The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• Errata Vol. I
• Part I: Considerations Applicable to Democratic Government In General
• Chapter I: Introductory
• Chapter II: The Method of Enquiry
• Chapter III: The Definition of Democracy
• Chapter IV: The Historical Evolution of Democracy
• Chapter V: The Theoretical Foundations of Democracy
• Chapter VI: Liberty
• Chapter VII: Equality
• Chapter VIII: Democracy and Education
• Chapter IX: Democracy and Religion
• Chapter X: The Press In a Democracy
• Chapter XI: Party
• Chapter XII: Local Self-government
• Chapter XIII: Traditions Moribus Antiquis Stat Res Romana Virisque
• Chapter XIV: The People
• Chapter XV: Public Opinion
• Part II: Some Democracies In Their Working
• Chapter XVI: The Republics of Antiquity
• Chapter XVII: The Republics of Spanish America
• France
• Chapter XVIII: Land and History
• Chapter XIX: The Frame of Government: President and Senate
• Chapter XX: The Chamber of Deputies
• Chapter XXI: Cabinet Ministers and Local Party Organizations
• Chapter XXII: Judicial and Civil Administration
• Chapter XXIII: Local Government
• Chapter XXIV: Public Opinion
• Chapter XXV: The Tone of Public Life
• Chapter XXVI: What Democracy Has Done For France
• Switzerland
• Chapter XXVII: The People and Their History
• Chapter XXVIII: Political Institutions
• Chapter XXIX: Direct Legislation By the People: Referendum and Initiative
• Chapter XXX: Political Parties
• Chapter XXXI: Public Opinion
• Chapter XXXII: Concluding Reflections On Swiss Political Institutions
• Canada 1
• Chapter XXXII: The Country and the Frame of Government
• Chapter XXXIV: The People and the Parties
• Chapter XXXV: Working of the Government
• Chapter XXXVI: The Action of Public Opinion
• Chapter XXXVII: General Review of Canadian Politics

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.1 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.

An easier method of making vacancies to which there can be appointed persons whom a ministry desires to have as judges in any particular court is found in promoting an existing judge and filling his place with the person desired. The hope of promotion from a lower to a higher court is an influence which a minister can, and sometimes does, bring to bear upon a judge. It is in one way or another his interest to stand well with the Government, and, to some extent, even with the deputies from the district in which he sits, which is usually, if he can so arrange, the district to which he belongs by birth or adoption, and where he dwells among relatives and friends. One hears other ways mentioned in which governments or persons of influence with governments have been known to interfere with the ordinary course of justice, such as transferring a case from one court to another, or in the assignment by the Procureur-Général (Attorney-General) of a case to a particular Judge d'instruction2 or to the president of a particular tribunal; but there seems to be little basis for such charges, for the rules of judicial administration are uniform and pretty strictly observed. Deputies and others who possess influence, political or financial, are reported to approach judges, or give letters recommending litigants to their attention, a proceeding which, though disapproved, is not stamped out.

France has been so proud of her judiciary as to be extremely sensitive to its honour. This makes even small delinquencies noticed and lamented, and engenders suspicions that there may be more delinquencies than the public knows. So far as a stranger can judge, they appear to be rare. The judges are poorly paid, but the dignity of the office attracts capable men of high character, and a laudable standard of legal science is maintained in the decisions, those of the higher courts being reported as carefully, if not as fully, as the judgments of British or American tribunals. The judges in these courts are conspicuous social figures, taking rank among the first citizens of the communities within which they reside. If the government of the hour sometimes gets a little more than it ought from the judges, it gets so much less than it desires, that it has sometimes threatened another “purification.” This seems improbable, unless an extreme party should obtain control of both Chambers. Great as is the power in France of abstract democratic theory, no one seems to suggest the direct election of judges by the people. Such a change would be unwelcome to deputies and ministers, who desire to retain all possible kinds of patronage.

The Civil Service

The Civil Service of the country consists, as in England, of a small branch which is political, including the offices which change with each ministry, such as the under secretaries in the central departments, and of that far larger branch which is permanent, carrying on the regular administrative work.

The civil administration is the oldest institution in France. Established under Richelieu and Louis XIV., it was interrupted and, for the moment, shattered, by the first Revolution. Reconstructed by Bonaparte during the Consulate, it has remained little changed in essentials since his time. No more need be said of it than will suffice to indicate the relation it bears to the democratic character of the government. It has suffered at the hands of democracy, yet has shown itself strong enough to mitigate some of the faults it cannot cure.

The Civil Service of France is larger in proportion to the population than that of any other free country, possibly, indeed, than that of any country in Europe or America, because the sphere reserved for local self-governing authorities is so narrow that nowhere else, not even in Germany, is so much work thrown upon the central administration. Men's eagerness to enter even the humbler walks of official life has led to the multiplication of posts by governments tempted to increase their patronage, and has made the competition for posts extremely keen.1 Elective administrative offices, such as exist in the United States, are unknown, all appointments being made, as in England, by the Executive. Admission to most branches of the service, including those for which special knowledge or training is required, is by competitive examination, while the comparatively few places of a political character, whose occupants change with a change of ministry, lie outside the examination rules. To these the minister appoints at his discretion, probably influenced, at least where the post is of some consequence, not only by the politics of the aspirant, but also by private pressure exerted on his behalf. Promotion within the service is understood to go partly by seniority, partly by merit; but it is also largely governed by the political inducements which the deputy or some other important supporter brings to bear. In this way the less deserving may climb high, while efficiency suffers. No one can be displaced, except for some fault, though vested interests may be preserved by transfer or promotion to some other post so as to create a vacancy for the man whom influence pushes upwards. The observance of this rule is secured by public sentiment, and especially by the strong corporate spirit of the service itself, which few ministers would venture to offend. The permanent heads of the chief departments are men of proved capacity and high social standing. Their knowledge and experience are indispensable to every government; and, like British officials, they render loyal service to the government of the day, whatever their personal predilections.

The salaries paid to the permanent civil servants are low in proportion to the cost of living, which had risen in France even before 1914; and it would be hard to secure adequate competence but for the widespread desire, extending even to the lower ranks in the official hierarchy, for that social importance which State employment confers. Complaints made relate chiefly to the routine and formally precise or bureaucratic methods which prevail in France almost as much as in Germany. The deeply ingrained habit of obedience to official orders makes these methods endured more patiently than they would be among English-speaking men. The delays that occur in the working of the administrative machine are not altogether the fault of the permanent service, for it is the pressure exercised on ministers for favours that makes the local official await orders and shirk responsibility, since he fears to take any action which might interfere with his chief's desire to oblige.

One branch of the Civil Service has an importance peculiar to France, viz.: that which consists of the teachers in elementary schools, all of whom are appointed and may be dismissed by the Executive. In the course of its conflict with the power of the clergy, the Republican party has by a series of statutes established lay teachers in every public school, and found in them powerful allies. They have organized themselves in a sort of union, and recently sought, against the wishes of the Government, to join the General Labour Federation in order to improve their pay and position. This insubordination — as it is called by the chiefs — is not confined to the teachers. Others among the rank and file of the public employees ask to be allowed to agitate for higher pay and better conditions, arguing that by becoming employees they do not cease to be citizens. The question that has arisen how far such action is compatible with the discipline (said to be already impaired in the Customs department) necessary for efficiency, is serious, and has raised trouble both in Great Britain and in Australia. In the villages the teacher is usually the best-educated and best-informed layman, who adds to his influence over the pupils that influence which belongs to him as being (in most communes) the clerk to and adviser of the Maire. In the State secondary schools and universities no religious instruction is given; but in these public opinion secures perfect freedom for the teachers, and no complaints are made regarding favouritism in appointments or the exercise of political control.

In France the railroads nearly all belong to private companies, but recently one great system, that of the West, was taken over by the Government. Its management became more costly, and the inefficiency charged against it is used as an argument to meet the Socialist demand for the “nationalization “of all railroads. Few other “public utilities “have been undertaken by the State. It draws revenue from a monopoly of tobacco and matches.

The chief local administrative official is the Prefect, a figure to whom there is no one to correspond in any English-speaking country nor in Switzerland. It is he who in each of the eighty-six departments represents the Government for civil purposes.1 He is appointed, and may be removed, by the ministry at its discretion, no examination or other special qualification being required, since the post is a frankly political one. For his helpers and advisers he has a Prefec-tural Council, exercising a local jurisdiction over employees and minor administrative affairs; and under him there are Sub-Prefects also, appointed and removable by the ministry of the day, one for each arrondissement, of which there are in France 362. Through these functionaries a ministry carries out its wishes and fills most of the local posts, often consulting the Prefect, but (as already observed) chiefly influenced by the deputy, who has latterly become the stronger through his political hold on the ministry.

The rules of the permanent Civil Service forbid its members to take an active part in politics, but when they quietly work for ministerial candidates they need not fear its disapproval. The Prefect and Sub-Prefect lie under no similar disability, and frequently go round with a Governmental candidate.

Two other significant features of the French system must be here noted. One is the wide legislative power entrusted to ministers. Statutes are as a rule drawn up in general terms, leaving many details to be subsequently filled in. This happens to some extent in the United Kingdom, but there the statute expressly delegates to the Sovereign in his Privy Council, or to high officials — as for instance to the council of judges of the Supreme Court, or to the Home Secretary — power to issue Orders or Rules for carrying out the purpose of the statute, which, if made within the limits prescribed, have the force of law. In France, however, ministers are competent without such special authorization (though this is sometimes conferred) to issue ordinances binding not only their subordinates in the administration but the citizens generally. The more important of these are promulgated the name of the President, as Decrees. Minor matters are dealt with by various functionaries, not only individual ministers but Prefects, and even Maires as heads of communes. These are called arretes. The President's power extends to some slight extent even to the authorizing, in urgent cases, the borrowing of money (up to a certain limit) by the public treasury.

The other feature, unknown to English-speaking men though not to several continental countries, is the recognition of what is called Administrative Law. An official charged with some dereliction of duty, whether against his superiors or against a member of the public, is not liable, as in Britain or the United States, to be either sued or prosecuted in the ordinary Courts for an act done in the course of his official work. Complaints must be brought before the Administrative Tribunals, which are constituted of officials, the jurisdiction of these bodies covering many matters withdrawn from the competence of the ordinary Courts. This system, an inheritance from the old monarchy, is defended as required by the principle of the division of powers into Legislative, Executive, and Judicial.1 To permit the ordinary Courts of Law to try a functionary for an administrative act would be, in French eyes, to allow the Judiciary to interfere with the Executive, so the very same doctrine which in America secures the independence of the Judiciary from the Executive is used in France to secure the independence of the Executive, nominally as against the Judiciary, but really as against the public, for the agents of the Executive thereby escape direct liability to the citizen, being themselves, through their special Courts, the judges not only of the facts of a case but also interpreters of the law to be applied.

This rather undemocratic arrangement is an illustration of the width of the power wielded in France by an executive which is not only centralized but autocratic. Yet the exercise of power, since liable to be checked by the legislature, becomes uncertain in any particular case, for ministers, the creatures of a large and fluctuating body, exercise their patronage at the wishes of the individual members of that body and hold their own places at the caprice of its collective majority. With restricted functions their position would be more independent and more stable. But a strong executive is congenial to French ideas, and every government, be it republican or monarchical, feeling bound to maintain at all hazards its own form, has clung to a power which helps it to repress attempts at revolutionary change, supported by the feeling of the middle classes that public safety must be secured.

A part of the administration which deserves mention, because there is nothing analogous to it in any English-speaking country, is the Council of State. Founded by Napoleon, this useful and highly respected body consists of a number of eminent persons appointed and dismissible nominally by the President of the Republic, but practically by the ministry of the day, though it is in practice not frequently changed in composition. Its functions are to advise upon certain classes of ordinances and divers other matters of an administrative nature, and to sit as a final Court of Appeal from the decisions of administrative tribunals. This latter duty, which belongs only to one class of the councillors, seems to be now the more important, for advice given on other matters need not be followed by the ministry. This Council has won the commendation of some English writers, who think that some similar institution might usefully be formed out of the British Privy Council. In France itself there are those who hold that it could well be used more largely than it is for the purpose of drafting or revising projects of legislation, and regret that the Ministry and the Chambers are too jealous of their own powers to share them with a nominated body.

[1]The number has been given at 982 of the former and 1763 of the latter class.

[2]The title given to the official charged with the investigation and preparation of a criminal ease. This could happen only in those few places where more than one juge d'instruction is attached to a tribunal, and the function of the official is only to report if there is a case for a piosecution. The French judicial system, with its separate administrative courts and special treatment of the military and naval services, presents more varieties than are found in English-speaking countries.

It need hardly be said that much less use is made of trial by jury in civil cases than is the practice in England and the United States.

[1]It is sometimes said that the equal division of inheritances, believed to have the effect of discouraging emigration, tends to increase the eagernesss to obtain posts under government.

[1]Excluding Alsace-Lorraine which stands for the present outside.

[1]The system was on this ground maintained in the Constitution of 1791.