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Articles

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

Political Theory
38(5) 603­–630
© 2010 SAGE Publications
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DOI: 10.1177/0090591710372863
http://ptx.sagepub.com

Albert W. Dzur1

Abstract
This essay discusses the jury’s value in American democracy by examining
Alexis de Tocqueville’s analysis of the jury 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
1

Bowling 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 socialization 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 frequently 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 authorities 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

American courts were less stable than Tocqueville implies but marked by significant institutional conflict involving increasing professional authority demanded by the bench and populist counterpressures. The establishment of two chambers. more importantly. helped lay citizens tolerate and indeed come to appreciate such restraint. At stake is not merely whether Tocqueville was historically accurate in his description of how the American jury functioned but. This popular institution sustained the “moral force” of the judiciary even as this force was used to beat back popular legislation. gained critically needed background support from the image of the judge working aside juries in lower courts.Dzur 605 dangerous an instrument. Tocqueville believed the Supreme Court’s “immense political power. Juries. and uses the already existing juridical capabilities of lay people. and authority surrounding the jury in American political thought. but must begin by renewing an earlier ambivalence between layperson and professional and unfixing the roles Tocqueville firmed up too quickly in his classic account. distrust. . Assessing the value of the jury today may require thinking politically about it. with its stress on lay deference to professional knowledge and its neglect of citizen contributions to trial outcomes. and indeed with some of the conceptual tools Tocqueville offers.”6 Because the judiciary was more insulated from electoral politics and because of the training and work habits of judges it could serve as a source of restraint. the governor’s veto. What is useful in Tocqueville’s account of the jury as a school can be deployed in contemporary debates only if we take care to notice how the jury is also not a school but a site that gathers. The first section draws attention to Tocqueville’s hierarchical account of jury socialization. Lieber held juries to be ambivalent—not automatically trusting but careful about the knowledge and guidance of courthouse regulars. and above all the establishment of the judges.7 This essay reopens the question of the jury’s political value in American democracy by reading Tocqueville’s influential answers more critically. The second part examines the reflections on the jury by Tocqueville’s contemporary. It argues that his perspective is one side of a complex set of ideas about trust. the nineteenth-century courtroom exhibited such ambivalence. how satisfactory his grounded theory of the jury is in picturing how lay people can be incorporated into domains of authority traditionally dominated by officials with some degree of expertise or professional training and in explaining why. even in America. in turn. exactly. focuses. men have been obliged to take a host of precautions against the errors and passions of Democracy. to explore other aspects of this tradition. “that. lay citizens should be part of such domains as technically demanding as civil and criminal courts.” he wrote in his travel notebook.” though formally grounded in its role as protector of the Constitution. the German American political scientist Francis Lieber. As the third section will show.

attentive to his informants. it is . This deference became an important piece of the landscape of ordered political liberty presented by American democratic institutions. county. the lawyer. “contempt for rules. Tocqueville was technically well equipped to observe American courts in practice and to interview court professionals. Prominent among the issues he grappled with was the fluidity of the roles of judge and jury. members of which “take from their work certain habits of order. about the power of judges. about the competence of jurors.606 Political Theory 38(5) Tocqueville’s Jury The Jury as a Political Institution Trained in the law. you cannot form a clear idea of the limits within which the functions of jury and judge are performed.” and “ardor” of the people outside. who tried to explain the dynamics of the American courtroom: “I see that what you have just heard surprises you. The first is administrative decentralization—the “hidden reefs” of state. he included many of their reflections in the final draft of Democracy in America but also critically analyzed their reports and drew connections and conclusions of his own. Such limits are effectively fixed more by practice than by theory. and municipal governments that make it difficult for a reckless or oppressive federal law to be applied effectively all across the country. a taste for forms. and a sort of instinctive love of regular sequence in ideas that naturally foster in them a strong opposition to the revolutionary spirit and the unthinking passions of democracy. During a visit to the Federal Circuit Court in Boston. Tocqueville was a skilled ethnographer. Tocqueville’s travel notebooks show him questioning informants on the nature of the common law. belonging “to the people by interest and birth and to the aristocracy by habit and taste.”9 After many conversations. Though American government is rocked by the “democratic instincts. Immediately following his discussion of the omnipotence of the majority in Democracy in America.”11 While the wealthy and the natural aristocrats are rejected in electoral politics. Tocqueville consulted with the judge. and about the relationship between judge and jury. Tocqueville’s interpretive solution to the problem of how judges and juries shared power of judgment was found in the apparent readiness of jurors to defer to the professional knowledge of the judge.” “love of novelty. Tocqueville describes three counterweights against the tyrannical potential of the mass public.” grand ambitions. for example. with four years of experience as an assistant magistrate at the time of his journey.10 The second countermajoritarian force is the American legal profession. on the use of juries in civil trials.” is entrusted by the majority to hold office. the question of how these are fixed. and who has the authority to determine where the judge’s power over the trial ends and the jury’s begins.8 Moreover.

16 Such pressure to encroach upon individual rights or trample minority interests can be intense.” in the American context.” and even “hatred” for formal procedures. and constraints that “continually slow or halt the realization of their designs. like the legal profession or like civil associations.14 For example. “the jury is a judicial body in appearance only. are revealed only when its political aspects are appreciated.12 American lawyers.18 Since this institution is not well suited for modern social and legal complexity. it is no surprise that in nineteenth-century American civil trials. follow their own rules. and by their very nature they respect them less. Tocqueville notes.” “contempt. however odious a particular defendant’s alleged offense is in the public eye. training. not the most expedient decision. pointing out that it emerged to resolve the simple conflicts of a more primitive era with a rudimentary body of law. he claims. and professional commitments.” and “habitually dilatory ways” of the lawyers inside.” having very little independent impact on the outcome of the trial.Dzur 607 steadied by the “aristocratic inclinations. the legal profession and the judiciary it staffs help preserve “forms” such as common law and constitutional protections of a criminal defendant. Tocqueville insists that the jury must be understood as a political and not merely juridical institution. that are independent of both state and mass society. Because courts are to produce the right decision.” “Thus democratic peoples by their very nature have greater need of forms than other peoples. To call a component of the administration of justice political is not usually complementary. rules. are removed from mass opinion and protected to some extent from official and popular repercussions. Both because it represents majority power and because of the limited legal knowledge and abilities of lay citizens. are an “aristocratic element that can mix readily with the natural elements of democracy to form useful and durable compounds. The . Tocqueville is using the word to suggest something dramatic. Tocqueville believes. such bodies through their traditions. “love of formalities. purely political trials are an abomination of justice. is an ideal-typic term from Tocqueville’s political sociology he uses to describe bodies or organizations.” narrow perspective. therefore. since his narrative on the political nature of the jury is embedded within the larger story of its role in tempering the majority.”13 “Aristocratic.”17 An especially important laboratory for mixing aristocratic with democratic elements is the jury. and can effectuate or frustrate public projects.15 While not aristocratic in the feudal sense of landed gentry. and the demos harbors “disdain. as the objective is to determine guilt or innocence in criminal trials and to secure fair settlements in civil disputes.19 The jury’s real strengths. Tocqueville’s third and last counterweight against majority tyranny. To evaluate the jury strictly on its ability to deliver justice would be unfair.” “superstitious respect for what is old. however.

this symbol of popular sovereignty. Tocqueville had contemplated the terrifying picture of the victim with nowhere to turn in the United States because all sources of redress—public opinion. It channels the penal power—what Tocqueville calls the ordering power of modern society—through the decisions of ordinary citizens. In this respect. the police. is “the majority invested with the right to pronounce judgment. Tocqueville also means by political the way the jury helps enable the courts they inhabit transmute force into right. to make legitimate the laws that otherwise would seem merely the will of the majority. the people are required to become for the duration of a trial not just a little like a judge. Political connotes power as distinct from right. where. the jury. moral. by contrast. is in practice a Trojan horse in reverse. even as the people formally and legally hold sway through the jury. The American courtroom. simply control over the direction of society and not necessarily the best or true or just direction. the legislature. This has transformative cognitive.”22 In America’s democratic republic. as does the close attention regimes pay to the composition of the jury. the executive. in sharing and therefore exercising judicial power. the jury—were dominated by the majority.”24 A major step in the transmutation of majority power into juridical right is that. the jury is “of a piece” with aristocratic control of legislation and therefore jurors are “recruited from the aristocratic portions of the nation. thankfully. perhaps most chilling because of its place as a final arbiter. the “dogma of popular sovereignty” compels jurors to be recruited from the whole people. Otherwise the American jury would be political in a less praiseworthy way. Yet how can brute political force be transmuted into right through decisions made by a democratic judicial form staffed by none other than the people who make up the majority out of doors? Concluding his treatment of majority tyranny. is no battlefield but an alchemist’s magical lab for turning bronze into gold. they themselves are influenced by forces that shape their “habits of mind and even the souls. Tocqueville notes that in an aristocratic republic such as Britain. and the jury really does hold power. this republican form the people could not do without.608 Political Theory 38(5) dramatic pulse of this story is that the jury. their yes or no allows a law to be enforced or not.”23 Power channeled in such a direct way from mere numbers into law and then into judgment is akin to the crude physical power of the battlefield and lacks durable legitimacy. .”20 Attacks on the jury and the manipulation of jurors carried out by European autocrats such as the Tudor monarchs and Napoleon prove this point. carrying the democratic into the aristocratic corridors of legal power only to find it mix readily into a useful and durable compound. and political effects on them.21 Applying Montesquieu’s distinction between republican types. the jury is fundamentally a republican institution: “it places actual control of society in the hands of the governed—or some of the governed—rather than of the government.

27 He praises the use of the jury in both civil and criminal trials because it maximizes the opportunities for lay citizens to serve in the administration of justice and extends the range of issues and interests they must consider. by doing. They realize that the justice of this very courtroom. a taste for forms. sovereigns with wills. to which each juror comes to learn about his rights.”29 The active role jurors must take in the trial helps them absorb and appreciate the formal procedures that are second nature to court professionals.” which are the “habits of order. their realism about government with the passion for general ideas he finds among the French citizenry. Morally. Politically. jurors carry this way of thinking with them out of the courthouse. citizens are pressed into a more universal standpoint. Habits of the heart like commitment to equity. among inmates in a juvenile detention center.Dzur 609 Cognitively. they teach themselves in that sense. and the jury itself comes to be identified. jurors learn.”30 Throughout Democracy in America Tocqueville compares Americans’ awareness of institutions and rules.25 No temporary shift in consciousness. but as governors with reason and charged with making difficult decisions deliberatively not putting them off or rendering them hastily or by default. and an appreciation for the boundaries set on judgment by particular facts and rules. which they are meting out and which might be meted out to them in the future. The jury is a “free school. “I think that the primary reason for the practical intelligence and political good sense of Americans is their long experience with juries in civil matters. most enlightened members of the upper classes and receives practical instruction in the law in a form accessible to his intelligence. with the very idea of justice.”26 Tocqueville notices a pervasive culture of legalism—in the conflict resolution play of American children. Vested with magistracy and seated in somber judgment over others. jury service is a civic education.28 As in Aristotle’s sense of the true citizen being ruler and ruled in turn. and a robust sense of social responsibility are nurtured through these intensely public and personal experiences on the jury.” a preference for tradition and precedent over innovation. “some of the habits of mind of the judge. impartiality. and above all else. “The human mind becomes habituated to the jury’s forms.32 . and one that is always open. as it were. and a sort of instinctive love of regular sequence of ideas. and where he enters into daily contact with the best educated. is something for which they are responsible not theoretically but actually. and elsewhere. jurors taking up the power of judgment recognize that they are part of their government not merely as subjects with wants.31 This practical intelligence is formed by taking part in “free institutions” like the town meeting and the jury and muddling through to difficult and imperfect decisions. jury service helps scour the “rust” of individualism by compelling people to take up matters that affect others and to treat them seriously and fairly.

the court professionals and in particular. hierarchical. are able to “participate in their judgments. he visited courtrooms and sat in on trials in Boston.”34 What jurors learn by doing and by needing to rely upon and to defer to judges in order to reach a decision on serious civil matters is that though they are vested with magistracy. jurors come to see them as impartial arbiters and accept their guidance and influence even in criminal trials.38 .” as Tocqueville notes. while composing a republic of men. as in criminal law. it is a lesson in taking guidance from the ones who know more about the law. are guided by court professionals and defer to the judges who allow it to be a republic of laws? Though he did not interview jurors. fostered a “union and mutual confidence” between “the people and the magistracy. tradition-bound domain the people are thus shaped into citizens who. legal solicitor of Boston. Relieved by and accustomed to the guidance of judges in civil trials. he heard that the courts “form the first power in the state” because the people know the judges and.36 From an interview in Boston with Francis Calley Gray.610 Political Theory 38(5) Being a juror is a political education in another sense as well. that “turn entirely on simple questions of fact easily resolved by common sense” and where in principle if not in practice “judge and juror are equals. Philadelphia. The power gained as a result of acquiring the jurors’ respect and confidence in civil trials is thus exercised in “another theater. it is another indeed to work with them on issues one knows little about. The jury was a prominent topic for Tocqueville throughout his nine-month trip and people trained in the law among his most frequent conversation partners. through the jury. noted Gray. as in civil law. a lesson in the legitimate power of the judge: “The jury instills in all classes a respect for judicial decisions and the idea of law.”37 Soon after. and Cincinnati and he met with many lawyers and judges experienced with juries. it is another to work with them on issues one knows something about. and consequently American judges “have an influence on the outcome of criminal trials that French judges have never known. following an interview with Charles Pelham Curtis.”33 It is one thing to have judges. where the law is complicated and abstract. they cannot perform their role well without the guidance of real magistrates. New York. Tocqueville drew up a small draft essay on the jury explaining its role in supporting judicial power through the socializing effects of jury service. who stressed that civil juries were less competent than judges but strongly supported by public opinion. a prison inspector and state senator.” Civil trials in particular.”35 A Free Public School How did Tocqueville reach his conclusion that by exercising power in this rule-following.

he is yet the guardian of the life. Yet also like most of the others. it has perhaps a more indirect influence on the politics of a people.”40 State senator Gray had spoken of a mutual confidence between judge and jury. Attorney General. and the reputation of his fellow citizens. is a separate class. where they come into contact with the most learned and enlightened of the upper classes. against injustice . he must feel. . who offered the framing metaphor of the jury as a school for the public: The jury is a school where the people come to learn their rights. moreover. where the laws are taught in a practical way and one within the scope of their intelligence. Gilpin did not question its functional value in reaching a correct verdict as deeply as Tocqueville. of which every jury that is empanelled. Henry D. . In this respect I think the jury in civil cases is more important than the jury in criminal cases. Gilpin. Livingston notes their significant advantages beyond the due process benefit of ensuring defendants a fair trial: It diffuses the most valuable information among every rank of citizens. nonwaiveable jury trials in criminal cases. Gilpin raised concerns about the legal ability of jurors and was critical of the typical jury’s capacity as a juridical institution. that though perhaps placed in the humblest station.41 Arguing for obligatory. The frequent exercise of these important functions. gives a sense of dignity and self-respect. Every time he is called to act in this capacity. and the judge Tocqueville met in his Boston courtroom had related that judges commonly deferred to juries even in instances when they questioned the verdict and had the power to quash it.39 Like most of Tocqueville’s respondents. in which he too celebrated the jury as a school for the public. it is a school. Edward Livingston’s widely distributed 1822 report on the penal code he had crafted for Louisiana.S. but one that is even stronger. it seems to me that the superiority of the jury as an institution can be contested. where the dictates of the laws. though in this respect I am still inclined to think it better than permanent tribunals. by the most intelligent minds. and the consequences of disobedience to them. Gilpin comments. This complex American view of the jury as both political and juridical— as representing the public and contributing something juridically valuable to trials—is seen in another account that may have influenced Tocqueville. are practically taught. .Dzur 611 These themes would be confirmed by a half-day conversation with Philadelphia lawyer and future U. the liberty. “As far as the correct decision in each case is concerned.

jurors are not ennobled by the judge. The jury is still a full-blown juridical body in this political account and indeed its obligatory nature is meant as a check on the judge.”43 Tocqueville’s prominent written sources. but the other way around: the “judiciary.42 Livingston’s jury enrolls citizen students who. and that. the courage it creates. above all. his incorruptible integrity is pronounced a sure pledge that guilt will not escape. The information it spreads. which stressed socialization and singled out the civil jury.”46 Tocqueville’s sensitivity to issues of trust and deference in the courtroom may have reflected the chronic integration problems faced by the criminal jury after it. For Livingston.612 Political Theory 38(5) and oppression. viewed the jury as a check on potential abuse of government power and a due process protection of individual rights.”45 The deference that begins in the courtroom spreads outward: “In the relaxations of private life as well as in the labors of political life. How else to explain the influential position of the judge in democratic America marked by. that can grapple with encroachment. such as the Federalist and Joseph Story’s Commentaries on the Constitution.44 Tocqueville’s qualitative research. “Armed with the right to declare laws unconstitutional. the sense of dignity and independence it inspires. allowed American judges to have significantly more political and social power than European judges. . was imported into the French legal system from England by the constitution of 1791. but not the civil jury. While the people enjoy the trial by JURY. the American judge is constantly surrounded by men accustomed to placing his intelligence above their own. Legislative debates in restoration . and saw little political importance in the civil jury. and a renovating spirit that will make arbitrary power despair. in public places and legislative chambers. the American magistrate continually intervenes in political affairs. . taken by lot from among themselves. who is less a teacher in this free school than distant principal. an equality of conditions that levels and homogenizes? Their control of the courtroom accepted not just theoretically but in practice day in and day out. though receiving lessons on the laws. took precedence here and along with what his informants suggested his own chain of reasoning pressed him toward an analysis that downplayed the juridical capabilities of citizens and emphasized their reliance upon and deference to court professionals. they cannot cease to be free. will always give them an energy of resistance. ennobled as it is with the trial by jury. . while his plain understanding has been found the best refuge for innocence. are able by dint of their own capabilities to serve as guardians of each other both in the courtroom and in the wider expanse of political life. Tocqueville suggests.

Such a dominant role was meant to make up for the juror’s lack of juridical knowledge. but the jury was well established. and the human spirit develops only through the reciprocal action of human beings on one another. at the time of Tocqueville’s visit. yet it also jeopardized judges’ image of impartiality and they suffered some loss of public confidence and influence over juries as a result. capable of bringing out the best in people through reciprocal action. however. like town meetings and civil associations. A central political value Tocqueville finds in the jury. juries.48 Compared with the U. reason together using a common language. French juries heard a narrower range of cases and were more circumscribed in their decision making.”52 This reciprocal action did not come naturally in democracy.”50 Participatory democrats today may be tempted to gloss over Tocqueville’s account of jury socialization by imagining it to be akin to the horizontal interaction Tocqueville praised in town meetings and civil associations. and whether the French “national character” tended toward an automatic sympathy for the accused. Yet he fails to mention the endogenous resources the jury does indeed possess for a more horizontal and less hierarchical kind of political socialization: pressed by the need to reach consensus because of the goal of a unanimous verdict. however. is not that it encourages peer-to-peer socialization. The jury would seem to be just such an artificial body and. French procedure granted the presiding judge a comparatively greater role in the courtroom as indeed the chief actor in the trial: interrogating the accused and the witnesses. framing the questions to be considered by the jury.47 Rules of practice such as the size of the majority needed to convict were frequently adjusted. he believed.S.Dzur 613 France focused on whether juries could understand the complex written depositions historically part of French legal practice. “the heart expands. where fellow feeling rubs off on these cool.51 “Feelings and ideas are renewed. self-contained people. The jury socializes not to the point where the people come to an independent understanding of what is right but to the point of popular deference to professional . and presenting a summation to direct the jury’s deliberations. how jury lists could best be composed so unsuitable jurors could be excused from service.49 Tocqueville may have had this context in mind when commenting in his notebook that the more widespread use of the jury in America “prevents the magistracy from becoming a body outside the people and gives it immense and almost always useful power in political questions. and had to be artificially produced. but rather that it produces a long-term nonreciprocal and hierarchical relationship with professional knowledge. jurors work closely with others from different walks of life. and cooperate to serve a larger public purpose. at least in French criminal procedure.” he wrote.

then Tocqueville is not mistaken but only one-sided to emphasize the former picture. was part of a pattern of Anglo-American “institutional self-government” that dispersed decisionmaking power. as Tocqueville suggests. the one of liberty.” The jury. Lieber was a highly respected professor of law and politics. and encouraged “a pervading spirit of self-reliance and self-respect” among citizens. whose textbooks. and national and between the social world and the official world of government. one-way communication. lay people learn enough about the law to listen to the judge. reflect a broader conception of the jury’s political significance and therefore provide important balance to Tocqueville’s analysis. though less internally coherent. such as Manual of Political Ethics (1838-1839) and On Civil Liberty and SelfGovernment (1853) were widely assigned in colleges and law schools. the other of the administration of . despite the skepticism regarding mass civic competence he also shared with Tocqueville—he notoriously called the unschooled masses the “bilge water of the ship of state”—Lieber also incorporated aspects of eighteenth-century American political thought.54 Sharing many of Tocqueville’s concerns about the potential for majority tyranny and for government centralization in the United States.55 However. the elements of hierarchy.” wrote Lieber. “two great ends.56 Amateurs have value on this account in themselves. If. for Lieber as for Tocqueville. and lack of transparency in Tocqueville’s analysis of the jury as a site of learning raise questions about the assumptions he makes about trust. “By the institution of the jury. Lieber endorsed a conception of “institutional liberty” similar to Tocqueville’s idea of the “free institution. A Different Chemistry Francis Lieber’s writings on the jury. To extract what is useful and reject what is not. and responsibility. which valued the jury precisely because it brought something different into the courtroom. not because. Little known now. Moreover. state. top–down control. we must place his analysis in context.614 Political Theory 38(5) justice: by serving on the jury. Then we can see that Tocqueville reflects only part of a complex tradition of American political thought on the jury and presents as a settled equilibrium of roles and institutional authority what were and still are matters of debate. served as a medium of communication between local.53 The cheerful connotations of the free school simile distract us from the serious tensions between the picture of the jury as a place where citizens learn to judge and the jury as a place where already existing juridical capabilities are brought to bear on particular cases. the jury serves both functions. authority. they are judges manqué who are relieved to be guided by real judges but because they are full-fledged jurors. as I believe.

who had printed libelous but truthful remarks about royal governor William Cosby of New York. in the judicial as well as in the legislative department” argued the Federal Farmer during the ratification debates. their just and rightful controul in the judicial department.”57 American thinking and writing on the jury intensified during the revolutionary and ratification periods. It was not temporary power politics that made the jury important. solidified the idea of the jury as an independent.Dzur 615 justice.”59 Jefferson. enforcing. noted that “the great principles of right and wrong are legible to every reader: to pursue them requires not the aid of many counselors. prominent pre-revolutionary juries such as the one that acquitted publisher John Peter Zenger.” To speak of interests is not to imply that the jury was political in the sense of asserting the brute force of the multitude. and the recognition that the colonial jury was about as learned as the judiciary at the time. Grounded in an appreciation of human fallibility that affected judges as well as ordinary citizens on the jury. their true proportion of influence. since “the general Rules and common Regulations of Society. we secure to the people at large. and judging the law. in this country. jurors had no reason to defer to judges. the official magistrates. The jury has “procured for them. many eighteenth-century American writers were unwilling to grant epistemic superiority on matters of law to judges.” Being a juror “enables them to acquire information and knowledge in the . that common people should have a part and share of influence.58 As John Adams argued in 1771. they are sensibly felt by every Briton—it is scarcely extravagant to say. under which ordinary transactions arrange themselves. direct participation of the people in the dispensing of justice and the preventing of it from falling entirely into the hands of the executive or of a separate and closed caste. put on the vests of magistracy as jurors not to play-act as judges or to sit in seminar with them but in order to protect themselves from the well-born. however. writing in 1774. the elite. they are drawn in and imbibed with Nurses’ Milk and first air.”60 While long colonial experience of jury power provided a background. an assessment of the comprehensibility of core natural law principles.61 The less well-born. but rather that it was a popular juridical form—“by holding the jury’s right to return a general verdict in all cases sacred. have been united—namely. two critical junctures when the jury’s political role as protector of basic freedoms had become highly salient. the people. and the wisest and most fit means of protecting themselves in the community. are well enough known to ordinary Jurors. “It is essential in every free country. but a sober understanding of the limits and risks of professionalized justice. juridical space in which jurors could represent different interests than the political elites who were making. are intimately known. The great Principles of the Constitution.

complex case before them. wrote a Maryland Farmer. citizen vs.”66 Moving beyond the eighteenth-century American tradition. the defendant was asked by the bailiff. Lieber draws on a traditional common law distinction between “the country. To represent this a learned judge would be sufficient. and “the government”.64 More important. Echoing this tradition. whenever faithful. probably. “do you put yourself before your country?” The jury represents the country. yet by the law as their country requires it or must be supposed to require it. Lieber tapped the concepts of “country” and “government” to indicate that along with the separate interests jurors might have—local vs. which silently undermine the spirit of liberty” but are “more dangerous than direct and open legislative attacks” on political liberty because they happen “under the sanction of laws. as Hegel suggested—nor only because they appreciate being guided by knowledgeable and impartial judges. operating law. Lieber stresses the advantages of the jury in itself.65 He is careful to say that though it is necessarily independent of the government. at the outset of a jury trial. it is “strictly bound by the law. but also with the feelings of living men. The public trusts trial by jury not simply because they are only comfortable being judged by peers—a confidence grounded in similarity. a popular chamber set alongside the judge like the House to the Senate.”63 Even after the ratification debates.616 Political Theory 38(5) affairs and government of the society. but also a popular juridical form unbeholden to ruling interests. Without the jury. this does not mean that the jury is a law unto itself. the jury is a necessary check on officials and watchdog over them.”62 The jury of the eighteenth-century independence and Anti-Federalist movements is more activist cell than calm public school. official. not the government. citizen outsiders would be vulnerable to “those usurpations. leading thinkers viewed the jury as politically relevant to the representation of a different set of interests in the judicial sphere. and not merely as if they represented the abstract law as it is written down. applied to the particular and. they judge of facts according to rules and laws indeed. and to come forward.” represented by the jury. the living. In Political Ethics. as the sentinels and guardians of each other. national. The jury represents. . as well as a practical power-sharing device that compensates for the institutional advantages of government insiders. the people trust the justice of the court because they have had a hand in creating it. in turn. or rather is. Part of the government. the capabilities it brings into the courtroom rather than those it takes out of it.

To use Max Weber’s later distinction. yet were substantively irrational for many in the North. though this is not ruled out by him. in each single case. . they must strike or protect through him. for example. does not mention this perennially controversial practice that evidenced the checking function of the jury. he writes. jury duty for Lieber calls for moral seriousness. yet may also be irrational from a substantive perspective. must not be biased by political or personal inclinations but must “apply the law.69 Lieber characterizes such capabilities as “common sense” and understands them as aspects of a socially situated juridical knowledge—a kind of expertise that is both widely shared and perspectival. rich—they have discrete capabilities indispensable for justice.68 Jurors can be more closely attuned to the ground-level effects of the law and therefore be more sensitive when they apply it to defendants. by contrast. and their views of what is lawful are also relevant to the process of judgment. care.Dzur 617 poor vs. jurors know exactly what the written law appears to them to be. citizens in possession of discretionary authority do not need to seek guidance from the judge. Though judges know the written law.” it must also be guided by the law.67 A ruling might be compelled by precedent or legislative procedure. and practical sense properly to admix itself with keen professional and scientific distinction.70 As with Tocqueville. when necessary. Fugitive slave laws. He endorses the practice of nullification—the jury’s refusal to convict even though the facts prove the defendant violated the law as stated— precisely because it is the jury’s job to fail-safe the application of overly harsh laws. and is tightly connected to the very issues treated in the courtroom. but must nonetheless take responsibility for the law. for substantive rationality in the law. and attentiveness because the juror’s action is the very last movement in the extension of the law to the person—“the laws must be applied through him.73 Tocqueville.”72 For Lieber.” Robert Cover notes that nearly all antebellum justices stayed on the formal side of the dilemma while Northern juries frequently sided with fugitives and their advocates. had precedent and procedural rationality on their side. Calling this the question of whether “the moral values served by antislavery (the substantive moral dimension) outweighed interests and values served by fidelity to the formal system. however.”71 Lieber insists that while the jury has discretionary authority that is due “the country. The juror. common. Lieber is suggesting that juries can correct courts’ routine institutional tendency to favor procedural rationality with a countervailing pressure.74 Lieber’s argument rests on the epistemic benefits of the jury as it “admixes” a public practical reason with the technical reason of professionals: It enables plain.

distrust when appropriate. unlike Tocqueville. or. is distrust: the judge’s knowledge is actually a problematic sign of distinction from the jury and from public interests. The entry on the jury Lieber published in his Encyclopedia Americana argues against the practice of judges strictly guiding juries on matters of law. Lieber’s view. Lieber stresses epistemic differences between judge and jury. non-professional and professional knowledge are both needed in the courtroom and one should not be seen as superior or dominant over the other. forgetting the end. the jury completes and corrects the judge’s knowledge rather than competing with him as an adversary or extending his dominion as pawn. It is the judge who is not fully competent without the jury. he held that the boundaries of these roles should never be overly rigid. what the right attitude of the judge toward the jury’s knowledge and the jury toward the judge’s knowledge is to be. as well as expertise in the common law precedents. their rule-bounded consciousness. indicates that a more ambivalent attitude is required: trust when appropriate. One answer. Lieber does not use the epistemic differences between judge and jury to leverage them into the conventional but also contested division of labor between the jury as the superior fact assessor and the judge as the better law provider. to which every individual is liable in his own professional and peculiar pursuit—the worship of the means. in order to be justly decided?”76 Because of these limits. in contrast. together with the law. the tact of practical life.618 Political Theory 38(5) and thus prevents the effect of that disposition to sacrifice reality to attenuated theory.78 For him. The critical question is how epistemic advantages of judge and jury can be shared. Though he saw the virtue of such a division of labor. then. drawn from the independence and Anti-Federalist movements. Tocqueville’s answer is trust: the judge’s knowledge is evidence of expertise in the constitutional and statutory law formed by democratic procedures. a badge of elite status. .77 Like Tocqueville and unlike the traditional view.75 Experts and professionals are as limited by their procedural rationality. “Are not almost all complex cases such as require in a high degree strong common sense. alternatively put. as lay citizens are by their lack of formal legal training. Lieber does not hierarchically order these differences. noting the difficulty of separating “the fact from its legal consequences” and warning that if the judge is allowed to be “master of the judgment” through strict legal charges delivered to the jury then what justice is will be determined by the judge and the functional rationale for the jury destroyed.

but “a positive value for any community of finite minds” since “finite minds can know many things only through epistemic cooperation. and authority in the courtroom erupted over the question of whether the jury had the right and not just the power—through the . Robert Merton claimed that ambivalence does not simply arise from professional malfeasance or lay people’s suspicion that the professionals’ interests are incongruent with their own but is a typical side effect of the long-term nature of lay–professional relations. in Naomi Scheman’s words. then.”80 All the same. is directed toward both expert and lay knowledge. for example. the asymmetry in authority. Further. because of the complexity and interdisciplinarity of modern knowledge. and the fact that professionals are called in during times of trouble. the fact that lay people can rarely judge the quality of professional work. of “playing some of them off against others. how it affects lives. and what it signifies for one concrete case. of building in redundancies. the court must recognize the jury’s own expertise—jurors’ knowledge of the law and its effects. to reject absolute epistemic dependency on experts. not abject. responsibilities. finite minds must learn when and how to withhold trust.”81 Seen in terms of an epistemology of democracy. and instead develop ways. Trust is no necessary evil. they have not earned the abject epistemic dependency of jurors but must provide evidence that they are trustworthy—competent. As social epistemologists point out. conscientious. Tocqueville’s free school model of the jury settles what should be left unsettled. Ambivalence. epistemic dependency is a fact of life even for experts. neither overreaching nor overbearing—and that the courts and the legal system they support are also trustworthy. but continued to be controversial throughout the nineteenth century.82 While judges are law experts. The politics of ambivalence is a mean between jurors taking the law too quickly in their own hands and deferring to the judge too readily. writes John Hardwig.Dzur 619 Ambivalence is a normal response to differences in knowledge present in lay relations with professionals. they display seriousness about what the law is. The End of Ambivalence: Legal Professionalism’s Triumph over Jury Populism The political meaning of the jury as a site of judgment that is both juridical and democratic was hardly fixed at the time of Tocqueville’s visit. of constructing overlapping ropes of trust that make our dependency reasonable.79 Ambivalence allows for a trusting but careful attitude toward experts. Struggles over roles. in this mean. the dependency involved.

but it was also battled out in everyday court settings as judges issued charges that sought to control jurors’ decisions. a case involving a sailor’s alleged murder at sea. United States (1890). legislative debates. or property according to such legal principles as in their judgment . The amendment’s opponents argued that juries were overly vulnerable to public opinion and could not protect unpopular defendants. Justice Harlan argued that “any other rule . The contest over roles and legitimate powers was fought at the level of constitutional conventions.”86 Galvanized by the Fugitive Slave Law. standing laws. were not as secure guardians of defendants’ rights as the lay people of the jury. the professionals took ground. when with “fierce resolution and deceptive ingenuity. delegates at the 1853 Massachusetts Constitutional Convention crafted a constitutional amendment: “In all trials for criminal offenses. in their verdict of guilty or not guilty. they questioned the competence and fairness of juries and placed their faith in professionals guided by norms of impartiality and committed to “certainty and predictability of the law. jury supporters were alarmed by a state supreme court decision holding that the jury had no right to determine the validity of a state statute but must follow the judge as the proper guardian of impartial justice. as government officials. the Supreme Court took up the question of whether a judge had overstepped by pigeonholing the jury with a convoluted and highly restrictive charge.84 In Massachusetts. and high court decisions. the jury. Judges. .” “Jurymen.83 While dominant by the end of the century. a constricted role for the jury as mechanical fact finder to be guided by judges expert in the law was strongly opposed by mainstream opinion. A strain of antiprofessionalism drawing on traditional eighteenth-century arguments held sway until midcentury. untrained in the law. . the larger jurisdictional struggle was to be settled by the state supreme court. which nullified the statute. to determine the law and the facts of the case. liberty. after having received the instruction of the court shall have the right.85 In response. would bring confusion and uncertainty in the administration of the criminal law.”87 Though jury supporters won the day and by 1855 the Massachusetts legislature had passed a statute based closely on the jury amendment. In Sparf and Hansen v. would determine questions affecting life.88 Such open exertion of power reveals how important this issue was to the judiciary and how unsettled jury authority was in the nineteenth century.” in Mark Howe’s words.620 Political Theory 38(5) general verdict of guilty or not guilty—to interpret the law or whether the judge was the sole possessor of that right. they argued that juries could rightfully refuse enforcement of unjust laws. one site of close combat in the 1850s. and the rights of the accused under the state constitution. Ruling that the trial judge had operated properly.

jurors are placed in a distinctly subordinate status. one built on lay contributions rather than professional guidance. this settlement was a hard-won institutional struggle against popular distrust of judges as government officials.” wrote Lieber. emphatically in need of both. and trust in professional competence and norms of impartiality held by court professionals themselves but questioned by others outside the court. No enemy of reform. Far from resulting naturally from juror interactions with their betters. given the thread of ambivalence we have underscored.”93 Under Tocqueville’s view of the jury as a free school for the public. professionalized and insulated judges went hand in hand with juries that retained the power of nullification and a jury system that served as an important bottom–up mechanism of legal change. Like the professionals urging reform. They are no longer cocreators of . Lieber’s views of the jury straddled this debate. Truth stands. in Sparf and elsewhere. in all spheres. a commitment to rationalizing legal decision making.90 These final reminders of a once powerful countertradition pointed to a different system of faith in the rule of law.92 Yet for Lieber. The enhanced powers of the judge earn warrants from the knowledge differences with the jury that now have a more formal statement in the fact/law distinction. Justice Gray leaned on traditional eighteenthcentury arguments discounting judicial expertise and warning of the negative implications of a weak jury: the severity of judges caught up in technical rules. This position was based upon distrust of lay abilities. Lieber appreciated the specialized knowledge of well-trained judges and pressed for more not less insulation of the judiciary from electoral politics. “The denial of the necessity of profound study and professional occupation. not much is lost by increased professional authority in the courtroom as long as it can be asserted discretely. Lieber’s perspective and the longer American tradition reveal the main drawbacks of the jury’s diminished place.91 Unsurprisingly. that they were a better safeguard of the people’s rights than the jury because they were more professionally equipped to know the law. When the role of judge as law expert in the court is formalized. and the damage to public confidence in the justice of convictions. “would be as fanatical as the disregard of common sense would be supercilious and unphilosophical. Lieber’s concern that the jury was at risk of extinction because of general frustrations with verdicts and with the length of trials led him to argue that the unanimity rule in criminal trials be replaced with a two-thirds majority. the prospect of citizens liable for obeying laws they are not allowed to judge.”89 In dissent. The nineteenth-century struggle for jurisdictional control ended with judges successfully arguing.Dzur 621 were applicable.

who use parts of Tocqueville’s analysis while rejecting his “wary elitism. since they perform distinct and bounded labor. an old school version of what is now called “empowered participatory government. ideas.” nevertheless. Second. one hopes.622 Political Theory 38(5) justice but stand as workers to the judge as manager.” I suggest that a critical reading of Tocqueville’s discussion of the jury also points to the possibility of a reconstructive democratic politics inside modern government. an experience fostering. while the jury “affords ordinary citizens a valuable opportunity to participate in a process of government. a respect for law. Conclusion With the death of the jury looming. he also suggests that. of course. rejected tout court. there is an open invitation for political theory to discuss the roles and powers of lay citizens in the justice system once again. Louisiana (1968). like Mark Reinhardt. the culture of professionalism holding sway in courtrooms must itself be problematized. though in his view the communication is one-way. but they must be detached from the strong strand of hierarchical professionalism and integrated into the broader line of American political thought found in Lieber’s writing that weights lay contributions more heavily and registers ambivalence about professionalized justice.”95 Three elements of Tocqueville’s analysis in particular point to a different way of valuing the jury politically. Democratic theorists can join those. Surely.” While Reinhardt stresses aspects of Democracy that offer “a reconstructive democratic politics that works not only against but also (partly) outside of the tutelary regimes of modern governance. the jury’s use can shrink to merely symbolic numbers with little consequence for the justice system. while not. he does indicate how the jury serves as a circulatory system sharing the language.”94 If its value is only as adult service learning. as Justice Harlan’s grandson would insist in his dissent in the landmark case Duncan v. and experiences of courthouse regulars with lay citizens. As a place of significant . First. Rather than the solution to the problem of immoderate democracy. Yet the less jurors do and hold responsibility over. the less functional need an efficient system of justice has for them. citing Tocqueville. like town meetings and civil associations. the “principal original virtue of the jury trial—the limitations a jury imposes on a tyrannous judiciary—has largely disappeared. the jury is a place of responsible citizen power and self-government: where people rise to the challenge of ordering their world. though Tocqueville focuses on lay dependence on the judge and the aristocratic culture of legal professionals in ways that distract from an appreciation of citizens’ juridical capabilities.

but the Jury Pool Is Idle.” New York Times (April 30. and procedures best understood in practice. and into the possibilities of the courtroom as a space of public communicative reason. into the strengths and weaknesses of modern legal professionalism and courtroom norms. Democracy. Notes   1. Democracy in America. Note that Tocqueville uses similar terms. Tocqueville. 606. ed. where official authority inside must gain critically needed support from the outside. 2005). with all the resources of respect already at its disposal—professional training. legal experience.Dzur 623 interaction between professionals and lay people. Funding The author(s) received no financial support for the research and/or authorship of this article.   2.g. Hannah Leiterman. but constantly and concretely day after day in ordinary American courtrooms. In doing so. e. Third. The jury is a reminder that the power of judgment is to be grounded in widespread citizen participation not only in extraordinary circumstances. 2007). Adam Liptak. the jury renders transparent the complicated norms. Declaration of Conflicting Interests The author(s) declared no conflicts of interests with respect to the authorship and/or publication of this article. Though both “schools” . 316. These threads point to the need for closer investigations into how and why juridical authority is shared in jury trials. he holds that it is a place where legitimation happens.. they may help us better understand just what we are in danger of losing. “grandes écoles gratuites” or “vast free school. Judicial authority. “The Citizen’s Jury” (ABA Division of Public Education. as in a process that produces a constitution. Acknowledgments I would like to thank the Scottish Centre for Crime and Justice Research and the Law School of the University of Edinburgh for their support while I completed work on this essay. 2004). rules. Arthur Goldhammer (New York: The Library of America.” to describe civil associations. Special thanks are due to Mary Dietz and two anonymous reviewers for their helpful suggestions. trans. Alexis de Tocqueville. the age-old symbolism and hierarchy of the courtroom—must be shared and still has to prove itself to the jury all the time. See. “Cases Keep Flowing In. Olivier Zunz.

“Jury Service as Political Participation Akin to Voting. Democracy in America. 317-18. 1831. The Strange Liberalism of Alexis de Tocqueville (Ithaca. Nancy S.. he was appointed at the age of 21 juge-auditeur. an unpaid assistant prosecutor.” History of Political Thought 24 (2003): 627. ed. trans. 1992). 1977). Tocqueville. Tocqueville. Vikram David Amar.” The Edinburgh Review LXXII (Oct. 479. Tocqueville. we will see that they operate very differently. and Alexis de Tocqueville (Oxford: Oxford University Press.” Tocqueville between Two Worlds (Princeton: Princeton University Press. Alexis de Tocqueville. Tocqueville. John Jay. Tocqueville. 222. 303. Roger Boesche. 10. at the law courts of Versailles. Mayer. George Lawrence (New Haven: Yale University Press. The Federalist. Journey to America. Jacqueline Edelberg calls Tocqueville’s account a pure distillation of American legal thought on the jury. 14. “Justice Here? Alexis de Tocqueville and the Role of the Jury in the American Judicial Process and Republican Democracy. 433. Journey to America.   6. ed. 1987). See. . XVIII: 153-204.. e.   4. he began his duties in June 1827 and left for America on April 2. Cf.g. Carey and James McClellan (Indianapolis: Liberty Fund. e. Alexander Hamilton. and James Madison. Cf. Marder. NY: Cornell University Press. Democracy in America. “Who Needs Ancienneté? Tocqueville on Aristocracy and Modernity. John Stuart Mill accepts Tocqueville’s analysis whole cloth in his own sketch of the jury’s role in political socialization for liberal democracy. XIX. 1827. On April 6.” The Tocqueville Review 17 (1996): 68. 2001). 78. e.   3. 149. ed.   9. Robson (Toronto: University of Toronto Press. See Considerations on Representative Government. See Hugh Brogan. J. and Alan S. CT: Yale University Press. 12. A number of works stress Tocqueville’s “strange” and “aristocratic” liberalism that embraced a participatory and constrained democracy. de Tocqueville on Democracy in America.. 412. Sheldon Wolin writes that “Tocqueville could render American democracy as tolerable by depicting it as a democracy qualified by the equivalents of aristocratic institutions. 113.g. John M.” Cornell Law Review 80 (1994): 221-22. Democracy in America. 306. no. 83. 2007). Tocqueville.   7. Democracy in America.   8. in The Collected Works of John Stuart Mill Vol.624 Political Theory 38(5) are free of charge and both moderate and productively channel popular participation.   5. P. “M.” Insights on Law & Society 5 (Winter. Kahan. See. See. 2001). 309. Mill. Aristocratic Liberalism: The Social and Political Thought of Jacob Burckhardt. 11. 2005): 4-6. 1840). John Stuart Mill. 1-47. Seymour Drescher. George W. “The Jury as a ‘Free School’ for Democracy.g. in Collected Works Vol. 302. Democracy in America. 13. Alexis de Tocqueville: A Life (New Haven. 1960).

in his famous chapter on English liberty. 2000). “Tocqueville’s Paradoxical Moderation. 826. 314. Tocqueville. as a critical moderating force. George Wilson Pierson. Democracy in America. and there is no one of fifteen years old who has not performed a juror’s functions a hundred times. 1965). Democracy in America. Tocqueville observed a jury trial among inmates at a juvenile correctional home. 318.” he means the demos is driven impulsively toward short-term gratifications that may jeopardize individual rights and long-term public interests. 2nd ed. (Indianapolis. Yet. 312. Tocqueville. 10-15. 313.” Review of Politics 67 (2005): 624. Nevertheless. 19. Tocqueville. Tocqueville.g. The Spirit of the Laws. see Aurelian Craiutu. since Tocqueville mentions this paradox himself. Tocqueville overstated the guild nature of American lawyers and the level of professionalism among the judiciary. Democracy in America. Democracy in America. Law was still an apprentice system at the time of his visit. . Democracy in America. On the importance of aristocratic bodies and constitutional and judicial forms to moderating democracy. 290. 20. See also Jack Lively’s discussion of juror education in The Social and Political Thought of Alexis de Tocqueville (Oxford: Clarendon Press. it is clear that his positive valuation of the jury is taking a long-range and causally complex view. Livingston. Story. 26. 315. 181. By “nature. James T. and many judges had only modest formal training. trans. Tocqueville. The Making of Tocqueville’s Democracy in America. Democracy in America. 25. Basia Carolyn Miller. Tocqueville. 18. Montesquieu set an example of treating the jury politically. Cohler. 1938). and Harold Samuel Stone (New York: Cambridge University Press. 317. 21.—or because of images brought from France. 1989). Tocqueville. Democracy in America.Dzur 625 15. 16. Democracy in America. Informant Francis Calley Gray reported that American children “never turn to their masters” but “manage everything among themselves. Perhaps because of his interviews with the leading lights of the profession—Kent. Democracy in America. 27. 17. 303. 57. Schleifer calls the view of the jury as a barrier to majority tyranny a “strange paradox” because Tocqueville knew of three examples of juries rendering biased verdicts under pressure of majority opinion. 23. 435. Tocqueville. 314. e. 265-68. 24. Democracy in America. IN: Liberty Fund. Journey to America. Tocqueville. See Montesquieu. 22.” Tocqueville. Tocqueville and Beaumont in America (New York: Oxford University Press. and ed. Tocqueville. Anne M. a process that he believed subtly reinforced the warden’s authority. he was pointing in the direction American law was heading.

Tocqueville. Democracy in America. an adult white male’s chance of serving was greater in 1831 than today—in Tocqueville’s estimation. Tocqueville. 42. NC: Carolina Academic Press. New Penal Code. On Tocqueville’s reliance on these sources. for example. 126. 287. Tocqueville. 530. Tocqueville. trans.g. 15-16. Tocqueville. and Joy. See. 44. See Adhemar Esmein. Tocqueville. Journey to America. 83. 317. 317. 32. 383-89. e. Livingston is the only informant Tocqueville mentions by name in Democracy. 40. Democracy in America. 1824). 1987). Making of Tocqueville’s Democracy. 1913). 316. Tocqueville and Beaumont. 18. jurors had greater exposure to legal reasoning and court procedures. 29. Democracy in America. “The Democratic Impulse and Legal Change in the Age of Jackson: The Example of Criminal Juries in Antebellum Indiana. 860. Tocqueville. Bodenhamer. Democracy in America. Tocqueville and Beaumont. 316. 316. Note XVII. The Federalist. Democracy in America. . 295-97. 41. Tocqueville. Tocqueville. A History of Continental Criminal Procedure with Special Reference to France. 34. around once every three years. Journey to America. and therefore could be seen as a significant mechanism of socialization and legitimation. 309. no. 16). 37. Democracy in America. Tocqueville. see Schleifer. 36. 38. Livingston.626 Political Theory 38(5) 28. Tocqueville. 30. Democracy in America. Travel notebook “F” has extended entries related to the jury: 277-320. Journey to America. 45. 351. Project of a New Penal Code for the State of Louisiana (London: Baldwin. See also Pierson. 47. J. Simpson (Boston: Little Brown. Jury trials in 1831 disposed of a much larger percentage of cases than today. Because women and African Americans were excluded from jury service. Cradock. Journey to America.. 318. In antebellum Indianapolis. Tocqueville. 39. 221-22. Tocqueville. 43. 92% of all criminal cases went to jury in the 1820s and 1830s. Democracy in America. albeit from a smaller load. 46. See also Tocqueville. Democracy in America. noting that he “is one of those rare men whom one likes from having read their writings” (p. Tocqueville. 383. 52-54. 35. 33. Livingston. Commentaries on the Constitution of the United States (1833) (Durham. Democracy in America. 52-54. Further. 31. David J. Journey to America. 286. See Pierson. and Story. since trials could be short and juries often heard more than one case. 316.” The Historian 45 (1983): 218.

Democracy in America. The Taming of Chance (Cambridge: Cambridge University Press. 1874). 432. 1947). what Hamilton says in Federalist 83 extend from seeing the jury as a “valuable safeguard to liberty” to seeing it as “the very palladium of free government. 92-94. Paul D. See also James Farr. Garner. L. MA: Harvard University Press. ed. 19-36. Butterfield (Cambridge. Nelson. Diary and Autobiography of John Adams. ed. “Eighteenth-century American political thought” refers to settled views on the jury held by American political writers from midcentury and persisting through the ratification debates. see “We the Jury. 405. 1760-1775. Lippincott. Manual of Political Ethics. 52. Nineteenth-Century Liberal (Baton Rouge: Louisiana State University Press. Deiss. 3rd ed.” in Interpreting Tocqueville’s Democracy in America. Tocqueville. 1961). 56. but also encourages something less than “mature” political liberty. Lieber befriended Tocqueville and Beaumont in Boston and later translated their penitentiary report into English. Woolsey (Philadelphia: J. chap. 57.” University of Chicago Law Review 61 (1994): 904. Journey to America.” Dissent (Winter 2008). 598. 51.” The Federalist. “Francis Lieber and the Interpretation of American Political Science.. See Ian Hacking’s discussion of the French legislative debates over jury decision rules. “The Theme of Early American Law Teaching: The Political Ethics of Francis Lieber. . quoted in Frank Freidel. Lieber.” Journal of Legal Education 42 (1992): 356. On Civil Liberty and Self-Government. 2. 1990). For a participatory democratic gloss on Tocqueville’s account of the jury. Vol. 2. Lieber.B. Alschuler and Andrew G. such frameworks might best be considered neo-Tocquevillian because of what they leave out. ed. 320.Dzur 627 48.” Yale Law Journal 25 (1916): 267. Woolsey (Philadelphia: J. Theodore D. See James W. See “A Liberal of a New Kind. Lippincott. 58. 50. 1991). 49. 160. Francis Lieber. 54. 1875). 4. 297. Tocqueville. 55. “Criminal Procedure in France. Vol.” The American Journal of Legal History 18 (1974): 29. Ken Masugi (Savage. 53. Theodore D.. 59. H. which turned on how best to maximize jury capabilities. MD: Rowman and Littlefield. This is a “peculiar pedagogy. The jury jars the individual out of the private sphere into the public. William E. “A Brief History of the Criminal Jury in the United States. Albert W. ed.” Journal of Politics 52 (1990): 1027-49. 11.B. Not mistaken. “The Legal Restraint of Power in Pre-Revolutionary America: Massachusetts as a Case Study. Carrington calls Lieber “the most renowned American law teacher” at the time of his death in 1872.” in Bruce James Smith’s words. 2nd ed. Lieber.

1990). Letter IV. Vol. See Charles Finkel. Storing (Chicago: University of Chicago Press. 1829). Political Ethics. MA: Harvard University Press. 77. in investing the jury with “pardoning power. 234. he had been told by Judge Coxe in Philadelphia that “jurors generally have a strong repugnance against bringing in a verdict that sends a man to death. 1975). 2. 46. on jurors’ considerable “commonsense” capabilities. Herbert J. On Civil Liberty. the substantive rationality a jury might press against a judge is not the same thing as justice. 422. Lieber. . “A Summary View of the Rights of British America. 134. 62. Max Weber. Commonsense Justice: Jurors’ Notions of the Law (Cambridge. 38. Vol. 279. Vol. Julian P. 61. 69. Southern juries maintained substantive racist values in the face of Federal desegregation rules in the 1960s. 320. trans. 65. Lieber. 405-6. note 1.” see Shannon C. Stanley Nider Katz (Cambridge. Stimson. Encyclopedia Americana (Philadelphia: Carey. Vol. 2. warning that the author. 1981). Justice Accused: Antislavery and the Judicial Process (New Haven. The controversial nature of Lieber’s position on nullification is demonstrated by his own editor’s scolding footnote on p. Vol. Boyd (Princeton. NJ: Princeton University Press. Knox (Oxford: Oxford University Press. Vol. ed. 249-50. 2. Maryland Farmer. 71. Tocqueville was aware of the fact of nullification. 76. Lieber. 68. 406. Francis Lieber. 70. 1963). 5. 409. M. Lieber. 72. 312. Lea & Carey. CT: Yale University Press. 234. Robert M.628 Political Theory 38(5) 60. Political Ethics.” Journey to America. Political Ethics. On Civil Liberty. 64. 49. 406. Cover. 63. in The Complete Anti-Federalist. 191. 2. Hegel’s Philosophy of Right. 73. 2. On the Zenger case. Vol. 1952). 1950). T. Storing (Chicago: University of Chicago Press. Needless to say. See also Political Ethics. 144. 1981). Political Ethics. 1995). Vol. They choose the second degree. 2. MA: Belknap Press. 407-9. 2. Lieber. Political Ethics. Vol. note 1. Herbert J.” 74. 406. 67. Lieber. ed. Federal Farmer. The American Revolution in the Law: Anglo-American Jurisprudence before John Marshall (Princeton. Lieber. see James Alexander.” in The Papers of Thomas Jefferson. eds. Letters IV and XV. On the idea of “jural space. 1. in The Complete Anti-Federalist. Guenther Roth and Claus Wittich (Berkeley: University of California Press. 2. ed. 75. A Brief Narrative of the Case and Trial of John Peter Zenger. 1978). Vol. 66. 656-57. Economy and Society.” was treading on “dangerous ground. ed.

“The Changing Role of the Jury in the Nineteenth Century.” Harvard Law Review 52 (1939): 616. Quoted in Howe. mobilize.” The Journal of Philosophy 88 (1991): 707. Robert Merton. See Morton J. 85. impartial and independent. the court in Commonwealth v. 2001). and use the knowledge and cognitive abilities of an inclusive rather than exclusive range of actors to reach decisions and solve social problems. “The Changing Role of the Jury. 1976). 79.” 610.” 607. 2001).Dzur 629 78. In Commonwealth v. Admitting that questions of law often arise in general verdicts of guilty or not guilty. 80. 33. the Jury (Cambridge. “The Role of Trust in Knowledge. 1992). Note.S. Note.” 183. 82-85. Tocqueville did recognize the limits on judicial knowledge and writes in similar terms as Lieber about cognitive blinders. 83. “Juries as Judges. Sparf. Mark DeWolfe Howe. “The Epistemology of Democracy.” 179. 89. MA: Harvard University Press. “Juries as Judges of Criminal Law. Anthes (1855) nevertheless reaffirmed the logic of the earlier Porter decision that set off the struggle and ruled it unconstitutional to allow the jury more formal authority to decide the law. mentioning “disastrous results” that may follow the “hidden tendency in the United States that leads the people to curtail the power of the judiciary. and William E.” in Engendering Rationalities. 168-77. The Transformation of American Law 1780-1860 (New York: Oxford University Press. 101-2 (1895). Naomi Scheman. 309. 82. Horwitz. 91. 51. Sociological Ambivalence and Other Essays (New York: Free Press. Perhaps because he saw the court as a check on majority power. 156 U. Nelson. Sparf and Hansen v. “Juries as Judges. See Elizabeth Anderson. Nancy Tuana and Sandra Morgen (Albany: SUNY Press. “Changing Role. Chief Justice Lemuel Shaw noted that the constitution guaranteed “the right of every citizen to be tried by judges as free. 86. Such struggles were part of a larger battle over judicial authority Tocqueville does register. 19-28. as the lot of humanity will admit” and argued that transferring this right from judge to jury would violate that guarantee. “Epistemology Resuscitated: Objectivity as Trustworthiness. Epistemology of democracy seeks to understand how institutions engage. United States. See also Jeffrey Abramson’s excellent discussion in We.” Democracy in America. 81. Tocqueville was led to favor these biases over popular faults in the courtroom. Howe. Porter (1845). ed. 87.” The Yale Law Journal (1964): 177. Americanization of the . Note. John Hardwig. 88. 84.” Episteme 3 (2006): 8-22. 90.

Identity. Lieber.” The American Law Register 15 (1867): 727-32. Louisiana 391 U. note 1. and Practice (Penn State University Press. and Arendt (Ithaca. 2003).S. 238. 1997). NY: Cornell University Press. Marx. . 145. 93. 2008). and “The Unanimity of Juries. 58. Deepening Democracy: Institutional Innovations in Empowered Participatory Governance (London: Verso. His current research explores the potential of democratic theory for imagining more participatory and reflective criminal justice institutions. See Archon Fung and Eric Olin Wright. 188 (1968). 94. He is the author of Democratic Professionalism: Citizen Participation and the Reconstruction of Professional Ethics. On Civil Liberty. The Art of Being Free: Taking Liberties with Tocqueville. Bio Albert W. 234-35. 92.630 Political Theory 38(5) Common Law: The Impact of Legal Change on Massachusetts Society 1760-1830 (Cambridge. 95. Both relate the demise of jury authority in the courtroom—especially in civil trials—to needs for predictability and control pressed on the political system by American business interests. See Lieber. 1975) on the economic dimensions of this struggle. MA: Harvard University Press. Dzur is an associate professor of political science and philosophy at Bowling Green State University. On Civil Liberty. Duncan v.