GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2020

Status

Accepted

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.

GW Paper Series

2021-17

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