Modern Democracies, Vol. 1 by James Bryce

Author:James Bryce [Bryce, James]
Language: eng
Format: epub
Tags: Politikwissenschaft
Publisher: Jazzybee Verlag
Published: 2017-09-20T22:00:00+00:00

CHAPTER XXII: JUDICIAL AND CIVIL ADMINISTRATION

The Judicial Bench is one of the oldest and most respected of French institutions, adorned in time past by many illustrious names, and constituting under the ancien régime what was called the noblesse de robe. It is not, as in English-speaking countries, virtually a branch of the profession of advocacy, but, as in most parts of the European continent, a distinct calling, which young men enter when their legal education is finished, instead of being the crowning stage, as in England, of a forensic career. Englishmen and Americans naturally prefer their own system, which restricts judicial appointments to those who have had experience at the Bar. This plan would, if applied to republican France, have one serious drawback. Advocates who were also deputies might recommend themselves for judicial posts by political services in the Chamber, and would be likely to retain on the bench their political proclivities. The British system is doubtless exposed to the same risk, but both in England and in Scotland tradition and the fear of professional disapproval have been so strong for more than a century that though judges are sometimes appointed as a reward for party services, public opinion keeps them straight. They may sometimes have a slight half-unconscious bias, but they would not lower themselves to do the bidding of a government.

Both the higher French judges and the lowest rank, called juges de paix, are appointed by the Minister of Justice. Under the old Monarchy judicial posts were purchased; and Montesquieu defended the system by the remark that if they had been in the gift of the Crown they would have been bestowed upon Court favourites, probably less competent and less trustworthy than the sons of judicial families whose parental purchasers had imbued them with judicial traditions. The appointment is permanent, for, in principle and as a rule, a judge cannot be removed except with the consent of the Cour de Cassation, the highest Court of Appeal. Removals for incompetence or delinquency are rare. But there have been times when the government of the day, fearing the anti-Republican tendencies of some of the judges, has required them to swear fidelity to the Republic, or has, after passing statutes suspending the rule of irremovability, gone so far as to displace a number of those whom they distrusted. This process, called a “purification” (épuratiori), was applied between 1879 and 1883 to remove a considerable number of judges and other legal officials whose loyalty to the Republic was suspected. Ref. 130 So bold a step, being the act of a dominant party, gave a shock to public sentiment; but it must be remembered that in a country where the form of government itself is an issue between parties, as was at that time the case, the need for defending existing institutions is deemed to excuse extreme measures. In A.D. 1745 an English judge known to belong to the party of the exiled Stuarts might conceivably have been deemed a potential rebel and extruded from the Bench by an address of both Houses of Parliament.

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