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  • Juries and the Transformation of Criminal Justice in France in the Nineteenth and Twentieth Centuries
  • Paul F. Jankowski
Juries and the Transformation of Criminal Justice in France in the Nineteenth and Twentieth Centuries. By James M. Donovan (Chapel Hill, University of North Carolina Press, 2010) 272 pp. $65.00

Many Americans are unaware that their country’s reliance on trial by jury, however often plea bargains and settlements may circumvent it, is unique in the world. In France, for example, the use of juries has diminished so much during the past century that their introduction in 1791 has begun to resemble a naïve but well-intentioned experiment in the country’s long legal history, an episodic flirtation with curial democracy. One of the many merits of Donovan’s erudite and incisive book is to trace the many twists and turns of the experiment and to explain why it has been so troubled.

A paradox runs throughout his book: Each attempt to strengthen the jury system planted the seed of its undoing. The jury of the Revolution, bringing the people into the judicial process and promising an end to secretive and arbitrary justice, provoked an authoritarian reaction by magistrates and governments almost as soon as it was introduced. The jury of the July Monarchy (1830–1848), strengthened by its newfound powers to moderate sentences, was immediately weakened by the relegation of many crimes to correctional courts where judges could hold sway without the hindrance of the juridical illiterates of the box. The jury of the Third Republic (1870–1940), which was supposed to restore the powers that the jury had lost during the Second Empire (1851–1870), [End Page 643] fell prey, slowly but inexorably, to the efforts of magistrates and professionals of all sorts to constrain it, once and for all. The jury after 1914, newly empowered to determine penalties, lost its autonomy to judges insinuating themselves into its deliberations, a practice that lasts to this day.

It is tempting to attribute this braided story of reform and reaction to the passions of French political history since the Revolution. In this scenario, juries and laymen represent the left, while judges and specialists populate the right—one side permissive and the other repressive. Rarely the twain would meet, as goes the refrain. Such simplicities are not altogether mistaken, but liberal as well as conservative regimes came to fear unbridled juries. Moreover, the legal resort after 1914 to new professionals—criminologists, psychiatrists, sociologists, and many others—who belittled the competence of jurors could serve the left and the right alike. In fact the “triumph of experts over jurors” after 1914 cannot be explained in purely political terms at all (Chapter 6). Donovan threads the internal legal history—for example, the problems of jury discretion or nullification (panels that acquitted defendants despite thinking them guilty, or passing unduly lenient or, more rarely, harsh sentences)—with the external political history of the past two centuries.

An expert on French legal history who has written extensively about the jury, Donovan has written an authoritative and useful book. Though he might have provided a little more context—by showing, for instance, that magistrates and legislators were just as affected by regime changes, intellectual fashions, and public anxieties as jurors were— the book would certainly have lost its concision. Such questions might better be raised in what, as far this reviewer knows, is still sorely lacking—an English-language history of French law.

Paul F. Jankowski
Brandeis University
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