The Lost School of Democracy
How the jury helped build modern citizenship — and how modern justice gradually pushed ordinary citizens out of the courtroom.
In the spring of 1878, a young woman stood trial in St. Petersburg for shooting and seriously wounding one of the most powerful officials in the Russian Empire. Vera Zasulich had entered the office of General Fyodor Trepov, the city’s governor, and fired a revolver at him. There was little dispute about what she had done. The deeper question was whether her act could be understood apart from the official cruelty that had provoked it: Trepov had ordered the flogging of a political prisoner, an act that offended both the law and the moral sensibilities of educated Russian society.
The trial took place before a jury, under the presidency of the distinguished judge Anatoly Koni. The courtroom heard the arguments, examined the circumstances, and confronted the extraordinary tension between the letter of the law and the public’s understanding of justice. Then twelve ordinary citizens withdrew to deliberate. They returned with a verdict that astonished the imperial government: not guilty.
The verdict was controversial, as it deserved to be. Zasulich had plainly committed an act of violence. Yet the jurors had also expressed something that the authorities could neither command nor easily suppress: an independent judgment about the conduct of the state. The entire proceeding lasted a single day. Its political and moral reverberations lasted for years.
This was the remarkable institution that nineteenth-century reformers sought to establish across Europe. At its best, the jury was not merely a device for deciding whether an accused person had broken the law. It was a place where government authority met the independent judgment of the governed. It obliged ordinary people to exercise public responsibility, and it obliged the machinery of justice to explain itself in language those people could understand.
Today, nearly a century and a half later, a serious criminal case can require months of hearings, thousands of pages of documents, armies of lawyers, and years before a final judgment. Across much of the democratic world, the independent jury has either disappeared, been confined to a narrow category of cases, or survived formally while the overwhelming majority of disputes are resolved without it.
We usually describe this transformation as the price of modern legal sophistication. But another interpretation deserves attention. Perhaps modern justice has become so elaborate, so expensive, and so thoroughly professionalized that it has gradually displaced one of the democratic institutions it was supposed to serve.
And perhaps the loss extends far beyond the courtroom.
The people enter the courtroom
The origins of the modern jury lie in medieval England. In the twelfth century, under Henry II, groups of local men were summoned to assist royal justice by reporting facts about property disputes and suspected crimes. These early jurors were not modern impartial fact-finders. They were expected to know something about the people and events at issue. Over several centuries, as procedures changed, the jury evolved into an institution that listened to evidence and reached a verdict independently of the judge.
Its political importance became especially clear in the seventeenth century. In 1670, jurors refused to convict William Penn and William Mead for participating in an unlawful religious assembly. When the court attempted to punish them for their verdict, the resulting Bushell’s Case helped establish that jurors could not be penalized simply for refusing to return the verdict desired by a judge.
A constitutional principle was taking shape. The government might define crimes, employ prosecutors, and appoint judges, but it could not always dictate the outcome of a criminal accusation. Between the state and the accused stood a temporary assembly of citizens, possessing an authority that came neither from a ministry nor from a professional judicial hierarchy.
The institution acquired new significance with the rise of constitutional government. The American Constitution protected jury trials in criminal cases and, under specified conditions, civil cases. Revolutionary France introduced the criminal jury in 1791, giving practical expression to the idea that sovereignty belonged to the nation rather than the monarchy. During the nineteenth century, the institution spread through much of continental Europe, including German states, Belgium, and eventually Russia.
The Russian judicial reform of 1864 was particularly striking. Alexander II had abolished serfdom only three years earlier. Now his government introduced public hearings, a modern legal profession, greater judicial independence, and jury trials. The reform did not turn the empire into a democracy. Yet within an autocratic political order, it created an arena in which citizens could exercise independent judgment and lawyers could publicly challenge the state’s accusations.
That was an extraordinary achievement. A country might lack representative national government and still discover, within its courts, an unfamiliar form of civic independence.
The experiment was not without contradictions. Juries could be swayed by prejudice, political enthusiasm, personal sympathy, or brilliant advocacy. The Zasulich verdict itself demonstrated both their independence and the danger that moral outrage might overwhelm strict legal reasoning. Yet such contradictions were part of the institution’s democratic significance. Society was being asked to trust ordinary citizens with serious responsibility, knowing that their judgment would sometimes be imperfect.
Democracy had never promised that citizens would be infallible. Its wager was that people would become more capable of self-government through the exercise of responsibility.
Tocqueville’s school of citizenship
No nineteenth-century thinker understood this more clearly than Alexis de Tocqueville.
When Tocqueville visited the United States in the early 1830s, he observed a society in which ordinary citizens performed an astonishing variety of public functions. They served in local government, joined voluntary associations, managed communal affairs, elected officials, and participated in juries.
In Democracy in America, published in 1835, he devoted an entire discussion to the jury as a political institution. His central insight was that its importance could not be measured solely by the accuracy of its verdicts.
“The jury is above all a political institution,” he wrote.
For Tocqueville, the jury was a direct expression of popular sovereignty. Legislatures gave the people an indirect role in making laws through their elected representatives. Juries gave them a direct role in applying those laws to other human beings.
Even more important was the transformation of the jurors themselves. The ordinary citizen, summoned from his occupation and private concerns, was asked to consider facts carefully, listen to competing arguments, distinguish between suspicion and proof, and reach a decision whose consequences might be profound.
He had to encounter people he might otherwise never meet. He had to take seriously circumstances unlike his own. He had to recognize that the state possessed legitimate authority, but that this authority was not beyond examination. Above all, he had to understand that public responsibility could not always be delegated to someone else.
Tocqueville described the jury as “a gratuitous public school ever open.”
What an extraordinary conception of education. No lectures on democratic values, no examinations in constitutional theory, no certificates of civic competence. Instead, people learned self-government by participating in it.
Tocqueville placed particular emphasis on civil juries. Criminal trials might be dramatic, but they concerned only a relatively small portion of ordinary life. Civil disputes over property, debts, contracts, injuries, and other everyday conflicts were far more numerous. A broadly accessible civil jury could bring the experience of responsible public judgment into the lives of many more citizens.
There was also a subtle benefit to the relationship between citizens and the legal profession. Lawyers and judges retained their expertise, but that expertise had to be communicated to an audience of intelligent nonprofessionals. The law could not remain entirely enclosed within its own technical language. Citizens learned from jurists, while jurists were obliged to make their reasoning intelligible to citizens.
The jury thus joined two things that modern institutions often separate: professional knowledge and democratic authority.
And the educational consequences were not confined to philosophy. A study published in The Journal of Politics in 2008 examined the relationship between jury service and subsequent voting behavior. Its authors found that participation in criminal jury deliberations could increase electoral turnout, particularly among people who had previously voted infrequently.
The study did not establish that every juror became a more responsible citizen. But it offered empirical support for Tocqueville’s intuition: the experience of making consequential public decisions can encourage further civic participation.
A democracy is not merely a system in which people periodically choose their rulers. It is also a system in which people acquire the habits necessary to govern themselves.
The jury helped cultivate those habits.
A nation watches itself judge
There was another dimension to the nineteenth-century courtroom, one that is easy to overlook in accounts concerned only with constitutional law.
Public trials became an important part of national culture.
The courtroom offered something unusually compelling to journalists and writers: a concentrated human drama in which personal histories, conflicting motives, moral obligations, and social tensions converged upon a single decision. The stakes were immediate and unmistakable. Someone might lose his freedom, his property, his reputation, or even his life.
The public could follow the testimony, compare the arguments, and reach its own judgment. Newspapers published detailed reports of important cases. Advocates became public figures. Great courtroom speeches circulated far beyond the people who had heard them.
In Russia, the judicial reform of 1864 helped create an entirely new arena of public discussion. Trials were no longer simply administrative events conducted by officials behind closed doors. They became national conversations about guilt, responsibility, and justice.
The effect on literature was remarkable.
In Dostoevsky’s The Brothers Karamazov, the trial of Dmitri Karamazov becomes a magnificent examination of the limits of human judgment. The evidence appears compelling, the advocates are eloquent, the psychological interpretations seductive. Yet the reader knows how profoundly the proceedings can misunderstand the truth. The courtroom becomes a place where society’s confidence in its own moral intelligence is tested.
Tolstoy took a different approach in Resurrection. Prince Nekhlyudov serves on a jury and encounters a woman from his past whose life he has helped ruin. The proceeding becomes the beginning of his moral awakening. The act of judging another human being forces him to confront the failures of his own life.
Neither novelist treated the jury as infallible. Quite the contrary. Its failures and limitations provided the dramatic material through which deeper moral questions could be explored.
The tradition continued into the twentieth century. In Sidney Lumet’s 12 Angry Men, almost the entire drama takes place in a jury room. Twelve ordinary men must decide whether a young defendant is guilty of murder. Their prejudices, impatience, intelligence, resentments, and capacity for moral courage gradually emerge.
What makes the story powerful is not a brilliant lawyer’s discovery or a judge’s authoritative pronouncement. It is the spectacle of ordinary citizens learning to reason together under the burden of responsibility.
Such stories gave the jury a second educational audience. Beyond the citizens who served, millions of readers and spectators could imagine themselves confronting the same evidence and moral difficulties.
The jury taught those who sat in judgment. The public trial taught those who watched.
This was a distinctive form of democratic culture: an ongoing national education in the difficulty of judging fairly.
The trial becomes an industry
The disappearance of the jury from much of modern judicial life is often explained as an inevitable consequence of growing social complexity.
There is truth in this explanation. Contemporary disputes may involve sophisticated financial arrangements, digital evidence, extensive scientific testimony, and legal relationships unimaginable to an eighteenth-century juror. Modern defendants also possess procedural protections that earlier generations often lacked. The right to effective counsel, the ability to challenge evidence, and safeguards against arbitrary prosecution are genuine achievements.
But increasing complexity is only part of the story.
The modern legal process contains another mechanism, one that deserves much more attention: competition between increasingly professionalized adversaries.
Each side seeks to improve its chances of success. It hires additional lawyers, commissions expert reports, examines more documents, introduces new arguments, and challenges the other side’s evidence. Every advantage gained by one participant invites a corresponding response from the other.
The result resembles an arms race.
From the perspective of each litigant, additional expenditure may be rational. From the perspective of society, the total expenditure can become wasteful. Two sides may spend enormous resources without materially improving the court’s ability to discover the truth.
The distinction is fundamental. A more expensive process is not necessarily a more accurate one.
Economic theory provides a useful way to understand this phenomenon. In a competitive contest, resources may be consumed in efforts to secure a relative advantage rather than create additional value. The legal process adds further complications because its participants do not always bear the full social cost of their decisions. Public prosecutors operate with state resources. Private litigants may feel compelled to spend almost without limit when their liberty, property, or reputation is at stake. Lawyers paid by the hour may face incentives that do not perfectly coincide with their clients’ interest in a swift resolution.
None of this requires assuming that lawyers are generally dishonest or deliberately prolong disputes. A conscientious advocate can reasonably pursue every available procedural advantage. But the combined result of many individually rational decisions may be a system that consumes far more time and money than the search for truth actually requires.
This is a familiar problem in economics: institutions can produce inefficient collective outcomes even when their participants behave rationally within the rules.
And legal competition has a further tendency. Once new procedures, specialized expertise, and elaborate evidentiary practices become standard, the system must acquire the professional infrastructure to manage them. That infrastructure develops its own routines, expectations, and institutional interests. Simplification becomes increasingly difficult, even when almost everyone complains about the resulting cost.
The courtroom gradually ceases to be a place where a dispute can be explained to a group of ordinary citizens within a manageable period. It becomes a complex production involving multiple teams of specialists.
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The Yale legal historian John H. Langbein explored a central part of this transformation in his influential 1979 article, Understanding the Short History of Plea Bargaining.
Langbein showed that the ordinary English criminal jury trial of the eighteenth century was a comparatively brief proceeding, dominated by the judge and involving relatively little professional advocacy. As adversarial procedure expanded and the law of evidence became more elaborate, jury trials grew too burdensome to serve as the routine method of resolving criminal accusations.
The system responded not principally by making trials simpler, but by finding alternatives to trials.
In the Anglo-American world, the most consequential alternative was plea bargaining.
Here the historical paradox becomes apparent. The right to trial by jury remained formally protected, yet the cost and complexity of exercising that right helped create powerful incentives to resolve cases without using it.
A constitutional safeguard can remain intact in the law while gradually disappearing from ordinary experience.
The disappearing citizen
The retreat of the jury did not follow a single path.
In continental Europe, several countries reduced the independence of lay decision-making by replacing separate juries with mixed courts of professional and nonprofessional judges.
Germany abolished its classical independent criminal jury in 1924, during the Weimar Republic, replacing it with arrangements in which lay assessors deliberated alongside professional judges. France had introduced the jury during the Revolution, but in 1941 professional judges began participating in deliberations on guilt with jurors. In 2023, France extended the use of departmental criminal courts composed entirely of professional judges to certain serious offenses.
These changes had different origins, including financial pressures, political decisions, institutional traditions, and administrative reform. They cannot all be attributed to the growing complexity of adversarial litigation. Nor did they entirely eliminate civic participation: mixed courts continue to give ordinary citizens a voice in several European countries.
Yet the distinction between participation alongside professional judges and independent judgment by a separate citizens’ jury is meaningful. In the latter arrangement, ordinary people possess an authority that professionals cannot simply absorb into their own deliberations.
In the United States, the transformation was less visible but perhaps more striking. The right to trial by jury survived as a constitutional principle, while the proportion of cases resolved through a full trial declined dramatically.
According to the United States Sentencing Commission’s 2025 annual report, 98 percent of federal criminal cases in its sentencing data resulted in guilty pleas. Only the remaining 2 percent were resolved through trials, some without juries.
The American criminal jury has not been abolished. It remains an important institution in serious contested cases. But it no longer provides the routine experience of criminal justice for most defendants.
In England and Wales, jury trials also remain central to the most serious contested criminal cases. Nevertheless, most criminal proceedings occur in magistrates’ courts without juries, while many defendants in the Crown Court plead guilty. Official statistics for the final quarter of 2025 show that only about one-fifth of defendants in Crown Court cases reaching the plea stage were dealt with by a jury trial following a not-guilty plea.
Meanwhile, civil jury trials, which Tocqueville considered especially important to democratic education, have also retreated. An American National Center for State Courts study found a substantial decline in civil jury trials between 1976 and 2002 in the states for which comparable data were available. Later surveys continued to document the shrinking role of jury trials.
There are obvious reasons why parties settle civil disputes. Settlement can be less expensive, faster, and less destructive than prolonged litigation. Many agreements are sensible outcomes, not failures of justice.
The difficulty arises when the cost of obtaining a public verdict becomes so great that people must settle not because they are satisfied with the proposed resolution, but because they cannot afford the alternative.
In criminal cases, the imbalance can be still more troubling. A defendant who faces a substantially more severe sentence after an unsuccessful trial may feel powerful pressure to plead guilty rather than exercise the right to challenge the accusation. Such pressures do not prove that the defendant is innocent, but they complicate the notion that every guilty plea represents a freely chosen alternative to a trial.
And the jury’s disappearance has a wider consequence that conventional measures of judicial efficiency rarely capture.
The citizen no longer sits in judgment. The professional system handles the dispute, negotiates the outcome, or decides it internally. The public may learn that justice has been administered, but it has participated less directly in administering it.
What Tocqueville valued as a public school of democratic responsibility has increasingly come to be treated as an expensive procedure that the system must avoid whenever practical.
This change cannot be measured solely in court budgets or case-processing statistics. It is a change in the relationship between society and one of its most fundamental powers.
The cost of professional perfection
There is a temptation to see this history as a straightforward conflict between old simplicity and modern sophistication. That would be misleading.
The brief trials of eighteenth-century England were not uniformly fair. Defendants often lacked legal assistance. Rules protecting them against unreliable testimony or official abuse were rudimentary. Social inequality, exclusion, and prejudice shaped the selection of jurors and the outcomes of cases. The expanding jury system of the nineteenth century was itself limited by the political and social inequalities of its age.
Modern justice has corrected many of these defects, and those achievements should not be discarded.
But a distinction must be made between safeguards that materially improve fairness and procedural complexity that primarily creates opportunities for additional tactical competition.
Consider a divorce involving children and shared property. The central questions may be difficult but comprehensible: how to divide assets fairly, provide for the children, and organize the responsibilities of two parents who will continue to share a family relationship after their marriage ends.
In an aggressively adversarial system, however, each side may be encouraged to widen its demands, challenge the other’s motives, collect increasingly elaborate evidence, and resist compromise. The financial cost rises. More importantly, the process can deepen the hostility that the eventual settlement must somehow overcome.
The legal proceeding can begin to produce the very conflict it was supposed to resolve.
The same underlying mechanism can appear in business litigation, inheritance disputes, and other areas of civil justice. The professional contest expands until its accumulated costs are no longer incidental to the original disagreement. They become a substantial part of the social damage.
This suggests a broader principle for evaluating the quality of justice. The accuracy of the final judgment matters enormously, but so does the total cost of obtaining it. That cost includes money, time, uncertainty, damaged relationships, lost opportunities, and the exclusion of citizens from institutions they once helped operate.
A legal procedure that achieves a marginal improvement in formal precision while consuming vastly greater resources may not represent an unambiguous social advance.
The challenge is not to choose simplicity over justice. It is to ask why justice must so often be made unnecessarily complicated.
Justice within human reach
The historical decline of the jury is not proof that modern society has become incapable of citizen judgment. Independent juries continue to function in important criminal cases in the United States, Britain, Canada, Australia, and other countries. European systems retain other forms of lay participation. Their survival demonstrates that professional expertise and civic judgment need not be mutually exclusive.
The deeper question is whether courts can be redesigned so that ordinary people can once again participate without sacrificing an unreasonable portion of their lives.
A useful reform would begin by asking how much of a trial’s duration is genuinely necessary to establish the relevant facts, and how much arises from opportunities for procedural competition that contribute little to the reliability of the verdict.
Earlier disclosure of evidence, better preparation before trial, disciplined identification of disputed facts, consecutive rather than fragmented hearings, and effective judicial management of repetitive testimony could reduce the burden on jurors. Modern technology could help organize evidence and make complex material comprehensible without replacing human judgment.
Such reforms would require care. Simplification must not become an excuse to weaken the defense, conceal evidence, or give judges arbitrary power to silence relevant arguments. The object is to reduce wasted effort while preserving the safeguards that make a judgment trustworthy.
Indeed, the presence of ordinary citizens may itself encourage better procedure.
A trial that must be understood by a jury imposes a discipline on lawyers, judges, and experts. They must explain what matters. They must distinguish essential evidence from peripheral complexity. They must translate specialized knowledge into reasoning accessible to intelligent people who do not belong to their profession.
This is not an intellectual weakness. It is a democratic demand.
Public institutions should possess expertise, but they should also remain intelligible to the public. A legal system that can explain itself only to its own specialists risks creating a distance between citizens and the power exercised in their name.
There may be room, particularly in civil justice, for renewed experimentation with citizen panels, carefully designed arbitration, and other institutions that combine professional legal guidance with genuine lay authority. Not every dispute needs twelve jurors, and not every technical question lends itself to collective judgment by nonprofessionals. But the steady retreat of citizen participation should not be accepted as an irreversible law of progress.
A democracy capable of educating millions of people, developing extraordinary technology, and managing institutions of immense complexity should also be capable of designing courts in which ordinary citizens can meaningfully participate.
The problem is one of institutional imagination.
What a democracy forgets
The nineteenth-century champions of the jury understood something that later generations have increasingly neglected.
Democratic citizenship is not exhausted by elections, political opinions, or the right to criticize those in power. It also requires opportunities to exercise judgment and responsibility in matters that concern other people.
A citizen who votes chooses representatives. A citizen who serves on a jury temporarily becomes part of the governing authority itself. The experience is different in kind. It demands patience, attention, impartiality, and an appreciation of the consequences of one’s decision.
These qualities are not acquired merely by being told that democracy is valuable. They are cultivated through institutions that require people to practice them.
For Tocqueville, this was the jury’s greatest contribution. It gave ordinary citizens a practical education in self-government while connecting professional law with the moral judgment of the community.
The nineteenth century carried this institution from its English origins into a much wider world. It helped create new spaces of public freedom, gave ordinary people a role in the administration of justice, and inspired some of the most memorable scenes in modern literature.
The twentieth century did not simply abolish that achievement. In many countries, the change was quieter. Courts became more elaborate, lawyers more indispensable, proceedings more expensive, and professional methods of settlement more attractive. Independent citizen judgment gradually retreated from the everyday operation of justice.
Some of this evolution was necessary. Much of it was not inevitable.
The central mistake may have been to evaluate the jury primarily as a method of processing legal disputes, overlooking its larger contribution to democratic life. Once the participation of citizens became an administrative cost rather than a public benefit, its gradual elimination could seem like an improvement.
Yet democracy loses something when citizens are asked only to obey laws, hire lawyers, and await the decisions of professionals.
It loses a place where strangers learn to reason together, where the authority of the state encounters independent public judgment, and where ordinary people discover that the responsibility for justice belongs, in part, to them.
The jury was never a perfect institution. It was something perhaps more valuable: an imperfect institution through which a society practiced the difficult art of governing itself.
Its decline should not be regarded merely as a chapter in legal history. It should prompt a question about the future of democracy itself.
Can we make justice sufficiently fair, sufficiently swift, and sufficiently intelligible that citizens may once again take part in administering it?
The answer matters for more than the courts. It matters for the kind of citizens a democracy produces — and for the kind of democracy those citizens will be capable of sustaining.
