Tocqueville's Legal Spirit as a Source of Hope for Presentist Democracy

In 'Democracy in America' Tocqueville expresses his concern for democracy’s future. Although it is the regime of hope for realizing freedom for all, democracy might fall prey to a rush to the future or, due to a focus on petty interests, regress into a certain form of stasis, or immobilism without hope or enthusiasm. To counter these risks, Tocqueville presented inter alia the ‘esprit des légistes’, or the way of thinking of lawyers and the judiciary. By their conservative mind they would have a moderating effect on democracy’s desire for change and control. Tocqueville thus proposes a professional ethic and ‘savoir faire’ as a countertemporal balance to democracy’s risk of speed and stasis. Using Tocqueville’s methodology of transhistorically translating the past into the present, I show that his insights in legal thinking are valuable and connected to ideas about justice and judgment that retained their value. In today’s democracy legal thinking is needed as a progressive force that provides an escape out of current presentism and utilitarianism.