This newsletter is the first one written in English for an English speaking/reading audience. It is based on the French newsletter (here), with some adaptations.
The site to which this letter refers (www.ledroitdelafontaine.fr), now contains an « English site » tab, which includes texts in English about law and in particular about constitutional law. This part of the site is intended to be enriched and I hope that you will be able to find some new elements to think there. Good reading to all !
Full Professor in Constitutionnal Law,
Sorbonne Nouvelle University (Paris, France)
How can one appreciate a thought that cannot be said? There are many cases where these things that are not said – because often they must not be said – are actually an essential, even determining, aspect of what is being talked about, so much so that I have long doubted the truly serious character of sciences that « tell » something to us. How many times must we guarantee the « off », how many times must we swallow a piece of data in order to remain within the bounds of propriety or of the so-called « seriousness » of the analysis? In particular, it happens that human phenomena, that is to say facts which are the result of interactions between human beings, are rarely explained with regard to elements which each of them has to deal with, since always and for always: their body, their breathing, their food, their sleep, their hygiene, their sexuality. If we think about it, there is something deeply astonishing about this, as if men could explain what they are in a way that disregards what they are fundamentally.
This makes it unscientific to explain a political, administrative or commercial decision using the argument of sexuality, for example. This would be true for movies or literature, but not for science. In other words, science very often proposes to look for an explanation without any link with reality, for the first reason that we prefer to ignore it and fantasize about it. In law, we have tried to build a theory of legal interpretation based on what may or may not have constituted the judge’s breakfast, but it is so vulgar – meaning « normal » – that it does not deserve too much attention.
If the goal of science is to make the world more intelligible, it is therefore likely that it contributes on the contrary to ignoring it, to blurring it. Moreover, a scientist is often – fortunately not always – neither more nor less than a man or a woman who seeks to be recognized as a scientist, and not someone who wishes to make the world more intelligible: the raison d’être of his or her discourse cannot therefore be fully understood in terms of its content, but in terms of what motivated its author, which is not the same thing. As for the question of knowing why such and such a person seeks to be recognized as a scientist, this has to do with what makes such and such a person a living human being, and it is undoubtedly on this side that we can look.
In this regard, perhaps you know this joke, which I first heard over 30 years ago from Jacques Attali (a French economic and social theorist that noticeably served as counselor to the former French President François Mitterrand): « Moses said, ‘Everything is law’. Jesus said, ‘Everything is love’. Marx said, ‘Everything is class struggle’. Rockefeller said, ‘Everything is for sale’. Freud said, ‘Everything is sex’. Finally… Einstein came along and said: ‘Everything is relative’! ». What a joker this Jacques Attali is, and since then he hasn’t really changed. We remember, for example, that the stewardship of the famous Attali Commission (on how to ignite the growth of the French economy, under French President Nicolas Sarkozy), where Emmanuel Macron (now the French President) made his debut in the political world, was already provided by the McKinsey firm (the firm which is at the origin of a current problem in France in that the political authorities have often resorted to it in recent years and for large sums of money, instead of the administrations). Joke again.
And, while for this episode 3 of « Thinking our time », I wanted to talk to you about so many things (about Russia leaving the Council of Europe and thus putting an end to the joke that consisted in believing that it agreed to respect fundamental rights and freedoms; about the burlesque number of existing offences in French law and the real number of those used; about the new rules of procedure of the French Constitutional Council – again a joke -; about Muriel Pénicaud (former French Minister of Labour) who did not take the head of the International Labor Organization – that would have been a really bad joke -; about a country where for the third time the far-right is present in the second round of the presidential election and where the role of the guardian of the constitution does not fall first to a jurisdiction but to the President – that’s the bad joke), I decided to stop on the report of the biggest French think tank in the legal field (but to promote which vision of the law! ), Le club des jurists [The Lawyers Club], report entitled « For a law at the service of the fundamental economic and social changes of our society. Proposals for the presidential campaign », published in February 2022, and resulting from a working group chaired by… Jacques Attali himself, head of the Lawyers (as he has never been a lawyer)! Attali master of jokes, 12th dan.
But it must be said that it has a good audience, because the lawyers who make up the said Club are not left out, who have accepted the principle. It was already funny to have designated the former French Prime minister Bernard Cazeneuve as their president, admittedly a lawyer… but still… With this report led by Jacques Attali, the lawyers have taken the joke further.
Wouldn’t all this be said or serious? But it is true, and it says a lot about the way we conceive the law today. The very approach of the report is very instructive since, according to it, « only the conclusions having been the object of a consensus of the totality of the members of the commission have been retained ». Let’s be glad that it is proposed, for example, to « promote reciprocity in public procurement, encourage reflection in favor of a principle of European preference in public procurement and make it an instrument for the development of startups and new European companies » (proposal no. 21) or to « conduct a reflection on education and orientation in order to eliminate stereotypes, propose a certificate of equality attesting to the completion of training courses dedicated to the understanding and identification of sexism » (proposal no. 4) There are 46 such incisive proposals…
In short, to think something is first to look at it. It is thus to make the choice to look at this thing, a choice which is more or less explicit. We can look at the same thing as the others, which is a choice. We can also identify something else to see and to think about.
So I propose you some new elements to think initiated by a slanting glance, which, following the example of the painting The Ambassadors, sometimes allows, if not to see better, at least to see the thing itself, and not just any thing by Holbein (see a quick presentation of this painting, how and what to really see).
– Reflections on the scope of constitutional law, which we must agree is neither very strong nor very liberating because, in the first place, we fantasize about it instead of thinking about it as it is. Optimism has its good points, but it more often borders on blindness. The text revisits, from the intersecting history of institutions, the supposedly « friendly » links between liberalism and democracy: Is Liberalism a Condition For or an Obstacle to Democracy? A short institutional history of the « liberal trap.
– Reflections on what European Union Law is made for: a text written in 2016 and just translated in English: Effectiveness and European Union Law from a Societal Perspective.
– A very short reflection about publications of Michel Foucault’s book, La volonté de savoir. Histoire de la sexualité, vol. 1 [The Will to Know. History of Sexuality], Gallimard, 1976.