The cult of incompetence

by Émile Faguet

The instance above quoted is very remote, and can hardly be applied to anything in our day. But consider, for instance, the law of Sunday observance which has been revived from the ecclesiastical law. It was a mistake to include it in the Code because it was antagonistic to many French customs, and, in many ways, to the national temperament. The result is what might have been expected, namely, that it has only been carried out in rare instances, and with an infinity of trouble. It might have been made the subject of an edict without being included in the Code. The State might have given a holiday on Sunday to all its officials, employees and workmen. It might have been made quite clear simply by a circular from the Minister of Justice that a workman would not be punished for breach of contract by refusing to work on a Sunday. The law of a weekly day of rest would then have existed, without being formally promulgated, and would have been limited precisely where it should be, by agreement between masters and men who would submit to working on Sundays when they saw that it was necessary and inevitable. Moreover this law would be strong enough to modify without destroying the ancient customs of the people.

Here is another instance which occurs within the law laid down by the Code, where the legislator makes use of a method of suggestion and recommendation. Early in the nineteenth century the legislator considered that it was seemly for a husband who surprised his wife in adultery to kill both her and her accomplice. The sentiment is perhaps questionable, but at all events, it was current. Was it given legal sanction? No, not precisely. It is inserted in the law in the form of an insinuation, a discreet recommendation and affectionate encouragement. The legislator wrote these words: "In flagrante delicto murder is excusable." I am not approving the sentiment, but only this manner of indicating rather than enforcing the law and what is thought to be a wholesome practice, and in other instances I should think it excellent.

Finally, one of the essential qualities of the legislator is to show discretion in changing existing laws, and for this purpose he should be immune from the passions of men or at all events complete master of those which beset him. For law has no real authority unless it is ancient. Where a law is merely a custom which has become law, it is invested with considerable authority from the first, because it gains strength by the antiquity of the original custom. When on the other hand a law is not an old custom but runs counter to custom, then, before it can have any authority, it must grow old and become a custom itself.

In both cases it is on its antiquity that the law must depend for its strength. The law is like a tree, at first it is a tender sapling, then it grows up, its bark hardens, and its roots go deep into the ground and cling to the rock.

We ought to consider carefully before we venture to replace the forest tree by the young sapling. "Most legislators," said Usbek to Rhédi,[A] "have been men of limited abilities, owing their position to a stroke of fortune, and consulting nothing but their own whims and prejudices. They have often abolished established laws quite unnecessarily, and plunged nations into the chaos that is inseparable from change. It is true that, owing to some odd chance arising out of the nature rather than out of the intelligence of mankind, it is sometimes necessary to alter laws, but the case is very rare and when it does arise it should be handled with a reverent touch. When it is a question of changing the law, much ceremony should be observed, and many precautions taken, in order that the people may be naturally persuaded that laws are sacred things, and that many formalities must precede any attempt to alter them."

In this passage, as so often elsewhere, Montesquieu is quite Aristotelian, for Aristotle wrote: "It is evident that at times certain laws must be changed, but this requires great circumspection for, when there is little to be gained thereby, inasmuch as it is dangerous that citizens should be accustomed to find it easy to change the law, it is better to leave a few errors in our magisterial and legislative arrangements than to accustom the people to constant change. The disadvantage of having constant changes in the law is greater than any risk that we run of contracting a habit of disobedience to the law." For the law assuredly will be disobeyed, if we regard it as ephemeral, unstable, and always on the point of being changed.

Some knowledge of the laws of the most important nations, a profound knowledge of the temperament, character, sentiments, passions, opinions, prejudices and customs of the nation to which he belongs, moderation of heart and mind, judgment, impartiality, coolness, nay even a measure of stolidity, these are the attributes of the ideal legislator. Rather they are the necessary qualifications of every man who purposes to frame a good law; they are, indeed, the elementary attributes of a legislator.

We have seen that it is the very opposite quality that democracy likes and expects of its legislators. It selects incompetent and almost invariably ignorant men, I have explained why; and its nominees are of a double distilled incompetence in that their passions would certainly neutralise their efficiency if they possessed any.

Further we have to observe this curious fact. So entirely does democracy choose its legislators, because they are dominated by passion, and not in spite of the fact, chooses them indeed precisely for the reasons for which it ought to reject them, that any moderate, clear-headed, practical man who wants to be elected and make use of his powers, has to start by dissembling his moderation, and by making a noisy display of factious violence. If he wants to be nominated to a post where it will be his business to defend and guarantee public security, he has to begin by advocating civil war: to become a peacemaker he must first pose as a rebel.

Every popular favourite passes through these two phases, and has to complete one stage before he starts on the next. Is it not better, you will ask, that a man's whole career should be spent in defence of law and order rather than the latter part of it? Not at all, because you cannot exercise any influence as a friend of law and order unless you have begun as an anarchist.