Thesaurus : Doctrine
Thesaurus : Doctrine
Référence complète : Salah, M., La mondialisation vue de l'Islam, in Archives de Philosophie du Droit, La mondialisation entre illusion et utopie, tome 47, Dalloz, 2003, 27-54.
La mondialisation apparaît comme une occidentalisation des cultures et du droit. L'Islam qui prend forme juridique devrait se l'approprier sans se dénaturer. La réussite d'un tel processus difficile dépendra de la qualité de la régulation qui sera mise en place.
Les étudiants de Sciences po peuvent via le drive lire l'article dans le dossier "MAFR - Régulation".
Compliance and Regulation Law bilingual Dictionnary
The distinction between "Public Law" and "Private Law" is important. In the systems of Continental Law, or still called under Roman-Germanic Law, or even called Civil Law systems, it is even around it that legal systems are built: it can be a basic distinction, a summa divisio, as it it in the Civil Law systems. In the so-called Common Law or Anglo-American systems, the distinction is less fundamental, but it remains, justifying in particular that the rules and disputes concerning the administration call for special rules and are apprehended by special tribunals.
In principle, this distinction is based on the nature of the persons whose legal situation is examined. Under"Public Law" a legal situation involving a person who is itself a public-law entity: the State, a local authority, a public undertaking, etc. That is why, for example, the contract which may be concluded will be of public law, and the judge who may be seized of it will be an administrative court. If the situation does not involve a person governed by public law, then it will be governed by "Private Law". There are a thousand exceptions, but this is the starting and basic and fondamental principle.
Two essential remarks, bearing a system of values, explaining that the systems of Civil Law and Common Law are in fact confronting each other.
The two bodies of rules and institutions are not of equal strength because one of the categories is "closed", corresponding to one criterion (the "public person"), while the other is open: Public Law is a closed category; on the contrary, Private law becomes "active" as soon as there is no public person (a "private person" who or which must define himself or itself as a "non-public person").
One can consider this articulation between Public Law and Private Law in two ways, radically opposed. It may express a mark of inferiority in disfavour of private law: we are all "ordinary" persons in "ordinary" situations with "ordinary" activities (this will be the French conception ....). On the contrary, Public Law is the mark of the State, of Public Order, of Sovereignty, of public power, of the general will, in the interstices of which individuals slip in to act and satisfy their small particular interests
On the contrary, Private Law can be considered as the expression of the "common law": people are free and do what they want, through ownership and contract. As an exception and because they have elected people to do so, the rulers (whom they control), by exception, enact norms that constrain them. But this is an exception, since repression - public law and criminal law, which has the same status in this respect - is only a tribute to the freedom of persons, since this freedom remains wholly in the form of the private enterprise on the market.
It is then measured that the articulation between Public and Private Law profoundly reflects a philosophy and a political position. If it is considered that Regulation is the underlying order by which the Sovereign allows the deployment of his subjects who also benefit from a long-term policy constructed by the autonomous and measured political will, then Public Law in Is the master, the Regulation Law expressing a renewed search for efficiency, this but only this. If we believe that Regulation is whereby economic rationality manages to protect persons and companies from risks and to compensate for market failures, a market whose liberal principle remains the ideal, then Private Law is the core, whith contract and private property as basis tools.
France and the Latin countries adhere rather to this metaphysics of values which entrusts to the Public Authorities and the State the legitimacy and the power to express the general interest by Public Law, Regulators and Constitutional Courts, expressing it on a technical form renewed by the Regulatory tools: incitations, soft law, etc. The legal systems whose history draws on British history put more trust in the person of the entrepreneur and conceive of Regulation Law as an efficient outsourcing of functions to administrations that are efficient, informed and impartial.
Certainly, in the technical daily of the Law of Regulation and following the different sectors, Public and Private Law mix up: public companies take the form of publicly traded companies under private law or private companies will be entrusted with missions of public service, instituting them as second-level regulators as are the infrastructure network operators.
But the fundamental conception of systems (rooted in the history of the people) and practice marry. In the silence of regulations (and the more they are gossiping and the more the judge must interpret them, which amounts to a "silence"), what sense to give to the system?
To take only a few questions, frequent in practice:
The absence of a firm and shared definition of what is the Law of Regulation does not facilitate practice. Hesitations in translations from one language to another increase confusion.
For the time being, there is a tendency to refer to Public Law in the sectors where whe take precedence over public operators' monopolies, such as telecommunications, energy, railways, air and postal services, and to refer to Private Law in the sectors which have long been the subject of competition between operators, namely banking, finance and insurance.
It should be recognized that the criterion of distinction has little economic rationale. The notion of risk would be a clearer and more manageable criterion. But it would then lead to a greater challenge to the distinction between Public and Private Law. Because the Law of Regulation, impregnated with Economy and Economic Analysis of Law, has sometimes little basis of legal tradition, it put in question of this summa divisio. If this were to be the case, it would be the totality of the legal systems which would be upset, especially in its judicial organization, since the judicial civil and commercial system is so distinctly distinguished (that of "ordinary" persons, that of "common law ) and the administrative judge (the "natural judge" of the State). It is then realized that the Law of Regulation challenges the whole Law, especially in the Latin countries and the Civil Law systems.
Thesaurus : Doctrine
Teachings : Grandes Questions du Droit, Semestre d'Automne 2014
Thesaurus : Doctrine
Thesaurus : Doctrine
Référence : Beauvais, P., Méthode transactionnelle et justice pénale, in Gaudemet, A. (dir.), La compliance : un nouveau monde? Aspects d'une mutation du droit, coll. "Colloques", éd. Panthéon-Assas, Panthéon-Assas, 2016, pp. 79-90.
Compliance and Regulation Law bilingual Dictionnary
First of all, the Regulation and Compliance Law is difficult to understand in others languages than English, through translation, for example in French. This corpus of rules and institutions suffers from ambiguity and confusion because of its vocabulary of Anglophone origin, in which words or expressions that are similar or identical have not the same meaning in English and, for example, in French..
To every lord all honor, this is the case for the term "Regulation".
In English, "regulation" refers to the phenomenon which the French language expresses by the term "Régulation". But it can also aim at the complete fitting of what will hold a sector reaching a market failure and in which regulation is only one tool among others. The expression "regulatory system" will be used with precision, but also the term "Regulation", the use of the capital letter indicating the difference between the simple administrative power to take texts ("regulation") and the entire system which supports the sector ("Regulation"). It is inevitable that in a quick reading, or even by the play of digital, which overwrites the capital letters, and the automatic translations, this distinction of formulation, which stands for a lower / upper case, disappears. And confusion arises.
The consequences are considerable. It is notably because of this homonymy, that frequently in the French language one puts at the same level the Droit de la Régulation ("regulatory law, Regulation") and the réglementation (regulation). It will be based on such an association, of a tautological nature, to assert that "by nature" the Regulatory Law is "public law", since the author of the reglementation (regulation) is a person of public law, in particular the State or Independent administrative authorities such as Regulators. There remains the current and difficult justification for the considerable presence of contracts, arbitrators, etc. Except to criticize the very idea of Regulatory Law, because it would be the sign of a sort of victory of the private interests, since conceived by instruments of private law.
Thus two major disadvantages appear. First of all, it maintains in the Law of Regulation the summa divisio of Public and Private Law, which is no longer able to account for the evolution of Law in this field and leads observers, notably economists or international Institutions, to assert that the Common Law system would be more adapted today to the world economy notably because if it does indeed place administrative law, constitutional law, etc., it does not conceive them through the distinction Law Public / private law, as the Continental system of Civil Law continues to do.
Secondly, no doubt because this new Law draws on economic and financial theories that are mainly built in the United Kingdom and the United States, the habit is taken to no longer translate. In other languages, for example, texts written in French are phrases such as "le Régulateur doit être accountable".
It is inaccurate that the idea of accountability is reducible to the idea of "responsibility". The authors do not translate it, they do not recopy and insert it in texts written in French.
One passes from the "translation-treason" to the absence of translation, that is to say to the domination of the system of thought whose word is native, here the U.K. and the U.S.A.
One of the current major issues of this phenomenon is in the very term of "Compliance". The French term "conformité" does not translate it. To respect what compliance is, it is appropriate for the moment to recopy the word itself, so as not to denature the concept by a translation. The challenge is to find a francophone word that expresses this new idea, particularly with regard to legal systems that are not common law, so that their general framework remains.
Thesaurus : Doctrine
Thesaurus : Doctrine
Compliance and Regulation Law bilingual Dictionnary
Paradoxically, the notion of conflict of interest seems to be at the center of Economic Law only recently in Economic Law, in both Corporate and Public Law. This is due to the philosophy which animates these two branches of Law, very different for each, and which has changed in each.
In fact, and in the first place in Public Law, in the Continental legal systems and especially in French legal tradition, on the side of the State, the one who serves it, by a sort of natural effect,, makes the general interest incarnated by the State pass before its personal interest. There is an opposition of interests, namely the personal interest of this public official who would like to work less and earn more, and the common interest of the population, who would like to pay less taxes and for example benefit trains that always arrive on time and the general interest which would be for example the construction of a European rail network.
But this conflict would be resolved "naturally" because the public official, having "a sense of the general interest" and being animated by the "sense of public service", sacrifices himself to serve the general interes. He stays late at his office and gets the trains on time. This theory of public service was the inheritance of royalty, a system in which the King is at the service of the People, like the aristocracy is in the "service of the King." There could therefore be no conflict of interest, neither in the administration nor in the public enterprises, nor to observe, manage or dissolve. The question does not arise ...
Let us now take the side of the companies, seen by the Company Law. In the classical conception of corporate governance, corporate officers are necessarily shareholders of the company and the profits are mandatorily distributed among all partners: the partnership agreement is a "contract of common interest". Thus, the corporate officer works in the knowledge that the fruits of his efforts will come back to him through the profits he will receive as a partner. Whatever its egoism - and even the agent must be, this mechanism produces the satisfaction of all the other partners who mechanically will also receive the profits. Selfishness is indeed the motor of the system, as in the classical theory of Market and Competition. Thus, in the corporate mechanism, there is never a conflict of interest since the corporate officer is obligatorily associated: he will always work in the interest of the partners since in this he works for himself. As Company Law posits that the loss of the company will also be incurred and suffered by all partners, he will also avoid this prospect. Again, there is no need for any control. The question of a conflict of interest between the mandatary and those who conferred this function does not structurally arise...
These two representations both proved inaccurate. They were based on quite different philosophies - the public official being supposed to have exceeded his own interest, the corporate officer being supposed to serve the common interest or the social interest by concern for his own interest - but this was by a unique reasoning that these two representations were defeated.
Let us take the first on Public Law: the "sense of the State" is not so common in the administration and the public enterprises, that the people who work there sacrifice themselves for the social group. They are human beings like the others. Researchers in economics and finance, through this elementary reflection of suspicion, have shattered these political and legal representations. In particular, it has been observed that the institutional lifestyle of public enterprises, very close to the government and their leaders, is often not very justified, whereas it is paid by the taxpayer, that is, by the social group which they claimed to serve. Europe, by affirming in the Treaty of Rome the principle of "neutrality of the capital of enterprises", that is to say, indifference to the fact that the enterprise has as its shareholder a private person or a public person, validated this absence of exceeding of his particular interest by the servant of the State, become simple economic agent. This made it possible to reach the conclusion made for Company Law.
Disillusionment was of the same magnitude. It has been observed that the corporate officer, ordinary human being, is not devoted to the company and does not have the only benefit of the profits he will later receive as a partner. He sometimes gets very little, so he can receive very many advantages (financial, pecuniary or in kind, direct or indirect). The other shareholders see their profits decrease accordingly. They are thus in a conflict of interest. Moreover, the corporate officer was elected by the shareholders' meeting, that is to say, in practice, the majority shareholder or the "controlling" shareholder (controlling shareholder) and not by all. He may not even be associated (but a "senior officer").
The very fact that the situation is no longer qualified by lawyers, through the qualifications of classical Company Law, still borrowing from the Civil Contract Law, the qualifications coming more from financial theories, borrowing from the theory of the agency, adically changed the perspective. The assumptions have been reversed: by the same "nature effect", the conflict of interest has been disclosed as structurally existing between the manager and the minority shareholder. Since the minority shareholder does not have the de facto power to dismiss the corporate officer since he does not have the majority of the voting rights, the question does not even arise whether the manager has or has not a corporate status: the minority shareholder has only the power to sell his securities, if the management of the manager is unfavorable (right of exit) or the power to say, protest and make known. This presupposes that he is informed, which will put at the center of a new Company Law information, even transparency.
Thus, this conflict of interests finds a solution in the actual transfer of securities, beyond the legal principle of negotiability. For this reason, if the company is listed, the conflict of interest is translated dialectically into a relationship between the corporate officer and the financial market which, by its liquidity, allows the agent to be sanctioned, and also provides information, Financial market and the minority shareholder becoming identical. The manager could certainly have a "sense of social interest", a sort of equivalent of the state's sense for a civil servant, if he had an ethics, which would feed a self-regulation. Few people believe in the reality of this hypothesis. By pragmatism, it is more readily accepted that the manager will prefer his interest to that of the minority shareholder. Indeed, he can serve his personal interest rather than the interest for which a power has been given to him through the informational rent he has, and the asymmetry of information he enjoys. All the regulation will intervene to reduce this asymmetry of information and to equip the minority shareholder thanks to the regulator who defends the interests of the market against the corporate officers, if necessary through the criminal law. But the belief in managerial volunteerism has recently taken on a new dimension with corporate social responsability, the social responsibility of the company where managers express their concern for others.
The identification of conflicts of interests, their prevention and their management are transforming Financial Regulatory Law and then the Common Law of Regulation, because today it is no longer believed a priori that people exceed their personal interest to serve the interest of others. It is perhaps to regain trust and even sympathy that companies have invested in social responsibility. The latter is elaborated by rules which are at first very flexible but which can also express a concern for the general interest. In this, it can meet Compliance Law and express on behalf of the companies a concern for the general interest, if the companies provide proof of this concern.
To take an example of a conflict of interest that resulted in substantial legal changes, the potentially dangerous situation of credit rating agencies has been pointed out when they are both paid by banks, advising them and designing products, While being the source of the ratings, the main indices from which the investments are made. Banks being the first financial intermediaries, these conflicts of interest are therefore systematically dangerous. That is why in Europe ESMA exercises control over these rating agencies.
The identification of conflicts of interest, which most often involves changing the way we look at a situation - which seemed normal until the point of view changes - the moral and legal perspective being different, Trust one has in this person or another one modifying this look, is today what moves the most in Regulation Law.
This is true of Public and Corporate Law, which are extended by the Regulation Law, here itself transformed by Compliance Law, notably by the launchers of alerts. But this is also true that all political institutions and elected officials.
For a rule emerges: the more central the notion of conflict of interest becomes, the more it must be realized that Trust is no longer given a priori, either to a person, to a function, to a mechanism, to a system. Trust is no longer given only a posteriori in procedures that burden the action, where one must give to see continuously that one has deserved this trust.
Compliance and Regulation Law bilingual Dictionnary
The Independent Administrative Authority (IAA) is the legal form that the legislator has most often chosen to build regulatory authorities. The IAA is only its legal form, but French law has attached great importance to it, following the often formalistic tradition of public law. They are thus independent administrative authorities, especially in the legal systems of continental law like France, Germany or Italy.
The essential element is in the last adjective: the "independent" character of the organism. This means that this organ, which is only administrative so has a vocation to be placed in the executive hierarchy, does not obey the Government. In this, regulators have often been presented as free electrons, which posed the problem of their legitimacy, since they could no longer draw upstream in the legitimacy of the Government. This independence also poses the difficulty of their responsibility, the responsibility of the State for their actions, and the accountability of their use of their powers. Moreover, the independence of regulators is sometimes questioned if it is the government that retains the power to appoint the leaders of the regulatory authority. Finally, the budgetary autonomy of the regulator is crucial to ensure its independence, although the authorities having the privilege of benefiting from a budget - which is not included in the LOLF - are very few in number. They are no longer referred to as "independent administrative authorities" but as "Independent Public Authorities", the legislator making a distinction between the two (French Law of 20 January 2017).
The second point concerns the second adjective: that it is an "administrative" body. This corresponds to the traditional idea that regulation is the mechanism by which the State intervenes in the economy, in the image of a kind of deconcentration of ministries, in the Scandinavian model of the agency. If we allow ourselves to be enclosed in this vocabulary, we conclude that this administrative body makes an administrative decision which is the subject of an appeal before a judge. Thus, in the first place, this would be a first instance appeal and not a judgment since the administrative authority is not a court. Secondly, the natural judge of the appeal should be the administrative judge since it is an administrative decision issued by an administrative authority. But in France the Ordinance of 1 December 1986 sur la concurrence et la libéralisation des prix (on competition and price liberalization), because it intended precisely to break the idea of an administered economy in order to impose price freedom on the idea of economic liberalism, required that attacks against the decisions of economic regulators taking the form of IAA are brought before the Court of Appeal of Paris, judicial jurisdiction. Some great authors were even able to conclude that the Paris Court of Appeal had become an administrative court. But today the procedural system has become extremely complex, because according to the IAA and according to the different kinds of decisions adopted, they are subject to an appeal either to the Court of Appeal of Paris or to the Conseil d'État (Council of State) . If one observes the successive laws that modify the system, one finds that after this great position of principle of 1986, the administrative judge gradually takes again its place in the system, in particular in the financial regulation. Is it logical to conclude that we are returning to a spirit of regulation defined as an administrative police and an economy administered by the State?
Finally, the third term is the name itself: "authority". It means in the first place an entity whose power holds before in its "authority". But it marks that it is not a jurisdiction, that it takes unilateral decisions. It was without counting the European Court of Human Rights (ECHR) and the judicial judge! Indeed, Article 6§1 of the European Convention on Human Rights states that everyone has the right to an impartial tribunal in civil and criminal matters. The notion of "criminal matter" does not coincide with the formal traditional concept of criminal law but refers to the broad and concrete factual concept of repression. Thus, by a reasoning which goes backwards, an organization, whatever the qualification that a State has formally conferred on it, which has an activity of repression, acts "in criminal matters". From this alone, in the European sense, it is a "tribunal". This automatically triggers a series of fundamental procedural guarantees for the benefit of the person who is likely to be the subject of a decision on his part. In France, a series of jurisprudence, both of the Cour de cassation (Court of Cassation), the Conseil d'État (Council of State) or the Conseil constitutionnel (Constitutional Council) has confirmed this juridictionnalization of the AAI.
Compliance and Regulation Law bilingual Dictionnary
Legally, the State is a public law subject defined by territory, people and institutions. It acts in the international space and emits norms. Politically, it has the legitimacy required to express the will of the social body and to exercise the violence of which it deprives the other subjects of law. It is often recognizable by its power: its use of public force, its budgetary power, its jurisdictional power. These three powers, declining or being challenged by private, international and more satisfying mechanisms, some predicted the disappearance of the State, to deplore it or to dance on its corpse.
With such a background, in current theories of Regulation, primarily constructed by economic thought and at first sight one might say that the State is above all the enemy. And this for two main reasons. The first is theoretical and of a negative nature. The advocates of the theory of regulation deny the State the political qualities set out above. The State would not be a "person" but rather a group of individuals, civil servants, elected officials and other concrete human beings, expressing nothing but their particular interests, coming into conflict with other interests, and using their powers to serve the former rather than the latter as everyone else. The Regulation theory, adjoining the theory of the agency, is then aimed at controlling public agents and elected representatives in whom there is no reason to trust a priori.
The second reason is practical and positive. The State would not be a "person" but an organization. Here we find the same perspective as for the concept of enterprise, which classical lawyers conceive as a person or a group of people, while economists who conceive of the world through the market represent it as an organization. The state as an organization should be "efficient" or even "optimal". It is then the pragmatic function of the Regulation Law. When it is governed by traditional law, entangled by that it would be an almost religious illusions of the general interest, or even the social contract, it is suboptimal. The Regulation purpose is about making it more effective.
To this end, as an organization, the State is divided into independent regulatory agencies or independent administrative authorities that manage the subjects as close as possible, which is fortunate in reducing the asymmetry of information and in reviving trust in a direct link. The unitary, distant and arrogant State is abandoned for a flexible and pragmatic conception of a strategic state (without capital ...) that would finally have understood that it is an organization like any other ...
Competition law adopts this conception of the State, which it posed from the beginning that it was an economic operator like any other. This is how this conception which would be more "neutral" of the world is often presented.
Successive crises, whether sanitary or financial, have produced a pendulum effect.
Now, the notions of general interest or common goods are credited of an autonomous value, and the necessity of surpassing immediate interests and of finding persons to bear superior interests or to take charge of the interests of others, even a non-immediate one, emerged.
Thus, the State or the public authority, reappears in the globalization. The Compliance Law or the Corporal Social Responsibility of the crucial companies are converging towards a consideration of the State, which can not be reduced to a pure and simple organization receptacle of externalities.
Thesaurus : Doctrine
Thesaurus : Doctrine
Référence complète : Bossuet, sermon De l’éminente dignité des pauvres, 1659.
Édité par Alain Supiot, 64 p. , Éditions Mille et un nuits, 2015.
Thesaurus : Doctrine
Référence complète : Archives de Philosophie du Droit (APD), Le droit et l'immatériel, tome 43, ed. Sirey, 1999, 521 p.
Lire la présentation de l'article de Hélène Ruiz Fabri, Immatériel, territorialité et État.
Voir la présentation d'autres tomes des Archives de Philosophie du Droit.
Aug. 7, 2020
Thesaurus : 01. Conseil constitutionnel
July 16, 2020
Editorial responsibilities : Direction de la collection "Cours-Série Droit privé", Editions Dalloz (33)
Référence complète : Cabrillac, R., Droit des obligations, Coll. "Cours Dalloz-Série Droit privé", 14ième éd., 2020, Dalloz, 437 p.
Parfaitement à jour de l'Ordonnance de 2016 et de la Loi de ratification de 2018 qui réforma le droit des contrats dans le Code civil, le manuel de Rémy Cabrillac raconte en 437 pages le droit des obligations comme une matière vivante et quotidienne.
Pour le faire, cet ouvrage désormais classique s'appuie sur les textes, la jurisprudence mais aussi les exemples de la vie quotidienne.
June 18, 2020
This working document, "The Dreamed Compliance Law", is the basis for an article, written in French, "La compliance" (Compliance), inserted in the collective work to be published under the direction of Jean-Baptiste Racine, Le Droit économique du XXIème siècle (The XXIe century Economic Law , in the Serie Droit & Economie, LGDJ-Lextenso, 2020.
No one can know what the Law of the 21st century will be. Pretending to know it is just not to realize its ignorance. Why then writing about it, since the future is always surprising?
One can only write about the unknown part of the Law of tomorrow. If the future is then modeled on what was written, so much the better for the prophet, a tribute that can, for example, be paid to Pierre Godé
Lévi-Strauss argued that teaching is defined as dreaming out loud. Teaching and describing the Law of a century that we will never know gives even more freedom to dream about it. This freedom increases when the object is a branch of Law in the process of being born, state of the stammering "Compliance Law" of which some still maintain, as it was made for Regulation Law, that there is not existing. The hand can then, as it pleases, trace its beautiful or hideous features: what face will Compliance Law have, as soon as we assume that it will exist?
It may as well be a nightmare (I) as a happy dream (II).
It is up to us to choose in which category this branch of Law will flourish. Because what we can be sure of is this fulfillment. It is certainly already taking sides to presuppose the very existence of Compliance Law. Not only to consider it possibility with hostility because to be an enemy of something or someone is already to recognize their existence. Before that, two objections radically block the very existence of Compliance Law and their shadow remains in the future of it
Firstly, it is said that Compliance does not come under Law, but for example only ethics since it would consist in keeping well in companies which care about the interest of others or the planet, for example by spontaneous care of the environment; Compliance being a crystallization of social responsibility, the one for which we have our conscience, we express our "raison d'être" and we are not accountable
Second, there would be many Compliance mechanisms but insufficient to constitute a branch of Law. Indeed we would find Compliance in Company Law, Labor Law, Financial Law, Banking Law, Criminal Law, Administrative Law, European Law, International Law, etc.
These classic branches, which have been formed for so long, depending on the point of view adopted, would gain in modernity or be threatened with decay by this kind of extension which will be Compliance. There would thus be as many "little legal sectoral rules" as there are branches of law. These new internal developments would be like a new bud, on which care should be taken - if the tree regains its strength - or a weed to be eradicated - if the French garden loses its perspective.
Thus the matter being scattered as many as specialist lawyers, often criminalists or specialists in banking and Financial Law, then tomorrow all specialists in all branches of Law, this could constitute the most radical obstacle to the constitution of Compliance Law. Indeed, we would come back to confuse Compliance and the "modernization" of Law itself as a whole, since it would only be a question of perfecting each of the classic branches of the legal system.
If we keep in this half-sleep that is any projection in the future the hope of a constituted branch of Law, we must discard these two perspectives of annihilation, either in the total absence of Law or in recovery by all Law. To dismiss the sorrowful spirits who see no future in Compliance and keep only its enemies in the space of this article, let us assume that Compliance Law will exist in the 21st century. In what form and by what means, in the palm of which institutions, in the shadow of which legal system? Since it is a question of projecting ourselves onto the black screen of our nights of dreamy lawyers, let us take the current state only as a trailer. Like the one developed by the genius who by the contempt not only brought down into the flames of hell the cinema which has become a consumer industry with which producers force-feed us but offered us the vision of its future. What is what we see today the trailer? We let our imagination run wild since the trailer films are autonomous works compared to the film which follows them.
We have no idea what will happen and what we are watching from the brief and violent current images of Compliance Law, the cinema of which rather makes a hero of the whistleblower
Everything will depend on the concept that we will retain of Compliance Law. Because the script is not written, because Compliance Law is a Law with a political dimension, that it is defined by the ambitions that we can claim to have by setting monumental goals that we are going to achieve, a claim that will make it one major branch of the Law of tomorrow, or we can abandon any claim, lower our heads and arms, and reject any claim. It is then that the power of Compliance Law, which will be no less great, will turn against us, human beings, as in a nightmare.
Mélanges Pierre Godé, off-trade book, 2019.
Godé, P., Le Droit de l'avenir (Un Droit en devenir), 1999.
It is in particular the idea of the movement of analysis of Law & Literature which poses that by telling the past in one way or another, by thus inventing it, Law, and in particular the Judge, invents the future and being written, creates it. On this movement which was powerful in the United States, v. Cabrillac, R. et Frison-Roche, M.-A., Droit et Littérature, à paraître.
See infra I. Compliance Law as nightmarish octopus.
On the fact that "social responsibility" makes it possible not to be legally responsible, cf. Supiot, A., Du nouveau au self-service normatif: la responsabilité sociale des entreprises, 2004; this is not the subject of this article and this question will not be developed here.
See, for instance, ..., Replace Regulation by norm by Regulation by Data, 2020.
See, for instance, Frison-Roche, M.-A., Compliance Law (monography), 2016 ; Compliance Law, 2020.
On what the cinema does with the whistleblower, with the availability of trailers and extracts from the films, see Frison-Roche, M.-A., introduction of the article The impossible unicity of the legal category of whistleblowers, 2019.
Frison-Roche, M.-A., ... (retrouver sur LinkedIn).
June 18, 2020
Thesaurus : 01. Conseil constitutionnel
April 1, 2020
Thesaurus : Doctrine
Jan. 15, 2020
Référence complète : Frison-Roche, M.-A., Haine sur Internet : il faut responsabiliser les opérateurs numériques, entretien avec Olivia Dufour, Actu-juridique Lextenso, 15 janvier 2020.
Les questions posées étaient :
Nov. 20, 2019
Référence générale: Frison-Roche, M.-A., Le législateur, peintre de la vie, in Archives de philosophie du droit (APD), Tome 61, 2019, pp. 339-410.
Résumé : Peindre si bien que la toile est un objet vivant est un exploit technique qui fût atteint par peu. Francis Bacon obtînt de la toile qu'elle fasse son affaire de préserver en elle la vie, tandis que Carbonnier, avec une semblable modestie devant la toile et le métier, obtînt que la Loi ne soit qu'un cadre, mais qu'elle ne laisse pourtant cette place-là à personne et surtout pas à l'opinion publique, afin que chacun puisse à sa façon et dans ce cadre-là faire son propre droit, sur lequel le législateur dans sa délicatesse et pour reprendre les termes du Doyen n'appose qu'un "mince vernis". Ces deux maîtres de l’art construisaient des cadres avec des principes rudimentaires pour que sur cette toile le mouvement advienne par lui-même. Ainsi la Législateur créée par Carbonnier offrit à chaque famille la liberté de tisser chaque jour son droit. Mais c’est pourtant bien au Législateur seul que revint et doit revenir l’enfance de l’art consistant à tendre la toile sur le métier. Il est alors possible, comme le fit Bacon, d’obtenir un objet immobile permet que surgisse sans cesse les figures mobiles. Les gribouillis réglementaires sont à mille lieux de cet Art législatif-là.
L'article ne comprend pas de reproductions, celles-ci figurent dans le document de travail.
Nov. 16, 2019
The Government itself collects personal data on social networks, without the consent of the parties concerned, but for a good cause: the fight against tax fraud. What should we think about it legally?
The Finance Bill has proposed to the Parliament to vote an article 57 whose title is: Possibilité pour les administrations fiscales et douanières de collecter et exploiter les données rendues publiques sur les sites internet des réseaux sociaux et des opérateurs de plateformes (translation: Possibility for the tax and customs administrations to collect and exploit the data made public on the websites of social networks and platform operators).
Its content is as is in the text voted on in the National Assembly as follows:
"(1) I. - On an experimental basis and for a period of three years, for the purposes of investigating the offenses mentioned in b and c of 1 of article 1728, in articles 1729, 1791, 1791 ter, in 3 °, 8 ° and 10 ° of article 1810 of the general tax code, as well as articles 411, 412, 414, 414-2 and 415 of the customs code, the tax administration and the customs administration and indirect rights may, each as far as it is concerned, collect and exploit by means of computerized and automated processing using no facial recognition system, freely accessible content published on the internet by the users of the online platform operators mentioned in 2 ° of I of article L. 111-7 of the consumer code.
(2) The processing operations mentioned in the first paragraph are carried out by agents specially authorized for this purpose by the tax and customs authorities.
(3) When they are likely to contribute to the detection of the offenses mentioned in the first paragraph, the data collected are kept for a maximum period of one year from their collection and are destroyed at the end of this period. However, when used within the framework of criminal, tax or customs proceedings, this data may be kept until the end of the proceedings.
(4) The other data are destroyed within a maximum period of thirty days from their collection.
(5) The right of access to the information collected is exercised with the assignment service of the agents authorized to carry out the processing mentioned in the second paragraph under the conditions provided for by article 42 of law n ° 78-17 of January 6, 1978 relating to data processing, the files and freedoms.
(6) The right to object, provided for in article 38 of the same law, does not apply to the processing operations mentioned in the second paragraph.
(7) The terms of application of this I are set by decree of the Council of State.
(8) II. - The experiment provided for in I is the subject of an evaluation, the results of which are forwarded to Parliament as well as to the National Commission for Data Protection at the latest six months before its end. "
This initiative provoked many comments, rather reserved, even after the explanations given by the Minister of Budget to the National Assembly.
What to think of it legally?
Because the situation is quite simple, that is why it is difficult: on the one hand, the State will collect personal information without the authorization of the persons concerned, which is contrary to the very object of the law of 1978 , which results in full disapproval; on the other hand, the administration obtains the information to prosecute tax and customs offenses, which materializes the general interest itself.
So what about it?
Updated: Sept. 24, 2019 (Initial publication: Aug. 31, 2019)
Summary : In August 2019, about the fire devastating the Amazon, the French Minister of Ecology says that this fact "is not just the business of a state" (n'est pas que l'affaire d'un Etat). This assertion denies the postulates of Public International Iaw (I). This supposes a new system, based on the idea that the power of the State on its territory is erased when the object that is there is no longer related to this "part" but to the All that is Universe (II). Let's accept the augur. First question: if it is not only the case of a State, whose business is it? (III). Second question: to anticipate the other cases that fall under this regime, what should be the criteria in the name of which the All will have to prevail over the part and who will then take care of the case of which the "local" State is divested? (IV). Because the perspective goes beyond the environment, beyond Brazil, beyond the States. It leads to Compliance Law animated by "monumental goals" that are the concern for the Universe and humans, in a humanist spirit. Let's go.
On August 27, 2019, on the French radio France Inter, Elisabeth Borne, French Minister of Ecology (Transition écologique) expresses it clearly: "Quand on est sur un enjeu tel que l'Amazonie, ça n'est pas que l'affaire d'un État", that can be translated : "When we are on a stake such as the Amazon, it is not only the business of one State ".
Starting from one case, "the Amazon", the Minister, thus taking up the position of the French President, associates a general consequence: "it is not only the affair of one State".
This is not a trivial sentence.
This affirmation denies, and why not, the entire system of Public International Law (I). By a new reasoning based on the idea that the All prevails, as by an effect of nature, on the Part (II).
Admitting this, it leads to opening two sets of questions. The first is related to the following main question: if it is not only the case of one State, of which is this the concern (III)? The second set of questions revolves around the questioning of the criteria on behalf of which other cases must be seized in the name of "All " and how to do it (IV).
A. The postulate of Public (and Private) International Law: parties (States) which, because of common interests, are in contact
The notion of State includes in its very definition the notion of territory (a territory, a population, institutions).
Thus the State governs through its institutions what is happening on its territory. For example, if there is a fire, or a risk of fire, the State makes arrangements through all legal, financial, technical and human instruments available to it. It is accountable for what it does through its political and legal responsibility.
When what is happening on its territory exceeds this one, in fact (epidemic, catastrophe with the consequences exceeding the borders, migrations, etc.) either according to its own opinion or according to that of the other States, the States, being sovereign subjects of Law in the international system, act together on a pre-built legal basis: bilateral or/and multilateral treaties!footnote-1675, having created legal integrated zones (like the European Union or the United States) or international institutions (like the IMF).
A particular technique has been developed for several millennia - but here again the seniority is not sufficient to keep the system: diplomacy, anchored in each state in a particular ministry: the Ministry of Foreign Affairs, which each national government has. If one State totally excludes one phenomenon in the territory of another, the progressive procedure of ceasing diplomatic ties begins.
This can result in wars.
In the "case of the Amazon" both the President of Brazil and the President of the United States stick to the classical construction of Law.
Indeed, the former asserted that the Amazon is in the territory of Brazil, thus falls under the jurisdiction of the power of the Brazilian State and the Brazilian Law, from which it follows that another State does not have to come to interfere. However, the French President takes the floor not as this forest extends also on a French territory but as it is the business of the World. On the contrary, the President of Brazil claims the closing effect, which excludes a third State from taking over directly something - even a difficulty - that takes place in the territory of another.
The President of the US federal State has said that these are joint decisions between the President of Brazil and other heads of State, sovereign subjects of Law, who must agree to organize a solution to solve a local problem . Because in the same way that States can declare war, they can help each other!footnote-1676.
The whole Public (and Private) International Law is therefore based on this assumption: "parts" of the world, on which sovereign parties (States) have taken contact, because circumstances make something that falls within one of them or several others.
This is precisely what is called into question. The notion of the "right of interference", whose evocation we hardly hear any more, had already done so. But on another basis.
B. The "right of interference": idea that somebody can directly interfere with what happens in a country , an idea that does not question the postulate of the International Maw, an idea that rests on something else: a " right for the other "
The "right of interference" is the idea that in certain territories, things happen that are inadmissible.
In memory of the jus cogens, a kind of "Natural Law" of Public International Law, Another, that could be another state, can come to meddle with what is happening in a territory that is closed, without declaring war. to the state that keeps its borders.
It is the need of others, for example those who die in mass on this territory, or the nature that is devastated in the indifference of the State on whose soil the disaster is happening, which founds this "right" of another state to come and take charge.
The foundation of this "right" is therefore a "duty".
C. The new idea: a territory is only part of the Globe, whose fate is everyone's concern
The idea is new because it is not based on altruism. And no more about self-interest. Yet, de facto and de jure , the Amazon is not on the sole territory of Brazil.
France is particularly well placed to say something about it since part of the Amazon is on French territory.
Thus the inaction of the main concerned Brazil directly affects the interest of France, a "forest" being a block that can not be divided. If we were in Property Law, we would say that we are in indivision with Brazil and that in this respect, with the other States on whose territories this forest extends, a solution must be found.
Because of the indivisibility of this particular object which is this particular fores!footnote-1644, it is necessary that the States whose territory is concerned have a say in the matter.
But this is not the argument put forward by France, particularly by the President of the Republic.
It is said that the whole world is concerned about the fate of the Amazon. It could be said that, in this respect, when what could be described as a "global forest" is well treated, its management does indeed fall within the power of Brazil, Brazilian companies and the Brazilian State, but when it is abused to the point of seeing its future compromised, when fires may make it disappear, then this forest appears not to be localized in Brazil but being located in the World, of which Brazil is only a part!footnote-1648.
This reasoning, which then gives voice to everyone, for in the world every state is included in it, is a new reasoning.
The economic-political theory of the "commons" does not account for it because it is not a very legal theory!footnote-1656.
II. THE NEW REASONING THAT COVERS THE CLASSIC REASONING OF PUBLIC INTERNATIONAL LAW
The new reasoning adopted by the Minister consists in saying that the Amazon does not concern only Brazil. This forest should therefore be directly related to the World (A). This is a welcome change in the system but based on a paradox (B).
A. When the Amazon is in danger of death, then it should no longer be attached to this part of the World that is Brazil, but directly to the World
This forest is presented as the "lung" of the planet, it is the "future" of humanity. In this, it can concern only one State, not even the one on whose territory this "Humanity good" is located!footnote-1643.
As such, without the need to declare war to Brazil, another State may speak, for example the French State through the one that represents it in the international order, that is to say its President, to say what to do, since according to him the President of Brazil does not say or do what it is absolutely necessary to do for the whole planet and for the future of Humanity.
This induces a complete renewal of international institutions.
Indeed a direct attachment to the World and no longer to Brazil gives the forest object a special status because of a goal that exceeds Brazil: save the Amazon would impose because it would save the world. Therefore, it can no longer be the subject of Brazil, which would be like "dispossessed" by a goal that is imposed on it: to save the Amazon rainforest, even though it is mainly on its territory, while other States become legitimate to dispose of this object, even if the forest would not be in part in their territory, even if they would not be affected in their own interests.
This contradicts all Public International Law!footnote-1645; because the agreement of the political representatives of Brazil is no longer required and no one yet evokes the need to declare war to Brazil, and fortunately!
Such an upheaval justifies that such an affirmation is accepted with difficulty. One understands better than first consequence, which is not so innocuous, one of the first rules of diplomacy which is the politeness, between the heads of state, with regard to the spouses of these , have be broken!footnote-1657, that the remarks have slipped on personal questions, etc.
B. A welcome but paradoxical change in the system
Why not change the system?
This is difficult to admit, not only because it is brutal, but because it is paradoxical.
The paradox is the following. It is recognized that the theme of the disappearance of borders by "globalization"!footnote-1647 no longer reproduces the reality of facts!footnote-1646, especially not the Chinese situation, the digitalization having on the contrary allowed the construction of even stronger boundaries. What we called "globalization" now belongs to the pastWhat we called "globalization" now belongs to the past!footnote-1660. So today we should recognize on one side the reality of borders - which had not disappeared or are reborn - but only to better step over them, since - based on the concern of the world - states, yet each in their borders, would be legitimate to go directly to intervene in the business of others.
The paradox is therefore, on the one hand, the rejection of the allegation of a de facto disappearance of borders by an economic interdependence, technology having denied "globalization" as a fact !footnote-1649 and the linked resurgence of borders allowing States to affirm more than ever that they would be "sovereign masters at home", which should logically lead to let Brazil decide for the Amazon, while yet on the other side we witness the questioning of the postulate of Public International Law as recognition of sovereignty and construction from agreements between states, requiring the agreement of the state whose territory is concerned (except war), questioning which leads to allow all to meddle with the fate of the Amazon, as if there was no border.
This paradox leads to two questions.
The first question is: if "it's not juste one State affair", who's concerned?
The second question is: after the "case of the Amazon", what are the other cases? And how are we going to provide solutions, if we no longer have the solutions of Public International Law, that is to say, the agreement of the country whose territory is concerned and which we do not want not go to war?
If we have clear ideas on the answers to be given to these two sets of questions, then because indeed when the future of all is in progress it can not be the affair of a single State, it is necessary to question Public International Law. But do we have clear ideas on these two questions? And what are the possibilities for possible solutions?
See the text following below.