In the
first place, the people have but a very indirect share in the
legislative function, and, even where the referendum exists, very
useful as I believe it to be, the people have only a simple,
almost negative function, to say Yes or No to a law which they
have not made, and would have had no technical ability to make.
Thus the argument of Carrara could only lead to the popular
election of judges, as of legislators, and to a control by the
people of the administrative action of the judges when elected No
doubt this would have theoretical advantages, though in my opinion
it would raise practical difficulties, especially in nations which
do not possess a very keen conscience and political activity,
after enfeeblement by centuries of despotism, or of political and
administrative tutelage and centralisation.
The jury, then, is a retrogressive institution, as shown by
history and sociology, for it represents the mediaeval and
instinctive phase of criminal justice. It has, indeed, a few
advantages (there is always a certain profit in misfortune),
especially when it operates on the final outcome of the classical
theories--bringing to bear, for instance, an irresistible force
against repeated theft, or murders committed at the instigation of
others.
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