The Surprising Views of Montesquieu and Tocqueville about Juries: Juries Empower Judges

55 Pages Posted: 23 Apr 2021

See all articles by Renee Lettow Lerner

Renee Lettow Lerner

George Washington University Law School

Abstract

Both Montesquieu and Tocqueville thought that an independent judiciary was key to maintaining a moderate government of ordered liberty. But judicial power should not be exercised too openly, or the people would view judges as tyrannical. In Montesquieu’s and Tocqueville’s view, the jury was an excellent mask for the power of judges. Both Montesquieu and Tocqueville thought that popular juries had many weaknesses in deciding cases. But, as Tocqueville made clear, the firm guidance of the judge in instructions on law and comments on evidence could prevent juries from going astray and make the institution a “free school” for democracy.

The article explores Montesquieu’s legacy concerning judges and juries in the arguments of both the Federalists and the Anti-Federalists. It also examines the American antecedents of Tocqueville’s idea of the jury as a school for democracy.

Keywords: Trial by jury; civil jury trial; criminal jury trial; Seventh Amendment; Montesquieu; Tocqueville; Hamilton; constitutional rights to jury trial; legal history, judiciary

JEL Classification: K00, K10, K19, K40, K41, K49, N00, N40, N41, N43, O17, P16

Suggested Citation

Lerner, Renee Lettow, The Surprising Views of Montesquieu and Tocqueville about Juries: Juries Empower Judges. 81 Louisiana Law Review 1 (2020)., GWU Legal Studies Research Paper No. 2021-17, GWU Law School Public Law Research Paper No. 2021-17, Available at SSRN: https://ssrn.com/abstract=3832291

Renee Lettow Lerner (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
20
Abstract Views
93
PlumX Metrics