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

Published date01 October 2010
Date01 October 2010
Subject MatterArticles
Political Theory
38(5) 603 –630
© 2010 SAGE Publications
Reprints and permission: http://www.
DOI: 10.1177/0090591710372863
Democracy’s “Free
School”: Tocqueville
and Lieber on the
Value of the Jury
Albert W. Dzur1
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.
Tocqueville, Lieber, jury, democracy, professionals
The jury vests each citizen with a kind of magistracy.
1Bowling Green State University, Ohio
Corresponding Author:
Albert W. Dzur, Bowling Green State University, Bowling Green, OH 43403
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

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