JUDICIAL INCOMPETENCE.
Here we find incompetence spreading its influence by the logical
necessity of the case. There are other quarters in which it grows by a
sort of contagion. Have you ever noticed that the _ancien regime_, in
spite of grievous shortcomings, by a sort of historical tradition,
maintained a certain respect for efficiency in its different forms? For
instance in matters of jurisdiction, there were seignorial,
ecclesiastical and military courts. These were not founded as the result
of argument and profound consideration, but by the natural course of
events, by history itself, and they were maintained and approved by a
monarchy which was verging on despotism.
Seignorial jurisdiction, without much rational justification, was none
the less of considerable utility; it bound, or was capable of binding,
the noble to his land, it prevented him from losing sight of his
vassals, and his vassals from losing sight of him, and was in fact a
conservative force in the aristocratic constitution of the kingdom. I
submit that if this jurisdiction had been properly defined, limited and
modified, which was never done, it would have been consonant with the
law of competence. There are various local matters which come quite
properly within the province of the noble, who in those days took the
place of the magistrate. All that was wanted was that such matters
should have been defined with precision and that in every case appeal
should have been allowed.
Ecclesiastical jurisdiction was perfectly reasonable, as offences
committed by ecclesiastics have a special character of which
ecclesiastics alone can judge. This seems strange to modern ideas,
although nowadays there are commercial courts and conciliation boards,
because litigation between men of business, between workmen and women
workers, and between employers and employed, can only be decided by men
who have technical knowledge of the subject in dispute. Appeal,
moreover, to a higher court is always allowed.
Finally, in the old days there used to be military jurisdiction for
precisely the same reason.
All these exceptional jurisdictions are objects of the liveliest
apprehension to democracy, because they infringe the rule of uniformity,
which is the image and often the caricature of equality, and also
because they are a stronghold of efficiency.
Democracy of course demolished aristocratic courts together with the
aristocracy itself, and ecclesiastical courts together with the Church
when it ceased to be an estate of the realm. Any special jurisdictions
which still remain are looked upon as instruments of aristocracy;
courts-martial are held in abhorrence because they have ideas of their
own in respect of military honour and duty, and military offences.
Therein lies their efficiency, a thing absolutely necessary, if we are
to maintain military spirit and discipline in a strong army. The private
soldier or officer, who is only judged and punished as a civilian, will
not be well judged nor adequately punished, considering the special
duties and services which are required of the army. This is a question
of moral as well as technical efficiency and to this the democracy pays
no heed, because it is convinced that no special efficiency is necessary
and that common sense is all that is required. Common sense, however, is
like wit; it is useful in every walk of life, but is not sufficient in
any one of them. This is just what democracy cannot or will not
understand.
It makes just as great a mistake in its civil and criminal jurisdiction,
though it has, up to now, so far departed from its principles as to
appoint qualified jurists to civil judgeships. No one denies that this
body of men is efficient. Those who act as judges know their law. There
is, however, as I have often had occasion to point out, a moral as well
as a technical efficiency, and in limiting the independence that is
essential to moral efficiency, democracy neutralises the technical
efficiency of its servants. Let me explain my meaning further.
Formerly the magistracy was a recognised and autonomous branch of the
public service, and as a result, save as it was affected by revolution
and in normal times by the fear of revolution, enjoyed an absolute
independence. This gave, or rather preserved intact, its moral
efficiency. For moral efficiency consists in an ability to act
according to the dictates of conscience, and is equivalent to a sort of
moral independence.
Now, the magistrates form a department of the administration and are a
body of officials. The State appoints, promotes or refuses to promote
and pays them. In short the State has them at its mercy, just as
military officers are controlled by the War Office, or tax-collectors by
the Treasury. Hence they are deprived of their independence and moral
efficiency, for they are always tempted to give judgment as the
Government would wish.
There is, it is true, a guarantee for their independence in the
permanence of their appointments, but this only applies to those who
have reached the summit of their profession, or are on the point of
retiring, or have no further interest in promotion. The young magistrate
who wants to get on, a perfectly legitimate ambition, is by no means
independent, for if he does not give satisfaction, he may enjoy a
peculiar kind of permanence, the permanence of standing still at the
starting point. The only independent judges, to whom justice is the sole
interest, are either those who have served for forty years or the
President of the _Cour de Cassation_. I may add also the man of
independent means who is indifferent to promotion and content to spend
all his time at the place of his first appointment. He is exactly like
the magistrates in old days, but he and his kind get rarer every year.
At best, moreover, this permanence, of which so much is thought, is an
illusory guarantee, for it is often suspended by one Government or
another, and the magistrates are constantly at the mercy of political
crises. Their moral efficiency is indeed sorely tried.
I affirm, therefore, that this diminution of moral efficiency affects
technical efficiency, because magistrates dare not insist on technical
exactitude when cases arise between the State and individuals, or
between those who are protected by Government and those who are not.
Though cases in which the State is a party do not occur very often,
those in which friends of the Government are involved are of daily
occurrence in a country where Government is a faction waging incessant
warfare against all other factions.
It has been said with much reason that parliamentary government on a
basis of universal suffrage is legalised and continuous civil war. It is
usually a bloodless civil war, but its weapons are insults,
provocations, calumnies, personalities, libel actions. These go on from
one year's end to the other. In a country where such a state of affairs
is prevalent, the magistracy ought to be absolutely independent in order
to be impartial. Yet it is precisely in a country like this that the
magistracy, not being independent and autonomous, is obliged to avoid
offending the party in office which, moreover, is extremely exacting,
for it lives in constant fear that it may be turned out of power.
--Is there nothing to be done? Would you advocate a return to the
practice of purchasing judicial appointments?--
In the first place, this would not be anything so very terrible, and
secondly, it might be quite possible to secure all the advantages of
purchase without its actual practice.
I can show you that it is not so very terrible, for the case is parallel
with that of the exceptional jurisdictions, the mention of which filled
you with horror till you remembered the commercial courts and the
councils of experts, all excellent institutions. We are appalled at the
idea of a magistrate purchasing his office, and yet we employ advocates
and solicitors and other legal officials and trust them with our most
precious interests, yet they have, many of them, either bought or
inherited their practice. Under a system of purchase, we should be
judged by lawyers of whom we required more extensive legal knowledge
than is at present required of the profession. We should be judged in
fact by solicitors and advocates of a superior order. There is nothing
very alarming about that.
Montesquieu was in favour of a system of purchase. Voltaire opposed it
strongly. They were both right and were indeed agreed on general
principles. Montesquieu says: "Venality,--the purchase system,--is a
good thing under a monarchical form of government, because work which
would not be done from mere civic virtue is then undertaken as a family
business. Each man's duty is laid down for him, and the orders of the
State are given greater permanence. Suidas says very aptly of Anastasius
that he turned the Empire into an aristocracy by selling magisterial
offices."
Voltaire replies: "Is it as a matter of civic virtue that in England a
judge of the King's Bench accepts his appointment?" (It is either a
matter of civic virtue or of profit and interest, and if it is not
profit, it certainly must require considerable civic virtue.) "What! can
we not find men in France willing to judge if we bestow their
appointments upon them gratuitously?" (We certainly can: but they might
be too grateful!) "Can the work of administering justice, disposing of
the lives and fortunes of men, become a family business?" (Well, the
business of bearing arms and disposing of men's lives and fortunes in
civil war was in 1760 a family business. So too the business of being
king, and you do not protest against that!) "It is a pity that
Montesquieu should dishonour his work by such paradoxes, but we must
forgive him; his uncle purchased a provincial magistrate's office and
left it to him. Human nature comes in everywhere. None of us is without
weaknesses."
Montesquieu thinks aristocratic bodies are good things. Voltaire is in
favour of absolute power. Montesquieu would like the judicature to be a
family office, that is to say hereditary like the profession of a
soldier; this would make the judicial profession permanent like other
professions. He demonstrates, as does Suidas, that the purchase system
creates an aristocracy. Voltaire, like Napoleon I., would make his
soldiers, his priests, and his judges, king's men. They should all
belong to the king, body and soul.
Montesquieu had a greater antagonist than Voltaire in Plato. Plato wrote
in his Republic, referring to all judicial offices: "It is as if on
board ship a man were made a pilot for his wealth. Can it be that such a
rule is bad in every other calling, and good only in respect of the
governing of a republic?"
Montesquieu answers Plato (and in anticipation Voltaire) very wittily:
"Plato is speaking of a virtuous republic and I of a mere monarchy.
Under a monarchy if offices were not sold by rule, the poverty and greed
of courtiers would sell them all the same, and chance after all will
give a better result than the choice of a prince."
To sum up, Montesquieu wants the magistracy to be partly hereditary, and
partly recruited from the wealthy classes, an independent, aristocratic
body analogous to the army or the clergy, administering justice with
that technical efficiency which university standards can guarantee, and
with the moral efficiency which is founded on independence, dignity,
public spirit and impartiality.
I said above that venality, or the system of purchase, was not necessary
to obtain these results. The principle is this, that the magistracy must
be independent, and to be independent it must have a proprietary right
in its duties. This can only be obtained if it hold its office by
inheritance or purchase as was done under the _ancien regime_; or, if it
were somehow contrived that magistrates should not be chosen by the
Government. The purchase or inheritance plan is not popular, then the
only alternative is that the magistrates should be chosen by some body
other than the Government. By whom then? The people? Then the judges
would be dependent upon the people and the electors.
--That would be better, or less bad.--
Not at all. If the judges were chosen by the electors, they would be
even less impartial than if they were elected by the Government. The
judge then would think of nothing but of being re-elected. He would
always give judgment in favour of the party which had elected him.
Would you care to be judged before a court composed of the deputies of
your department? Certainly not, if you belong to the weaker party. Yes,
if you belong to the majority, but then only if you are certain that
your adversary belongs to the minority, or, if he belong to your own
party, that he is a less influential elector than yourself. To sum up,
there is no guarantee of impartiality if the judges are elected.
Further, if the system of electing judges by those liable to their
jurisdiction were adopted, there would be an extensive and, I might add,
a most entertaining variety of justice. Judges, who were elected by a
"blue" or republican majority, and who were anxious for re-election,
would always deliver judgment in favour of the blues. The same thing
would happen in the "white" or royalists districts. "Justice has her
epochs," Pascal said ironically, and in this case justice would have her
districts. It would not be the same in the _Alpes-Maritimes_ as in the
_Cotes-du-Nord_. The Court of Appeal, if it attempted to be impartial,
would spend its time sending cases back from a blue district to be
revised in a white, and the decisions delivered in a white country to
be revised in a blue. There would be judicial and legal anarchy.
--If the bench is not to be inherited, nor bought, nor chosen by the
Government, nor elected by the people, by whom is it to be nominated?--
By itself; I see no other solution.
For instance I can suggest one good method, though there may be several.
All the doctors of law in France could choose the judges of appeal and
the judges of appeal could choose and promote all the judges. This is an
aristocratic-democratic scheme on a very broad basis.
Or else the judges alone might choose the judges of appeal, and the
judges of appeal might appoint and promote the judges. That is an
oligarchical method.
Or again, here is a plan for passing from the system that is, to that
which ought to be. For the first time the doctors of law might choose
the _Cour de Cassation_, and it could choose the judges. Afterwards the
judges could fill the vacancies in the _Cour de Cassation_, which would
nominate and promote the judges.
The Government would still go on, and continue to nominate the persons
eligible to serve as magistrates.
Under all these systems the judges would form an autonomous,
self-creative body, dependent upon and responsible to themselves alone,
and by reason of their absolute independence, strictly impartial.
--But they would form a caste!--
They would form a caste. I am sorry for it, but it is the case. You will
never be well judged until you have a judicial caste, which is neither
the Government, nor the world at large. For the Government cannot judge
properly when it is both judge and party to the suit. Further, if it be
litigious; it will never be out of court. Again, the world at large
cannot judge properly, because, in practice, the world at large means
the majority, and the majority is a party, and by definition a party can
hardly be impartial.
But democracy does not want to be judged by a caste. In the first place
because it abhors castes, and secondly because it does not care about
impartial justice. Do not exclaim at the paradox. Democracy does want to
be judged impartially in little every-day cases, but in all important
cases in which a political question is involved and in which one of the
majority is opposed to one of the minority, the verdict then has to be
for the stronger side.
It says to the judicial bench what a simple-minded deputy said to the
President of the Chamber: "It is your duty to protect the majority."
This is why democracy clings to its official magistracy, which contains
some good elements though its members cannot always be impartial. They
were condemned by the mouth of one of their highest dignitaries who
answered when questioned about some illegal proceeding: "There are
reasons of high State policy," thus throwing both the law and the judges
at the feet of the Government. On another occasion, with the very best
intentions, in order to put an end to an interminable affair, they
turned and twisted the law and set a bad example; for by not applying
the law correctly, they laid themselves open to endless and justifiable
attacks upon their decision; they did not procure the longed-for
settlement, and, instead, left the matter open to interminable dispute.
They have knowledge, good sense and intelligence, but as their want of
independence, in other words their moral inefficiency, neutralises
their technical efficiency, they do not and cannot possess authority.
Democracy will inevitably go further along the road towards its ideal,
which is direct government. It will want to elect the judges.
Already it chooses them remotely in the third degree; for it chooses the
deputies who choose the Government, which chooses the judges; and to
some extent, in the second degree, for it chooses the deputies who bring
pressure to bear upon the nomination of the judges and interfere with
their promotion and their decisions. This also is remote.
And, as by this constitution, or, rather by this practice, recognition
is given to the principle that it is the people who really appoints the
judges through its intermediaries, democracy, always logical and matter
of fact, would like to see the principle applied without concealment,
and the people making the appointments directly.
Then endless questions will arise about the best way of voting and
electing. If unipersonal ballot is adopted, the canton will nominate its
_juge de paix_, the district its tribunal, the region its Court, and the
whole country the Court of Appeal. In this arrangement there will be
the double drawback mentioned above; that is, varying interpretations of
justice according to districts, and no impartiality.
If, on the other hand, _scrutin de liste_ is adopted, the whole country
will choose all the magistrates and they will belong to the majority. In
this case there would be uniformity of justice but no impartiality. Any
intermediate system would combine the disadvantage of both plans. For
instance, if nominations are made in each division, all the magistrates
in Brittany will be white partisans, while in Provence they will be blue
partisans. In both cases they will be biassed, and such diversity as
there is will be merely a diversity of partiality and bias.
We are talking of the future, though not perhaps of a very distant one.
Let us deal with the present. The jury is still with us. Now the jury
combines absolute moral competence with absolute technical incompetence.
Democracy must always have incompetence in one form or another. A jury
is independent of everybody, both of the Government and of the people,
and in the best possible way, because it is the agent of the people
without being elected. It does not seek re-election and is rather vexed
than otherwise at being summoned to perform a disagreeable duty. On the
other hand it always vacillates between two emotions, between pity and
self-preservation, between feelings of humanity and the necessity for
social protection; it is equally sensitive to the eloquence of the
defending advocate, and the summing up of the prosecutor, and as these
two influences balance each other it is in a perfect moral condition for
delivering an equitable verdict.
For this reason the jury is of ancient origin, and has always been an
institution in the land. At Athens the tribunal of the Heliasts formed a
kind of jury, too numerous indeed and more like a public meeting, but
still a sort of jury.
At Rome, a better regulated republic, there were certain citizens chosen
by the praetor who settled questions of fact, that is to say, decided
whether an act had or had not been committed, whether a sum of money had
or had not been paid; and the question of law was reserved for the
centumvirs.
In England the jury still exists and has existed for centuries.
These various peoples have considered very properly that juries are
excellently adapted for forming equitable decisions, since they possess
a greater moral competence for this particular function, than is to be
found elsewhere.
This is true; but on the other hand a jury has no intelligence. In
November 1909, a jury in the Cote d'Or before whom a murderer was being
tried, declared (1) that this man did not strike the blows, (2) that the
blows which he struck resulted in death. Thereupon the man was
acquitted, although his violence, which never took place, had a
murderous result.
In the Steinheil case in the same month and year, the jury's verdict
involved (1) that no one had been assassinated in the Steinheils' house,
and (2) that Mme Steinheil was not the daughter of Mme Japy. If a
verdict were a judgment this would have put an end to all attempts to
discover the assassins of M. Steinheil and Mme Japy, and on the other
hand there would have been terrible social complications.
But the verdict of a jury is not a judgment. Why? Because the legislator
foresaw the alarming absurdity of verdicts. It is presumed in law that
all juries' verdicts are absurd, and experience proves that this is
often the case. Juries' verdicts always seem to have been decided by lot
like those of the famous judge in Rabelais, and it is proverbial at the
law courts that it is impossible to foresee the issue of any case that
comes before a jury. It looks as if the jury reasoned thus: "I am a
chance judge, and it is only right that my judgment should be dictated
by chance."
Voltaire was in favour of the jury system, principally because he had
such a very low opinion of the magistrates of his day, whom he used to
compare to Busiris. But, with his usual inconsequence, he takes no pains
to conceal the fact that the populations of Abbeville and its
neighbourhood were unanimously exasperated against La Barre and
D'Etalonde, and the people of Toulouse against Calas, and all of them
would have been condemned by juries summoned from those districts as
surely as they were by the magisterial Busiris.
The jury system is nothing but a refined example of the cult of
incompetence. Society, having to defend itself against thieves and
murderers, lays the duty of defending it on some of its citizens, and
arms them with the weapon of the law. Unfortunately it chooses for the
purpose citizens who do not know how to use the weapon. It then fondly
imagines that it is adequately protected. The jury is like an unskilled
gladiator entangled in the meshes of his own net.
I need hardly say that democracy with its usual pertinacity is now
trying to reduce the jury a step lower, and draw it from the lower
instead of the lower middle classes. I see no harm in this myself, for
in the matter of law the ignorance and inexperience of the lower middle
class and the ignorance of the working class are much the same. I have
only mentioned it to show the tendency of democracy towards what is
presumably greater incompetence.
Now comes the turn of the _juges de paix_. At present we still have
_juges de paix_. Here we have a most interesting example of the way
democracy strives after incompetence in matters judicial.
Owing to the expense entailed by an appeal the jurisdiction of a _juge
de paix_ is very often final. He ought to be an instructed person with
some knowledge of law and jurisprudence. He is therefore usually chosen
from men who have a degree in law or from lawyers' clerks who have a
certificate of ability. To be quite honest this is but a feeble
guarantee.
By the law of July 12th, 1905, the French Senate, anxious to find men of
still grosser incompetence, decided that _juges de paix_ might be
nominated from those, who, not having the required degree or
certificate, had occupied the posts of mayor, deputy-mayor or councillor
for ten years.
The object of this decision was the very honest and legitimate one of
giving senators and deputies the opportunity of rewarding the electoral
services of the village mayors and their assistants. And remember
senators especially are nominated by these officials. Further it was an
opportunity not to be missed for applying our principle--and our
principle is this: we ask, where is absolute incompetence to be found,
for to him who can lay indisputable claim to it we must confide
authority.
Now mayors and their assistants answer this description exactly. They
must be able to sign their names, but they are not obliged to know how
to read, and eighty per cent. of them are totally illiterate. Their work
is done for them very usually by the local schoolmaster. The Senate,
therefore, was quite sure of finding among them men absolutely
incompetent for the post of _juge de paix_, and it has found what it
wanted. Incompetence so colossal deserved an appointment, and an
appointment has been given to it.
The magistrature and the powers that be, seem to have been somewhat
disturbed by certain consequences of this highly democratic institution.
M. Barthou, the Minister of Justice, complained bitterly of the work
which this new institution caused him. He made the following speech in
the Chamber of Deputies: "We are here to tell each other the truth, and,
with all the due moderation and prudence that is fitting, I feel it my
duty to warn the chamber against the results of the law of 1905. At the
present moment I am besieged with applications for the post of _juge de
paix_. I need hardly mention that there are some 9,000 of them in my
office, because a certain number are not eligible for consideration, but
there are in round numbers 5,500 applications which are recommended and
examined." (What he means to say is, that these are examined because
they have been recommended, for, as is only right, those that are not
backed by some political personage are not looked at.) "As the average
annual number of vacancies is a hundred and eighty, you will readily see
what a quandary I am in. Some of these applications are made with the
most extraordinary persistency, I might even call it ferocity, and these
invariably come from men who have held the office of mayor or
deputy-mayor for ten years, often in the most insignificant places."
The Minister of Justice then read a report made on the subject by a
_procureur-general_.
"In this department there are forty-seven _juges de paix_, twenty of
whom, as I learn from an enquiry, were mayors at the time of their
appointment. It is not to be wondered at that the number of provincial
magnates who aspire to the post is on the increase, for it seems to be
generally recognised in this department that elective office
irrespective of all professional aptitude is the normal means of access
to a paid appointment, more especially to that of _juge de paix_. Once
they are appointed, the mayors combine both their municipal and judicial
duties, and their interests lie far more in the commune which they
administer than in the district in which they dispense justice and
which, without permission, they should never leave. Sometimes these
district magistrates will go to any length to obtain moral support from
the politicians of the neighbourhood. They extort this as a sort of
blackmail given in exchange for the electoral influence which they can
bring to bear in their municipal capacity. They attach far less
importance to being quashed by the bench, than to the eventual support
of the deputy. Those who come into their courts are the unfortunate
victims of these compromising arrangements which are giving the
Republican system a bad name."
I think the Minister of Justice and his _procureur-general_ have very
little ground for these lamentations. After all the minister only
complains of having 9,000 applications for office. It would surely be
quite easy for him, in compliance with the generally recognised
principle, to choose those whose incompetence seems to be most thorough,
or those who are most influentially supported, according to the
prevailing custom.
As for the _procureur-general's_ sarcasms, which he thinks so witty,
they are quite delightfully diverting and ingenuous. "It seems to be
generally recognised that elective office, irrespective of all
professional aptitude, is the normal means of access to a paid
appointment." What else does he expect? It is eminently democratic that
the marked absence of professional capacity should single a man out for
employment. That is the very spirit of democracy. He surely does not
think that a man is an elector by reason of his legislative and
administrative capacity?
It is likewise essentially democratic that elective office should lead
to paid appointments, for the democratic theory is that all office, paid
and unpaid, should be elective. Why, this _procureur-general_ must be an
aristocrat!
As for the mutual services rendered by the justice, as mayor, to the
deputy, and by the deputy to the justice, this is democracy pure and
simple. The deputies distribute favours that they may be returned to
power; the influential electors put all their interest, both personal
and official, at the service of the deputies in order to obtain those
favours. They are hand in glove with each other, and form a solid
union of interests.
What more does the _procureur-general_ want? Does he want a different
system? If he wants another system, whatever else it may be, it will not
be democracy, or at least it will not be a democratic democracy. Nor
have I any idea what he means when he says the Republican system will
get a bad name. The good name of the Republic depends upon its putting
into practice every democratic principle; and democratic principles have
certainly never been more precisely realised than in the preceding
example, which I have had great pleasure in rescuing from oblivion and
presenting to the notice of sociologists.