A colleague recently pointed me to a short essay, “La justice pénale,” by Paul Lapie in the Revue de métaphysique et de morale. It’s from the March 1898 issue of the journal and this colleague came across it because the Union pour l’action morale reprinted and distributed it. Lapie, and the Rmm, have figured in my work before. So I read with interest and finally could no resist writing a little bit about it.
The essay, only about 12 pages long, might at first look like a book review, although it appears in the “Questions pratiques” rubric. At its head we find a book listing: Jean Cruppi, La cour d’assises, but also “La collection des journaux française, depuis six mois.” Many of Céléstin Bouglé’s essays from this period had similar notices, but I’m not sure how common the practice was. Especially in Bouglé’s case, the notices are clearly intended for the curious reader, but also as sign of scholarship, a bibliography even in the field of what was never really admitted to be polemic. In other words: I may be writing about contemporary political matters, but I’m a scholar not just some scribbler. It’s hard, though, not to smile at Lapie’s breezy ‘the papers in the last six months...’
In any case, the essay is divided into two parts—institutions et croyances—and the first draws directly (or so it appears) on Cruppi to present practical issues in this particular part of the French legal system, arguing that the vices of the civilian courts are magnified in the military ones. I’m not prepared to adjudicate in any useful way these claims. But a few points. First of all, the judges are not really impartial, because they are associated so closely with the prosecutors. We needn’t be thought simply to be copying the English system, Lapie says, if we simply want to bring a bit more independence and institutional separation to the judge (265). Judges also simply do not have the time to think about cases in a meaningful way. Lapie quotes Cruppi telling us that some judges are obliged to rule on as many as a hundred cases a day (262). Absurd. To judge, after all, is complex. “Les faits établis, ils [les juges] sauront appliquer les lois. Mais comment les faits sont-ils établis?” (261). Even the question of what happened is not so straightforward, “l’accusé est-il l’auteur du fait incriminé?” is one question, another is “l’accusé est-il responsable de son acte?” (262) Finally is correct application of the law. Thus there are three questions, the first is essentially historical, the second moral, and the third juridical. One needs both time and method—science—even and perhaps especially for moral problems.
And here is Lapie’s great theme. Given the current state of affairs, judges and juries have no choice but to fall back on “la conscience.” Since in this format I can, here is a large block quote:
Among the things I wish I understood a bit better is the claim here about the yes-or-no nature of the judgment. Is this really the case? And I am a little amazed at the link between the historian and the judge. How common was this comparison at the time? (It’s history, not historiography that is supposed to be the Weltgericht). But it’s really the necessity of falling back on ‘intimate conviction’ that Lapie finds objectionable. He admits that judges have no choice: “la méthode qu’on les contraint de suivre les supent [sic?] dans le vide.” They are obliged to fall back on experience guided by intuition to make rapid decisions. This is not acceptable. Lapie raises the practice of indicating doubt as to true guilt with lighter sentences as an especially outrageous byproduct of the situation.
In the case of military justice, the situation is even worse. Without impugning the honor or rectitude of the officers concerned, it is still necessary to point out, Lapie says, that here there is hardly any of the juridical learning that, at least, civilian judges have. “Nous retrouvons donc dans la justice militaire, aggravés par l’incompétence, les vices de notre justice pénale.” Conscience is invoked especially often within the military.
Especially that last line! And this is in March of 1898. Zola had been convicted for libel only the month before—not, of course, that the name “Dreyfus” appears anywhere in this piece. Indeed the above is one of the more direct references to what Lapie also refers to later on as “the present crisis,” with no modifiers.
Since any citizen might be obliged to sit on a jury, why not bring some measure of juridical education into the curriculum? This is not, Lapie hastens to add, to say that we should teach everyone law, only “tous devraient avoir acquis le goût et l’habitude de la recherche méthodique” (266). Here, again, the historian is the model. We demand more evidence of “esprit critique” in the historian reconstructing “les faits et gestes de Clovis” than of judges, and this is wrong. This plea for education makes Lapie transition to the second part of the essay, which looks at the underlying cause for the institutional problems, which Lapie sees in “croyances...la survivance d’anciens préjugés” (266). I’ll point out, given this straightforward refusal of sociology, that the first article in the very next issue of the Rmm is Durkheim’s “Représentations individuelles et représentations collectives.”
Two contrasting pairs of terms dominate the second half of the essay: justice and order, as a pair of governing principles, and then conscience and science. We claim today, following the Declaration of the Rights of Man and Citizen, says Lapie, to prioritize justice. But it is easy to see that most people—a legacy of empire?—prefer order. The appeal to conscience is simply another form of the religious mindset. Yet it remains widespread in “une sorte de kantisme instinctif d’après lequel il suffit d’obéir à sa conscience pour faire le bien” (268). And we should vigorously refuse the idea that balance must be struck between order and justice. Of course, the government is charged with maintaining order. But we must not be hypnotized by the old regime: “la justice n’était jadis qu’un moyen de maintenir l’ordre; l’ordre ne doit être maintenant qu’un moyen de garantir la justice” (268). For we inhabitants of the 21st century, this remains an attractive formulation. But Lapie’s counter-intuitive move is to firmly reject the appeal to conscience in just this context. To have the “intimate conviction” that you have done your duty is almost completely worthless. Some lines from one extraordinary paragraph: “La conscience n’est souveraine que si elle est éclairée...Un jugement n’a de valeur morale que s’il a de la valeur logique: s’il ne’st pas appuyé à des preuves, il est presque nécessairement la cause d’une injustice...Il n’y a donc pas de probité morale distincte de la probité scientifique: toute action reposant sur un jugement, la méthode qui sert à établir des jugements exacts peut déterminer les actions bonnes...la morale n’est pas seulement affaire de conscience, mais affaire de science...une conscience dénuée d’esprit scientifique peut devenir criminelle” (269). With that last line, especially, Lapie offers the precise opposite of the more typically 20th century judgment that science without conscience easily (inevitably) becomes criminal.
Lapie wants to retain the idea of collective action and morality—that is, political choice and commitment—but without the pernicious form of collective responsibility that holds an individual responsible for the supposed crimes of, say, the race, family, nation, and so forth. In a curious turn of phrase, Lapie writes “Toute notre étude est destinée à montrer que nous sommes tous responsables de la crise qui vient d’éclater” (270). I take this to mean that the study he is now winding up shows that the present crisis has roots in collective conscience, in various collective and institutional failures for which we are all, in a certain way, responsible. Because, he goes on to say, we aren’t all equally responsible. Those who have simply failed to conquer their outmoded prejudices, who have failed to reform institutions as justice demands, that is the vast majority, are partly to blame, “mais quelques hommes, qui ont joué un rôle important dans l’affaire, encourent une responsabilité plus directe” (270).
In sum, for Lapie, the current crisis—the affair, not yet capitalized—has to do with our failure to fully assume the moral consequences of the scientific revolution. Systematic doubt is difficult, and so we prefer not to practice it. But if justice is to be our ordering principle, then we must prefer truth to opinion or mere conscience. Lapie wraps things up neatly, invoking in his closing paragraph the difference between authorship of an act and the various grades of responsibility and social consequence, as well as closing with the same mot from Tostoy (or, Tolstoï)—“il est très bon qu’un cas de conscience se pose pour la France”—good indeed, Lapie says, if we meet the challenge not with simple reaction, but with measured self-criticism and improvement of “nos institutions et de nos esprits” (271).
How to interpret this text, and the appeal it had for the Union? It is, most obviously, a text in favor of revision of the verdict against Dreyfus. Lapie argues powerfully against the injustice built into military courts, and is clear that truth, pursued in a scientific way—and here is an argument for a certain style of republican professor—must be the overriding value. That truth and justice are coincident he feels he may simply assert. The ‘instinctive kantism’ remark is interesting in light of the neo-Kantianism that pervaded the Rmm, but Lapie himself—as many others—was as much a Platonist as anything else (although what that means is a difficult question). Much that Lapie says appears today almost laughably naive, and surely one must quickly ask after who, exactly, is in a position to enunciate the truth of which he speaks. And yet.
The desire for a public that is institutionally committed to methodical doubt, to the pursuit of justice through that of truth—this is appealing. And further there is something appealing about the round rejection of conscience-claims. This sounds, on its face, flatly antiliberal. Freedom of conscience is a fundamental freedom. But I don’t think this is quite what he means. He means, rather, that because you feel something deeply does not mean you have any kind of right to assert it as true. We can go one further and say that since truth is intersubjective, this can be extended to mean that you do not have a right to oblige others to accept what you feel deeply just because you are “intimately convinced” of it. This is, as Lapie would doubtless be happy to further explain, an Enlightenment point of view. There is no truth, and so no justice, without ruthless critique. It would be easy to object to this sort of position, for instance in its characterization of conscience, in the necessary connection of truth and justice, or in how Lapie relates the individual to the institutional. Indeed people Lapie knew well made such objections to him at various points. He has, nonetheless, the merit—more rare than one might think—of writing with great conviction about the need to temper conviction with evidence and doubt.