"The Free Conviction, Rising from within": Julius Glaser and the Establishment of Trial by Jury in Liberal Austria 7 Journal on European History of Law 2016

7 JEHL 27 (2016)
"The Free Conviction, Rising from within": Julius Glaser and the Establishment of Trial by Jury in Liberal Austria

handle is hein.journals/jeuhisl7 and id is 250 raw text is:

27

Abstract
This essay examines the reform in criminal procedure promulgated in 1873 under Minister of Justice Julius Glaser. An aspect of the constitu-
tional reforms associated with the establishment of the dual monarchy ofAustria-Hungary, the introduction of trial by juy served to promote a sense
of citizenship among the public. Glaser emphasized the centrality of the individual conscience of jurors in determining the verdicts in criminal trials
and implicitly applied liberal values in evaluating the proper qualification of a well-developed conscience. The study relies on Glaser's published
writings and Austrian official documents.
Key words: Julius Glaser, liberalism, jury trial, criminal procedure, conviction intime.

On one side stands a physical person, whose fate depends
on the outcome of the trial to the degree that it can result in
that person's moral or even physical annihilation; guilty or not
guilty, the accused has a decisive interest in avoiding conviction
and punishment... On the other side stands the most powerful
collective person, which an effective system of criminal justice
must recognize as an absolute necessity, but which has an inter-
est in a specific case by virtue of the relationship of the indi-
vidual to the whole, and whose interest would be harmed as
much by unjust punishment of the innocent as by a mistaken
acquittal of the guilty'
For Julius Glaser the power to punish criminal acts provided
the scene of a blatant demonstration of the relationship between
state power and individual rights. Trials presented a clear ex-
ample of the delicate balance between the desires for liberty and
order that comprised the central tension in liberal thought. Be-
cause the legal exertion of punitive force was integral to state
authority, Austrian liberals regarded the reform of the criminal
justice system inherited from the absolutist state as a priority.
As minister of justice, Glaser achieved the reform of the code of
criminal procedure that was among the most prominent legisla-
tive achievements of the liberal administration of the 1870 s. By
introducing public trial by jury and clearly delineating the rights
of the accused, Glaser sought to embed concepts of citizenship
and individual rights in the legal system. An aspect of the consti-
tutional reforms initiated in the 1860 s, the revision of criminal
procedure marked a clear effort to confine the arbitrary power of
the state and ensure the dignity of citizens before the law.

Glaser's statement also suggests his view of criminal trials
as dramatic, fascinating events. Besides marking a clear de-
lineation of rights and authority, jury trials presented a pub-
lic demonstration of reasoned discourse on a matter crucial to
social order: the defense of justice and determination of the
innocence or guilt of suspected criminals. The explication of
the best means to decide such weighty matters revealed the
liberal approach to resolving fundamental questions of public
policy. Criminal trials often presented uncertainties of interpre-
tation that could not be avoided, yet courts needed to reach
unequivocal decisions crucial to the fate of the defendant and
to public perceptions of justice. For Glaser trials were, further,
instruments of public edification in the workings of the state
and responsibilities of the citizen. Jury trials thus represented
a clear example of rule by consensus reached by reasoned con-
viction. As such, the reform of criminal procedure reflected the
centrality of defining authority in liberal thought, which was
closely connected to a social epistemology that defined means
of finding consensual perception of public matters. In the evalu-
ation of conflicting interpretations of evidence, Glaser relied on
the individual conscience of the jurors, whose decisions thus
reflected well-formed character and commitment to established
public values. Criminal trials thus became demonstrations of
the responsibility, self-restraint, and individual reflection that
characterized the enlightened citizenry the liberals hoped to
promote. As such, the trial embodied the liberal conception of
properly formed individual conscience as the prerequisite for
legitimate authority.

Research for this essay was supported by a Jeanne D. Smith award from the New Hampshire Institute of Politics at Saint Anselm College. I would like
to thank Charles Grau and Sean Perrone for their comments on a draft of this paper.
Philip Pajakowski, Ph.D., Professor of History, History Department, Saint Anselm College, Manchester, NH, USA.
1 Glaser, Julius, Handbuch des Straiprozesses, vol. 1 (Leipzig, 1883), p. 14-15.

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