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Tuesday
30Sep

Trials as Ritual Mechanisms

Trials themselves are ritual mechanisms through which governments demonstrate the legitimacy of their power (what Max Weber called the “monopoly of the legitimate use of physical force in a given territory”). The advantage of jury trials, including that of Hamdan, is - as de Tocqueville wrote - that they tell everyone who's in charge, since "He who punishes the criminal is therefore the real master of society."  In a slow but imperfect fashion, the Hamdan trial may be signaling that the executive branch of government is no longer the unquestionable master of society, at least when it comes to the War on Terror. Independent judicial review may be returning.


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