Sept. 1, 2014


Une question sur le Droit

LAW AND HISTORY: What is left of the French Revolution in the current French law?

by Marie-Anne Frison-Roche

In a positivist conception of law or in in how it is taught , we tend to think that the history of law is an "auxiliary science". But if it happens that past events remain in the current law, so it is ignoring the current law to know nothing of the history of law.

If we take the example of the French Revolution, a major divide in the French history, is there still something in the French law?

If not, then let the knowledge of the Revolution to historians.

If so, then the practical handling of the current French law requires knowledge and understanding of the French Revolution and its ideas, which are still working through today's law, for example through then texts still preserved in its letter and in its spirit.

It is sometimes thought that history is a material that does not matter to become an effective lawyer or understand the law. The history of law is often referred to as "auxiliary science of law", in other words a useless material ... It would be scholars who took their time to look at the old law, whereas lawyers and seasoned masters of today, including the best of business law specialists would lose much of their time if they open those dusty books.

As is false.

Indeed, what Hegel has shown in his Philosophy of History, that each period of history dialectically retains the previous ("positivity of negation"), even though it claims to deny it, even strike a stroke, is also true for the history of law.

Now this is a very sharp that the French Revolution applied to French law related!

Indeed, on the night of August 4, 1789, it is the whole system of the old regime disappearing, feudalism faded along with the sun and all the privileges that revolved around it. It is on a clean slate as Revolutionary decided to write the law. So, they wanted the legal past does not exist.

But didn't the current French law suffer the same fate the Law established by the French Revolution, which is referred to in retrospect as the "Intermediate Law" since occupied the transit time between the Old Law regime and the modern law, many believe that the day of birth is the Code civil  (French Civil Code)?

Indeed, our time, covered with a multitude of texts, in which the French law seems to be more a part of European law, the European Union and of Europe on Human Rights, and opens its doors to north American law.  Isn't the French Law now recovered by other legal systems, for example in competition Law, or financial Law ? If it is true, if the past is nothing, why then learn or consider classical French law yet ?

It would have even less likely that we understand the law through a positivist perception, thinking the law is entirely contained in the technical rules. The dimension values ​​or historical depth would have no place in the law. Therefore, it would be appropriate for the study of the provisions or spirit of the French Revolution returns to historians, whereas lawyers return to their textbooks and case law, which, according to many, are enough to fuel their technical acumen.

But precisely those many people who say this think in a wrong way.

They think wrongly for two reasons.

First, assume that the law is entirely contained in its technical dimension, laws, regulations, decisions, contracts, short the "posed law" is to ignore the reality of the law, its "pluralism" and the fact that the law is otherwise steeped in history.

Thus, what is called "Historical School of Law" rightly argues that the law reflects the history of a people and its most famous representative, Savigny, said: "The law is the spirit of a people", this spirit resulting from its history.

Second, and not even going to the Anglo-Saxon law in which the precedent system demonstrates that the past is still there in the system of law, this is also true in the French law system. The most current French law, French law everyday remains shaped by the French Revolution.

Yes, the French Revolution is still present in the French positive law.

First, it is technically. Second, he remains in his mind, as this marked the Revolution France, including legal framework laid in 1793 and which remains.

Technically, the Intermediate lax certainly staked legal events that mark our memory as the trial of Danton and Robespierre or the Law of Suspects, adopted by the Assemblée constituante  (Constituent Assembly) August 12, 1793.
Forgetting has probably covered, but if the technique of "memorial laws" whose the constitutionality is now doubtful, could return to the surface of this very bloody packages made ​​on behalf of the law for this terrific and terrible time.

More fundamentally, the French Revolution in particular etched in our liveliest one hand, the Déclaration des droits de l'Homme et du Citoyen (Declaration of the Rights of Man and of the Citizen) and the other laws of 16 and 26 August 1790 sur l'organisation judiciaire (on the Judiciary).

So for example, it is the French Revolution that put the design of ownership still prevails in France, that of a "small property" that makes the person not necessarily rich, but always and forever free. This inseparability between property and freedom found in the articles 544 and 545 of the Civil Code, is rooted in revolutionary thought.

Similarly, our entire legal system is still built by the laws of 16 and 26 August, 1790: Article 13 of the text poses "Les fonctions judiciaires sont distinctes et demeurent toujorus séparées des fonctions administratives. Les juges ne pourront, à peine de forfaiture, troubler, de quelque manière que ce soit, les opérations des corps administratifs, ni certer devant eux les administrateurs pour raison de leurs fonctions" ("Judicial functions are distinct and will always remain separate from administrative functions Judges cannont, barely. malfeasance, disturb in any manner whatsoever, the operations of administrative bodies or summon before them administrators for reason of their duties. "

It is this text that is built so the rule that a court judge can not order the administration (except assault), nor that he cannot "quote" before him, which led to the Administration to establish specific courts, administrative courts, organized soon in a special order of jurisdictions.

Thus, the duality of orders of courts, separating the Order of the judicial courts and the Order of the administrative courts, guarded by the Tribunal des conflits (Disputes Tribuna)l, specificity of the French legal system certainly challenged but still retained, the Cour de cassation at the head of the first, the Conseil d'Etat  (the State Counci)l at the head of the second, is a presence of the French Revolution in the French positive law.

Moreover, the Declaration of the Rights of Man and Citizen is at the heart of the French positive law. It was so decided by the Decision of the Conseil constitutionnel  (Constitutional Council) of 16 July 1971 Law sur la liberté d'association (on Freedom of Association), which decided overnight to include this text in the "constitutionality block".

Therefore, all articles of this Declaration, they doubted hitherto the legal scope, took a central place in the law. To take just one example, Article 16 of the Declaration of the Rights of Man and of the Citizen states that "sans garantie des droits, il n'y a point de Constitution"  (without warranty of rights, there is no Constitution). The Constitutional Council , in its decision of 9 April 1996 concerning the organic law on the status of the French Polysénie, asserted that therefore if a person could actually access a judge and actually get a judgment actually executed, it does there was "more constitution," which made the arrangements set by the law in non-conformity with the Constitution question. The right to an effective remedy before a judge took constitutional value.

Thus the French Revolution leads the French law.

This is true but more technically, it is the spirit of the Revolution blowing over France. The law is imbued with the motto "Liberty, Equality, Fraternity".

While authors such as Alain Supiot are alarmed by the disappearance of the spirit and mechanisms of solidary, weakening the last term of the triptych, the French law remains "passionate" probably a lot of freedom and equality.

The weakening today observed the influence of the French Revolution, especially in its concern for solidarity and also love of the nation, probably comes from the influence of another culture, that of the United States. This may seem paradoxical, since Thomas Jefferson loved the French Revolution and the North American Constitution borrowed from the Enlightenment and the French thinkers.
But the principle of freedom there is a different range. But Saint-Just Does not saying "Pas de liberté pour les ennemis de la liberté" (no freedom for the enemies of freedom)?

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