Elements of Morals: With Special Application of the Moral Law to the Duties of the Individual and of Society and the StateJanet, Paul
Philosophy
Elements of Morals: With Special Application of the Moral Law to the Duties of the Individual and of Society and the State
Janet, Paul
Ethics
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.
The duties of lawyers are varied according as the cases are civil or
criminal cases.
In civil law-suits, the absolute duty is the following: not to take up
_bad cases_. Only it is necessary to understand well this principle. It is
generally believed that a bad case is the losing one, and a good case the
winning one. Thus would there in every law-suit be a lawyer who failed in
his duty: the one, namely, who lost the case. This is a false idea, which
very unjustly throws in many minds discredit upon the profession of the
law.
Public-domain text, read in full here on John Shaqi.
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