Émile Faguet on legal realism

If I may do a Deogolwulf:

The contempt for efficiency is carried far even in the liberal professions and in professional customs. We all know the story, perhaps a mythical one, of the judge who said to an earnest young barrister who was conscientiously elaborating a question of law: “Now, Mr. So and So, we are not here to discuss questions of law but to settle this business.” He did not say this by way of jest; he wished to say: “The courts no longer deliver judgment on the merits of a case according to law, but according to equity and common sense. The intricacies of the law are left to professors, so please when conducting a case do not behave like a professor of law.” This theory, which even in this mild form would have horrified the ancients, is very prevalent nowadays in legal circles. It has crept in as an infiltration, as one might call it, from the democratic system.

A magistrate, nowadays, whatever remnant of the ancient feeling of caste he may have retained, certainly does not consider himself bound by the letter of the law, or by jurisprudence, the written tradition; when he is anything more than a subordinate with no other idea of duty than subservience to the Government, he is a democratic magistrate, a Heliast of Athens; he delivers judgment according to the dictates of his individual conscience; he does not consider himself as a member of a learned body, bound to apply the decisions of that body, but as an independent exponent of the truth.

An eccentric, but in truth very significant, example of the new attitude of mind is to be found in the judge, who formally attributed to himself the right to make law and who in his judgments made references, not to existing laws, but to such vague generalities as appealed to him, or to doctrines which he prophesied would later on be embodied in the law. His Code was the Code of the future.

The mere existence of such a man is of no particular importance, but the fact that many people, even those partially enlightened, took him seriously, that he was popular, and that a considerable faction thought him a good judge, is most significant.

Émile Faguet, The Cult of Incompetence (1912, trans.), p. 162.

Note that in the English common-law tradition, this “code of the future” approach – which is, indeed, ridiculous on the face of it – is not even a 20th-century artifact. It dates not just to Holmes and Cardozo, not just to Marshall, but to Coke at least. Maybe Pepsi really is the choice of a new generation.

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