Articles

Democracys Free
School: Tocqueville
and Lieber on the
Value of the Jury

Political Theory
38(5) 603630
2010 SAGE Publications
Reprints and permission: http://www.
sagepub.com/journalsPermissions.nav
DOI: 10.1177/0090591710372863
http://ptx.sagepub.com

Albert W. Dzur1

Abstract
This essay discusses the jurys value in American democracy by examining
Alexis de Tocquevilles 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. Tocquevilles
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

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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 Tocquevilles 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, Tocquevilles account of the jury in Democracy in America holds it to
be an cole gratuite, a free school where lay citizens learn about the law,
engage with the legal profession, and come away with greater respect for
political institutionsespecially the judiciaryand 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
Tocquevilles 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 elitesjudges, but also executive rule-makers,
and distant legislatorsand 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.
Tocquevilles 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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dangerous an instrument, he wrote in his travel notebook, that, even in

America, men have been obliged to take a host of precautions against the errors
and passions of Democracy. The establishment of two chambers, the governors veto, and above all the establishment of the judges.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. Juries, in
turn, helped lay citizens tolerate and indeed come to appreciate such restraint.
This popular institution sustained the moral force of the judiciary even as
this force was used to beat back popular legislation. Tocqueville believed the
Supreme Courts immense political power, though formally grounded in its
role as protector of the Constitution, gained critically needed background
support from the image of the judge working aside juries in lower courts.7
This essay reopens the question of the jurys political value in American
democracy by reading Tocquevilles influential answers more critically. At
stake is not merely whether Tocqueville was historically accurate in his
description of how the American jury functioned but, more importantly, 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,
exactly, lay citizens should be part of such domains as technically demanding
as civil and criminal courts. What is useful in Tocquevilles 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, focuses, and
uses the already existing juridical capabilities of lay people.
The first section draws attention to Tocquevilles hierarchical account of
jury socialization, with its stress on lay deference to professional knowledge
and its neglect of citizen contributions to trial outcomes. It argues that his
perspective is one side of a complex set of ideas about trust, distrust, and
authority surrounding the jury in American political thought. The second part
examines the reflections on the jury by Tocquevilles contemporary, the German
American political scientist Francis Lieber, to explore other aspects of this
tradition. Lieber held juries to be ambivalentnot automatically trusting but
careful about the knowledge and guidance of courthouse regulars. As the
third section will show, the nineteenth-century courtroom exhibited such
ambivalence; 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. Assessing
the value of the jury today may require thinking politically about it, and
indeed with some of the conceptual tools Tocqueville offers, 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.

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Tocquevilles Jury
The Jury as a Political Institution
Trained in the law, with four years of experience as an assistant magistrate at
the time of his journey, Tocqueville was technically well equipped to observe
American courts in practice and to interview court professionals.8 Moreover,
Tocqueville was a skilled ethnographer; attentive to his informants, 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. Tocquevilles travel notebooks show him questioning
informants on the nature of the common law, on the use of juries in civil
trials, about the competence of jurors, about the power of judges, and about
the relationship between judge and jury. Prominent among the issues he grappled with was the fluidity of the roles of judge and jury, the question of how
these are fixed, and who has the authority to determine where the judges
power over the trial ends and the jurys begins. During a visit to the Federal
Circuit Court in Boston, for example, Tocqueville consulted with the judge,
who tried to explain the dynamics of the American courtroom: I see that
what you have just heard surprises you; you cannot form a clear idea of the
limits within which the functions of jury and judge are performed. Such
limits are effectively fixed more by practice than by theory.9 After many
conversations, Tocquevilles 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. This
deference became an important piece of the landscape of ordered political
liberty presented by American democratic institutions.
Immediately following his discussion of the omnipotence of the majority
in Democracy in America, Tocqueville describes three counterweights
against the tyrannical potential of the mass public. The first is administrative
decentralizationthe hidden reefs of state, county, and municipal governments that make it difficult for a reckless or oppressive federal law to be
applied effectively all across the country.10 The second countermajoritarian
force is the American legal profession, members of which take from their
work certain habits of order, 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.11 While
the wealthy and the natural aristocrats are rejected in electoral politics, the
lawyer, belonging to the people by interest and birth and to the aristocracy
by habit and taste, is entrusted by the majority to hold office. Though American government is rocked by the democratic instincts, love of novelty,
grand ambitions, contempt for rules, and ardor of the people outside, it is

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607

steadied by the aristocratic inclinations, superstitious respect for what is

old, narrow perspective, love of formalities, and habitually dilatory
ways of the lawyers inside.12 American lawyers, therefore, are an aristocratic element that can mix readily with the natural elements of democracy to
form useful and durable compounds.13
Aristocratic, in the American context, is an ideal-typic term from Tocquevilles political sociology he uses to describe bodies or organizations, like
the legal profession or like civil associations, that are independent of both state
and mass society, follow their own rules, and can effectuate or frustrate public
projects.14 For example, the legal profession and the judiciary it staffs help
preserve forms such as common law and constitutional protections of a criminal defendant, however odious a particular defendants alleged offense is in
the public eye.15 While not aristocratic in the feudal sense of landed gentry,
such bodies through their traditions, training, and professional commitments,
are removed from mass opinion and protected to some extent from official and
popular repercussions.16 Such pressure to encroach upon individual rights or
trample minority interests can be intense, Tocqueville notes, and the demos
harbors disdain, contempt, and even hatred for formal procedures, rules,
and constraints that continually slow or halt the realization of their designs.
Thus democratic peoples by their very nature have greater need of forms than
other peoples, and by their very nature they respect them less.17
An especially important laboratory for mixing aristocratic with democratic elements is the jury, Tocquevilles third and last counterweight against
majority tyranny. Both because it represents majority power and because of
the limited legal knowledge and abilities of lay citizens, Tocqueville insists
that the jury must be understood as a political and not merely juridical institution. To evaluate the jury strictly on its ability to deliver justice would be
unfair, he claims, pointing out that it emerged to resolve the simple conflicts
of a more primitive era with a rudimentary body of law.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, the jury is a judicial body in
appearance only, having very little independent impact on the outcome of
the trial.19 The jurys real strengths, Tocqueville believes, are revealed only
when its political aspects are appreciated.
To call a component of the administration of justice political is not usually
complementary, as the objective is to determine guilt or innocence in criminal
trials and to secure fair settlements in civil disputes. Because courts are to produce the right decision, not the most expedient decision, purely political trials
are an abomination of justice. Tocqueville is using the word to suggest something dramatic, however, since his narrative on the political nature of the jury is
embedded within the larger story of its role in tempering the majority. The

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dramatic pulse of this story is that the jury, this symbol of popular sovereignty,
this republican form the people could not do without, is in practice a Trojan
horse in reverse, carrying the democratic into the aristocratic corridors of
legal power only to find it mix readily into a useful and durable compound.
Otherwise the American jury would be political in a less praiseworthy way.
Political connotes power as distinct from right, simply control over the direction of society and not necessarily the best or true or just direction, and the jury
really does hold power. It channels the penal powerwhat Tocqueville calls the
ordering power of modern societythrough the decisions of ordinary citizens;
their yes or no allows a law to be enforced or not. In this respect, the jury is fundamentally a republican institution: it places actual control of society in the
hands of the governedor some of the governedrather than of the government.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,
as does the close attention regimes pay to the composition of the jury.21 Applying
Montesquieus distinction between republican types, Tocqueville notes that in an
aristocratic republic such as Britain, the jury is of a piece with aristocratic control of legislation and therefore jurors are recruited from the aristocratic portions
of the nation.22 In Americas democratic republic, by contrast, the dogma of
popular sovereignty compels jurors to be recruited from the whole people.
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. 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, Tocqueville had contemplated the terrifying picture of the victim with nowhere
to turn in the United States because all sources of redresspublic opinion,
the legislature, the executive, the police, the jurywere dominated by the
majority; the jury, perhaps most chilling because of its place as a final arbiter,
is the majority invested with the right to pronounce judgment.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. The American courtroom, thankfully, is no battlefield but an alchemists magical lab for turning bronze into gold, where, even
as the people formally and legally hold sway through the jury, they themselves are influenced by forces that shape their habits of mind and even the
souls.24 A major step in the transmutation of majority power into juridical
right is that, in sharing and therefore exercising judicial power, the people are
required to become for the duration of a trial not just a little like a judge. This
has transformative cognitive, moral, and political effects on them.

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609

Cognitively, jurors learn, by doing, some of the habits of mind of the

judge, which are the habits of order, a taste for forms, and a sort of instinctive love of regular sequence of ideas, a preference for tradition and precedent over innovation, and an appreciation for the boundaries set on judgment
by particular facts and rules.25 No temporary shift in consciousness, jurors
carry this way of thinking with them out of the courthouse. The human mind
becomes habituated to the jurys forms, and the jury itself comes to be identified, as it were, with the very idea of justice.26 Tocqueville notices a pervasive culture of legalismin the conflict resolution play of American children,
among inmates in a juvenile detention center, and elsewhere.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.
Morally, 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.28 As in Aristotles sense of the true citizen being ruler and ruled in turn,
jurors taking up the power of judgment recognize that they are part of their
government not merely as subjects with wants, sovereigns with wills, but as
governors with reason and charged with making difficult decisions deliberatively not putting them off or rendering them hastily or by default. Vested with
magistracy and seated in somber judgment over others, citizens are pressed
into a more universal standpoint. They realize that the justice of this very
courtroom, which they are meting out and which might be meted out to them
in the future, is something for which they are responsible not theoretically but
actually. Habits of the heart like commitment to equity, impartiality, and a
robust sense of social responsibility are nurtured through these intensely public and personal experiences on the jury.
Politically, and above all else, jury service is a civic education. The jury is
a free school, and one that is always open, to which each juror comes to learn
about his rights, and where he enters into daily contact with the best educated,
most enlightened members of the upper classes and receives practical instruction in the law in a form accessible to his intelligence.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; they teach themselves in that
sense. 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.30 Throughout Democracy in America Tocqueville compares Americans
awareness of institutions and rules, their realism about government with the
passion for general ideas he finds among the French citizenry.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.32

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Being a juror is a political education in another sense as well, it is a lesson

in taking guidance from the ones who know more about the law, the court
professionals and in particular, 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.33 It is one thing to have judges; it is another to work with them on issues
one knows something about, as in criminal law; it is another indeed to work
with them on issues one knows little about, as in civil law. Relieved by and
accustomed to the guidance of judges in civil trials, where the law is complicated and abstract, jurors come to see them as impartial arbiters and accept
their guidance and influence even in criminal trials, 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.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, they
cannot perform their role well without the guidance of real magistrates. The
power gained as a result of acquiring the jurors respect and confidence in civil
trials is thus exercised in another theater, as Tocqueville notes, and consequently American judges have an influence on the outcome of criminal trials
that French judges have never known.35

A Free Public School

How did Tocqueville reach his conclusion that by exercising power in this
rule-following, hierarchical, tradition-bound domain the people are thus
shaped into citizens who, while composing a republic of men, 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, he visited courtrooms and sat in on
trials in Boston, New York, Philadelphia, and Cincinnati and he met with
many lawyers and judges experienced with juries. 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.36 From an interview in
Boston with Francis Calley Gray, a prison inspector and state senator, he heard
that the courts form the first power in the state because the people know the
judges and, through the jury, are able to participate in their judgments. Civil
trials in particular, noted Gray, fostered a union and mutual confidence
between the people and the magistracy.37 Soon after, following an interview
with Charles Pelham Curtis, legal solicitor of Boston, who stressed that civil
juries were less competent than judges but strongly supported by public opinion, Tocqueville drew up a small draft essay on the jury explaining its role in
supporting judicial power through the socializing effects of jury service.38

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

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and oppression; and that, while his plain understanding has been found
the best refuge for innocence, his incorruptible integrity is pronounced
a sure pledge that guilt will not escape. . . . While the people enjoy the
trial by JURY, taken by lot from among themselves, they cannot cease
to be free. The information it spreads; the sense of dignity and independence it inspires; the courage it creates, will always give them an
energy of resistance, that can grapple with encroachment; and a renovating spirit that will make arbitrary power despair.42
Livingstons jury enrolls citizen students who, though receiving lessons on
the laws, 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.
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, who is less a teacher in
this free school than distant principal. For Livingston, jurors are not ennobled
by the judge, but the other way around: the judiciary, ennobled as it is with
the trial by jury.43
Tocquevilles prominent written sources, such as the Federalist and Joseph
Storys Commentaries on the Constitution, viewed the jury as a check on
potential abuse of government power and a due process protection of individual rights, and saw little political importance in the civil jury.44 Tocquevilles qualitative research, which stressed socialization and singled out
the civil jury, 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. How else to explain the influential position of the judge in democratic America marked by, above all, 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, Tocqueville
suggests, allowed American judges to have significantly more political and
social power than European judges. Armed with the right to declare laws
unconstitutional, the American magistrate continually intervenes in political
affairs.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, in public
places and legislative chambers, the American judge is constantly surrounded
by men accustomed to placing his intelligence above their own.46
Tocquevilles sensitivity to issues of trust and deference in the courtroom
may have reflected the chronic integration problems faced by the criminal
jury after it, but not the civil jury, was imported into the French legal system
from England by the constitution of 1791. Legislative debates in restoration

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France focused on whether juries could understand the complex written

depositions historically part of French legal practice, how jury lists could
best be composed so unsuitable jurors could be excused from service, and
whether the French national character tended toward an automatic sympathy for the accused.47 Rules of practice such as the size of the majority needed
to convict were frequently adjusted, but the jury was well established, at least
in French criminal procedure, at the time of Tocquevilles visit.48 Compared
with the U.S. juries, however, French juries heard a narrower range of cases
and were more circumscribed in their decision making. 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, and presenting a summation to direct the jurys deliberations. Such a dominant role was meant to
make up for the jurors lack of juridical knowledge, yet it also jeopardized
judges image of impartiality and they suffered some loss of public confidence and influence over juries as a result.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.50
Participatory democrats today may be tempted to gloss over Tocquevilles
account of jury socialization by imagining it to be akin to the horizontal interaction Tocqueville praised in town meetings and civil associations, where
fellow feeling rubs off on these cool, self-contained people.51 Feelings and
ideas are renewed, he wrote, the heart expands, and the human spirit develops only through the reciprocal action of human beings on one another.52
This reciprocal action did not come naturally in democracy, he believed, and
had to be artificially produced. The jury would seem to be just such an artificial body and, like town meetings and civil associations, capable of bringing
out the best in people through reciprocal action. 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, jurors work closely
with others from different walks of life, reason together using a common
language, and cooperate to serve a larger public purpose.
A central political value Tocqueville finds in the jury, however, is not that
it encourages peer-to-peer socialization, but rather that it produces a long-term
nonreciprocal and hierarchical relationship with professional knowledge. 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

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justice: by serving on the jury, lay people learn enough about the law to listen
to the judge.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. If, as I believe, the jury
serves both functions, then Tocqueville is not mistaken but only one-sided to
emphasize the former picture. Moreover, the elements of hierarchy, topdown
control, one-way communication, and lack of transparency in Tocquevilles analysis of the jury as a site of learning raise questions about the assumptions he
makes about trust, authority, and responsibility. To extract what is useful and
reject what is not, we must place his analysis in context. 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.

A Different Chemistry
Francis Liebers writings on the jury, though less internally coherent, reflect a
broader conception of the jurys political significance and therefore provide
important balance to Tocquevilles analysis. Little known now, Lieber was a
highly respected professor of law and politics, whose textbooks, such as
Manual of Political Ethics (1838-1839) and On Civil Liberty and SelfGovernment (1853) were widely assigned in colleges and law schools.54
Sharing many of Tocquevilles concerns about the potential for majority tyranny and for government centralization in the United States, Lieber endorsed
a conception of institutional liberty similar to Tocquevilles idea of the free
institution. The jury, for Lieber as for Tocqueville, was part of a pattern of
Anglo-American institutional self-government that dispersed decisionmaking power, served as a medium of communication between local, state,
and national and between the social world and the official world of government, and encouraged a pervading spirit of self-reliance and self-respect
among citizens.55 However, despite the skepticism regarding mass civic competence he also shared with Tocquevillehe notoriously called the unschooled
masses the bilge water of the ship of stateLieber also incorporated aspects
of eighteenth-century American political thought, which valued the jury precisely because it brought something different into the courtroom.56 Amateurs
have value on this account in themselves, not because, as Tocqueville suggests, they are judges manqu who are relieved to be guided by real judges but
because they are full-fledged jurors. By the institution of the jury, wrote
Lieber, two great ends, the one of liberty, the other of the administration of

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615

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

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affairs and government of the society; and to come forward, in turn, as the
sentinels and guardians of each other.62
The jury of the eighteenth-century independence and Anti-Federalist
movements is more activist cell than calm public school. Part of the government, but also a popular juridical form unbeholden to ruling interests, the
jury is a necessary check on officials and watchdog over them, as well as a
practical power-sharing device that compensates for the institutional advantages of government insiders. Without the jury, wrote a Maryland Farmer,
citizen outsiders would be vulnerable to those usurpations, 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.63 Even after the ratification debates, leading thinkers viewed
the jury as politically relevant to the representation of a different set of interests in the judicial sphere, a popular chamber set alongside the judge like the
House to the Senate.
Echoing this tradition, Lieber stresses the advantages of the jury in itself,
the capabilities it brings into the courtroom rather than those it takes out of
it. The public trusts trial by jury not simply because they are only comfortable being judged by peersa confidence grounded in similarity, as Hegel
suggestednor only because they appreciate being guided by knowledgeable and impartial judges.64 More important, the people trust the justice of
the court because they have had a hand in creating it. In Political Ethics,
Lieber draws on a traditional common law distinction between the country, represented by the jury, and the government; at the outset of a jury
trial, the defendant was asked by the bailiff, do you put yourself before
your country?
The jury represents the country, not the government; they judge of facts
according to rules and laws indeed, but also with the feelings of living
men, and not merely as if they represented the abstract law as it is written down. To represent this a learned judge would be sufficient. The jury
represents, or rather is, whenever faithful, the living, operating law.65
He is careful to say that though it is necessarily independent of the government, this does not mean that the jury is a law unto itself; it is strictly bound
by the law, yet by the law as their country requires it or must be supposed to
require it, applied to the particular and, probably, complex case before them.66
Moving beyond the eighteenth-century American tradition, Lieber tapped
the concepts of country and government to indicate that along with the
separate interests jurors might havelocal vs. national, citizen vs. official,

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poor vs. richthey have discrete capabilities indispensable for justice.

Though judges know the written law, jurors know exactly what the written
law appears to them to be, and their views of what is lawful are also relevant
to the process of judgment. To use Max Webers later distinction, Lieber is
suggesting that juries can correct courts routine institutional tendency to
favor procedural rationality with a countervailing pressure, when necessary,
for substantive rationality in the law.67 A ruling might be compelled by precedent or legislative procedure, yet may also be irrational from a substantive
perspective. Fugitive slave laws, for example, had precedent and procedural
rationality on their side, yet were substantively irrational for many in the
North. 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, 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.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.69 Lieber characterizes such
capabilities as common sense and understands them as aspects of a socially
situated juridical knowledgea kind of expertise that is both widely shared
and perspectival, and is tightly connected to the very issues treated in the
courtroom.70
As with Tocqueville, jury duty for Lieber calls for moral seriousness, care,
and attentiveness because the jurors action is the very last movement in the
extension of the law to the personthe laws must be applied through him,
they must strike or protect through him.71 Lieber insists that while the jury
has discretionary authority that is due the country, it must also be guided by
the law. The juror, he writes, must not be biased by political or personal inclinations but must apply the law.72 For Lieber, however, citizens in possession of discretionary authority do not need to seek guidance from the judge,
though this is not ruled out by him, but must nonetheless take responsibility
for the law. He endorses the practice of nullificationthe jurys refusal to
convict even though the facts prove the defendant violated the law as stated
precisely because it is the jurys job to fail-safe the application of overly
harsh laws.73 Tocqueville, by contrast, does not mention this perennially controversial practice that evidenced the checking function of the jury.74
Liebers 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, common, and practical sense properly to admix itself
with keen professional and scientific distinction, in each single case,

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Political Theory 38(5)

and thus prevents the effect of that disposition to sacrifice reality to

attenuated theory, to which every individual is liable in his own professional and peculiar pursuitthe worship of the means, forgetting
the end.75
Experts and professionals are as limited by their procedural rationality, their
rule-bounded consciousness, as lay citizens are by their lack of formal legal
training. Are not almost all complex cases such as require in a high degree
strong common sense, the tact of practical life, together with the law, in order
to be justly decided?76 Because of these limits, non-professional and professional knowledge are both needed in the courtroom and one should not be
seen as superior or dominant over the other.
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. Though he saw the virtue of such a division of labor, he held that
the boundaries of these roles should never be overly rigid. The entry on the
jury Lieber published in his Encyclopedia Americana argues against the
practice of judges strictly guiding juries on matters of law, 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.77 Like Tocqueville
and unlike the traditional view, then, Lieber stresses epistemic differences
between judge and jury; unlike Tocqueville, Lieber does not hierarchically
order these differences.78 For him, the jury completes and corrects the judges
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.
The critical question is how epistemic advantages of judge and jury can
be shared, or, alternatively put, what the right attitude of the judge toward
the jurys knowledge and the jury toward the judges knowledge is to be.
One answer, drawn from the independence and Anti-Federalist movements,
is distrust: the judges knowledge is actually a problematic sign of distinction from the jury and from public interests, a badge of elite status. Tocquevilles answer is trust: the judges knowledge is evidence of expertise in
the constitutional and statutory law formed by democratic procedures, as
well as expertise in the common law precedents. Liebers view, in contrast,
indicates that a more ambivalent attitude is required: trust when appropriate,
distrust when appropriate.

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619

Ambivalence is a normal response to differences in knowledge present in

lay relations with professionals. Robert Merton claimed that ambivalence
does not simply arise from professional malfeasance or lay peoples suspicion that the professionals interests are incongruent with their own but is a
typical side effect of the long-term nature of layprofessional relations, the
dependency involved, the asymmetry in authority, the fact that lay people can
rarely judge the quality of professional work, and the fact that professionals
are called in during times of trouble.79 Ambivalence allows for a trusting but
careful attitude toward experts. As social epistemologists point out, because
of the complexity and interdisciplinarity of modern knowledge, epistemic
dependency is a fact of life even for experts. Trust is no necessary evil, writes
John Hardwig, but a positive value for any community of finite minds
since finite minds can know many things only through epistemic cooperation.80 All the same, finite minds must learn when and how to withhold trust,
to reject absolute epistemic dependency on experts, and instead develop
ways, in Naomi Schemans words, of playing some of them off against others, of building in redundancies, of constructing overlapping ropes of trust
that make our dependency reasonable, not abject.81
Seen in terms of an epistemology of democracy, Tocquevilles free school
model of the jury settles what should be left unsettled.82 While judges are law
experts, they have not earned the abject epistemic dependency of jurors but
must provide evidence that they are trustworthycompetent, conscientious,
neither overreaching nor overbearingand that the courts and the legal system they support are also trustworthy. Further, the court must recognize the
jurys own expertisejurors knowledge of the law and its effects, for example. 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; in this
mean, they display seriousness about what the law is, how it affects lives, and
what it signifies for one concrete case. Ambivalence, then, is directed toward
both expert and lay knowledge.

The End of Ambivalence: Legal Professionalisms

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 Tocquevilles visit, but continued to be controversial throughout the nineteenth century. Struggles over
roles, responsibilities, and authority in the courtroom erupted over the question of whether the jury had the right and not just the powerthrough the

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Political Theory 38(5)

general verdict of guilty or not guiltyto interpret the law or whether the
judge was the sole possessor of that right.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, when with fierce resolution and deceptive
ingenuity, in Mark Howes words, the professionals took ground.84
In Massachusetts, one site of close combat in the 1850s, 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, standing laws, and the rights of the
accused under the state constitution.85 In response, delegates at the 1853
Massachusetts Constitutional Convention crafted a constitutional amendment: In all trials for criminal offenses, the jury, after having received the
instruction of the court shall have the right, in their verdict of guilty or not
guilty, to determine the law and the facts of the case.86 Galvanized by the
Fugitive Slave Law, they argued that juries could rightfully refuse enforcement of unjust laws. Judges, as government officials, were not as secure
guardians of defendants rights as the lay people of the jury. The amendments opponents argued that juries were overly vulnerable to public opinion
and could not protect unpopular defendants; 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.87
Though jury supporters won the day and by 1855 the Massachusetts legislature had passed a statute based closely on the jury amendment, the larger
jurisdictional struggle was to be settled by the state supreme court, which
nullified the statute.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. The
contest over roles and legitimate powers was fought at the level of constitutional conventions, legislative debates, and high court decisions, but it was
also battled out in everyday court settings as judges issued charges that
sought to control jurors decisions. In Sparf and Hansen v. United States
(1890), a case involving a sailors alleged murder at sea, the Supreme Court
took up the question of whether a judge had overstepped by pigeonholing the
jury with a convoluted and highly restrictive charge. Ruling that the trial
judge had operated properly, Justice Harlan argued that any other rule . . .
would bring confusion and uncertainty in the administration of the criminal
law. Jurymen, untrained in the law, would determine questions affecting life,
liberty, or property according to such legal principles as in their judgment

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621

were applicable.89 In dissent, 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; the prospect of citizens liable for obeying laws they are not allowed to
judge; and the damage to public confidence in the justice of convictions.90
These final reminders of a once powerful countertradition pointed to a different system of faith in the rule of law, one built on lay contributions rather than
professional guidance.
The nineteenth-century struggle for jurisdictional control ended with
judges successfully arguing, in Sparf and elsewhere, that they were a better
safeguard of the peoples rights than the jury because they were more professionally equipped to know the law. This position was based upon distrust of
lay abilities, a commitment to rationalizing legal decision making, and trust
in professional competence and norms of impartiality held by court professionals themselves but questioned by others outside the court. Far from
resulting naturally from juror interactions with their betters, this settlement
was a hard-won institutional struggle against popular distrust of judges as
government officials.91
Unsurprisingly, given the thread of ambivalence we have underscored,
Liebers views of the jury straddled this debate. Like the professionals urging
reform, Lieber appreciated the specialized knowledge of well-trained judges
and pressed for more not less insulation of the judiciary from electoral politics. No enemy of reform, Liebers 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.92 Yet for Lieber, 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 bottomup mechanism of legal
change. The denial of the necessity of profound study and professional
occupation, wrote Lieber, would be as fanatical as the disregard of common sense would be supercilious and unphilosophical. Truth stands, in all
spheres, emphatically in need of both.93
Under Tocquevilles view of the jury as a free school for the public, not
much is lost by increased professional authority in the courtroom as long as
it can be asserted discretely. 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. Liebers perspective and the longer
American tradition reveal the main drawbacks of the jurys diminished place.
When the role of judge as law expert in the court is formalized, jurors are
placed in a distinctly subordinate status. They are no longer cocreators of

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Political Theory 38(5)

justice but stand as workers to the judge as manager, since they perform distinct and bounded labor. Yet the less jurors do and hold responsibility over,
the less functional need an efficient system of justice has for them. Surely, as
Justice Harlans grandson would insist in his dissent in the landmark case
Duncan v. Louisiana (1968), citing Tocqueville, while the jury affords ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a respect for law, nevertheless, the
principal original virtue of the jury trialthe limitations a jury imposes on
a tyrannous judiciaryhas largely disappeared.94 If its value is only as adult
service learning, the jurys use can shrink to merely symbolic numbers with
little consequence for the justice system.

Conclusion
With the death of the jury looming, there is an open invitation for political
theory to discuss the roles and powers of lay citizens in the justice system once
again. Democratic theorists can join those, like Mark Reinhardt, who use parts
of Tocquevilles analysis while rejecting his wary elitism. 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, I suggest that a critical reading of Tocquevilles discussion of the jury also points to the possibility of a reconstructive democratic
politics inside modern government, an old school version of what is now called
empowered participatory government.95 Three elements of Tocquevilles
analysis in particular point to a different way of valuing the jury politically,
but they must be detached from the strong strand of hierarchical professionalism and integrated into the broader line of American political thought found in
Liebers writing that weights lay contributions more heavily and registers
ambivalence about professionalized justice. Rather than the solution to the
problem of immoderate democracy, the culture of professionalism holding
sway in courtrooms must itself be problematized, while not, of course, rejected
tout court.
First, 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, he also suggests that, like town meetings and civil associations, the jury is a place of responsible citizen power and
self-government: where people rise to the challenge of ordering their world.
Second, though in his view the communication is one-way, he does indicate
how the jury serves as a circulatory system sharing the language, ideas, and
experiences of courthouse regulars with lay citizens. As a place of significant

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623

interaction between professionals and lay people, the jury renders transparent
the complicated norms, rules, and procedures best understood in practice.
Third, he holds that it is a place where legitimation happens, where official
authority inside must gain critically needed support from the outside. The jury
is a reminder that the power of judgment is to be grounded in widespread citizen participation not only in extraordinary circumstances, as in a process that
produces a constitution, but constantly and concretely day after day in ordinary American courtrooms. Judicial authority, with all the resources of respect
already at its disposalprofessional training, legal experience, the age-old
symbolism and hierarchy of the courtroommust be shared and still has to
prove itself to the jury all the time.
These threads point to the need for closer investigations into how and
why juridical authority is shared in jury trials, into the strengths and weaknesses of modern legal professionalism and courtroom norms, and into the
possibilities of the courtroom as a space of public communicative reason.
In doing so, they may help us better understand just what we are in danger
of losing.
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. Special thanks are due to Mary Dietz and two anonymous reviewers for
their helpful suggestions.

Declaration of Conflicting Interests

The author(s) declared no conflicts of interests with respect to the authorship and/or
publication of this article.

Funding
The author(s) received no financial support for the research and/or authorship of this
article.

Notes
1. See, e.g., Adam Liptak, Cases Keep Flowing In, but the Jury Pool Is Idle,
New York Times (April 30, 2007); Hannah Leiterman, The Citizens Jury
(ABA Division of Public Education, 2005).
2. Alexis de Tocqueville, Democracy in America, ed. Olivier Zunz, trans. Arthur
Goldhammer (New York: The Library of America, 2004), 316. Note that Tocqueville uses similar terms, grandes coles gratuites or vast free school, to
describe civil associations. Tocqueville, Democracy, 606. Though both schools

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Political Theory 38(5)

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

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

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Political Theory 38(5)

28. Tocqueville, Democracy in America, 316.

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

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

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

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

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Common Law: The Impact of Legal Change on Massachusetts Society 1760-1830

(Cambridge, MA: Harvard University Press, 1975) on the economic dimensions of
this struggle. Both relate the demise of jury authority in the courtroomespecially
in civil trialsto needs for predictability and control pressed on the political system
by American business interests.
92. See Lieber, On Civil Liberty, 238, and The Unanimity of Juries, The American
Law Register 15 (1867): 727-32.
93. Lieber, On Civil Liberty, 234-35, note 1.
94. Duncan v. Louisiana 391 U.S. 145, 188 (1968).
95. The Art of Being Free: Taking Liberties with Tocqueville, Marx, and Arendt (Ithaca,
NY: Cornell University Press, 1997), 58. See Archon Fung and Eric Olin Wright,
Deepening Democracy: Institutional Innovations in Empowered Participatory
Governance (London: Verso, 2003).

Bio
Albert W. Dzur is an associate professor of political science and philosophy at
Bowling Green State University. He is the author of Democratic Professionalism:
Citizen Participation and the Reconstruction of Professional Ethics, Identity, and
Practice (Penn State University Press, 2008). His current research explores the potential of democratic theory for imagining more participatory and reflective criminal
justice institutions.