Trial by Jury: Story of a Legal Transplant

Date01 September 2017
Published date01 September 2017
Presidential Address
Trial by Jury: Story of a Legal Transplant
Valerie P. Hans
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:
Law & Society Review, Volume 51, Number 3 (2017)
C2017 Law and Society Association. All rights reserved.
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
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.
472 Trialby Jury

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