The judiciary and the rule of law

Journal of Democracy

Volumn 11, Issue 1, 2000, Pages 29-30

  O'Donnell, Guillermo ^a  

^a UNIVERSITY OF NOTRE DAME   (United States)

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EID: 22844454189     PISSN: 10455736     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (12)

1. Actually, this contrast was with the Northeast of the country. Tocqueville observed (I, 316 and passim) that as he traveled toward the South and the West, that this was much less true.
2. As Tocqueville put it, "Scarcely any question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are resolved to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings" (I, 330). This is one of his many observations that have kept, at least to the foreigner, a strong contemporary flavor.
3. Consequently, "[i]n no country of the world does the law hold so absolute a language as in America; and in no country is the right of applying it vested in so many hands" (I, 71).
4. Tocqueville commented, again with an evident sense of wonder, that "the Americans are accustomed to all kinds of elections" (I, 135).
5. "[T]he political activity which pervades the United States must be seen in order to be understood. No sooner do you set foot upon the American ground than you are stunned by a kind of tumult; a confused clamor is heard on every side, and a thousand simultaneous voices demand the immediate satisfaction of their social wants. Everything is in motion around you" (I, 249).
6. Courts, in addition, were not the cold and distant ones of continental Europe; very important decisions were made by another institution that I cannot discuss here and that commanded Tocqueville's attention: the jury. As he argued in some brilliant passages, the main consequence of the juries was a side-effect: "I do not know whether the jury is useful to those who have lawsuits, but I am certain it is highly beneficial to those who judge them; and I look upon it as one of the most efficacious means for the education of the people which society can employ" (I, 285). Tocqueville added that this learning "imbues all classes with a respect for the things judged, and with the notion of right. . . . It teaches men to practice equity; every man learns to judge his neighbor as he would himself be judged" (I, 284).
7. "Democracy has gradually penetrated into their customs, their opinions, and forms of social intercourse; it is to be found in all details of daily life as well as in the laws" (I, 321-22).
8. This aspect did not escape Tocqueville: "Their divers municipal laws appeared to me so many means of restraining the relentless ambition of the citizens within a narrow sphere and of turning those same passions which might have worked havoc in the state to the good of the township or the parish" (I, 325).
9. See especially, William Forbath, Law and the Shaping of the American Labor Movement (Cambridge, Mass.: Harvard University Press, 1991);
10. Martin Shefter, Political Parties and the State: The American Historical Experience (Princeton, N.J.: Princeton University Press, 1994);
11. Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, Mass.: Belknap, 1992);
12. and Steven Skowronek, Building a New American State: The Expansion of National Administrative Capacities (New York: Cambridge University Press, 1982).