Elements of Morals / With Special Application of the Moral Law to the Duties of the Individual and of Society and the State

by Paul Janet

2. Independence.—The deputy, senator, municipal, or departmental officer should be independent both in regard to the authorities and in regard to the electors. From the authorities he should receive no favors; he should not sell his vote in any interest whatsoever; from the electors he has to receive advice only, but no orders. Outside their office as electors, the electors are nothing but simple individuals. As such they may try to influence representatives, but they have otherwise no other title before the representatives of the electoral corps. The representative should, above all, avoid making himself the servant of the electors, for the satisfaction of their private interests and passions. It is often thought that independence only consists in resisting courts and princes; there is no less independence, and sometimes even is there more merit and courage required to resist the tyranny of the masses, and especially that of popular leaders. The deputy should, we have said, be faithful to his trust—that is to say, to the general line of politics adopted by the political party to which he belongs; but within these general limits it is for him to assume the responsibility, for it is for this very reason that he is elected a representative. Let us, moreover, add that fidelity to opinions should not degenerate into party spirit, and that there is an interest which should supersede all others, namely, the interest of the country.

3. The spirit of conciliation and the spirit of discipline.—Political liberty, more than any other political principle, requires the spirit of concession. If each, indeed, fortifies himself in his own opinions, without ever making a concession, all having the right to do the same, it is evident that no common conclusion can be arrived at. The consequence of the liberum veto,[67] pushed to excess, is paralysis of power or anarchy. Nothing is done; and in politics, when nothing is done, all becomes disorganized, dissolved. It is, therefore, necessary that whilst preserving their independence, the representatives sent forth by the electors should endeavor to render government possible; they should not overstep the limits of their trust by confounding legislative power with executive power; they should try to harmonize with the other bodies of the State—in short, they ought each to sacrifice the necessary amount of their individual opinion to bring about a common opinion. In a free government it is no more a duty to belong to the majority than to the opposition, since the opposition may, in its turn, become majority; but whether belonging to the one or to the other, the representative should subordinate his particular views to the common interest; otherwise the parties scatter, which, in the long run, can only be profitable to despotism.

105. Judicial power.—The magistracy and the bar.—The judicial power is exercised by magistrates called judges: it is they who decide about quarrels between individuals: this is what is called civil justice; they also decide about the punishments inflicted on criminals who have made attempts upon a life or property; and this is penal justice. The duties of the magistrate are easily deduced from these obligations.

1. Impartiality and neutrality.—The judge must necessarily remain neutral among all parties; he should have no regard to persons, should render equal justice to the rich and to the poor, to the high and to the low. Equality before the law, which is one of the principles of our modern institutions, should not only be a principle in the abstract; it should also be a practical principle, and be brought before the eyes of the judges as one among the first of their obligations.

2. Integrity and disinterestedness.—No less strict a duty for the judges, and which it is scarcely necessary to point out, is integrity. The magistrate should be free from all suspicion of venality. Under the old régime, as may be seen in Racine’s comedy of The Pleaders, the judges were not always free from such suspicion. Of course, it is but a comedy; but such a comedy could no longer be written nowadays; it would no longer be understood; our morals are too much improved for that. The obligation should, nevertheless, be pointed out.

3. Impartiality and integrity concern above all civil justice. The duty which more especially concerns criminal justice, is equity; namely, a moderate justice, intermediary between a dangerous lenity and an excessive severity. In truth, in most cases, at least in the graver cases, the judge has scarcely anything more to do than to apply the law. It is for the jury, a sort of free and irresponsible magistracy, to decide upon the culpability or innocence of the prisoners. It is for the jury to find a just medium between harshness and lenity. But the juryman who, above all, judges as a man, and often recoils from responsibility, should fear the excess of lenity: the judge, on the contrary, accustomed to repression, and above all preoccupied with the interests of society, should rather defend himself against excess of rigor and severity.

4. Knowledge.—What is for most men but a luxury, becomes in such or such a profession a strict duty. The knowledge of the laws, for example, is, for the magistrate, as the knowledge of the human body for the physician, a strict obligation. He who wishes to enter the magistracy, should therefore carry the study of the law as far as his youth permits it; but he should not stop his studies the moment he has entered upon his career. He has always something to learn; he should keep himself informed of the progress jurisprudence is making. It is useless to say that, independently of this general work, the special and thorough study of each case brought before him is for the judge a duty still more strict.

Alongside of the magistracy, and co-operating with it, is placed the bar, which is charged with the defense of private interests from a civil or criminal point of view.

From a civil point of view, the trial is between two citizens, each claiming his right in the case; they are what is called pleaders, and the trial itself is called a law-suit. The pleaders, not knowing the laws, need an intermediary to explain and defend their cause, bring it clearly to the comprehension of the magistrates and enforce its reasons. This is the part of the lawyers.

From a criminal point of view, the trial is not between two individuals; but between society and the criminal. Society, to defend itself, employs what is called a public prosecutor; the criminal needs a counsel. The part of a counsel belongs again to the lawyers.