Contenu du sommaire : Les valeurs du magistrat

A reflection on whether and how the Conseil Constitutionnel takes account of "values" may seem paradoxical, such is the legitimacy it enjoys in the French tradition arising from its allegiance to the constitution and its capacity for self-restraint in keeping attempts at opportunistic control at bay. And yet it is difficult to believe that a constitutional judge can rule without taking account of a minimum of context-based reference values, by which we mean extra-legal considerations of a moral, economic, social and even political or ideological nature. But recognising this fact amounts to upsetting a number of certainties: it would overturn the notion of the constitutional judge's syllogistic reasoning; the interpretation of the constitution would begin slide towards a finalistic, realistic or consequentialist type of justificatory approach, these being the characteristics of the theory of living constitutionalism; and interpretation would no longer be an act of knowledge but an act of will. And what if a form of constitutional pragmatism were to become the new standard in the light of which the legitimacy of the Conseil Constitutionnel is evaluated?

Values impose themselves on our consciences as self-evident, but if we consider their variability over time and in space, it becomes clear that their obviousness is misleading. This leads us to ask two questions. Is there a foundation that exists beyond appearances that gives them a universal scope? And if not, are we condemned to a relativism without morals?

When applying legal standards, the judge should take a self-effacing stance to avoid interfering with the law as it applies to a given case. If applied rigorously, this common and long-held ideology would mean that the judge is no longer needed, so threatening is his subjectivity to the values promoted by this system: equality, security, effectiveness. However, the logic of this idea rests on a number of untenable presuppositions: the transparency of the normative statements, a denial of the contingency and variability of human situations. If there is still a need for judges rather than automata or robots, it is because to judge it is necessary to understand both those answerable to the law and the laws. Understanding those answerable to the law implies being capable of putting oneself in their shoes. Understanding the laws implies an appreciation of hermeneutic equity. And these two conditions together contribute to the moral acceptability of legal decisions. But that being the case, judicial judgments therefore constitute to some extent, depending on the case, a compromise between the instrumental values of law (security, effectiveness, etc.) and the moral values promoted by the law. This compromise used to be called equity; according to the latest news, it is now called the "balance of interests" or "proportionality". But the moral question remains: to what extent do the salient differences in situations justify that the exception become part of the common application of the rules?

From the point of view of legal theory, the advent of legal modernity has been accompanied by the triumph of one epistemology, rarely questioned in its principle, according to which law must be thought of on the model offered by empirical sciences. The hypothesis of legal value, though, is precisely a counterpoint to that model. It is based on an obvious but forgotten idea, which is that Value is not a Fact. As it is cannot be reduced to a fact, then logically it must be reduced to a norm. The study intends to examine the hypothesis of value in order to circumscribe the concept, in the sense of defining its theoretical properties and then identifying its versions in french constitutional judges' decisions.

Judges are responsible for ensuring respect for a certain number of fundamental values, but these values are liable to change and come into conflict with each other. Only a decision-making process based on discussion and meeting strict methodological conditions can give legitimacy to the choices they make. This process is inspired by a "pragmatic natural law" which is bound to an ethics of discussion by an "open interactive procedure" advocated by the author.

The quest for effectiveness has established itself as the ultimate benchmark when it comes to reforms of the criminal justice system. New criminal laws and the management of the different bodies in the criminal justice system are all marked by this legalised objective of effectiveness. But neither the nature nor the contours, or even the function of this notion, are defined. In a context marked by relativism, the value of "effectiveness" is seen as a practical value, one based in action.

The profession of judge and/or prosecutor is carried out over the course of a working life, and a person's existence more generally. The way values are put into practice is not identical, nor does it have the same inflections, when a person is a trainee judge/prosecutor, a serving one or a retired one. The progression this implies is far from immaterial. Does it not shed new light on the relationship between values and profession depending on whether one is "starting out in the profession" or "serving" or "leaving the profession", questioning the reticence of the judge when asked to "open up" and talk about their experiences and values, at the interface of personal identity and professional identity?

How much freedom is available to the judge, who is by definition subject to the law? Faced with their constraints, what margin of appreciation do they have? What values inspire their approach and their decisions? The article proposes to address this issue bearing in mind the cumbersome nature of the judicial institution, the judge's relationship with those they come into contact with (defendants, lawyers, prosecutors and investigators) and media pressure.

Courage, it is said, is the incarnation of values. This very human virtue of course has its exigency and its usefulness. It dictates a need to abide by rules and to do unto others how we would have others, according to the same rules, do unto us. In other words it defines a form of ethics (what I believe in this life) and a role (the role I serve in this society). The first, as defined by philosophers, relates to precepts and beliefs and defines what must be. The second, as defined by politicians, relates to relationships and practices and what should be done. When they enter the professional field, these two notions find themselves projected together into the concept of professional ethics. The judge and the lawyer, legal professionals who experience the law from the angles of both substance and procedure, each have their own professional ethics, grounded in general ethics and their professional roles. Ethics situates them within a common faith in the law. Their role is to bring law to others.

In this interview judge Odile Barral, who has served as a juvenile judge, a sentence enforcement judge and a court of protection judge, emphasises two important aspects of her practice connected to the issue of values: the importance of listening in the relations with people in the court, what the law refers to as the "contradictory debate", i.e. hearing all sides, and the individualised implementation of universal values (e.g. the interests of the child). Without these, the profession of judge or prosecutor - as "artisans of the real" - would lose all meaning.

What does it mean to teach the law? Does it mean teaching the content of the rule of law, and in the case in point, the legal treatment of religious practices in the workplace? Does it mean placing the practice of the law or jurisprudence in the societal, economic, political or philosophical context that surrounds them and that presides over these responses? Is the legal problem not just a technical issue or does it translate or put into words weighty societal interrogations around freedom of conscience, thought and religion, the values of a society and its foundations? The fictitious sketch that follows embodies a pious wish or a secular hope: that labour law should be able to generate, once again, such thoughtful exchanges, which are also sometimes perplexing, naïve, uncomfortable even, between student-citizens lost in a sea of aberrant certainties.

In a society deserted by morality and religion, the judge is regularly called upon to make decisions on political and social issues, which invite one to reflect on the legal fiction of the judge's axiological neutrality. Indeed, this judge, who supposedly represents the "mouth of the law", is asked to take sides, even if it is under cover of an apparently neutral form of rhetoric - that of the law. How can the abstract figure of the judge – that of an impartial third party, above the fray – be reconciled with their flesh-and-blood incarnation, with their own passions, prejudices and world view? Certain analyses, outside of legal opinion, have attempted to address the complex relations between the myth of impartiality and the reality of the judge's take on values (sociology of the law and justice, so-called realist theories of law). At the same time, outside of all learned discussion, film has also explored, with its own specific means, this issue of the articulation between the judge's mission, their personal opinions, where appropriate informed by the social context, and the value-based conflicts they find themselves confronted with in the courtroom, in a number of films featuring French judges and prosecutors.

William Faulkner's novel Intruder in the Dust is an invitation to reflect on the "value gap" between white lives and black lives in the South of the United States where lynching was considered "normal". A black man, Lucas Beauchamp, is believed to be guilty of murdering a white man. But Charles Mallison, black Aleck Sander, sixteen years old, and Miss Habersham investigate the crime in a cemetery at night to prove Lucas's innocence. Charles, terrified by the "monstrous face" of the crowd that has come to lynch Lucas, feels shame towards his people. According to Faulkner, his conversion prefigures that of the Southern Whites to a justice that would go beyond slavery and racism. But defending essential values would require firm politics, an effective judicial system and thinking that encompasses diversity (Baldwin, Glissant, King).

Following the scandal resulting from the Palamara affair, which revealed a secret scheme for fixing the appointment of chief clerks and facilitating career progression, the Italian judiciary's system of self-governance – which has always been ill-accepted by politicians – has been accused of being corrupt. In the dock in particular were the "movements" within the ANM which, after the golden age of political-ideological divisions, are said to have become purely centres of power focused on career management. Two recent books help us to understand the current crisis in the Italian judiciary, by approaching it from a historical perspective which reveals the fundamental role "associationism" has played in the conquest of independence, the implementation of constitutional principles and the renewal of Italian legal culture.

The article endeavours to define the independence of the judge based on a dual constraint of coherence and parsimony in the description of a normative structure. Independence in this sense can be described as a prohibition on giving judges individual instructions on the exercising of their role, which then implies a prohibition on sanctioning them, directly or indirectly, for their decisions. This definition, less ambitious than those currently given by legal opinion and case law, nevertheless allows an understanding of how the independence of the judge is a guarantee of good justice and one of the conditions of the rule of law.

At the apex of the hierarchy of the functions of the State, the justice system has to meets objectives that its users expect of a sovereign public service. The programming of its performance, aligned with notions of new public management, influences the management of its skills and jobs. Independence in the act of judging has not been achieved, but the quality of justice, which in large part depends on good practice in the administration and organisation of the courts, has an impact on judges and prosecutors' careers.