“I think that the practical intelligence and political good sense of the Americans are mainly attributable to the long use which they have made of the jury in civil causes (p. 329)”

 

This is a really weird and interesting chapter. Tocqueville is claiming that the use of juries in civil causes is the main reason that the Americans think and act so sensibly in their political affairs. That is, the success of American democracy is directly tied to their abundant use of citizen juries for private legal proceedings (as opposed to criminal trials). This is a huge claim.

 

We are used to thinking of juries as part of the judicial branch of government. Their role is simply to ensure fairness in the application of the law. But to Tocqueville, civil juries are more than that: “The jury is above all a political institution, and it must be regarded in this light in order to be duly appreciated (p. 326)”. What is he getting at?

 

The jury is only half of the story. The other half is the legal profession, specifically lawyers and judges. For in a courtroom, the jury does not decide on its own, but is instructed by and appealed to by the lawyers and the judge. Tocqueville essentially asks us to think about the jury as a class of students, with the lawyers and the judge as the instructors. A trial is an opportunity, then, for the American people to learn about the laws of their country, how they relate to justice, how practicality limits theory, and other important political lessons.

 

And it is not just any school, but what makes it special is the particular characteristics of the lawyers and judges. Tocqueville sees the legal profession as the aristocracy in the U.S. Given that they don’t have an aristocracy of old wealth, the educated class (i.e. the legal profession) is the aristocracy in America. The training and practice of lawyers and judges in the United States, which has a common law system based on precedents, makes them conservative and resistant to innovation in legal interpretation, as in other matters: “They participate in the same instinctive love of order and of formalities… (p. 316)”. Tocqueville goes so far as to say that: “…without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained… (p. 319)”. Whoa!

 

So, in essence, Tocqueville is saying that democracy in America is dependent on the well educated, conservative political class of society having the opportunity to instruct and temper the mass of the people. Civil courts are the political classroom of the nation. It’s interesting to consider our own day, with the plethora of courtroom shows on television. People in the U.S. know they have a right to a phone call and the right to remain silent, not because they read the constitution, but because they watch COPS. Makes you look at Judge Judy in a different light. But I’m probably getting carried away here, though I should note that Judge Judy was the most watched daytime television program for a number of years running. More people watched a show about how the American justice system works than any other daytime television show. That is astounding.

 

Here is how Tocqueville describes the value of juries: “It may be regarded as a gratuitous public school ever open, in which every juror learns to exercise his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws of his country, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even by the passions of the parties (p. 329)”.

 

It’s interesting that Tocqueville sees these two groups in American society, both of which play an invaluable role. The people are given all the power in society, which gives an energy and strength to their government and economy. But there is an upper class which plays the important role of instructing and tempering the masses. The aristocracy has a symbiotic relationship with the people. It has to interact with and mould the society in order for the society to be well-governed.

 

Now, of course, this sounds awfully self-serving, as Tocqueville is clearly of the aristocratic class himself. Is this merely his bias coming through in that he can’t but see the aristocracy as the saviour, or master, of the masses. Democracy is a tractor, but it needs a farmer to steer it if it is to be of any value on the land?

 

We should also keep in mind that Tocqueville is writing with his countrymen in mind, the French, and the aristocratic French, in particular. This would certainly be a flattering way of convincing his compatriots to adopt democracy, something that they are likely inclined to see as against their interests. By making it seem as if there is a very important role for the upper classes to play in a democratic society, he is more likely to get them onboard. They get to continue to see themselves as the most important part of the political order.

 

Am I being too cynical? I just struggle to process this bold claim that the legal profession is playing such a huge role in the American democratic project. What do you think?

 

I’ll leave you with one final quote, and the last sentence in his chapter titled the “Causes Which Mitigate the Tyranny of the Majority in the United States”: “Thus the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well (p. 331)”.