Tocqueville, Alexis De (1805–1859)

Alexis de Tocqueville, French politician and political thinker and writer, began his career as a lawyer. His political teaching reflects his priorities: good laws are to be sought, and respect for law is invaluable; but political societies are made not by law but by “the sentiments, the beliefs, the ideas, the habits of heart and spirit of the men who compose them” (Tocqueville 1998: 294).

Law has a secondary place in Tocqueville's political economy because it is a product of “the social state,” which owes its character chiefly to preexisting fact, although also to law. Yet, for Tocqueville, the greatest political choice—freedom or despotism—always remains. Therefore, whatever the social state, ongoing legislation and attitudes toward law matter. Tocqueville is full of advice—general as well as specific—on the art of being a legislator. The legislative art consists in understanding the natural inclinations of men and societies and determining how, in a given time and place, to support those, consistent with humanity's goal, while opposing the rest.

In democratic eras, people should find ways to encourage respect for formalities, Tocqueville believed, and foremost among public formalities are laws. Democrats are prone to dismiss forms and formalities, seeing them not as the embodiment of a collective wisdom that deserves consideration but rather as mere obstacles that slow people down in the pursuit of their desires. Tocqueville values precisely this last delaying effect of legalism, for it gives people opportunity for reflection and may protect the few and weak from the many and powerful. However, in democratic politics, elected representatives are eager to indulge their constituents' volatile enthusiasms. The resulting legislative instability may lead not only to violation of rights but also to poor government. In the end, instability will exacerbate disrespect for forms, as frequent and easy changes in law engender scorn for it.

Tocqueville also looked at law from the perspective of judicial institutions. When courts have the power to declare laws unconstitutional, thereby effectively unmaking them, they have considerable political importance. All who are learned in the law become members of an informal elite, who may be useful to the people even as they advance their own interests. Of necessity, judges and lawyers respect forms. In addition, in serving on juries and applying law, ordinary citizens may become more just. As jurors, they are forced to think about what justice is and to see that its meaning affects individuals.

Is there a higher law? Justice, Tocqueville remarks, is “a general law made or at least adopted…by the majority of all men” (Tocqueville 2000: 240). With this law, one may juxtapose “laws of honor.” These latter, in spelling out which actions are to be recognized as virtuous, may contravene conscience and are, in any case, always peculiar to a given people. Nevertheless, laws of honor intended to maintain the distinctiveness and authority of men, whether castes [Page 1488]or nations, are never arbitrary. Although Tocqueville expects the general law to gain ever wider acceptance in mores as democracy spreads, he does not present this as an unqualified gain for humanity.

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