NCJ Number
200833
Journal
International Review of Penal Law Volume: 72 Issue: 1-2 Dated: 2001 Pages: 355-363
Date Published
2001
Length
9 pages
Annotation
This article discusses the advantages and disadvantages of lay judges in Sweden.
Abstract
Lay judging is the original form of rendering justice. The importance of tradition is that one must have strong reasons to change the system. The existence of lay judges means that judging is still a primitive procedure, or that judging contains an element that cannot be considered as scientific. Legal science has not shown that judging would improve in a significant way without lay judges. It is not realistic to get rid of lay judges where there is a long tradition of lay judging. An important argument against lay judges is their lack of juridical competence. Arguments in favor of lay judges are that justice can only be defined in a layperson’s terms; the lay judge is considered to be a link with the common sense of justice; and lay judges bring a broader life experience into the court. Close to the argument of broader life experience is the argument for lay participation as a safeguard against technocracy. A milder form of this argument is that lay participation in court makes the proceedings more easily understandable. Most of the arguments for lay judges could be gathered under the subtitle democratic argument, and all arguments against lay judges could be sorted under the subtitle technocratic argument. One of the main arguments for lay participation is the fact that lay judges are less expensive than professional ones. An argument against this is that lay judges are less efficient than the professionals, that the lack of legal training makes the trials longer than necessary. The final conclusion is that as long as judging cannot be performed in a completely scientific way, there is no room for lay judges in court. The problem with mixed courts in Sweden is that lay judges are formally equal to the professional judge. Their function and responsibility are the same but they cannot fulfill their function because they don’t know the law. 3 footnotes