Lay Judges

Most countries employ lay judges in various forms and for various tasks. The institution of the lay judge has been around longer than that of professional judge. Professional judges were initially greeted with distrust as servants of the ruling kings. One way to deal with this was to introduce a mixed court of appointed professional judges and local representatives. The lay assessors were expected to know the local law and to be independent. The concept of the lay judge today is connected to ideas of democratic rule, adequate verdicts, and fair trials. In many countries, lay judges are part of the legal and political culture, sometimes as a core element. These attributes [Page 938]have stimulated scholarly interest; in addition, lay judges are more easily interviewed than professional judges are. Lay judges are also more likely to provide information about shortcomings of the legal system.

The diversity of lay judges is astonishing. One sees this in the double meaning of the term itself. On one hand, a lay judge is someone who comes from the people (lay coming from the ancient Greek word laios) instead of from an elite class. On the other hand, lay means to make one's living from activities other than judging. Nevertheless, Swiss military law utilized a lay judge who had to be qualified as a trained lawyer. Switzerland is also known for the permanent lay judge, a nonlawyer who serves as a professional judge. German law does not prohibit persons trained in law from becoming lay assessors; it simply does not mention the necessity of legal training. (Figure 1 illustrates a German mixed court in Bamburg.) English lay magistrates, of which there are thousands, may invest most of their best energy into their function, but they are not paid for it and there is no requirement to be a lawyer. However, English magistrates must take part in special training to qualify for the work.

Figure 1 provides some flavor of German lay judging in the sixteenth century. The first word in the engraving is Bambergisch, meaning “from the town of Bamberg.” The German three line rhyme above the picture is in modern German:

For which the English translation is:

The two lines that follow complete the advice in modern German:

That in English translates as:

The organization of participating judges also varies. Prior to the last few decades, the United States widely employed lay persons as single judges. In African colonies, British courts consisted of a professional judge and a local clerk; the clerk advised the judge on the laws of the inhabitants. White colonialists enjoyed the protection of a judge and jury system, with jurors recruited from their peers. In continental Europe (and the former socialist countries), mixed courts of a professional judge and lay assessors are [Page 939]frequent. Unlike the British common law jury system, in which jurors deliberate without a judge present, the lay and professional elements are not separated; they decide on guilt and verdict, as well as on procedural matters, together. The Geneva jury until recently even followed this civil law custom and retired in the presence of a professional judge to find a verdict. The composition of mixed courts varies from a majority of professional judges to a majority of lay judges.

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