Democracy; France -- Politics and government; Mental efficiency
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
offices."
Public-domain text, read in full here on John Shaqi.
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