Contenu du sommaire : La Cour de cassation, vers une nouvelle légitimité

A much commented-upon report was issued in July 2021 by a committee that was particularly aware of the perspectives open to the Court of Cassation as the 2030s approach. It describes, recalls or mentions the renewed context of the task of judging as the need for communication and the imperative responsibility that judges bear, both themes that consistently appear in contemporary judicial reflection. The innovative aspect of the report lies in its passages on the operational entities of the Court of Cassation, which focus, among other things, on subjects like providing assistance to lower courts, the observation of pending disputes, the maturing of managerial thinking, and desired changes to the rules on form and procedure. There are other places where the report seems to have decided not to or barely to go, subjects which it explicitly declines to discuss or integrates into wide-ranging, legitimate concerns, which it does illustrate with relevant recommendations. Finally, it also commends, with salutary reminders or meaningful silences, certain concepts that are the pillars that support judicial culture, such as the imperative need to maintain trust in judges and the de jure nature of appeals against their decisions, with no process of selection.

Justice is not a component of the liberal principle that "pollutes" the democratic principle. It is itself a component of the democratic principle, which would be incomplete without it. Because it the hinge between the civil space and the public space and between the public space and the political space and it ties these three spaces together. Because the production of the meaning of a legal statement is the product of a hermeneutic process in which the judge takes part by taking judicial actions that take account of concrete lived experiences and the quality of the adversarial argumentation.

The Court of Cassation's actions are motivated and structured by the technique of cassation or quashing. This gives its judges a technical legitimacy that is distinct from political and ethical legitimacy. To maintain this balance, it is proposed to extend the technique of cassation and disseminate it better, which among other things will imply opening up access to the preparatory work that goes into the Court's judgments. Ultimately the idea is to preserve the French judicial culture and traditions whilst meeting the requirements of the 21st century in terms of communication and a renewal in the explanation of Court of Cassation judgments.

This article examines the "Court of Cassation in 2030 Commission Report" by way of transnational comparisons of judicial legitimacy, concentrating mainly on the practices of high courts. While multiple factors contribute to improved perceptions of these courts, the focus in this article is on the discursive dimension of legitimacy. Noting the diversity of epistemic contexts, the article considers the various methods of formulating judicial decisions and their relation to legitimacy and social acceptance.

The "Court of Cassation in 2030" report considers the perspectives in which the thirty-six appeal courts are aware of their role as relays. Sandwiched between the Court of Cassation and the lower courts, they have to orchestrate a judicial conversation between the three levels in the court system, whilst activating new methods. They also have a responsibility, due to their forming a mesh that covers the entire country, to listen to the demands of users of the judicial system and to pass on authentic, topical information to the Court of Cassation. In this way the judicial institution will be able to stay in touch with an active global conversation that reveals the subjects that are important in today's society.

Rebuilding the bond of trust between the citizen and the judicial institution will necessarily require a better understanding of the judicial debate in a democracy, of the way judicial decisions are made, and of the role of the judge in making them. The Law of 22 décember 2021 allowing the recording of court hearings on "educational public interest grounds" constitutes a step in that direction.

The report posits the following: the task of the french "Cour de cassation" is to defend the rule of law, and to exert a normative authority in a world in which the rule of law is becoming increasingly complex, both on a national and international level, as well as socially sensitive. Its judges, advocates general and judicial assistants will therefore need to possess rare skills, and the court will have to recruit them in an increasingly competitive setting. The article offers an analysis of best practices, and of the strategic choices made by other supreme courts in the context of the challenges described above.

The Court of Cassation has seen and driven some far-reaching changes since it was created, many of which have concerned the internationalisation of the law. The report of the Study Committee on the Court of Cassation in 2030, while it does not call into question the technique of cassation – although it does suggest taking more account of the events prior to the decision (treatment of urgent situations, open interactive procedure) and after the cassation (extension of the quashing of judgments without a referral back to a lower court) –, responds to a search for legitimacy by proposing ways of making the decision-making process more accessible, thereby complementing the educational role of the lawyer at the Court of Cassation and facilitating their work of defending the rights of the defence.

On the occasion of the French Presidency of the European Union, it was felt that a reflection was necessary on clear data about jurisdictional activities within the Union, and on other data that is not so clear. The clear data may be seen as worrying, as with the manifest attacks on the fundamental values of the rule of law in the countries known as "illiberal democracies" and a foreseeable rise in unprecedented or complex disputes everywhere; on the other hand, it can also be seen as reassuring, for example with the clear acceptance of the idea of the independence of the courts, which is now universally proclaimed and organised. The not-so-clear data suggests a need to assess the risks of a dangerous descent into a hardening of fixations on national models; it also suggests a need to take clear stances, standing back from polemics around the role of the judge, and preferring lucid reflection on values.

The wave of women speaking out in the wake of the Weinstein affair has been a major societal phenomenon over the last few years, whose repercussions in the public debate cannot go unheeded by the Law. As well as a reinforcement of the legal arsenal intended to combat sexual and sexist violence, this event has generated numerous manifestations of the conflict between freedom of expression and protection of the reputation of others in disputes involving free speech and communication. The outcome of this confrontation, which has undeniably worked in favour of whistleblowers, has involved certain familiar mechanisms from press law.

Some American legal television drama series pay a great deal of attention to the statute and case law that the characters refer to. Screenwriters also like to inject the latest legal news into their storylines, even though their target audience is not one made up of legal professionals. Such was the case of The Good Wife (2009-2016), a series in which the creators, Robert and Michelle King, called upon numerous professional consultants. It is therefore possible to track developments in the case law of the Federal or the Illinois Supreme Court and to see how it is applied accurately and judiciously.

The French Constitution of October 1958 provides for a mixed model of administration of justice through the court system. The powers to organise departments, provide the courts with material resources, and administer the courts are given to the Minister of Justice, who is the guarantor of the administrative unity of the judicial organisation. The codes of procedure and judicial organization devolve these "judicial administration measures" to the heads of the courts and jurisdictions. The article illustrates the contemporary practice of judges and prosecutors in two of these ministerial areas, notably with examples from the public health crisis. Based on a comparison of judicial systems, It identifies the points that separate the hierarchical dependency of the judiciary on their general internal organisation and their adjudicatory independence.