Tom Delano

Judicial Factors
Dr. Fine
4 May 2016
Judges and Juries
Tocqueville examines judges and juries in his assessment of sovereignty of the people
and shows how they contribute to the will of the people. Sovereignty of the people means there is
no greater power above the will of the people so by that logic nothing should be able to control
them if the majority has an opposing view. The role of the judge would perplex foreigners
according to Tocqueville because the citizens put so much natural trust in them and give so much
weight to their judgement that they view them as a superior authority. When in fact, the judge
holds less power than one might think and Tocqueville further expands that point, he explains
why judges, and the courts in general, guard against the tyranny of the majority and the tyranny
of political assemblies. Tocqueville looks a lot more favorably upon juries because they are made
up of the people, one of Tocquevilles biggest talking points in the book is that citizens take
much greater care and interest in the politics of their country when they are involved, they feel a
part of it and feel they can make a difference. He states that getting people to get involved and
move away from materialism is quite difficult. However, juries require citizens to get involved,
and the person then feels one with the government and feels as if they are making a significant
difference in their community. This power is also checked because the judge stands as a
safeguard against over ambitious and over passionate decisions. The judge can hang the jury or
make them re-think a decision that was made using an incorrect procedure. Tocqueville is a
lawyer himself so he finds a great interest in explaining how the courts can contribute to the
sovereignty of the people and this paper aims at explaining his reasoning and going through his
thought process.
Judges have a unique place in American courts, in other nations as well as America, the
judge acts as an arbitrator to solve disputes. A matter must be brought to the judge in order for a
ruling to be made, therefore a problem has to have taken place. A second characteristic of judicial
power in nations is that he speaks strictly on the case presented, and not on general principles
(100). In American politics, court rulings act as precedents to future rulings, so one must be very
careful in deciding a court case. If a case in America is contested long enough with conflicting
principles, it goes to the Supreme Court where a new nationwide standard and value is put into
place. The third characteristic is that there is nothing inherently active about the judicial power, it
must be set in motion for it to be effective. A judge cannot attack a law because in doing so, they
are unintentionally putting their own private interests into the playing field and acting as a
minority member and a political association. The key difference between American judges and
every other judge in the world is that American judges can rule a law unconstitutional and
completely throw it out. In France the Constitution is immutable, in theory nothing can change it,
in England the Constitution is always changing. America has found a middle ground, it can be
changed by the will of the people and is to be the most respected authority in the land. Nothing is
above the Constitution, but the Constitution is a living document as well. That is the power of the
people, they can change the very document that rules the land and is to be respected above all.
Judges, therefore, are to abide by the will of the people in their rulings. The judge serves another

purpose as well, from a theoretical approach, he serves every person in American. However
weak a man may seem, a judge will always listen to their complaints and they will receive an
answer. The judge does not represent any political body, therefore he only gives an interpretation
of the laws and Constitution already in place (698).
Tocqueville thinks a lot more highly of juries, the principle reason being that they require
citizens to get active in government. He does not view them simply as a judicial power because
they represent so much more than that. Since they are comprised of people who help make the
decision in court cases, they are a political power because they invest the power to judge in
societies hands. In England, the aristocrats are the jurors, in America, anyone can be a juror
(given they pass certain requirements). In this regard, the jury takes a part in government and
takes a part in the execution of laws. This makes people feel a part of the government because
they are now given real power. Laws in themselves are weak when not supported by the values
of the citizens, the values are the true determinants of power in any nation, given the jury is made
up of non-aristocratic citizens, they put their values into play when weighing in on criminal and
civil court cases. In civil cases, juries are a more reputable force because jurors will naturally see
themselves as possibly being in either civilians shoes, they could be judged tomorrow if the
situation should arise. In criminal cases, it is easy for juries to detach themselves from the
criminal because they could think they would never be in such a position. In civil cases, the jury
becomes much more active and concerned with the outcome and the judge takes on a much more
arbitrative role in trivial matters. In criminal cases, the decisions seem more common sense and
the jury then turns to the judge in making a more official and educated decision. Tocqueville
states that juries in civil cases therefore have the most influence in shaping national values and
norms because it gives civilians practice in what they truly believe in while also learning how to
rule, and the legality of their decisions penetrates every rank in society (276).
Tocqueville is skeptical of democracy above all, he sees good elements and bad elements
of democracy. He is afraid of democracy because people have the power to enable bad laws over
good ones, although they are able to fix these mistakes, tyranny of the majority can still occur.
This is where courts, specifically judges and juries come into play. Both act as safeguards to this
sovereignty of all people, even the man who wants his voice to be heard, the judge is required to
listen and give an answer. The law is ever changing and lawyers along with juries and judges act
as brakes to over ambitious passions held by the majority because of their duty to obey the law
already in place, this is how we can avoid rushing into a bad democracy. A good democracy is a
democracy that respects the system, the ever changing nature of the laws, and the values that take
time to implement and influence. The law is made by the people and the courts act as a way of
settling all disputes with the law and respecting the sovereignty of the people above all.