Hostname: page-component-cc8bf7c57-ksm4s Total loading time: 0 Render date: 2024-12-12T05:31:26.707Z Has data issue: false hasContentIssue false
  • English
  • Français

A Response to Four Readings of A Theory of the Trial

Published online by Cambridge University Press:  27 December 2018

Robert P. Burns
Get access Rights & Permissions [Opens in a new window]

Extract

My goal in A Theory of the Trial was a “rational reconstruction” of the American trial. I began with the conviction that the trial is, in some sense, a successful enterprise. The evidence for this proposition is spread throughout the book and is basically of three sorts—testimony of those who are experienced participant observers, social scientific findings, and the very account of the trial provided in the book. The latter contributes an argument that the trial's “consciously structured hybrid” of languages and practices is consistent with, indeed effectively realizes, intellectual and moral resources that interpret “our considered judgments of justice” (Rawls 1971, 19-20). All of us, even social scientists, always already affirm most of those considered judgments of justice when we think practically, as we must. Not that they are beyond criticism, but we have no Archimedian point or principle from which to criticize them all at once. Since modern people know that we are responsible for our public institutions, we need a mode of practical discourse (at the “metalevel”) by which to understand and evaluate institutions and the practices that occur within them. My book is an attempt at such discourse, and more than one reader has noticed that the argument has a reflexive quality. The book's method itself parallels at a higher level of abstraction the intensely practical discourse that occurs at trial.

Type
Review Symposium on Robert Burns's A Theory of the Trial
Information
Law & Social Inquiry , Volume 28 , Issue 2 , Spring 2003 , pp. 553 - 567
Copyright
Copyright © American Bar Foundation, 2003 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Abramson, Jeffrey. 1994. We, the Jury: The Jury System and the Ideal of Democracy. New York: Basic Books.Google Scholar
Arendt, Hannah. 1958. The Human Condition. Garden City, N. J.: Doubleday.Google Scholar
Bernstein, Richard J. 1976. The Restructuring of Social and Political Theory. Philadelphia: University of Pennsylvania Press.Google Scholar
Burns, Robert P. 1995. The History and Theory of the American Jury: Review Essay. California Law Review 83: 1477–94.Google Scholar
Burns, Robert P. 1999. A Theory of the Trial. Princeton, N. J.: Princeton University Press.Google Scholar
Burns, Robert P. 2001a. The Lawfulness of the American Trial. The American Criminal Law Review 38: 205–39.Google Scholar
Burns, Robert P. 2001b. Notes on the Future of Evidence Law. Temple Law Review 74: 69–89.Google Scholar
Farmer, Lindsay. 2003. Whose Trial Comments on A Theory of the Trial. Law & Social Inquiry 28: 547–552.Google Scholar
Finkel, Normal J. 1995. Commonsense Justice: Jurors' Notions of the Law. Cambridge, Mass.: Harvard University Press.Google Scholar
Halevy, Elie. 1966. The Growth of Philosophical Radicalism, trans. Mary Morris. Boston: Beacon Press.Google Scholar
Holquist, Michael. 1999. Otherness: Polyphony, Dialogue. In Critical Essays on Mikhail Bakhtin ed. Caryl, Emerson. New York: G. K. Hall.Google Scholar
Komesar, Neil K. 1994. Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy. Chicago: University of Chicago Press.Google Scholar
Llewellyn, Karl 1960. The Common Law Tradition–Deciding Appeals. Boston: Little, Brown.Google Scholar
Louden, Robert P. 1992. Morality and Moral Theory: A Reappraisal and Reaffirmation. Oxford, England: Oxford University Press.Google Scholar
Lynch, Mona. 2003. The Truth of Verdicts A Social Psychological Examination of A Theory of the Trial. Law & Social Inquiry 28: 539–546.Google Scholar
Morson, Gary Saul, and Caryl, Emerson 1990. Mikhail Bakhtin: Creation of a Prosaics. Stanford, Calif.: Stanford University Press.Google Scholar
MacIntyre, Alasdair. 1988. Whose Justice Which Rationality? Notre Dame, Ind.: University of Notre Dame Press.Google Scholar
Nussbaum, Martha C. 1986. The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy. Cambridge, England: Cambridge University Press.Google Scholar
Rawls, John. 1971. A Theory of Justice. Cambridge, Mass.: Harvard University Press.Google Scholar
Smigelskis, David J. 2001. Realizing the Practical Intelligence of American Juries: A Theory of the Trial by Robert Burns. Northwestern University Law Review 95: 1015–27.Google Scholar
White, James Boyd. 1999. From Expectation to Experience: Essays on Law and Legal Education. Ann Arbor: University of Michigan Press.Google Scholar