Gerhard Casper

Lay Judges in the German Criminal Courts

THE role laymen play in the administration of justice has been a subject of controversy ever since trial by jury became the standard mode of trial at common law. The controversy rages unabated in our day, friend and foe basing their positions on claims of fact that sharply contradict each other. On the European continent, the jury is in eclipse. Only Austria, Norway, a few jurisdictions in Switzerland, and Belgium have retained the jury. Austria has an eight-man jury operating under severely restrictive controls by a three-judge professional tribunal. The ten-man Norwegian jury is similarly constrained. In Switzerland the jury formally survives in the cantons of Geneva, Fribourg, Thurgau, and Ziirich, as well as on the federal level, but only in Ziirich does the jury seem to possess any real independence. Belgium has preserved jury trials for major and some political crimes since the days of her independence. The German jury disappeared almost unnoticed in 1924. The French jury fell permanently, interestingly enough after the Vichy regime in 1941 introduced the German mixed tribunal. The Fascists did away with the Italian jury in 1931. There is no longer any jury in Eastern Europe. The jury has thus maintained its position mainly in the orbit of the common law, in Great Britain, the British Commonwealth, but more than

Changing Concepts of Constitutionalism: 18th to 20th Century

When one considers the nature of constitutional government in the developed Western democracies at the end of the 20th century, one cannot help but be impressed by how much these democracies have in common. All adult citizens have the right to vote. In most countries governments are regularly turned out of office. Many countries have institutionalized judicial review. But even without judicial review, basic rights-such as freedom of speech or religion-are reasonably respected and protected. There have been gains in the area of equal rights for women. Economic activities can be pursued in relative freedom. While welfare systems have not succeeded in eliminating poverty, they represent at least an acknowledgment of the obligation to moderate poverty. Apart from poverty, stark social differences remain, but equality of opportunity, not infrequently, is more than a mere aspiration. To be sure, differences exist among Western democracies, and each has its pockets of hard to solve problems. At present, we in the United States seem to be plagued by more of them than other advanced democracies and some of these concern the very essence of our society. The black underclass and the pervasiveness of crime are

Constitutional Constraints on the Conduct of Foreign and Defense Policy: A Nonjudicial Model

But in the exercise of such a prerogative, as declaring war, dispatch, secrecy, and vigor are often indispensable, and always useful towards success. On the other hand, it may be urged in reply, that the power of declaring war is not only the highest sovereign prerogative; but that it is in its own nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all the councils of the nation. War, in its best estate, never fails to impose upon the people the most burthensome taxes and personal sufferings. . . . It is sometimes fatal to public liberty itself, by introducing a spirit of military glory, which is ready to follow, wherever a successful commander will lead; and in a republic, whose institutions are essentially founded on the basis of peace, there is infinite danger, that war will find it both imbecile in defence, and eager for contest. . . . The cooperation of all the branches of the legislative power ought, upon principle, to be required in this the highest act of legislation, as it is in all others.