The rule of law under the control of judges

Continuing the reflection begun in a first volume published in 2009, Jacques Krynen composes, with supporting quotes and illustrations, a picture of justice over the long term, richly documented and very pleasant to read. The state of justice is, however, not just a nice summary. It is also a book of ideas. J. Krynen in fact defends a thesis there. According to the author, the current rule of law is an illusion ; in reality, contemporary France would once again have become a state of justice, a state evolving under the domination of judges, like the one which precipitated the fall of the Ancien Régime. If this situation is only revealed today, the resurrection of the judicial power began two centuries ago, after the brief parenthesis represented by the destruction of the State of justice during the French Revolution.

From Old Regime justice to contemporary justice: continuities

Served by a lively and luminous pen, this work highlights the continuities uniting the justice of the Ancien Régime and that which was reborn from the first years of the XIX^e century. If the revolutionaries believed, to ensure the reign of law, they had to make a clean slate of “ judicial power “, L'” judicial order » is reconstituted at the Consulate. The system of election of judges is challenged, in favor of a lifetime appointment, which the demands for statutory independence bring closer to the system (condemned by the Constituent Assembly in 1790) of patrimoniality of judicial offices. During the XIX^e century, the judiciary certainly remains subject to political power. However, the author emphasizes that the writings of the jurists of this period – whether Henri de Pansey, the elder Dupin, Troplong or the more discreet D’Eyraud – do not show any culture of submission: on the contrary, they glorify their function as interpreters of the law. The back-to-school speeches at solemn audiences also attest to the renewal of classic themes: the divine foundation of justice and the sacredness of the function of judging, the exaltation of jurisprudence, or even the superior power of the judiciary, anchor and compass of the State. The increase in the powers of the Court of Cassation, which university doctrine is slow to see, borders on “ resurgence of settlement stops ”, or even to a “ jurisprudential erosion of the legal rule “. THE XX^e century further accentuates this evolution. No doubt the Court of Cassation has internalized the supremacy of the legislator, but it considers itself invested with a real legislative capacity and even a duty to remonstrate.

At the same time, the author highlights the consequences of the French doctrinal discourse on the rule of law which developed from the beginning of the XX^e century, notably with Léon Duguit and Raymond Carré de Malberg. This concept in fact legitimizes the rise in power of the administrative judge. Comparing itself to the conscience of power, the Council of State saw itself as “ partner » of the government, arbitrating for “ associate the prerogatives of public power and the freedoms of citizens, administration and efficiency, the State and the law “. On the other side of the Palais-Royal, the Constitutional Council, after the transformation of the first half of the 1970s, established itself as a judicial counter-power. In the name of the supremacy of the rule of law over the legal state, he exercises, in practice, a control of expediency which tends to substitute his opinion for that of the elected representatives of the Nation. The Priority Question of Constitutionality, which allows the exercise of control over the law a posteriorifurther increases the hold of constitutional judges on political power.

Powerful, judges nevertheless suffer from a legitimacy deficit. This is the case of the nine wise » of the Constitutional Council, this “ prestigious club for senior retirees from political life ” who do not hesitate to impose their views on the representatives of “ people “. But the professional magistrates who write judgments and rulings “ in the name of the French people », without ever having received a mandate from the people to judge, do not escape it. Like yesterday, today’s professional judiciary does not make the law the essential norm ; like yesterday, it enjoys great statutory independence ; like yesterday, it manifests a fighting spirit capable of transforming into “ sling “. To avoid the divorce between judges, on the one hand, and the people, on the other hand, it is not enough, according to the author, to work towards expanded recruitment, better training of judges, ethical requirements and increased accountability of magistrates ; we must work to rebuild their democratic legitimacy. And to do this, the author recommends – despite corporatist reluctance – the institution of judicial elections.

A new state of justice ?

The parallel established between the contemporary judiciary and the justice system of the Ancien Régime is enlightening and attractive. But the conclusions reached by the work are not always convincing.

First, the national character of the State of justice described by Jacques Krynen is open to discussion. In contemporary society, French courts, even sovereign ones, must reckon with an international jurisdictional order, represented in particular by the European Court for the Protection of Human Rights and the Court of Justice of the European Union. And the State of justice which imposes the law passed by the representatives of the Nation is often less the work of the three jurisdictions. sovereign », for which the work convinces of a certain connection with the courts of the Ancien Régime, as well as those of these Courts of a new genre which are almost not mentioned.

Then, a reading which opposes jurisdictional power and political power does not always seem satisfactory. Apparently, the Council of State is the censor of the administration, just as the Constitutional Council is that of Parliament. But practice is not always consistent. During troubled periods – the Second World War or the Algerian War, for example – the vast majority of judges were far from having defended the rule of law. ; rather, they seem at best to have given in, at worst to have defended the unbearable. In contemporary times, we can also wonder if jurisdictional censorship does not participate – at least in certain instances – in a role play. Parliament, which could hardly have been unaware that the law repressing the denial of the Armenian genocide would be declared unconstitutional, did it not use the Constitutional Council (Decision no. 2012-647 of February 28, 2012.) to carry out, without consequence, an electoral seduction operation ? When the Council of State affirms that emergency accommodation for the benefit of the homeless is a fundamental freedom (THIS ord. February 10, 2012.), does he censor power or promote – without real concrete effects – his humanist conception of law ?

It is also sometimes difficult to reconcile the story of a powerful justice system and the experience of mistreated courts. Jacques Krynen dismisses, a little too quickly, in my opinion, material questions. But, even beyond the question of the justice budget, the “ authority of res judicata » is sometimes a legal concept more than an empirical reality. Parliament is often tempted to challenge court decisions – particularly outside of criminal matters – through retroactive laws. ; more serious, administrations do not always execute, far from it, the injunctions addressed to them by the administrative judge.

The election, a solution ?

Finally, we can doubt the remedy that the election would constitute. First, in terms of principles. Certainly, the magistrate judges “ in the name of the French people “. But in what name do other officials act, particularly when they are invested with prerogatives of authority? ? The tax inspector who checks the tax situation of a taxpayer, assigns adjustments and imposes penalties, also operates on behalf of the French people. And his margin of discretionary power is no less than that available to the judge. When reading the work, we cannot convince ourselves that the legitimacy required by the judicial function is substantially different from that which other sovereign officials must benefit from. Would the election of magistrates be the prelude to an elective public service? ?

Above all, is the election sufficient to meet the requirement of democratic legitimacy? ? Certain judges – consular or industrial tribunal – are elected ; However, it does not seem that their decisions benefit from additional authority. On the contrary.

But these questions only point out the relevance of the reflection opened by The state of justice. Whatever the debates that his theses open, this book has the tremendous advantage of placing the judicial exercise and its actors at the heart of a reflection which is often lacking.

The difference that he underlines between the rule of law and the state of justice constitutes, for example, an essential key to analysis. Let us think about the Priority Question of Constitutionality (QPC), hailed, originally, as a tremendous advance in the rule of law ; it finally made it possible to completely give substance to the hierarchy of standards updated by Hans Kelsen. After a few months of use, voices highlighted the use made of it by certain litigants to delay the course of their trial, or even to escape their responsibility, particularly in financial crimes. But well beyond the consequences of using this legal remedy, it is above all the conditions of the Constitutional Council’s decision that pose a problem. Even though the QPC is raised during a trial, the Council is, for example, supposed not to decide a dispute between parties, but only to rule on the constitutionality of a legislative provision. This fiction allows us to put aside the rules guaranteeing the impartiality of judges. It thus authorizes the members of the Constitutional Council to avoid, in fact, a conviction against a former colleague. Still within the framework of QPCthis judge of the law is also free to define the temporal scope of his decisions. The possibility is thus offered to it of creating a legal vacuum which Parliament cannot fill. This is certainly to the credit of the thesis, defended by Jacques Krynen, of a resurrection of the State of justice, which the notion of the State of law only comes to adorn with respectability.