Democracy’s “Free School”: Tocqueville and Lieber on the Value of the Jury

• Author: Albert W. Dzur
• Published date: 01 October 2010
• DOI: 10.1177/0090591710372863
• Date: 01 October 2010
• Subject Matter: Articles

Articles

Political Theory

38(5) 603 –630

© 2010 SAGE Publications

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DOI: 10.1177/0090591710372863

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Democracy’s “Free

School”: Tocqueville

and Lieber on the

Value of the Jury

Albert W. Dzur1

Abstract

This essay discusses the jury’s value in American democracy by examining

Alexis de Tocqueville’s analysis of the jur y as a free school for the public.

His account of jury socialization, which stressed lay deference to judges

and trust in professional knowledge, was one side of a complex set of

ideas about trust and authority in American political thought. Tocqueville’s

contemporary Francis Lieber held juries to have important competencies

and to be ambivalent rather than deferential regarding court professionals.

The nineteenth-century courtroom exhibited such ambivalence and was

marked by institutional conflict involving increasing professional authority

demanded by the bench and populist counter-pressures. Assessing the value

of the jury today may require some of the conceptual tools Tocqueville

offers, but must also renew an appreciation of the jury as a site that utilizes

already existing juridical capabilities of lay people and thus re-conceive the

relationship between lay people and court professionals.

Keywords

Tocqueville, Lieber, jury, democracy, professionals

The jury vests each citizen with a kind of magistracy.

Tocqueville

1Bowling Green State University, Ohio

Corresponding Author:

Albert W. Dzur, Bowling Green State University, Bowling Green, OH 43403

Email: awdzur@bgsu.edu

604 Political Theory 38(5)

Fending Off the Death of the Jury

At a moment when commentators worry about the “eclipse,” “disappearance,”

and “extinction” of the jury, and public education campaigns quote Thomas

Jefferson on the jury as the “bulwark of democracy” seamlessly with Alexis

de Tocqueville’s comments on the jury as a political institution fundamental to

American democracy, it is appropriate to ask just how, exactly, the jury does

serve democracy.1 An important resource for contemporary defenders of the

jury, Tocqueville’s account of the jury in Democracy in America holds it to

be an école gratuite, a free school where lay citizens learn about the law,

engage with the legal profession, and come away with greater respect for

political institutions—especially the judiciary—and a greater interest in their

own role in them.2 Following this logic, defenders argue that the death of the

jury is to be regretted because of the valuable role it plays in political social-

ization and civic motivation.3

Tocqueville’s description of the jury as an institution that welcomes and

moderates popular participation in government has been uncritically taken to

be a theoretically compelling and historically accurate account.4 Less fre-

quently acknowledged is the difference between a bulwark and a school.

Tocqueville pivoted away from the common eighteenth-century American

view of the jury as a watchdog on elites—judges, but also executive rule-makers,

and distant legislators—and found an elegant explanation for why the jury

would still be relevant for a republic where postrevolutionary political author-

ities were no longer so distant from the public as their colonial predecessors.

Tocqueville’s story of an age-old institution serving once again to protect

against arbitrary power answered the pointed question Alexander Hamilton

posed in Federalist number 83, “how much more merit [the jury] may be

entitled to, as a defense against the oppressions of an hereditary monarch, than

as a barrier to the tyranny of popular magistrates in a popular government”—

whether, in short, the justifications for the jury as a bulwark of political liberty

remained persuasive in the postrevolutionary period.5 Tocqueville saw the

irony that the arbitrary power hedged by the jury in the American republic is

that of the people. Counterintuitively, one political function of the jury is to

transform and usefully redirect popular distrust away from magistrates to

point inward to the people themselves, “vested with magistracy” as jurors.

Unlike the earlier American view, which still had strong echoes at the time

of his visit, Tocqueville saw juries as supporting rather than checking judicial

power. The presence of juries in American courts legitimated what he saw as

a surprisingly robust role for the judiciary in government, which included

judicial review as a counterweight to executive and legislative power and a

buffer against majority tyranny. “A completely democratic government is so