Debates

What does it mean to be a “democratic lawyer”?
January 13, 2024

If today we saw fit to take a day to think about this question, it is because the answer is not self-evident.

Indeed, we, the “jurists”, whether we are practitioners or theorists of law, we are not called in our professional practice to make a value judgment on it. We must apply it for practitioners and study it for others, outside of any moral or political assessment. So much so that among the human and social sciences, law is considered a science of government. It is studied as the tool for realizing power. And the law has had a long life without having any connection with democracy. It was applied and commented on as such well before the notion of democracy, long eclipsed after its birth in ancient Greece, was revived in the 20th century. No doubt there was, particularly from Enlightenment Thought, a critical thinking of law by philosophers, but it was precisely the object of philosophy to practice critical thinking. This was not the responsibility of the lawyers.

Things changed in the 20th century, and particularly after the Second World War. From 1948, the universality of human rights became a global horizon with the Universal Declaration. From there, the principle of equality between all humans is established and a certain number of rights constituting freedoms are enshrined. From then on, all States, whatever their political regime in reality, because they were signatories to the Declaration, then to the two International Pacts which followed, affirmed themselves as democracies, that is to say as regimes whose fundamental values are freedom and equality. This display then sends the signal that they will comply in their legal systems with the imperatives of human rights, constitutive of democracy.

However, critical thinking had not entered the law faculties. Positivism had the success that we know with the sociology of Durkheim and Auguste Conte. And he had, notably through the work of Duguit and the Bordeaux School, gained the sphere of law. Even after the publication of the Universal Declaration, and until today, positivism remains, particularly in France, the dominant thought and the good jurist is one who is expert in the application or commentary of the law as it has been been promulgated and not the one who criticizes it in relation to values.

But the Universal Declaration is there, the United Nations advocates democracy, even if it is under conditions which I will say this afternoon are minimal. This would allow the standards of each State to be evaluated in light of the rights and freedoms that have been proclaimed. The way was thus opened to the constitution of groups of militant jurists, those for whom law is not only the tool of power, but must be the means of achieving for all the rights and freedoms that have been proclaimed. However, these rights and freedoms can be claimed against the State if the latter, and this is most often the case, does not fully implement them. And this is how the International Association of Democratic Lawyers was born. It was founded in 1946 by a group of personalities including René Cassin (the father of the Universal Declaration), Joé Nordman, Léo Matarasso and Pierre Cot.

This Association, in the work of which some of us here have participated over the past decades, has been a powerful international association, recognized among the NGOs accredited to the United Nations. She was very active in the national liberation struggles of peoples subjected to colonization and other struggles such as that of the Palestinians or the fight against apartheid in South Africa. The qualifier “democrat” associated with his identification has not, to my knowledge, been the subject of reflection or debate within this structure. No doubt, we preferred to remain discreet on this subject to the extent that the characteristic of this association was to bring together jurists from both sides of what was long called the “iron curtain”. There were obviously two rather incompatible conceptions of democracy. The problematic pair of values which underpin democracy, namely equality and freedom, was the subject of opposing conceptions by the two camps.

Much has been said that the AIJD was subservient to communist regimes. What is true is that the contributions of the national associations were greater from the branches coming from communist countries, because it was then the States which financed them, than from the branches from other countries, where the contributions came from
Much has been said that the AIJD was subservient to communist regimes. What is true is that the contributions of the national associations were greater from the branches coming from communist countries, because it was then the States which financed them, than from the branches from other countries, where the Contributions came from activist memberships. But I must say, having participated quite closely in this association, that the personality of Joe Nordman, who was its President for a long time, made it possible to overcome this difficulty. This great bourgeois, very sincerely communist, was deeply attached to getting jurists from both camps to work together and knew how to demonstrate remarkable independence in difficult times. But this delicate enterprise could only continue by avoiding looking too closely at the term democrat.

Today, the global context has changed, the Berlin Wall has fallen. There are no more so-called “popular” democracies. There are regimes all over the world claiming to be democratic, while the notion has dissolved into a few good recommendations such as practicing free and transparent elections, which in many cases simply means that the stuffing of votes ballot boxes will be limited.

This situation justifies the questioning that we are opening today. To the extent that we still have this label of “democratic jurists”, it is legitimate that we try to deepen what characterizes this identity.
precise political and constitutional provisions.

But we know the degree of political dissatisfaction that our societies have reached, despite the fact that these conditions for democracy are more or less met, at least in the countries that we emphatically designate as the "large “democracies. It is therefore that the techniques considered as conditions of democracy, if they are indeed the necessary conditions, are not sufficient. We must then go beyond and question the substance of democracy, the deep logic which animates this modality of politics, to ask ourselves what its spirit is.

To carry out this reflection, we can start very concretely from the rights and freedoms guaranteed by the Universal Declaration and the Covenants which followed. We then see that these rights and freedoms carry an emancipation project of a truly revolutionary nature. The equality proclaimed is an equality of all, absolutely all humans. It is an equality of rights, but it is also, thanks to the Second Pact, that on economic, social and cultural rights, an equality in the very possibilities of life, an equality in access to a just and good life. Freedoms are political, union, ideological, religious and cultural freedoms. All of this constitutes a very high ideal. (heaven on earth) This has several consequences for our thinking.

These rights and freedoms, if applied, characterize a political society marked by the plurality of its members, their heterogeneity, and the conflict between them. We humans, considered all equal, are infinitely numerous and all different. Undoubtedly, there are traits common to certain groups. But even within the most close-knit communities, if freedom is exercised, plurality appears. And this plurality reveals heterogeneity. Because, although members of the same species, we are all different. This heterogeneity then induces conflict, because from these differences, beliefs will diverge and oppositions will appear. Democracy is the modality of politics which assumes this conflict, that is to say dissensus. This is a diversion channel for violence. This is what Machiavelli, this innovative thinker of politics, understood when he analyzed what he called the "tumult", these opposition movements which arose in 15th century Florence between the Greats, those who had power and the people, those who contested it.

The full implementation of the possibilities opened up by rights and freedoms has another consequence which it is particularly important to remember in the current era, which is that democracy is achieved in what Hannah Arendt called political action. , this permanent fight against domination. There is only the realization of these rights and freedoms if we seize them and this can lead us to what Miguel Abensour called insurgent democracy, this movement by which we constantly ensure that this realization progresses. This can thus lead to standing up against the State. Indeed, the state apparatus will always present itself as the guarantor of democracy by claiming that it is achieved with the representative regime and the rule of law and will always attempt to confiscate power and regain control over the domination for his own benefit. And the democratic push will always require going further, unless the people abandon political action, which is one of the great dangers of present times.

To go further is to keep the condition of plurality open. The whole that a society forms is a composite whole which must maintain without erasing the differences and oppositions between its elements. However, the processes of appointing leaders lead a part of society to occupy power by claiming to embody the whole. When they claim it to the extreme it results in totalitarianism. And politics is oriented towards the interests of those who have conquered power. The interests of others are ignored or underestimated. There is no pause in the democratic fight against this inevitable phenomenon. For the political community to be that of all its components, we must fight tirelessly against the confiscation of power which is the mark of any government.

To close this short theoretical introduction, I will add two series of remarks: the first relates to the risk inherent in politics and struggles for emancipation. This risk is that of the reversal of emancipation into its opposite. This has been striking in all revolutions, in all struggles for emancipation. The French Revolution gave birth to the Terror and gave birth to the Empire, then to almost a century of monarchical regimes. Closer to us, the national liberation struggles led the people thus “liberated” to sink.
sink into dictatorial and repressive political regimes. Such is the struggle of humans for their emancipation. A few years ago, Étienne Tassin discussed this phenomenon in a work entitled “The curse of living together”. Democracy can at any time give birth to its opposite, because assuming freedom for oneself and for others means accepting the risk of losing it. Plurality and conflict can lead to the triumph of opposing forces. Then this plurality disappears and there comes the injunction of national unity behind a leader, which is the shipwreck of democracy. This risk is everywhere and we know it well, here in France, we who fear the next electoral events so much. This shows us only one thing. This is because the maintenance of democracy depends on the forces that we put into the political battle. And if the forces relax, regression does not take long. Democracy is never guaranteed in the long term.

The other series of remarks relates to the nature and extension of rights and freedoms whose defense is at the heart of the democratic process. These rights and freedoms do not form a complete whole. The right to have rights creates an infinite dynamic. And this for two reasons. On the one hand, humans are always pushing their demand for equality and freedom further. Demands for new rights then appear as we see in the refusals of domination which arise in all societies. This gives rise to the women's rights project which is open everywhere, even if it does not advance at the same pace depending on the society. The same goes for the rights of LGBT people or all minorities.

But on the other hand, technological developments have a considerable and sometimes very negative impact on our freedoms. This is particular to the current period and the defense of democracy will pose itself in a different and very problematic way in the years to come. I do not have time to develop this point here and I think that it could usefully be the theme of another meeting to come. Let us recall just a few elements of this situation.

First there is the acceleration of time. A few decades ago, the frenzy to act, to travel, to consume could be accompanied by the feeling of experiencing progress. Today, between the resumption of wars and the threat of climate change, the rage to consume and travel no longer makes sense. And yet the pressure of acceleration is exerted on us at all times, echoing the movement of capital which maintains its profits by its disheveled circle around the planet and which pushes for the militarization of the world. How can we imagine a response from democracies in terms of rights to this? An investigation by the Jean Jaurès Foundation recently showed how it is commercial brands that have taken power over political imaginations. By taking refuge in “elements of language” empty of content, policies are no longer situated in a common history. How can we regain control of this common history by making the debate about it one of the challenges of democracy?

Finally, and this is certainly the most difficult, how to prevent new technologies of hyper speed or superpower, whether in the biological field, or communications from taking control of our lives through societies private companies which develop Artificial Intelligence and thus have incredible power, much greater than that of States? These phenomena, by breaking up political communities, send us back to our solitudes in the face of machines. A few years ago, people were wondering about the possibility of cloning. Today we are at the stage of augmented humans and robots more powerful than us.

Will democracy have only been a short moment in the history of humanity, or will we be able to redefine rights and freedoms in this context? It is on this difficult and worrying question that I give the floor to our speakers.

*For more on this « Pour un Conseil mondial de la résistance », Monique Chemillier-Gendreau, Ed. Textuel,

MONIQUE CHEMILLIER- GENDREAU

For a World Constitutional Court and a World Court
of Human Rights

A gaping distance separates the great texts on human rights, with the promises they contain, and the reality of the conditions faced by humans in this 21st century. A few reasons can be discerned for this:
Firstly, the assertion of rights has certainly progressed considerably since the creation of the United Nations, but their implementation remains weak, as the mechanisms put in place by the United Nations do not have jurisdictional powers. The only exception: the European Court of Human Rights, a binding body for States, holding the power to condemn them for their violations of the European Charter of Human Rights. But it is a regional court with a limited geographical scope.
Secondly, the disparities from one region of the world to another mean that many benefit only from lesser guarantees, or even suffer from a total absence of guarantees, this moreover in the parts of the planet most often plagued by to wars and subjected to the most dictatorial regimes.
Thirdly, and this is a structural cause, state sovereignty has limited international law to interstate agreements.
The opening of the world which promotes inequalities, which generate violence, requires large-scale responses: two avenues which have been recalled or recently opened up would constitute revolutionary advances: one is that of a World Court of Human Rights the man ; the other is that of an international constitutional court.
A World Court of Human Rights would have jurisdiction to enforce the International Bill of Human Rights; it could be seized under certain conditions by all humans and its decisions would be binding on States.
An International Constitutional Court could compel States to respect in their internal political systems the international commitments they have subscribed to in terms of human rights and democratic freedoms.
This project is not an alternative to the World Court of Human Rights. It is complementary. It appears that only binding mechanisms at the global level are able to guarantee, for all human beings, respect for their rights and freedoms.

The democratic deficit within the European Union has become a refrain that we mumble without really thinking about the implications it carries, that we are content to note, by simply noting, as a fatality, that it is structural from the outset.
Each new treaty has, however, had the ambition to restore the balance of the institutional triangle (commission, parliament, council) in a more democratic direction. This is how parliament saw its prerogatives gradually increase through the establishment of consultation, cooperation and then co-decision procedures, in addition to the vote on the Union budget. The Charter of Fundamental Rights of the European Union drawn up in 2000 clearly recalled that the Union is based on the principle of democracy and the principle of the rule of law. Only the independence of the ECB would remain to restrict the exercise of democracy. But, with the crisis, more and more voices are being raised to demand the restoration of political control over the management of the European currency.
The democratic future would therefore be assured. It is probably not that simple and the financial crisis has revealed that, despite progress, the functioning and organization of the Union are still hampered by the granting of genuine democratic control to the peoples.
Three themes make it possible to identify the conditions of such control :
- the chart
- decision-making (with, in particular, relations between national parliaments and the European parliament)
- the independence of the European Central Bank

What about the rule of law today ?

The rule of law can be defined as the State in which legal norms are hierarchical, such that its power is limited...

Towards a constitutional court ?

With the constitutional revision of July 23, 2008, article 61-1 introduced the priority question of constitutionality (QPC)...

The justice crisis

Justice is not a sufficiently discussed democratic subject, the movement of depoliticization of the judicial question being part of a long evolution...

From the right to safety to the right to security

The CNCDH was created by order of the Minister of Foreign Affairs of March 17, 1947 to monitor, at the international level, France's commitments in the area of human rights...

Conferences

Colloquies with the European Association of Jurists for Democracy & Human Rights

Evolution of labor law in Europe under pressure from the neoliberal economy

* See the website of the European Association: https://eldh.eu

European criminal justice

At a time when the development of the European Union and European law is more and more advanced, one of the major questions which is raised is that of police and judicial cooperation in criminal matters within the EU. On what foundations is this cooperation built and on which principles is it based? The aim of organizing police investigations and criminal judicial proceedings at European level, with joint bodies with powers at the level of the territory of all the Member States, aims to better combat transnational crime which is now organized in networks. But does it simply allow the necessary regulation of the new European area, or is it also the occasion for reinforced population control and a restriction of asylum policies? What are the dangers of protecting rights ?

Power of money and impotence of justice.

Globally, impunity for crimes against humanity and war crimes has decreased, in part due to the establishment of the International Criminal Court. But at the same time, new impunities appear. The misappropriation of wealth aggravates the lot of the most disadvantaged, economic development is hampered, the poorest are themselves the objects of trafficking (goods, capital, information circulate freely, but not men).
Human rights defenders must open a new front. As such, the issue of tax and judicial havens is emblematic.
A favorable situation arose in the 1990s to fight against tax havens, and more generally against financial crime.
The Geneva call gives a strong first signal. Part of the text alerts the public to the shortcomings of judicial cooperation in this area. Important institutional initiatives are also launched. In 1989, the FATF was created, an intergovernmental body aimed at developing and promoting national and international policies to combat money laundering and the financing of terrorism. The OECD published in 1998 a report on harmful tax competition. The conference of European parliaments against money laundering, which was held in Paris in 2002, adopted a number of recommendations in this area. In Europe, a working group made up of academics from 15 member states proposed in 1997 a Corpus Juris, notably aiming at the creation of a European public prosecutor's office.
Practices are also evolving: an economic and financial pole is created in Paris, liaison magistrates are set up, conventions are emerging and have been ratified, notably on bribery of public officials abroad.
The 1990s thus show that the questions of corruption, political and financial crime, the fight against tax havens can impose themselves on a political agenda.
But then we observe a turnaround in the economy. In April 2001, the United States refused to reiterate support for the OECD initiative to take action against certain non-cooperative countries. After September 11, 2001, if the question of using tax havens to finance terrorism was raised, it was only to fight against funds with an illicit destination and not to fight against hidden funds. In France, the laws of May 15, 2001, August 1, 2003 or March 10, 2004 do not deal with the issue as such of financial flows to offshore areas. The European Union’s Savings Directive in 2005 leaves many loopholes by not dealing with legal persons or trusts. By failing to put in place financial and economic supervision and regulation mechanisms, the Member States have allowed themselves to be dispossessed in favor of procedures which are often technocratic and which increasingly make room for the decisions of professional bodies, of which it is difficult for members not to be in a conflict of interest.
The Tax justice network (TJN) estimates the amount of private wealth placed in tax havens at $ 11 trillion. For Africa, the same TJN network estimates the wealth illegally transferred abroad by the equivalent of 30% of sub-Saharan Africa's GDP.
The fight against tax fraud and tax evasion, however, gained new political momentum on October 21, 2008 when 17 OECD countries agreed to intensify the full implementation of transparency and transparency standards. exchange of OECD information. The United Nations Convention against Corruption (Merida / Mexico, December 9, 2003) is the first global instrument to fight corruption. But the fight against economic and financial fraud must be accompanied by an overhaul of the police and judicial systems, structurally weak in this area. In summary, we must put an end to schizophrenic national and European policies, with proclaimed objectives of fighting financial crime and the persistence of obstacles to the administrations and justice responsible for this fight.
Efficiency today calls for the suppression of behavior harmful to free competition and likely to impoverish the State. As the parliamentary working group on the international financial crisis reminds us, this means calling into question a certain intellectual conformism and ending laissez-faire. The question is not only technical; it involves political choices and is therefore the responsibility of the public authorities. A new ethic of economic responsibility must underpin this ambition.
Eric Alt, vice-president of MEDEL
(European magistrates for democracy and freedoms)