Lessons from Fouche: The Actions of Judges in Democracies – Part 1

Although Joseph Fouche was a brilliant revolutionary who often acted to advance political agendas and, occasionally, interests of the people, we know that often Fouche’s means of helping those he governed were not always in their best interest. Instead, Fouche’s actions were often executed to corruptly gain, retain, and demonstrate political power.  Joseph Fouche’s political career richly chronicles a host of illicit tactics he enlisted for these purposes in which justice was often corrupted by deeply entrenched systems of bribes and patronage under Old Regime France (before the French Revolution) and through Revolutionary Tribunals (during the French Revolution).  His early time in the monastery and teaching provided ample opportunity for Fouche to consider his political principles and align himself eventually with radical political factions that supported them. Yet, there were pivotal moments in the life of Fouche that charted the course of his future career. First was a decision to leave monasterial work and teaching to enter politics. Another was voting to execute King Louis XVI. Finally was his appointment to Napoleon’s political cabinet. Fouche acted by gauging the political mood and climate of the country, assessing politically sensitive situations, discerning political will and intent of both the people and of the government officials (often legislators), and forming alliances at opportune moments that help advance political agendas.[1] [2]

Gavel

Image: Legal Gavel. Credit: Blogtrepeneur. howtostartablogonline.net. CC BY 2.0

Today, in democratic societies, judges can ideally employ similar tactics to make decisions in the best interest of the societies in which they serve. Although judges generally adhere to some form of rule of law when considering decisions from the bench, in the absence of rule of law or in circumstances in which the rule of law is ambiguous, such tactics may prove effective.[3]

Dworkin presents a model of two different conceptions of its application via the rule book conception and the rights conceptions.  Laws are explicitly stated under the rule book conception in a public rule book that should be made available to all. Political and moral rights should be captured and enforced in the rule book, but this is not necessarily always the case.  This rule book – or constitution – should be clear on the scope, accuracy, and fairness in the enforcement of rights with regard to the citizens and society being served.  Yet, there are those who say that the rule book is not always the exclusive source of moral and political rights.  In these instances it is helpful to understand the political mood of the time during which the issues of the cases were relevant and how legislators would have acted or voted within that context. Knowing the intent of political will is key.[4]

Fouche understood the political mood of the time as he determined early that the French Revolution was organizing and that it would be an opportune time to seize upon the current political mood and climate of the country and act. Fouche advanced in rank as a revolutionary leader through swift and radical actions, which included changing his opinion from that of being against the execution of King Louis XVI to that of supporting the execution as the result of robust public sentiment that the king should be executed. Again, we see Fouche’s propensity to change his position to match that of the political mood of the people. It was also for this that he gained a reputation, as described by Zweig, as a politically ruthless “chameleon” who changed his political colors at the precise moments that it was politically advantageous for him to do so in order to strategically place himself in position for the next political power maneuver that would help him advance to even higher political heights – without adhering to rule book law.[5]

[1] Zweig, Stefan. Joseph Fouche. The Portrait of a Politician. 1930. Blue Ribbon Books, inc. New York.

[2] Breen, Michael P. “Patronage, politics, and the ‘rule of law’ in early modern France.” Proceedings of the Western Society for French History. Vol. 33. 2005. http://quod.lib.umich.edu/w/wsfh/0642292.0033.006/–patronage-politics-and-the-rule-of-law-in-early-modern?rgn=main;view=fulltext

[3] Dworkin, R. Chapter 1: “Political Judges and the Rule of Law.” A Matter of Principle. Harvard University Press, Cambridge, Massachusetts. 1985

[4] Dworkin, R. Chapter 1: “Political Judges and the Rule of Law.” A Matter of Principle. Harvard University Press, Cambridge, Massachusetts. 1985

[5] Fouche, p. 28

Dorkina Myrick, MD, PhD, is a physician-scientist and pathologist trained at the National Institutes of Health. Dr. Myrick also previously served as a Senior Health Policy Advisor on the United States Senate.  She is a candidate for the Master of Public Policy at the University of Oxford in Oxford, England.

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