Updated: Sept. 25, 2019 (Initial publication: June 17, 2019)


The Legislation, Painting of Life

by Marie-Anne Frison-Roche

This working document is the basis for an article published in the Archives of Philosophy of Law (APD).

Summary: Painting so well that the canvas is a living object is a technical feat that was achieved by little!footnote-1680. Francis Bacon obtained from the canvas that it made it his business to preserve life in it, while Carbonnier, with a similar modesty before the canvas and the profession, obtained that the Law was only a framework, but that it did not however, leave this place to no one and especially not to public opinion, so that everyone can in their own way and within this framework make their own right, on which the legislator in his delicacy and to use the terms of the Dean n affixes only a "thin varnish". These two masters of art built frames with rudimentary principles so that on this canvas the movement could happen by itself. Thus the Legislator created by Carbonnier offered each family the freedom to weave their rights every day. However, the childhood of the art of stretching the canvas over the loom came back to the Legislator alone. It is then possible, as Bacon did, to obtain an immobile object which allows the mobile figures to constantly arise. Regulatory scribbles are a thousand miles from this Legislative Art.


In numerous writings and interviews, The painter Francis Bacon explains his act as a painter: it is "preserving the vitality of the canvas". In the book he devoted to it, Gilles Deleuze pointed out that Bacon said that "the procedures used do not force the Figure to stand still"!footnote-1611.


With the same pedagogical friendliness, in numerous writings and interviews, the jurist Carbonnier explains his act as a legislator, in particular in his collection of texts Essais sur les lois: legislate well, and let life unfold through texts, well after their adoption, because posed on pages which are never white, written compositions which are only the "varnish" of the life which must be able to throb in these Laws which one presents however so often but so strangely as "engraved in marble ". While on the contrary it is only a question of "preserving" the vitality of what is under the letter of the Law, the life of each one, life which does not resemble that of the neighbor, to obtain that the web of the legislative system is so flexible that this system lives by itself after the promulgation of the texts.

But it may seem to force the line to find elements common to two characters who undoubtedly were unaware of their reciprocal existence or at least, although living at the same time, did not appear similar. Before showing how similar their action is, therefore, put them face to face beforehand.



Thus, the family painted in broad outlines by a few new articles of the Civil Code written by Carbonnier could nevertheless flourish afterwards, in each family, without the need to rewrite the text. One might be surprised that Carbonnier expressly only likes the Law and not the judiciary, this association of the Right to the Law often being worth rigidity; yet - and the formula made him famous - he conceived of the Law as only "flexible", without recognizing the judge as a general source of the Law, without recognizing him the power to soften over time the edge of the adapted law formerly, then once. In fact, the Flexible Droit volume brings together almost only texts relating to laws, while in his latest work, Droit et passion du Droit sous la Vième République, he challenges the influence of the courts over the Law.

Carbonnier abides by the Law. These laws which we are constantly told us that their quality should be never to move .... And to evoke in order to convince us the imperative of legal certainty, predictability, etc., each new report on the subject saying the same thing as the previous one, this one serving as a reference for the next one.

Thus, all these numerous works explain to us that, in the ideal towards which one should tend, the Law does not move in the main lines while the judge, by "jurisprudence" comes to adapt it and that thanks to "dialogue ", even to the" dialectic "between legislation and jurisprudence", cahin-caha we arrive at something suitable. In practice. And here is legal security well served, since it would be the only concern. A universal model to apply everywhere , at everything.


But this presentation, now very common and also constituting the vulgate of the economic analysis of law, does not correspond to the conception of Carbonnier, who did not admit the creative power of the Judge, being, like Motulsky, above all a jurist . Because if he asked as a question "Any law in itself is an evil?", It is only to answer it firmly: No, going so far as to compare in this article the announcement of a new law with the announcement made by the angel Gabriel.

Perhaps it is his attachment to the Law, his refusal to consider the jurisprudence as the source of the law, his respect for the legal matter itself that make his work today less cited than the work of sociologists who do not know not more the legal technique than the economists who describe the "legal regulation" to adopt to be effective? It should also be noted that its legislative art is little used today!footnote-1606. When laws are written by experts who do not deem it useful to know the law (for example to reform collective procedures solely on the basis of economic knowledge), who even think it useful to not know it so as not to be captured by his technicality, there is no need to look on the side of Carbonnier.

 It is true that to make a painting, to have the strength to fade in front of your canvas, you must master the technicality to return to the childhood of art, ambition of all artists, all teachers, all the Masters. Francis Bacon, also a wise reader of writers, rejecting the modern opposition between painted lines and written texts, repeated at each interview that he awaits "the accident" which comes alone to get the flesh out of the skin that traps him!footnote-1659. This technicality of the accident, this unexpected preparedness that allows life to find its place in the stretched canvas. Carbonnier did not do anything else: stretch the canvas of the Law so that family life can, in each of the families we make up, unfold overflowing with the text which is only "varnished". But it is nevertheless a law, as Bacon never disputed making paintings.


The theme of Carbonnier Sociologie juridique's book is this necessary presence of law in a sociological analysis which would not betray the law presented while managing to keep its distance: that is to say, let it breathe, allowing us to watch live. This is why, like Truffaut, he took an interest in children's pocket money.

By a game of mirrors, Carbonnier explained, for example about the reform he conceived of the Law of matrimonial regimes and whose genesis he explained in an article in L'Année sociologique!footnote-1619, that the sociology of law must allow distant readers that we are faced with the only written sheet of the work to see the living law come out of the pages. As historians aspire, History being living matter, as the author of literature understands it. Carbonnier wrote a novel about himself. A novel about a legislator therefore. "Self-fiction". We know judges of absolute modernity who have brought this art to its excellence, similarly concerned with writing life.

Admittedly, one could underline that if Francis Bacon signed his tables, which attaches to him the work and holds the Figure which moves there, it was not the case for Carbonnier. You must already be a scholar to know that the author of the train of reforms of the XXth century which transformed the Civil Code has for patronym "Jean Carbonnier": the Legislator is an abstract character, who, like the State, always carries this same title , like the King, and passes indifferently from head to head, from the dead instant to the crowned instant. Whoever looks at the painting will attribute it to Francis Bacon because it is written on it, while on the contrary he will designate for example the law of July 15, 1975 as the law reforming the law of divorce, without referring to the human being who designed it. Yes, it is the Parliament, which, in the name of the People via the Representation, is the author of the Laws. And not such and such.


So the comparison would not be worth. But let's take a detour by Romain Gary. The action of this one showed what one could call "the right of the literature", ie what can go the power of this one. Its power is so great that the author can never appear in it!footnote-1614. Romain Gary not only wrote under pseudonym, which allowed him to pass under the radar of the legal standard of Gongourt which cannot be given twice - and which was it, but wrote himself a book supposedly written by his ghostwriter after the hoax discovered - and therefore supposedly finished, speaking ill of Romain Gary, against which he protested but nevertheless undertook legally not to complain in court. While he himself wrote the book. The author can be a ghost, which multiplies, ghost of the ghost, is discovered only to hide under his face that is believed to be discovered, etc. But by dint of covering the smoke with smoke, the author himself disappears: and then remains the pure work, the Figure which moves alone, perfectly free. Thus under the mask of the Legislator, it was Carbonnier who designed and wrote, without ever signing, because it is the Law who speaks, and never Carbonnier. No greater tribute a law clerk can pay to the Law than disappearing under his letter. Thus, an author does not recognize his signature, it is only a clue, not a condition.

There is no need to go to Law & Literrature, a current which dries up the Law rather to cover it with a conception of the Law as a fabric of strategic lies and retrospective narratives of justification of decisions. No, Carbonnier, far too erudite and far too good a jurist to go towards a thought above all critical of an object, made sociology to show us a living Law and at the same time had a sociological conception of Legislative Art , writing laws which capture in their austere lines the daily and various lives which will come after the writing of a law which writes only in capital letters, general, aiming nothing special so that the particular remains in the hands of each individual!footnote-1607.

But how, if we get the judge out of the normative game, can the law be "flexible"? If not by drawing up laws which "preserve" in themselves, in their "canvas" even their vitality, which allows them to move, in an ink which must never be dry or reach marble?


Why not make the connection between the two creators, Francis Bacon and Jean Carbonnier?

How even not to do it, the design and the method are so similar to them.

When Bacon paints scenes of daily life as a field of ruin, while Carbonnier aims only "the interest of the child", on which one glosses so much, only as "a key which opens on a vacant lot"!footnote-1608, how not to bring them together?

For the two authors, painting for one and the law for the other, both must tear them away from their static support so that there is expressed and "preserves" life in its mobility itself. Even more, it is thanks to this support, which we thought motionless, that the fluidity of life appears to us. Thus life is, for them, the common object of painting and the law. This definition is carried by few people, because we find so often in the presentations which are made of the Law the imperative of a choice to operate, to put on the side of the immobile or on the side of the mobile, but not this conception of mobility expressed by an immobile support (I). It must be recognized that few have the level of technical mastery and thinking of Bacon and Carbonnier.

But if we go back to Carbonnier's conception of the law, while at a distance, as would do, in his own words, in his own country a "foreign" legislator!footnote-1603 in relation to it, laws that 'he nevertheless made with a master's hand, was it not in terms of painter that he described it, evoking the "frame" that it constitutes and the "thin varnish" by which it must simply always cover life which always prevails, since it is the canvas? (II).




The two authors thus put life at the center, one of the tables, the other of the laws. Yet two motionless objects, some made of "canvas", others made of "marble".

But both wanted - emphasizing the difficulty of the task - forcibly reinserted into the materially intrinsic immobility of the object - the canvas of the table that the flaking of the paint by the passage of time will damage , the letter of the Law that subsequent reforms will challenge - life. That is to say, finally give them their true object. And yet impossible to restore. And they got there. Undoubtedly by their own qualities: mastered technicality, modesty, perseverance, effacement before life itself which unfolds and occupies all the space and "does its work" on the support, which becomes mobile. Thus Francis Bacon's paintings move as the laws written by Carbonnier live, which is natural since it was directly inserted. What modesty was it worth to fade to this point.

Achieve by technical prowess that life is still throbbing in the canvas, in the text published in the Official Journal. Only in what by nature is fixed: the canvas, the Law, not only does life still throb, as if by "inadvertence", as Francis Bacon says, because life has a hard life, but because the masters that they were so delicate and so masters of their Art that they made everything that it was the very object of their work: the canvas of the picture was for Francis Bacon what life was made of, the marble of the law was for Carbonnier that by law life was made.


So as when the Master of Sewing removes the thread, the canvas no longer exists, the diary has long been lost, but life is still there. This is no coincidence, as sociologists who seem to boast of knowing nothing about law seem to present, speak of a "legislative vacuum" and always ask for more "new laws", sometimes stressing that Carbonnier was also arbitrary in law that bad in sociology - because there is to say it.

On the contrary, it is the Law bringing to its perfection: practical art, the Law relates to life and if in advance, in its very conception, it knows how to fade in front of life, it then joins in practice the art of painting because it takes a painter to force life on canvas (I). This requires a painter, because we often talk about legislative art but it is also appropriate to talk about artists who hold the pen. These do not "regulate", they draw a picture which, through the effect of correspondence, can let life continue to unfold because the ink is never dry. Of this table, it is the law which forms the framework, a light framework which allows to keep contours to what is the Right and what is not. Carbonnier always knew that in relation to life, Law was only a "thin varnish". Like all great masters, it was modest, drawing up great pictures, that were the complete reforms of the Civil Code that he wrote, never forgetting to conceive them only as a varnish so that life always finds its way out, breathe, in the same movement of a woman coming down the stairs or of a Pope who rules on his throne (II).


Il est remarquable que pour Bacon, Van Gogh, que le premier considére comme un "héros",  a peint d'une "façon littérale" et que c'est grâce à celui qu'il a pu grâce à son "technicité" restitué "la vie" désertique du paysage. 


Deleuze, G., Francis Bacon, rééd. par Badiou, A. et Cassin, B., 


...., in Verdier, R. (dir.), Jean Carbonnier. L'homme et l'oeuvre. 


Comment dès lors ne pas penser à la définition de l'écriture par Céline, la définition comme le fait de tanner sa peau sur la table de l'écrivain ? 


Terré, Fr., Jean Carbonnier et l'année sociologique, L'Année sociologique, 2007/2, vol.57, pp.555-569.


"le droit de la littérature est de n'y apparaître jamais comme auteur".


Comme le souligne très bien Frédérique Niboyer, pour montrer que les lois actuelles qui visent tous le cas possibles (ce qui est impossible) empruntent une méthode contraire à celle de Carbonnier : ""Le doyen Carbonnier avait une autre conception : une loi générale devait pouvoir s’adapter à tous (d’où le pluralisme du droit de la famille) tout en ouvrant des champs à d’autres ordres normatifs, alors qu’aujourd’hui le « légicentrisme » devient roi : la seule norme à laquelle on fasse confiance serait ici la loi qui, partant, doit être spécialisée pour chaque catégorie.".


Carbonnier, "A beau mentir qui vient de loin", 

To paint so well that the Cree canvas is a technical feat that was achieved by little. Hearing the canvas scream!footnote-1629, it does not please, it takes time to get used to this pictorial din. But life can be taken as a direct object of painting and the law (I). Francis Bacon got the canvas to make it his business to preserve life in it!footnote-1677, while Carbonnier, with similar modesty before the canvas and the profession, got the Law to be only a framework, but that it does not however leave this place to anyone and especially not to public opinion, so that everyone can in their own way and within this framework do their own right, on which the legislator in his delicacy and to resume the terms of the Dean only affixes a "thin varnish". A canvas that moves by the movement that each of us makes in space (of the family in particular) and in time (from generation to generation), canvas that the Legislator has however alone (and not the judge, the media, or public opinion) tense on the job (II).





Thus what Francis Bacon's work reveals is life in what is most ordinary, most trivial, most violent, most powerful.



Even more beautiful, since he placed on the canvas who he loved. Carbonnier does not describe marriage differently. Living in a way no doubt opposite to the way Francis Bacon lived, he titled his contribution article to Mélanges Ripert: "Earth and sky in the law of marriage"!footnote-1610, defining marriage as "a immanence and a transcendence, a mixture, a meeting of the earth and the sky ". This is what Bacon did, by painting his most ordinary ordinary, that which one does not paint, that which one should not paint but which appears on the canvas since life understands that, too; without land, no sky.

But he also paints the most authoritarian figures of authority, the one that we do not paint either other than in its extreme rigidity, notably that of Innocent X, which Vélasquez "immortalisa", immortality stretching to the 'infinity in time immobility.

As the Law wants it, the Pope has the "masterful" position, that is to say the immobility: seated, leaning. The King, the Pope, the Judge and the Professor must not move, unless they lose their authority. Getting up, showing yourself in full, is already begging for approval. Today, we repeat over and over again that the only "authority" would be in jurisdiction, which is then recognized and therefore ultimately conferred by the eyes of others. It is a very current conception, in which everyone can claim authority, since the alliance between competence and the gaze of others is enough. It is perfectly suited to a horizontal model, in particular that of the market. It is not that of the Legislator, who must be previously elected by the People, which makes him definitively intimate with Politics.

In this game of seesaw that operates from Politics to technical competence, it is computers - in their computing capacity and the storage of data in their read-only memory - that would be the most "legitimate" to make the Law to which we are subject and not the human beings we have elected. The work available today carried out in the United States on what would be the "perfect law", because safe, effective, integrating all the data, would be that made by artificial intelligence, that is to say by machines!footnote-1609. They would be so adequate, so effective and so adjusted that the text could vary for each taxable person that we are: for example articles written at the Faculty of Law of Chicago, cradle of the economic analysis of the law, expose what would be the " perfect law "which would vary the constraint or permission according to the profile of each citizen.

In this conception so feared by Michel Foucault of a Law which personalizes the standards on each of its recipients!footnote-1605, that is to say which destroys all freedom, it is no longer the Legislator who sets the framework to stretch the canvas while the person weaves it in his own way by the use of his freedom, it is the Legislator who rigidly governs each gesture of each individual at each moment. Economists present this as "flexibility" because the law would then be "tailor-made" in a legislative "one-to-one", since the law is adjusted by variable texts for as many recipients as it has , technology allowing an infinite multiplication of totally rigid camisoles since the law is absolutely adjusted to each recipient, who can no longer move.

The vertical figure of authority is therefore not always synonymous with constraint, any more than the horizontal figure of recognized technical competence is not always synonymous with freedom. The economic theory of incentives does not in itself renew the relationship between the one who writes the text and the one who reads it, it is just a way of presenting it. For example, criminal law can be reduced to an incentive mechanism: one can always kill, one is encouraged not to do so by the prospect of a criminal penalty, and the effectiveness of its application. An incentive can be tightened so strongly and so precisely on individuals that they can no longer breathe.

Conversely, a vertical figure of the Law, if it sticks to constructing the framework, then to put a thin varnish on what each one will have chosen to do allows on the contrary autonomy, that is to say saying allows everyone to build their own legal landscape. To use the terms by which Deleuze describes the art of painting by Bacon, the Figure remains free to unfold in the geometric frames posed by the artist. When art is legislative, the framework sets the limits, the conditions, those that Deleuze describes as "rudimentary", Deleuze taking up the description that Bacon himself makes of his way of working, the characters "developing during work "!footnote-1679. For example and to stay with Family Law: it takes two to get married, no less but no more. These are just rudimentary features of what marriage is.

But Art consists in letting everyone do what they want in this general and rudimentary framework, as long as they do not claim to have the framework. Because to let him dispose of it would make the idea of ​​law disappear - or Carbonnier was as much a legislator as Bacon was a painter. The individual does not owe the law to others (for example one cannot consent in place of another for the marriage of this one). Nor should he be able to build the framework (for example, one cannot even, by mutual agreement, marry a legal person, when it is assumed that the latter has a will and that love n is not a condition of marriage).

The framework is therefore built by the Legislator. Who decides because the People gave him the power. As the painter poses the first rudimentary lines in a table so that the Figure moves there thanks to the preserved vivacity of the canvas. The strength in time comes from the Figure and the liveliness of the canvas in the painting, as it comes from the dynamism of each family in Law.


But initially, if there is not a painter to draw the first rudimentary limits for deployment and to stretch the canvas, if there is not a legislator to enact the first basic principles and to stretch the son that each family will weave in its own way, there will be nothing, neither table nor right. The "basics" are unilaterally asked by the author. In law, the primary regime of property relations between spouses is an example. Another is the hereditary reserve. The fact that it is contested today, because everyone should be able to draw their own framework is a retreat from the Law, each one becoming the author of the framework not only of their life, but that of others (here children) : do we want to leave it to the single field of forces to draw the lines and each to draw his family with his hand!footnote-1620, without an author who sets a frame, that is to say limits to preserve weak? These would be lawless families, governed by the good will of the dominant individual.

For those who think that a common law posed by a third party on the subject must exist, the first, free and founding act is that of the painter and the legislator. Free and political act. Carbonnier posited in 1972 that one child is worth another: whether his parents are married or not, even if one of his parents is married to another than his second parent, he is equal to the others. The framework is laid down by the law of 1972 which reformed parentage. No one has this principle, which overturned the rule of law. The stepmothers can storm, it will be so, the Legislator has spoken. Once that said, and therefore it makes, in the daily ties of parentage between parents and children, that each one concretizes this creep of load, of duties, of obligations and of duties, but above all of love that constitutes the daily life of a family, before the child appeared and long after the deaths, there were always preferred children. The existence of an available quota allows its crystallization. Thus, by its very silence, Family Law opens wide doors to love. Because the family is an anchor, a structure which is also vertical and it is under the image of a tree that we represent it, the "family name", that Carbonnier also reformed, being the legal illustration , in China even more than in the West.


Francis Bacon always attacks the vertical figure of classic authority when she freezes everything, the one who does not discuss, who does not discuss, who has no need to be recognized or loved, the one who is posed, that which is infallible: that of the Pope, which white smoke is enough to promulgate. Nothing should move. But the painter will count on the liveliness of the canvas.



Because behind this gray figure restored by the painter, the canvas moves, renacles and lives its life: it makes authority flow. The natural law of gravity turns the paint down that time instead of freezing it constantly feeds alive and therefore makes flow. No figure can withstand the passage of time; only death makes it possible to remain intact and young. To die to die, I chose the tender age, it is a necessary choice if we do not want to wilt under the lace. If it is claimed that the paintings live because the canvas would have maliciously preserved its vitality, then no lace should prevent more than the life that is at work, should stop only fading all face. This is what happens in Francis Bacis' paintings: all the faces devastated by the life that passes through them. We can see the faces ravaged by emotion, ordinary fatigue, rage, suffering.

Let's look at the Right side. Gérard Lyon-Caen, rebelling against this, stressed that "the law of old age"!footnote-1604 does not exist. Indeed, for the classical legislator, there are the minor and the major, abstract characters in which the dimples of the baby and the emerging beard of the adolescent do not stand out any more than the triumphant face of the adult differs from that of the old man. Lyon-Caen regretted it because the Labor Law integrates the fact that the subjects of law recover bodies which are transformed in the working conditions, while Carbonnier integrated in the Law the reality of the "pre-majority". When he transformed "paternal power" into "parental authority" in 1970, did he do anything other than take note that under the rigid mask of a severe and all-powerful father, existed forever and loving and caring fathers and active and respected mothers, acting together? The new example, much more vague than the previous one, constituted progress in that it left the field freer to reality, the trait of the Legislator having lost its precision, and therefore its inaccuracy, thus allowing the canvas family to express - and still today - its vitality.

What produces this "vitality" is imputed by Francis Bacon not to painting, like volume in Picasso or movement in Duchamp, but in the "canvas" itself. This is counter-intuitive since what is most immobile in a painting, the most unavailable to mobility is the canvas on which the lines are made.


Francis Bacon was friendly, so he often explained that the canvas, once covered with paint which can only technically dry, like this ink which we write in refrain as it dries on the law journal just out of the Legislator's pen when it is not obvious -!footnote-1621, "live his life".

How can the canvas, a static object, which the paint for a moment liquid then dries once established, stiffens even more, can it "live its life"? Francis Bacon explains that "as if inadvertently" the canvas moves, that it shakes the traced outlines, that the canvas makes the lines flow. This is how we see for example on many paintings her lover sinking on the parquet floor. By a summit of technicality, we look at the canvas which lets escape the man whose body flows from his seat. As in a film that would physically make us feel what is physically represented. This technical mastery was only achieved a second time by Martin Scorsese when he obtained from Leonardo di Caprio, actor of prodigy, that he sank on the floor as if we ourselves were affected by the excessive drug taken by the "Wall Street Wolf" character. So, for a moment we are no longer in our armchair but, the filmmaker having explained that it was a documentary, and of financial law and not a fiction film, we are sinking under the excess, abuse and bankruptcy of the system.




Can the Legislator achieve such a feat?

He would have to be a very great lawyer, to have attained a mastery of Legislative Art, as Bacon did for painting, as Scorsese possessed for cinematographic art.

This is what Carbonnier did.

Carbonnier explained it, every Master is also the one who is willing to explain to others what he makes. He certainly reformed the whole of family law, and from top to bottom, from the law of incapacity to the law of divorce, passing through the law of parentage and the law of inheritance, but that was not when not even much since he titled one of his many famous articles: "to each his family, to each his right".

Thus according to him, which profoundly modifies the Civil Code, this "Civil Constitution of France" according to the qualification that Carbonnier chooses to designate it in the "Places of memory" apprehended by Pierre Nora, was only a canvas, like a canvas, a "transactional" work of all that was before, of all that will be after. While he was there, he painted a few new articles, which he did not mention in this contribution.

The Civil Code, in our legal systems that we say of Civil Law, it is however well the abstract figure of authority par excellence, since it is the text, the Law, disposing by "general way" which makes reference and not the judge.

But at the same time that he wove the web of French legislation every day, it is as if he destroyed it every night, so that there is never anything left of the threads available for a weaving that each family does for itself , that nothing remains in the morning except its only frame remained intact, covering in advance with a thin varnish what each family will weave in their day, the father so loving, the mother so powerful, the homosexual couples who have always had existed and have always brought up children.


From what all the firefighters of the regulations have developed with passion, writing texts, and always more texts, always closer to the facts, calling for continuous modifications, Carbonnier had nothing to do: in his latest work , whose title is clear, Droit et passion du droit sous la Vième République, published in 1995, it does not only warn against passion for the judge or against poor workmanship in legislation; Who does not? Nobody praises bad laws. Everyone is in favor of "well written" laws and the Council of State is right to emphasize that better made laws are better than poorly made laws, simple laws rather than complicated laws, stable laws rather than laws that change constantly, understandable laws rather than laws whose meaning we do not understand. But who will say the opposite? Studies show that since always, including during the Middle Ages, one fought for example against the "useless laws". We wait for the public entertainer or the reckless champion of the opposing thesis, the one who would defend defective or useless laws, or falling aside, in short, ill-designed laws ...

This is not what Carbonnier is talking about, because everyone prefers a job well done to a job poorly done and expresses the wish that the first replace the second. In this vision, all of stewardship, the European Union (better regulation program) offers "toolboxes" common to its various institutions to "better legislate", tighten the deadlines, store laws in computers, reduce costs, etc. The machines will do it.

No, what Carbonier refuses is to participate in the craze for the Law itself. No matter how well done. Even though he was a coroner. And there is no doubt that Francis Bacon admired the great painter Vélasquez, as he admired Rembrandt and Michelangelo. In his introduction to Droit et passion du droit sous la Vième République, Carbonnier stated: "It is not unusual that the Fifth Republic made law: the unusual thing is that it made itself law, that she pushed the passion for the law to identify with him ".


He is not asking for a well-made law: he is asking that we do not like the law "with passion", without distance because the Legislator "identifies with it". Even assuming it is well done, he asks that it be left for what it should remain: a frame and a varnish. But its content, that is to say for example the family, then that, to each family its right, it is not the Law to draw the family. The family is, to use Deleuze's term to describe the art of painting by Bacon, a "free figure".

This is why these two great artists that are Francis Bacon and Jean Carbonnier worked not on a static representation, beautiful paintings by which they would have dominated the world by lines tightly tightened the reproduced models, held by their brush and pen all families. They slipped into the canvas a vitality that allowed the free form of what they loved and respected, the special friend, each family. The canvas "whose vitality thus preserved" can thus in the future not only adapt to everything but always remain.


The Law should be a framework that neither alters nor imputes what human beings vividly do for themselves and together.


Carbonnier was so great a Legislator that he succeeded. For example, the reform of the divorce which he devised in 1975 leaves the force of vitality of the feelings of the spouses who no longer love each other to untie the bond of marriage, because no longer loving each other does not exhaust, on the contrary. But he took under his wing the interest of the one who has no strength, the child, and placed him in the hands of the third party, those of the judge. This interest of the child, he gave only the key so that his guardian can access the "wasteland"!footnote-1612 that this interest constitutes, not inserted in a legal definition.

The work of the Legislator is not accomplished when he writes the Law, but when, this preparatory phase accomplished, the framework laid down, the threads drawn, human beings weave it. Francis Bacon does not say anything else about his work as a painter. He says he "let his paintings survive the adventure of their own production"!footnote-1613. It is speaking in the Legislator, who is waiting for his law to apply, because it is by its application that it becomes Positive law. Rivero and Vedel said nothing else about the Fa. It is also through the preserved vitality of the canvas that the deployed figure, for example and very trivially the flesh overflowing from the skin that contained it, comes to life after the first production.

It is therefore necessary to look at the deployment of the Law in the time that follows it. Like a movie. Yet Carbonnier, a law clerk, was hostile to the jurisdictional power, recalled that jurisprudence is only an authority. But it is not a question of making the Judge a power. It is in this simple new framework to leave the characters of each family the free space to move. In the event of a shock, in particular of the couple's separation, let them agree on temporary agreements, then final agreements for the time that counts: the future. The judge is only powerful on a case-by-case basis and only insofar as he is obliged: to watch over the child, going from wasteland to wasteland.


However, the Law must be there: marriage is not a contract, no more than divorce. The jurisprudence recalled it, underlined that by its homologation the final agreement has a jurisdictional and not contractual nature. The legislator places the canvas on a frame and individuals do not have it. But on each of the tables, the ink of the law continues to flow, since each family has its right.

This ink is only "thin varnish" and no more than that, because freezing life would be the opposite of what the family requires of the Law. Carbonnier did not reform the laws he wrote. Because only the "rudiments" are written, the Figure remaining free, the passage of time does not require a return of the text on the profession. In the same way as what Bacon calls his work of restitution of "the intranquility of the bodies", which can move on the canvas with the vivacity preserved, on the perennial Family legislation, each family can remain, and knows do we have a single family that we could say is "quiet"? Life should be withdrawn.

These are the tombs that are carved in marble to remember the past, not when the Legislator is concerned with the daily life of each, present and future, since Carbonnier affirmed that he, unlike the Roman praetor, cared about De minimis, and of the concrete and often criticized right of consumption, right of the little things of the little people. As Francis Bacon painted scenes arising in rooms never exhibited in suitable paintings. Far from the thrones of the Popes.

Yes, but that's also life. And as love Law and Art reach the Sublime when they allow the trivial and the formulated principles to touch each other.




Sur l'analyse sémiologique de Pie X par Francis Bacon "hurlant" : v.  qui se réfère à la "décision de Bacon de peindre un religieux hurlant".


Voir le documentaire dans lequel Francis Bacon explique la façon dont il cherche à ce que la peinture restitue la vie, se référant à la tradition de la peinture : Francis Bacon, peintre de la vie, 1969.  C'est parce qu'il ne réussit pas qu'il continue, s'il réussissait à saisir, comme par magie, alors il pourrait enfin arrêter de peindre. 


Carbonnier J., « Terre et ciel dans le droit du mariage », in Études G. Ripert, Paris, LGDJ, 1950, t. 1, p. 325.


Mais quoi de plus "mort" qu'un ordinateur ? Cela nous est si peu supportable qu'on leur prête des émotions, les recouvre de plastique valant peau, et qu'on qualifie les algorithmes d'"intelligents". 


V. not. Foucaulté, Surveiller et punir, 1978. 


Bacon, entretien, 1997. 


Frison-Roche, M.-A., Une famille à sa main, 2017. 


Lyon-Caen, G., Le droit de la vieillesse ; il faut aller vers le droit de la protection pour que le Droit prenne chair. Ce droit, si dévalorisé par la perspective classique, et dont Alain Supiot a montré toute l'importance et dans le monde juridique et dans le monde artistique, notamment à travers l'oeuvre de Kafka (v. notamment, Kafka, Artiste de la Loi). 


Voir Introduction. 


V. supra. 


Leiris, M., Entretiens avec Francis Bacon. 

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