The cult of incompetence

by Émile Faguet

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.