Democracy in America — Volume 1Tocqueville, Alexis de
History
Democracy in America — Volume 1
Tocqueville, Alexis de
Democracy -- United States; United States -- Politics and government; United States -- Social conditions
This aristocratic character, which I hold to be common to the legal
profession, is much more distinctly marked in the United States and in
England than in any other country. This proceeds not only from the
legal studies of the English and American lawyers, but from the nature
of the legislation, and the position which those persons occupy in the
two countries. The English and the Americans have retained the law of
precedents; that is to say, they continue to found their legal opinions
and the decisions of their courts upon the opinions and the decisions
of their forefathers. In the mind of an English or American lawyer a
taste and a reverence for what is old is almost always united to a love
of regular and lawful proceedings.
This predisposition has another effect upon the character of the legal
profession and upon the general course of society. The English and
American lawyers investigate what has been done; the French advocate
inquires what should have been done; the former produce precedents, the
latter reasons. A French observer is surprised to hear how often an
English or an American lawyer quotes the opinions of others, and how
little he alludes to his own; whilst the reverse occurs in France.
There the most trifling litigation is never conducted without the
introduction of an entire system of ideas peculiar to the counsel
employed; and the fundamental principles of law are discussed in order
to obtain a perch of land by the decision of the court. This abnegation
of his own opinion, and this implicit deference to the opinion of his
forefathers, which are common to the English and American lawyer, this
subjection of thought which he is obliged to profess, necessarily give
him more timid habits and more sluggish inclinations in England and
America than in France.
The French codes are often difficult of comprehension, but they can be
read by every one; nothing, on the other hand, can be more impenetrable
to the uninitiated than a legislation founded upon precedents. The
indispensable want of legal assistance which is felt in England and in
the United States, and the high opinion which is generally entertained
of the ability of the legal profession, tend to separate it more and
more from the people, and to place it in a distinct class. The French
lawyer is simply a man extensively acquainted with the statutes of his
country; but the English or American lawyer resembles the hierophants
of Egypt, for, like them, he is the sole interpreter of an occult
science.
Public-domain text, read in full here on John Shaqi.
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