Commentary: Dispatches from the Front: Lay Participation in Legal Processes and the Development of Democracy

• Date: 01 April 2003
• Author: Stephan Landsman
• Published date: 01 April 2003
• DOI: http://doi.org/10.1046/j.1467-9930.2003.00145.x

Landsman DISPATCHES FROM THE FRONT 173

© Blackwell Publishing Ltd. 2003

Commentary: Dispatches from the Front:

Lay Participation in Legal Processes and

the Development of Democracy*

STEPHAN LANDSMAN

The three articles in this special issue provide valuable information from the

frontline of the struggle over the development of democratic institutions

in nations that have, in recent decades, undertaken the task of freeing

themselves from totalitarian pasts. Worldwide experience suggests that such

transitions are neither smooth nor easy. It is interesting that in Russia, Croatia,

and Spain the desire for democracy appears to have reached into the justice

systems and lent new significance to pre-existing mechanisms providing for

lay participation.

Lay participation is not, in itself, a new phenomenon or a necessarily demo-

cratic institution in these societies. The Bolsheviks introduced lay assessors

into the Russian legal system 1 and Stefan Machura (2003:3) tells us that

even today they are referred to as “the nodders,” because of their perceived

quiescence. According to Julio Pérez Gil, Franco’s regime was perfectly

comfortable with private prosecution (2003:167, n.4). Other repressive regimes,

including that of Cuba (see Kutnjak Ivkovib 2003:10), have turned to lay

judges, and both the German Democratic Republic and its Nazi predecessor

utilized “popular” prosecution (Pérez Gil 2003:168, n.14). Yet, all three of

these articles tell us that lay participation has, in one way or another, come

to be viewed as an expression of the democratic impulse in these societies.

This situation leads to two questions: first, are these mechanisms capable of

helping to democratize the courts and; second, if so, are they worth the effort?

At the outset it should be noted that these institutions are not the only

ones being used to “democratize” justice in the countries under discussion. In

fact, in both Russia and Spain experiments are under way with lay juries of

* Address correspondence to Stephan Landsman, DePaul University College of Law,

25 East Jackson Boulevard, Chicago, IL, 60604-2287. Telephone: (312)362-6647; e-mail:

slandsma@depaul.edu.

LAW & POLICY, Vol. 25, No. 2, April 2003 ISSN 0265– 8240

© Blackwell Publishing Ltd. 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK,

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