📧Pourquoi approuver les "puissances privées"? Pour mieux servir les droits humains grâce au Droit de la Compliance (Why endorse “private powers”? To better serve human rights through Compliance Law)

The habit of opposing “public power”, backed by the general interest, and “private power”, driven solely by their own interests.

If we follow the tradition of Law, we will associate power with a legitimate source, the State, public power being its prerogative, with companies exercising their power only in the shadow of this Ex Ante power. On the other hand, the triviality of economic law, of which competition law is at the heart, consisting of the activity of companies that use their power on markets, relegates the action of the State to the rank of exception, admissible if the State, which claims to exercise this contrary power, justifies it. The distribution of roles is therefore symmetrical, in that places are exchanged, but the model of opposition is shared. This model of opposition exhausts the strength of organizations, which are relegated to being either the principle or the exception.

Compliance Law challenges this opposition.

However, if we want to achieve major ambitions, such as the realization of human rights beyond the legal system within which public authorities exercise their normative powers, we need to rely on a new branch of law, remarkable for its pragmatism and the scope of its ambitions, including humanist ones: Compliance Law.

The use of “private power” by Compliance Law to achieve the overall general interest, which “public power” often cannot achieve.

It would appear that Compliance Law is thus the branch of the Law that places concern for others, embodied in human rights, in the hands of entities in a position to satisfy it, entities that are systemic entities, large corporations being the prime example, direct subjects of Compliance law.

A new division between “public and private powers”: the use that private powers, oriented by Law towards the Monumental Goals of Compliance, make of their “power”, is supervised by the Authorities holding public power.

The result is a new division between public authorities, legitimate in formulating the Monumental Goal of protecting human beings, and private organizations, which adjust to this according to the type of human rights and the means put in place to preserve them. Corporations are sought after because they are powerful, in that they are in a position to concretize human rights, in their indifference to territory, in the centralization of information, technologies and economic, human and financial means.

This alliance is essential if the system is not to lead to a transfer of political choice, and if it is to lead to systemic efficiency. The result is a new definition of sovereignty as we see it taking shape in the digital space, which is not a particular sector, since it's the world that has become digitalized, with the climate issue justifying the same new distribution of roles.

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to access additional technical references via hypertext links, consult the working paper 🧱M.-A. Frison-Roche, 🚧Use of private companies by Compliance Law to serve Human Rights, 2023