Trial by Jury: Story of a Legal Transplant

• Date: 01 September 2017
• DOI: http://doi.org/10.1111/lasr.12284
• Published date: 01 September 2017

Presidential Address

Trial by Jury: Story of a Legal Transplant

Valerie P. Hans

Introduction

The word “transplant” conjures up diverse images, whether it

is a team of doctors crowded around an operating table during

an organ transplant, or rows of small tomato plants recently

inserted into newly tilled earth. For comparative law scholars, the

term signals something completely different. Decades ago, the

Scotsman Alan Watson (1974) generated the concept of a legal

transplant, which continues to be a major focus of comparative

law scholarship (Graziadei 2006; Riles 2006). According to Wat-

son, a legal transplant is the common phenomenon of one coun-

try adopting, in whole or in part, another country’s established

law, legal procedure, legal institution, or legal system. Some see

this as the single most important phenomenon in the develop-

ment of law, for example: “the growth of law is principally to be

explained by the transplantation of legal rules” (Ewald 1995:489).

The notion has been employed to explain the dissemination of

legal procedures (Brake and Katzenstein 2013), plea bargaining

(Langer 2004), and a host of other legal phenomena across the

globe. This essay employs the concept of legal transplant as a

vehicle to describe the global spread of trial by jury.

The concept of a legal transplant has been ubiquitous in the

field of comparative law, but also contentious. Scholars differ in

their views of the extent to which culture and society affect the

transfer of laws and legal procedures (for a review of the debate,

see Goldbach 2015:92–95). Even the “transplant” terminology is

Grants from Cornell Law School, the Berger International Legal Studies Program, and

the Mario Einaudi Center for International Studies supported some of the work described

in this essay. Toby Goldbach and Kevin Westerman provided helpful comments and

research assistance. And many thanks to the members of the Law and Society Association’s

CRN on Lay Participation in Legal Systems and its IRC on World Systems of Lay Participa-

tion, who have educated and inspired me about global juries.

Please direct all correspondence to Valerie P. Hans, Cornell Law School, Myron Taylor

Hall, Ithaca, NY 14853; e-mail: valerie.hans@cornell.edu

Law & Society Review, Volume 51, Number 3 (2017)

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contested (Graziadei 2006:443). Some scholars of comparative

law maintain that the word is at the very least misleading because

it suggests that an organ, plant, or legal procedure transplant

might function exactly the same in its new body, garden, or coun-

try as it did in the previous one (Legrand 1997; Merryman et al.

1994). From this perspective, the idea of legal “translating” more

correctly captures the ways in which legal systems import, bor-

row, or export their laws, procedures, constitutions, or institu-

tions to other legal systems (Berkowitz, Pistor, and Richard 2003;

Langer 2004). These scholars believe translation is a more apt

metaphor because it allows one to distinguish between two coun-

tries’ laws that may be textually identical but function in

completely different manners.

I am an outsider to the field of comparative law. I am trained

as a social psychologist, running experiments, analyzing surveys,

and interviewing participants. But like many others in the inter-

disciplinary Law and Society Association, my research focus on

juries and lay participation has lured me into fields well beyond

my initial training, in this case, the domain of comparative law.

From my outsider’s perspective, I find the concepts of transplant-

ing and translating to be thought-provoking metaphors for the

movement of the jury in global legal systems: its introduction and

its flourishing, as well as its abolition and its decline, around the

world.

My essay about the jury as a legal transplant presumes the

importance of society on legal movements, and has two empha-

ses. First, I try to understand the societal, political, and legal cir-

cumstances and actions that have led to the adoption, expansion,

and decline of lay citizen participation in law (Hans 2007, 2008;

Thaman 2007; Thomas 2016). Trial by jury is a frequent topic in

popular culture. It is regularly featured in movies, television

shows, books, and other popular media, particularly in the

United States (Abramson 2000:498–500; Hans 2013:392–94;

Marder 2007; Papke et al. 2007). Further, research on how the

jury functions as a decision making body is voluminous (Baldwin

and McConville 1979; Devine 2012; Diamond and Rose 2005;

Goodman-Delahunty and Tait 2006; Kovera 2017; Vidmar and

Hans 2007). Much jury research is focused on how a jury or

another lay fact-finding body functions within a single country at

a particular point in time. There is a relatively modest amount of

work that engages generally in historical and international com-

parisons and that specifically contrasts different forms of lay par-

ticipation (Hans et al. 2017). As a result, questions about how

juries have become part of legal systems around the world, and

the circumstances under which they have flourished and

declined, have not yet been definitively answered.

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