Tocqueville and Mill on the Tyranny of the Majority

The "tyranny of the majority," a phrase popularized by Alexis de Tocqueville and repeated by John Stuart Mill, refers to the scenario in which the popular climate of opinion lends itself to the psychological dynamics of democratic politics, resulting in a form of tyranny that does not necessarily require the participation of government. Unlike in authoritarian societies, the freedom of belief in democratic societies ascribes to opinions much more authenticity and moral force. This can cause self-censorship and otherwise a fear of dissent due to intolerance. Because of their interest in remedying this problem without resorting to autocratic rule, Mill and Tocqueville both suggest different institutions that prevent or limit the tyranny of the majority.

According to Mill, the purpose of the law is not to uphold the morality of the majority against the minority, but to protect the individual from tyranny. In Chapter I of On Liberty, Mill states, "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." Rules of conduct can be enacted into law in order to prevent the endangerment of minority individuality and independence, as guided by Mill's "Harm Principle." Pragmatically, one approach to solving these problems of majority opinion endangering minority individuality, while not endangering individuality on the whole, is a form of elitism. Because utilitarianism depends heavily on rational problem-solving for its moral fulfillment, Mill suggests giving the literate or schooled more votes than their less enlightened fellows; by doing this, laws will be constructed to better further the utilitarian ends of diversity, equality, and progress, which are inevitably endangered by the oppressive current of popular opinion.

In Democracy in America, Tocqueville argues that the absence of centralized administration serves as a check against the tyranny of the majority. While he observes that America possesses a centralized government, he also rightly concludes that its control is only on a small number of issues warranting government's attention; the remainder of issues are left to be executed by agents over whom the central authority has little control. This interferes with the otherwise majoritarian climate of America: "... in the United States, the majority, which so frequently displays the tastes and the propensities of a despot, is still destitute of the most perfect instruments of tyranny." When oppressive law does succeed in passage, it must also succeed in enforcement. The many local governments in America (similar in function to Jefferson's "wards") are tasked with the enactment of laws, and by their differences disrupt any cohesive current of popular sentiment.

Tocqueville also contends that the practice of law as a profession obstructs the whims of democracy. Lawyers possess a very specialized form of knowledge, which places them in a distinct class of intellectual society. The nature of their work, which is in serving as the arbiters of law for the unlearned masses, gives them "certain contempt for the judgment of the multitude." Through their expertise, they form a sort of aristocracy, in which the interests of the profession are shared not by agreement or explicit understanding, but in the commonality of their industry. For this reason, they have nothing to gain by innovation and are thus disposed to hold conservative views about the law. Moreover, the judicial areas of government can perennially interfere with the formation of laws, by, for example, arguing for their unconstitutionality or inconsistency. Because they are the only "enlightened" class not mistrusted by the people, lawyers are often thus called upon to fill positions of public authority. At some point, every law becomes a matter of interpretive concern, and the lawyers are tasked with its solution. Tocqueville argues that, above all, the habits and technicalities of the legal profession dispose themselves favorably to reason, whose permeation in society itself interferes with the irrational and dangerous popular passions.