Inequality, poverty, and corruption are all examples of impediments to the rule of law. And he cautions that the efforts to educate can replicate the negative rule of law myth that occurred when there was a significant difference between the Soviet government message and people’s lives.

Using Mongolia, White presents a very good argument that the importance of the rule of law to emerging democracies has been overstated. It would be helpful to hear more on why the rule of law more generally, as opposed to shock therapy specifically, is not the problem.  It also would be helpful to know whether Mongolia is not unique and thus is representative of other emerging democracies.

White ends by proposing that juries are a solution to the failure of the rule of law project.  He first points out studies that generally show that jury verdicts are supported by the evidence. He then emphasizes the positive roles that juries can play in emerging democracies. They can use nullification to fight against unjust laws, can reflect the values of a community, and can promote citizen participation. Moreover, juries can check judges’ corruption. Thus, contrary to popular thought, juries could indeed lead emerging democracies to the rule of law.

At a time when there are few proponents for the expansion of juries to other countries, White gives a fresh perspective on the importance of the jury, and he indirectly challenges the idea that the existence of juries will discourage investment. With such a provocative idea, it would be interesting to hear more about how White would respond to criticisms of the jury.

Through his discussion of emerging democracies, White can make us rethink the role of juries in the United States. Going back to my question of why juries are the answer in emerging democracies if they are not the answer in an established democracy, maybe we do not need juries once democracies are firmly established. If so, should the US discard them?  The opposite conclusion could be that given the rule of law myth in the US, juries continue to be important here.