It is customary to oppose the order of law and that of emotions, the first being called upon to regulate the second. Alexandre Flückiger reveals the active presence of affect in the creation of laws, and its ability to inflect and soften their rigors.
The interweaving of feeling and the creation of law
The work of law professor Alexandre Flückiger reminds us that the heart has its reasons that reason ignores and that these same reasons prefer the destruction of the whole world rather than a scratch on its own finger (Hume). In this humanity, what is more irrational, what is more subjective than a feeling? After having dug its bed in the heart of man, feeling irrigates thoughts, inspires behavior, often unconsciously, always spontaneously.
And then, in parallel, there is the law: objective, rational, built on reason and logic. Those who seek the law seek the syllogism and the demonstration, supported by incontestable proof. In the equation of the law, the cry of the heart is an unknown. You think that someone has not respected a contract? Prove it by A and B. The law, in the broad sense, is perceived only as a set of rules issued and sanctioned by the institutions concerned. Consequently, within our civil law traditions, the importance of the text, of the written law, is fundamental. We almost come to reduce the law to its locutory function, to its words and its prescriptions. For the jurist, what could be more enjoyable than this legal certainty? For the poet, what could be more removed from emotional meanderings than words brutally gathered in the form of articles of law?
However, the legislator, creator of this object that is intended to be fully rational, remains a fully irrational man. From then on, feeling inevitably contributes to the creation of law, it influences it, directs it, directs it, makes it evolve. Faced with this observation, the time has come to bring down the myth of purely rational law, to (Re)making the lawto abandon this fantasy of absolute rationality in favor of a reasoned apprehension of it, anchored in true reality, but above all in true humanity. Dean Carbonnier never stopped repeating it: law is above all human. Feeling too. This assertion is the first step in the reconciliation between law and emotions, since the object, namely man, is common.
In this logic, Alexandre Flückiger, in this impressive work by its volume and exhaustiveness, proposes to stop acting “as if” the legislator were a being of pure reason. He suggests accepting that “it is through a knot of grudges, desires, misunderstandings and disputes of all kinds that politics is forced to make its way” (F. Ost and M. Van de Kerchove), in order to admit the multidimensional factors that drive the process of creating the law (pp. 4-30). Since asking lawyers to suppress their emotions is impossible (but also undesirable (p. 6)), the recommended solution is inevitably to recognize the presence and influence of the latter in the drafting of laws. The author presents a global method for learning to construct law with emotions, with the aim of controlling, without suppressing, a large part of the irrationality that results from them (pp. 26-38).
Concretely, to achieve this end, legislature would be the solution. This legal design approach aims “to ensure that the law has an optimal impact that contributes to resolving the societal problem in the best possible way in a relevant, effective and fair manner through an objective analysis of the problem, a strategic design of its instruments, a clear drafting of its text and a learning process tested by implementation” (p. 33). It is a question of proposing pragmatic means to obtain laws in which everyone can have full confidence and which will consequently be more easily accepted and respected by the citizen. Of course, some of the methods mentioned are already used in the different legal systems. The European Union, for example, adopted an interinstitutional agreement “Better lawmaking” on 13 April 2016, aimed at improving the quality of its regulations within the entire regulatory cycle. Switzerland, for its part, also has a legislative guide for the development of federal laws (latest edition updated in 2019) of approximately 300 pages. While the question of reflection on the quality of the law is not new, the author nevertheless innovates by proposing a relatively complete manual of method in this area, which can serve as a reference for any organization or person interested in regulatory issues.
A right to strengthen citizen confidence
In a context where the legitimacy of the State is criticized and representation is in crisis, this method, if it were to become systematically applied, could not only optimize the current creation of laws and limit legislative inflation, but also, and this is its main asset, reassure the individual. Indeed, one of Alexandre Flückiger’s first proposals aims to ensure that the construction of the legal arsenal is carried out in a participatory, pluralist and inclusive manner, in order to represent “the range of all persons potentially concerned” (p. 142) and to place the citizen at the center of the democratic system. To illustrate this, he cites the example of the European Court of Human Rights, which has taken these criteria into account since 2013. Indeed, in its judgment Animal defenders international v. United Kingdomthe Court has attached paramount importance to verifying the deliberative process that took place when the law was created. In practice, this means that it carries out a quality control of the national law, by verifying that it has been the subject of discussion between the relevant actors before its adoption by the legislature. For example, in the above-mentioned case, it was the Joint Committee on Human Rights, the Joint Committee on the Bill and the Independent Commission on Television and the Electoral Commission that had been consulted on a 2003 law banning paid political advertising. Therefore, the fact that these bodies agreed that the ban was necessary led the European Court, among other things, not to censure the law under discussion. Similarly, for the development of a law on bioethics in France, the National Consultative Ethics Committee for Life Sciences and Health must systematically organize a public debate in the form of a general meeting (Article L1412-1-1 of the Public Health Code), which gives rise to the publication of a summary report, then an opinion intended to guide the legislator.
By adopting this type of reflex in the creation and evaluation of laws, democratic sentiment is restored and the law can gain legitimacy. The citizen can reasonably feel listened to and better represented. Ultimately, this method only acknowledges the “movement of normative hierarchical inversion where the law is gradually constructed from below” (p. 244), that is, from the people who will be directly impacted by it.
For a reasoned creation of law taking into account soft law
The work (Re)making law allows us to demystify the particular nature of the science of law by taking it out of its closed system and submitting it to the contributions of other disciplines, such as economics or project management techniques. Rather than considering law as a pure theory, Alexandre Flückiger approaches the construction and evaluation of the law in the same way that a business leader or a manager in an association would approach his objectives and projects. For example, he recommends the establishment of a test of the necessity of political-legal intervention before the creation of a law (pp. 159-202), which would include in particular a prospective impact analysis, an examination of the potentially problematic effects of the choices made and the consultation of experts in the field. In doing this, the legislator is confronted with the real interest of the law, which could sometimes be replaced more effectively by private regulation. Still with a view to evaluating the relevance of legislative creation, he relies on a well-known method in management: the objectives SMART (p. 231), in order to apply it to the legal field. Through this approach and these techniques, the law finds another form of rationality, based on elements external to the simple legitimation of the law by itself. As a result, the circle stops turning in circles and the law aligns itself with modern forms of governance that aim to have ever greater efficiency as their goal. The strategy behind a policy, the clarity of the statement and the capacity for self-evaluation would be gradually being inserted into the list of criteria for the legitimacy of the law.
Furthermore, and this is perhaps the main added value of Flückiger’s work, this general reflection on legislation is fully in line with our “era of soft law”, where significant normative pluralism reigns: the law no longer includes only laws, but also very varied standards, not sanctioned in the event of non-compliance. These forms of regulation aimed at guiding the behaviour of individuals by softer methods are done via the tool of soft law. This law, endowed with a “normative force of variable degree but which remains lower than that of “hard” law, which is devoid of binding force” (p. 273), invites, recommends, incites to follow a behaviour, but does not legally oblige. This tool becomes very interesting for limiting legislative inflation, but also for being able to propose alternative methods of creating law, often with great efficiency.
However, Flückiger’s definition of soft law is extremely broad. It unsurprisingly includes explicit recommendations (such as recommendations, opinions or codes of conduct), but also includes what he calls implicit recommendations (labels, rankings, peer pressure, etc.) (pp. 279-299). Although this classification is not very consensual in the more restrictive legal doctrine, it must nevertheless be admitted that all these forms of regulation are increasingly developing, gaining recognition and influencing the behavior of individuals. For this reason, the Council of State, for example, devoted its annual report to the subject in 2013.
From now on, the “real” law can no longer bury its head in the sand before soft law and must take this reality into account, in the interest of the effectiveness of the law. Through its open and participatory methods of development and its primary search for the recipient’s support, soft law is betting on trust (p. 312), and if citizens give it this trust, then the law should do the same.
Why do we respect the law?
Finally, this book is a continuation of the author’s article “Why do we respect soft law”, which explained that the view that the law is respected mainly because it is sanctioned is largely outdated. Ten years ago, his article encouraged us to consider that emotions play a major role in the individual’s respect for it and that this fact should not be overlooked. Today, this book invites us to rethink the way in which law is created to adapt to the feelings of the legislator, to the demands of the modern world in order to renew individuals’ trust in it. To do this, it would be enough simply to (Re)making the law by a rational method which finally admits the irrationality of the process of creating law.