Émile Faguet.

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famous personification of laws in the Phædo, which would be quite
meaningless if the Greeks had understood what we do by the term. Are
laws the expression of the general will of the people? If so why should
Socrates have respected them, he who despised the people to the day he
was condemned? It would be absurd. These laws which Socrates respected
were not the decrees of the people contemporary with Socrates; they were
the ancient gods of the city, which had protected it from the earliest

These laws may err in that they seemed to sanction the verdict that
condemned Socrates to death, but they were honourable, venerable and
inviolate, because they had been the guardians of the city for
centuries, and guardians of Socrates himself until the day when they
were misapplied against him.

A "constitution," therefore, to adopt Aristotle's terminology, is a
State which obeys laws, that is to say, laws framed by its ancestors.

It is, then, an aristocracy, for it is even more aristocratic to obey
our ancestors themselves by obeying the thoughts which they embedded in
legislation, five centuries ago, than to obey the inheritors of their
tradition, the aristocrats of to-day. For aristocrats of to-day belong
only partly to tradition, in that they live in the present. Whereas a
fifteenth century law belongs to the fifteenth century and to no other
period. To obey law as understood by the ancient sociologists, did not
mean obeying Scipio who has just passed us on the _Via Sacra_. It meant
to obey his grandfather's great grandfather! All this is

Precisely! _Law is an aristocratic thing;_ only _the emergency law_, the
_decree_, is democratic. For this reason Montesquieu always speaks of a
monarchy as being limited, and, at the same time, maintained by its law.
What did this mean in his day, when there was no "expression of the
general will" to limit monarchy, and when royalty possessed legislative
power, and could at will make and remake laws? It could only mean one
thing, namely, that Montesquieu's conception of law was the same as that
of the ancient sociologists, - law far older than his time, "fundamental
laws" as he calls them, of the ancient monarchy, which still bind and
ought so to bind the monarch, whose rule without them would be despotism
or anarchy. Law is essentially aristocratic. It ordains that rulers
should govern the people, and that the dead should govern the rulers.
The very essence of aristocracy is the rule of those who have lived over
those who live, for the benefit of those who shall live hereafter.
Aristocracy, properly so called, is an aristocracy in the flesh. Law is
a spiritual aristocracy. Aristocracy, as represented by the aristocrats
of to-day, only represents the dead by tradition, inheritance,
education, physiological heredity of temperament and characteristics.
Law does not represent the dead, it is the dead themselves, it is their
very thought perpetuated in immutable script.

A nation is aristocratic both in form and spirit which preserves its old
aristocracy and maintains its vitality by careful infusions of new
blood. Still more is that nation aristocratic which maintains its old
legislation inviolate, adding to it, reverently and discreetly, new laws
which combine something of the modern spirit with the spirit of the old.
_Homines novi, novæ res. Homo novus_ means the man without ancestors who
is worthy to be added to the ranks of the nobly born. _Novæ res_ are
things without antecedents, nay revolution itself. _Novæ res_ should
only be introduced partially gradually, insensibly and progressively
into ancient things, as "new men" into the community of the old
nobility. Law is more aristocratic than aristocracy itself, hence
democracy is the natural enemy of laws and can only tolerate decrees.

Our examination of modern democracy has brought us to the following
conclusions. The representation of the country is reserved for the
incompetent and also for those biassed by passion, who are doubly
incompetent. The representatives of the people want to do everything
themselves. They do everything badly and infect the government and the
administration with their passion and incompetence.

[B] See _France_, by J. E. C. Bodley, 1899, pp. 334, 335. Under
_Scrutin de liste_ "the department is the electoral unit, each having
its complement of deputies allotted to it in proportion to its
population, and each elector having as many votes as there are seats
ascribed to his department, without, however, the power to cumulate."
_Scrutin d'arrondissement_ is election by single-member constituencies.
The _arrondissement_ is the electoral unit.

[C] This is a question put to a minister by a deputy. "The
effect ... is somewhat similar to a motion to adjourn the house in the
English Parliament." Bodley, p. 445.



This is not all. The law of incompetence spreads still further, either
by some process of logical necessity or by a sort of contagion. It has
often been made the subject of merriment, for, like all tragedy, when we
regard it with good humour the matter has its comic side, that it is
very rare for any high office to be given to a man who is competent for
the post. Generally the Minister of Education is a lawyer; the Minister
of Commerce, an author; the War Minister, a doctor; the Minister for the
Navy, a journalist. Beaumarchais' epigram "The post required a
mathematician - it was given to a dancing master!" strikes the keynote
much more of a democracy than of an absolute monarchy.

The matter is so generally recognised that it has a sort of retroactive
effect upon the historical ideas of the masses. Three Frenchmen out of
every four are convinced that Carnot was a civilian, and the statement
has often appeared in print. Why? because it is inconceivable that under
a democracy the War Minister could possibly be a soldier, or, that the
members of the Convention could possibly have given the War Office to a
soldier. This appeared too paradoxical to be true.

At first sight this extraordinary method of making incompetent men into
ministers seems merely a joke, merely the subtle and entertaining
vagaries of the goddess Incompetence. Partly it is so but not entirely.
The man whose business it is to appoint ministers has to divide the
choicest plums of office among the various groups of the majority which
supports him. As all of these groups do not contain specialists, the
highest offices are disposed of on political grounds, and not on grounds
of professional aptitude. I have shown what the result is; the only
ministerial appointment which is made in a rational manner is that which
the President of the Council reserves for himself, and even in this case
in order to conciliate some important political personage he very often
gives it up and takes some post for which he is not so well suited.

See what follows: each department is directed by an incompetent man,
who, if he be conscientious, sets himself to learn the work in which he
ought to be a fully trained expert, or, if he be not conscientious, and
be pressed for time, as he always is, he directs his department
according to his general political theories and not according to
practical common sense - a double distillation of incompetence.

We know the kind of speech a new Minister of Agriculture makes to his
staff. He harangues them on the principles of the revolution of 1789.

Moreover, in a highly centralised country, the minister does everything
in his own department. He has to do everything under the pressure, it is
true, of the national representatives; but still his is the supreme
authority. It is easy to see what sort of decisions he will make. They
are often very little supported by law, and sometimes are even contrary
to law, and then they remain a dead letter from the first. Ministerial
circulars often have a remarkable character for illegality. In that case
they fall and are forgotten, but not always before they have introduced
a vast amount of trouble throughout the entire administration.

As to appointments, they are made, as I have said, by political
influence, and even when they are flagrantly improper and corrupt, there
is no chance of their being corrected by the competence of a minister,
who, holding enlightened views on the business and subordinates of his
office, is able to put his foot down and say "No! this will not do, we
must draw the line somewhere."



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 régime_, 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

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

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

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 régime_; 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
_Côtes-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."

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