Toward a Democratic Justice? How to Generalize the Popular Jury in Criminal Justice

The introduction of popular juries inside correctional tribunals and penalty application commissions is most probably the major reform that is going to affect the French criminal justice in 2011. With regard to this reform, two arguments are being opposed. On the one hand, the government sees the popular jury as a democratization technique: hence, introducing this institution is meant to ‘bring justice closer to the people’. On the other hand, jurists and legal theorists criticize the ideological dimension of the reform: the generalisation of the popular jury might be just another expression of the ‘penal populism’ (Salas: 2006; Pratt: 2007) insinuating itself inside courtrooms. My objective is to move beyond the legal critique of this penal reform. Thus, I am going to analyze the generalisation of the popular jury by using the concept of ‘democratic justice’ as theorized by Ian Shapiro (1999). My argument is threefold. Firstly, I contend that democracy should be considered as a ‘subordinate foundational good’, i.e. not a goal per se: from this point of view, the democratization of the penal judgment is normatively justified only to the extent that it does not go against the functioning and the constitutive principles of criminal justice. Secondly, I argue that the popular jury is justified only at the appellate level: this allows the persons subject to trial to opt for this institution themselves, even only partially so. Finally, I claim that a limited generalisation of the popular jury does not call for an egalization of penal judgments but that, on the contrary, it reinforces one of the essential dimensions of democratic justice, that is the suspicion toward institutionalized hierarchies.