We owe the French philosopher Alexandre Kojève to have formalized the most perfect definition of what a judge should be: a “third party, impartial and disinterested”. There is no law – the Declaration of 1789 speaks of “guarantee of rights” – except where the State entrusts this person with the function of deciding between what is lawful and what is not. In this moment of great questioning about the place of the judiciary in society, we do not waste time thinking about the fate of these three elements.
A third ? As much to say someone else: the one to whom we go for his exteriority to the dispute; the one whose cold point of view is sought because there is nothing better to resolve a hot conflict. Impartial? No one can be judge and judged. It must not be a priori either on one side or the other, but also listen to the protagonists with a benevolent neutrality and ensure that they have the means to make their cause heard. Selfless? Let’s say: able to rise above himself, to abstract himself from the equation, to neutralize his affects, his preferences, his inclinations and – more than anything – his personal allegiances since it is his inclination that he must be wary to render a judgment worthy of the name.
Vast program, you will tell me. A real job for demigods. This is the substance of the matter. In real life, it’s unattainable. And no doubt it has to remain so a little because we are also asking for a “good” judge, sensitive, capable of understanding and therefore of (subjective) tolerance for certain (objectively) illegal behaviors. The idea of an automaton dispensing justice – or now an artificial intelligence program – is unbearable to us in proportion to its inhumanity. For us, poor sinners, we implore the clemency of the one who will have the last word. Sometimes we even hope for his courage.
A demanding discipline of renunciation
That’s no reason to give up. The figure of the magistrate given over to his passions is even more monstrous than that of the algorithm. Nobody wants a sadistic judge, sold out, blinded by his religion, his ideology or his more or less hidden allergies – to women, to men, to Jews, to Arabs, to the rich, to useless mouths, etc. Even if it is difficult and even if it is partly illusory, there must be imposed everywhere, in the bodies of justice, a demanding discipline of renunciation. Such is indeed – Kojève was right – the sine qua non of law. Clearly, however, we are moving away from this objective.
The growing politicization of part of the judiciary – or, if you prefer, the growing significance within it of hyperpoliticized trade unionism – plays a considerable role in this drift. Let us insist that the notion of a judge more or less openly moved by his political convictions is unacceptable because it is contradictory in terms. We cannot lament the lack of confidence of the French in their justice system and put up with such a perversion of principle.
But that’s not all. In terms of contradictions with the assumption of impartiality, we must also reckon with at least three cultural problems among certain magistrates – obviously not all of them and I am aware, moreover, that the profession generally works in very difficult conditions . First, and under the paradoxical cover of great protests of independence, a pure hostility was deployed among them vis-à-vis entire categories of litigants, and in particular the political class. Result: with regard to him, this third party is no longer impartial at all. Second, social downgrading and the blindness of public authorities helping, self-obsession has corrupted the corporation and made the Superior Council of the Judiciary a very strange machine. Results of the races: this third party is no longer really disinterested because he thinks too much about himself and his fellows. Third, other expected qualities have been relegated to the background and prevented from blossoming on a large scale: questioning what made you a judge, the reasons why you wanted to become one, the distance to keep with your convictions loved ones, the awareness of the responsibilities you are taking on by not asking yourself enough of these kinds of questions… You should get back to work.
* Denys de Béchillon is a constitutional expert and professor of law at the University of Pau