The cult of incompetence

by Émile Faguet

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.