A Theory of the Trial

A Theory of the Trial brilliantly delivers what its title promises: an unconventional way of thinking about the idea of justice. If you are looking for a manual of trial practice, an anthology of case studies of famous trials, a collection of stories about notorious trials in history, look elsewhere. But if you are curious about the guiding principles-often unacknowledged and unexamined-operating beneath the surface of the trial system, forming its foundation, then A Theory of the Trial is for you. Burns, a practicing trial lawyer, professor of law, and professional philosopher, contrasts "the received view" (the view "according to the officials") about how juries (and judges) behave and the complex "intellectual operations" they actually perform while evaluating issues during the performance of the trial. Close study of four trials and reference to many others reveal decidedly more intricate intellectual operations than the official, received view understands. Juries continually sort through what Burns calls "a web of languages" spun during the trial. The key is paying attention to those languages. He does so in painstaking detail, thus setting up his final chapters, which require a patient reader. There Burns's philosophical mind goes to work, thinking systematically through competing positions and working toward his own. The argument proceeds brilliantly from its premises. Despite a pattern of references to scores of previous thinkers, it is conducted clearly and lucidly. For Burns, the trial is "one of the greatest achievements of our public culture." Ordinary citizens arrive at "truth-for-practical-judgment," truth that must be put into practice. Thereby, they influence public events in ways different from official, direct, top-down control. Does he overvalue the common sense of ordinary citizens? Perhaps, but today where else can we look for common sense and hard-won practical judgment? Burns's book makes its demands, but it delivers.

This is one of the best books available on the theories of contemporary justice. Burns uses a combination of scholarly sophistication and practical experience to explain why and how trials work so well at locating truth and doing justice.