Tocqueville on Lawyers
posted by Frank Pasquale
I always find certain sections of Democracy in America thought-provoking, and thought I’d just share a bit from a part on lawyers today:
The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes towards the aristocracy and the prince, they are brought in contact with the people by their interests. They like the government of democracy without participating in its propensities and without imitating its weaknesses; whence they derive a twofold authority from it and over it.
The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister designs. The lawyers do not, indeed, wish to overthrow the institutions of democracy, but they constantly endeavor to turn it away from its real direction by means that are foreign to its nature. Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society.
The whole section is a nice introduction to the tensions between the rule of law and democracy. And if you find Tocqueville’s methodology too loose or unscientific, check out Jon Elster, Patterns of causal analysis in Tocqueville’s Democracy in America, 3 Rationality and Society 277 (1990).
And here are a few more nuggets:
Some of the tastes and the habits of the aristocracy may consequently be discovered in the characters of lawyers. They participate in the same instinctive love of order and formalities; and they entertain the same repugnance to the actions of the multitude, and the same secret contempt of the government of the people. I do not mean to say that the natural propensities of lawyers are sufficiently strong to sway them irresistibly; for they, like most other} men, are governed by their private interests, and especially by the interests of the moment.
The special information that lawyers derive from their studies ensures them a separate rank in society, and they constitute a sort of privileged body in the scale of intellect. This notion of their superiority perpetually recurs to them in the practice of their profession: they are the masters of a science which is necessary, but which is not very generally known; they serve as arbiters between the citizens; and the habit of directing to their purpose the blind passions of parties in litigation inspires them with a certain contempt for the judgment of the multitude.
August 21, 2008 at 12:28 am
Posted in: Law and Humanities
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Responses (4)
Daniel S. Goldberg - August 20, 2008 at 11:51 pm
I can’t seriously claim that DiA is an “underrated” book, as it’s obviously recognized as one of the great travelogues and one of the great works of political theory of the modern era (hell, it’s even been termed a proto-ethnography). And I agree that it’s a marvelous work.
Stephen Aslett - August 21, 2008 at 12:25 am
I second the recommendation of Democracy in America as a great work and worthwhile reading. But, if you really want to tackle it, don’t waste your time with a free online translation. The translations available on the internet, because of their age, are invariably stilted and make for difficult reading. Instead, do yourself a favor and buy Arthur Goldhammer’s outstanding modern translation.
http://www.amazon.com/Tocqueville-Democracy-America-Library/dp/1931082545/ref=pd_bbs_sr_3?ie=UTF8&s=books&qid=1219291795&sr=8-3
To show the difference a good translation can make, here are the same passages from Democracy in America as translated by Goldhammer:
“Democratic government encourages lawyers to assume political power. When the rich man, the noble, and the prince are excluded from government, lawyers step into the breach almost as if it were their right, for they are the only enlightened, able men not counted among the people whom the people may choose.
“If lawyers are naturally drawn by their tastes to the aristocracy and the prince, they are naturally drawn to the people by their interests.
“Thus lawyers favor democratic government without sharing its inclinations or imitating its weaknesses–two reasons why they enjoy power through it and over it.”
—
“One therefore finds, hidden in the depths of lawyers’ souls, some of the tastes and habits of aristocracy. The legal profession shares aristocracy’s instinctive preference for order and natural love of formalities, as well as its deep distaste for the actions of the multitude and secret contempt for popular government.
“I do not mean to say that these natural penchants of lawyers are strong enough to be irresistible. What rules lawyers as it rules other men is private interest, and above all the interest of the moment.
“The special knowledge that lawyers acquire through the study of law assures them of a distinctive rank in society. They constitute a kind of privileged class among the intelligent. The practice of their profession brings daily reminders of their superiority. They are masters of a body of knowledge that, while necessary, is not widely understood. They serve as arbiters among citizens, and the habit of guiding the blind passions of litigants toward a desired goal inspires in them a certain contempt for the judgment of the multitude.”
Process Server - August 21, 2008 at 2:02 pm
I love how you touch on the “love of the order of formalities”. When I think of a good or successful lawyer, this is one of the qualities that consistently pops into my head. Great analysis and great choice of work to share with us.
Damballah la Flambeau - August 22, 2008 at 9:40 am
” Justice ” in A Democracy
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