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Full resolution (TIFF) - On this page / på denna sida - VI. Justice - 24. Inequality of Justice - 1. Democracy and Justice
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524 An American Dilemma
emancipate him from local opinion were it not for his direct dependence
on it.®
The dependence of the judge on local prejudices strikes at the very root
of orderly government. It results in the danger of breaking down the
law in its primary function of protecting the minority against the majority,
the individual against society, indeed, of democracy itself against the danger
of its nullifying, in practice, the settled principles of law and impartiality
of justice. This danger is higher in the problem regions where there is
acute race friction and in rural areas where the population is small and
provincial, and where personal contacts are direct. Under the same influences
as the judges are the public prosecutors, the sheriffs, the chiefs of police
and their subordinates. The American jury system, while it has many
merits, is likely to strengthen this dependence of justice upon local popular
opinion. If, as in the South, Negroes are kept out of jury service, the
democratic safeguard of the jury system is easily turned into a means of
minority subjugation.
The popular election of the officers of law and the jury system are
expressions of the extreme democracy in the American handling of justice.
It might, in spite of the dangers suggested, work excellently in a reasonably
homogeneous, highly educated and public spirited community. It might
also work fairly well anywhere for cases involving only parties belonging to
a homogeneous majority group which controls the court. It causes, how-
ever, the gravest peril of injustice in all cases where the rights of persons
belonging to a disfranchised group are involved, particularly if this group
is discriminated against all around and by tradition held as a lower caste
upon whose rights it has become customary to infringe. The extreme
democracy in the American system of justice turns outy thusy to bo the
greatest menace to legal democracy when it is based on restricted political
participation and an ingrained tradition of caste suppression. Such condi-
tions occur in the South with respect to Negroes.
If there is a deficiency of legal protection for Negroes, white people will
be tempted to deal unfairly with them in everyday aflEairs. They will be
tempted to use irregular methods to safeguard what they feel to be their
interests against Negroes. They will be inclined to use intimidation and even
violence against Negroes if they can count on going unpunished. When such
patterns become established, the law itself and its processes are brought
into contempt, and a general feeling of uncertainty, arbitrariness and
inequality will spread. Not only Negroes but other persons of weak social
status will be the object of discrimination. ‘‘When an exception to the rule
* A shift from election to appointment of court and police officials would also be expected
to increase efficiency, reduce corruption and raise the level of the persons appointed. This
would tend to occur if appointments were made under the civil service system and generally
even if the higher appointments were made directly by the governor of the state.
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