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In 1861, as the Civil War began, Henry James enrolled in Harvard’s law school. His tenure there was brief and by all accounts undistinguished; he left after one academic year to devote himself exclusively to a literary career. Perhaps the future novelist was only looking for an excuse to avoid enlisting in Lincoln’s army, or perhaps he was captivated by the portrait of the American lawyer that Alexis de Tocqueville had sketched out in Democracy in America (1835). According to Tocqueville, the legal profession represented ‘a sort of privileged intellectual class’ whose commitment to precedent and procedure provided a ‘potent barrier’ against the levelling and redistributive tendencies of democratic legislatures. Lawyers and judges not only protected the interests of private property, but also defended individual freedoms and cultural distinctions from a society too enthusiastically committed to ‘equality’, mediocrity and conformity. Throughout his career James would engage in a cultural criticism of democratic tastes and values reminiscent of that of Tocqueville, but his fiction shows little interest in legal institutions and their workings. Yet, at the centre of James’s plots are just those interpersonal relations – making promises, conveying property, taking responsibility for the consequences of one’s action – that were at the centre of debates about the changing nature and function of civil law in modern society.
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