Jacques Krynen shows in a beautiful synthesis that the power of judges does not date from yesterday: already under the old regime the high magistracy claimed a sharing of royal power. The myth of absolutism is thus revised by a study as learned as they are aches. But what about the rest of the magistrates and men of law ?
At the origin of this work is the observation that Jacques Krynen makes of the current revival of the power of the judges. Dismissing cyclical explanations, The state of justice. France (XIIIe–XXe century) on the contrary intends to demonstrate, on the historical time, the “ phenomenon of irrepressible grip of the judiciary on the march of power ». In the first volume, Jacques Krynen recomposes theIdeology of ancient magistracy. How did the magistrates reconcile their attachment to royal absolutism, on the one hand, and to the rule of law, on the other hand ? The author delivers the keys to this tension by analyzing the doctrinal and professionals of the XIIIe century at the Revolution. The first part of this beautiful synthesis shows the springs of the grabbing by the magistrates of the debt of justice incumbent on the sovereign. The second part explains their claim to participate in royal legislative power.
The king, the duty of justice and the magistrates
The first part of this beautiful synthesis shows the springs of the grabbing by the magistrates of the debt of justice incumbent on the sovereign. Counterbalance the thesis of a substitution of an administrative state for the state of justice to the XVIIe century, J. Krynen underlines that the monarch has continued, from Saint Louis to Louis XVIto be a debtor of justice. But the effective exercise of this power tends to escape him. With the legal rebirth of XIIe–XIIIe centuries, justice becomes a matter of experts. And for the construction of the sovereign, the science of the legists, “ political idiots (According to Gilles de Rome, the author of Of Regimine Principummanual intended for the instruction of Philippe le Bel), does not seem useful: “ The king is rarely lawyer Summarizes J. Krynen.
The duty of justice of the sovereign undoubtedly continues to manifest itself by the “ justice “, Which authorizes the king to suspend, interrupt or take up the delegation granted to his courts and courts to judge a case. But from the end of XVe century, this personal exercise of justice is on the hot seat. For Bodin, it must be limited to the right of grace.
This doctrine of the dissociation of functions does not in any way imply a separation of powers. The author thus underlines the fortune of the thesis according to which sovereign justice is “ inseparable »From royalty ; Through its judgments, the Parliament is only the mouth of the king. But the magistrates of sovereign courses will imperceptibly make this “ representation From the king an instrument of his eviction. The bodily unity of the king and the parliament is indeed opposed to that justice is done outside this enclosure ; She thus contradicts calls, evocations and even the cassations regularly practiced before the Grand Council and the Privy Council from the end of the XVe century. Representing the king, the high magistracy thinks itself as the true and the only seat of his justice.
However, the jurisdictional function cannot be reduced to the legal technique which permeates it from the last medieval centuries. Dissessing speeches and rituals, J. Krynen notes that judging has never been perceived as a simple act of expertise. By exercising the art of good and equity (according to the definition of justice given by Celsus), the people of the Parliament, “ priests of justice », Perform a religious act. Representing the king, they benefit from the theory of divine law. This sacralization does not only have a reverency function, it also serves as a support for the self -criticism of an environment where the venality of the offices develops and where the accusations of partiality spread. Above all, it justifies to dismiss human laws to judge in conscience. It is on these foothills that the pretension of sovereign judges takes place to participate in the legislative process, explored in the second part.
The king, the law and the magistrates
Jacques Krynen recalls that the rebirth of legal science of XIIe–XIIIe centuries made the king a legislator prince, authorized to promulgate new standards. But with great reinforcement of Roman and canonical texts, the lawyers immediately underline that the law lives only by the interpretation which is made of it. If several texts of the Justinian Code reserved this power for the Emperor, the glossators had – for practical reasons: the unavailability or the distance of the prince – admitted a judicial interpretation. In France, where the king could be easily seized, the question quickly becomes a stumbling block. From the end of XVe century, reminders to the strict application of laws by courses, including sovereign, succeeded, sanctioned, with the civil ordinance of 1667, by a large civil liability of the judges. Analyzing the nuanced positions of legal doctrine, the author shows that lawyers agree, from the XVIe century, to advocate a strict application of laws whose terms are not ambiguous ; But they leave the magistrates of sovereign courses the power to interpret his darkness. Because the law, whose magistrates regularly call themselves slaves, is not only human law, but also and above all the law of God.
The registration of royal ordinances will put the misunderstanding between the king and the sovereign courses on royal absolutism. Taking advantage of the assimilation of Parliament in the Senate of Rome, whose genealogy is carefully studied, the high magistrates do not dispute, in theory, the royal monopoly of the enactment of the law. But they claim that the verification, authorization or approval of royal orders and edicts is necessary to give them the status of “ real law ». However, on this occasion, the courses are not satisfied, especially from the XVIe century, to present observations notifying the king of any defects of the law ; by d ‘” iterative admonitions “, They maintain a” legislative dialogue With the prince. Interrupted for sixty years after the parliamentary sling (at least with regard to the parliament of Paris) and moderate until the middle of the XVIIIe century, despite the restoration of the right of admonitions (declaration of September 15, 1715), the political rebellion of the high magistracy became constant from 1750. Jacques Krynen stresses that this “ blind ambition The sharing of monarchical power must be linked to the concern of this corporation, which remained away from major urban planning operations and faced with the decline in the price of legal charges. Above all, he emphasizes – after R. Mousnier (France’s institutions under the absolute monarchyParis, 1980, t. IIp. 509) and F. di Donato (Ideologia of “ Robins »Nella Francia dei lumaNaples and Rome, 2003) – on the secular nature of the claims then formulated. By interposing as “ essential guards of laws and the constitution of the monarchy “, Parliamentarians no doubt give new expression to their” constitutionality control ». Admittedly, the claim to represent, no longer only the king, but the French nation, constitutes a rupture. High magistrates, however, continue to think of the monarchy “ as a rule of law and justice, with naturally for columnsFor pilotssovereign courses ». They thus intend to reject the attempts of the Enlightenment to strengthen central power provided that it is illuminated by philosophical reason (enlightened despotism).
A scholarly but remarkably accessible, the demonstration is thus made of the role played, until the Revolution, by the high royal magistracy in the defense of an absolutism with brakes and limits. In the book, the contours of this “ Ancient magistracy However, are not traced. The author reveals, on several occasions, the elitism of the people of Parliament. The subordinate position in which they hold the profession of lawyer testifies to this. Auxiliary of justice, the lawyer must plead quickly and soberly ; Preparing the truth of the judgment, it remains on the edge of the political power claimed by sovereign courses. The same applies to the judges of the lower jurisdictions, to which the fiction of a unity is refused with the king. However, lawyers (for example Jean Le Coq, Dumoulin or Le Paige) and “ small judges “(For example Jacques d’Ableiges) have also nourished” The ideology of ancient magistracy “, Before turning away from it at the end of XVIIIe century. Apart from rare points (for example the possibility of an equity judgment), parliamentary theses do not seem to be clearly distinguished from those of “ Robins ” in general. In the “ Ideology of ancient magistracy », Polished by Jacques Krynen, one does not always clearly perceive what is a specific reflection on the high magistrates and what is more generally of a culture common to the laws of the old regime.
The unity of this high magistracy also remains undecided. Jacques Krynen seems to exclude the account chambers and especially the aid courses, sovereign courses specializing in finance affairs and to which remain until the end of the old regime of many tax questions. Their conceptions often seem to join those of parliaments. In the book, the Grand Council- Organ of the King’s Child Showing is camped in rival of parliaments ; However, made up of officers who own their charges, he also sometimes joined his voice with parliamentary claims. The very cohesion of parliaments at the end of the old regime is problematic. And one wonders if the parliamentary ideology of defense of a reasonable absolutism does not also have the function of masking intestine tensions, like those which have crossed the corporations XVIIIe century.
The contributions of this first volume will take all their relief with the study of contemporary doctrines. L'” current resumption of power of justice in France Is, in fact, according to J. Krynen, a final demonstration of the “ Justice Empire », Slowly built under the old regime. At a time when the judiciary does not seem to be valued by the public speech (let us think of the comparison, by the President of the Republic, in 2007, of the magistrates of the Court of Cassation to peas) and where “ The most powerful man in France », The investigating judge is in the process of disappearing, the initial observation of the current control of the judges surprises. An abundant literature has certainly noted, in recent decades, a “ Expansion of the judiciary ». But it was also observed that the propensity to have recourse to jurisdictional mechanics was sometimes accompanied by a reflux of the place of jurists in political life. We await the demonstration of the contrary in volume 2 (The contemporary grip of judges).