the intangible public opinion as safeguard of the rechtsstaat necessary, albeit a posteriori.26 In order to guarantee the freedom of the press, the Assize Court (cour d’assises) had to judge alleged press crimes. This ad hoc court consists of three professional judges and a jury of 12 Belgian citizens, who were supposed to represent the Belgian public opinion. Belgium was not alone in this: many countries, such as Sweden, adopted jury trials to deal with press and/or political crimes.27 Some philosophers even wanted to go further with the implementation of the public opinion in the Rechtsstaat. During his later career, the English utilitarian Jeremy Bentham extensively wrote on public opinion, which he called the “universal interest”.28 To ensure good government, there had to be correspondence between the interests of the officials and the interest of the community. He assigned a primary role for what he called the “Public Opinion Tribunal”: a public court, formed by committees of citizens interested in a given matter.29 Bentham believed that public opinion needed to be institutionalized and transformed from an “amorphous extra-legal public manifestation of concerted opinion, into an intense, nearly tangible, presence, during the dynamism of official legal procedures.”30 Even if he was in fact a cool partisan of the jury, he did believe in its use to make a representative democracy as efficient and effective as possible.31 He also thought that lay judges could be useful to control the judges, who had an important role in checking the constitution. More in general, every court with jury could serve as a “school of justice”, with the judge as schoolmaster and the jurymen as scholars.32 26 Delbecke, De lange schaduw van de grondwetgever, s.45. 27 On the spreading of popular justice, see: Berger, Emmanuel & Delivré, Émilie, Introduction. I: Berger, Emmanuel & Delivré, Émilie, (red.) Popular Justice in Europe (18th–19th centuries), Bologna-Berlin 2014, and Berger, Emmanuel, Delivré, Émilie & Löhnig, Martin, Introduction. I: Berger, Emmanuel, Delivré, Émilie & Löhnig, Martin, (red.), Popular Justice in times of transition(19th and20th century Europe), Bologna-Berlin 2017. 28 Ben Dor, Oren, The institutionalisation of public opinion: Bentham’s proposed constitutional role of jury and judges, Legal Studies, 27 (2) 2007, s. 216. 29 Ben Dor, The institutionalisation of public opinion, s. 218. 30 Ben Dor, The institutionalisation of public opinion, s. 219. 31 Ben Dor, The institutionalisation of public opinion, s. 220 and 226. 32 Ben Dor, The institutionalisation of public opinion, s. 227. 70
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