Partie 3 - Chap 1 & 2.pdf

Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni PART III. NATURAL LAW TODAY, CRITICISMS AND MORE RECENT THEORIES As we have seen, after reigning undisputed for several centu...

Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni PART III. NATURAL LAW TODAY, CRITICISMS AND MORE RECENT THEORIES As we have seen, after reigning undisputed for several centuries, natural law went into gradual decline from the 19th century onwards. There are many factors that contributed to this decline: the central role played by reason and the subject, the progress of the exact sciences, but also the weight given to the notion of history since the 19th century. The belief that there is a law beyond positive law seems unscientific, while an immutable, eternal conception of law is not compatible with the idea that the world is subject to time and change. It may also be asked whether the modern theories of natural law did not in some way contain the seeds of their decline by shifting the focus from nature (classical natural law) and God (medieval natural law) to man. From the moment that the roots of natural law are cut off from man, it is only a short step to the conclusion that law derives only from man, from his will. This was the step taken by the current of legal positivism. As soon as it is considered that the study of law should concentrate on positive law, this means that questions of natural law are left to theologians and philosophers. The postulate of legal positivism that lawyers should not study law as it should be but only law as it is tends to disqualify jusnaturalist theories. Chapter 1. Natural law is not law §1. The positivist attack The positivist attack can be summarised in four criticisms, related to the difficult identifiability of natural law, its lack of sanction, its inability to guarantee social peace, and the fact that its scope of application is constantly shrinking. 1. Natural law is difficult to identify Positive law is identifiable, both in terms of its author (legislator) and its formal source (text of the law) or content. Its date of adoption is also generally known and it can be found in an official text (the Moniteur belge). All these elements are likely to ensure a certain legal security. Natural law, on the other hand, has none of these characteristics: who is the author? what is the scope of this or that rule of natural law, or even what is its exact content? It is hard to imagine a "code bac" containing all the rules of natural law. The result is an undeniable legal uncertainty, which was certainly not to Bentham's taste, nor does it suit contemporary jurists. 2. The natural right is not guaranteed by a sanction For positivists, the existence of a sanction is part of the very definition of law. This was in any case Austin's conception, who defined it as a set of commands with a sanction. Hart has shown that this view is too restrictive: objective law is not only orders and commands, but also structures that are intended to regulate coercion. Although the need for sanctions should not be seen as a condition for the validity of a legal order, it is nevertheless a real 'natural necessity'. The fact remains that the existence of a sanction undoubtedly contributes to the effectiveness of the law, so that natural law, which can only rely on a divine sanction (which is not very well proven, it must be said), is in a weak position in relation to positive law. It should be remembered that Rousseau, who did not dispute the existence of natural law, already admitted that, 'for want of natural sanction, the laws of justice are vain among men; they only do good to the wicked and harm to the just, when the latter observes them with everyone else without anyone observing them with him'. What chance is there of winning a case before a Belgian judge by invoking a rule of natural law? Page 54 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni In a judgment of 4 September 1984, the Court of Cassation made it clear that "disregard for 'natural law' and 'family morality' could not give rise to cassation". Natural law is therefore not one of the norms whose observance the Court of Cassation monitors. It should be remembered that it 'hears decisions given at last instance which are referred to it for contravention of the law or for violation of the forms, either substantial or prescribed on pain of nullity' (Article 608 of the Judicial Code). The notion of "law" must however be understood in the sense of law in the material sense, as meaning (according to the terms of the Sources and Principles of Law course), "any act which, taken by any authority (legislator, administration, etc.) has a normative content, i.e. is applied in a general and abstract manner". The Court of Cassation also accepts to control the respect of the general principles of law. It is also true that equity, which has sometimes been associated with natural law, has been enshrined in certain legal provisions, such as Articles 1135 and 1386bis of the former Civil Code. However, the Court of Cassation has repeatedly recalled that the judge does not have the "power to make considerations of equity prevail over the law or the contract". More recently, it quashed the order of a justice of the peace who, although admitting that Articles 292 et seq. of the Judicial Code do not provide for incompatibility between the function of judge and the mandate of provisional administrator of the property of an incapable person, had considered that equity prohibited taxing the fees of a judge exercising this mandate on the grounds that a magistrate cannot "benefit financially from an activity unrelated to" the function of judge. According to the Court, "by giving precedence to equity over the law, the contested order does not legally justify its decision to declare the application unfounded". 3. Natural law cannot guarantee social peace For positivists, positive law guarantees social peace (i.e. peaceful coexistence between legal subjects) and respect for public order. In this respect, it is not essential whether this order is just or not, because order is better than disorder. We know Goethe's famous phrase (admittedly taken out of context): "I would rather commit an injustice than tolerate disorder". We remember that this is also the path favoured by Hobbes, who gave priority to security over freedom. In any case, it is clear that natural law is not able to guarantee this minimal objective, as most authors who defend natural law admit. We recall that Augustine already defended the necessity of the city of men, despite its imperfections. Among modern natural law thinkers, the state of nature is generally described as a state of physical insecurity (Hobbes) or legal insecurity (Locke, Kant) from which it is necessary to emerge in order to enter the civil state (social contract) where positive law will make it possible to render the rules of law 'peremptory', to use Kant's terms, with the help of institutions that Locke will identify with the three powers, legislative, executive and judicial. Even Rousseau, who after initially glorifying the state of nature, where man was happy, would eventually evoke the 'happy moment' that tore him out of it to make him an 'intelligent being and a man' and even assume that 'men have reached that point where the obstacles that hinder their preservation in the state of nature prevail, by their resistance, over the forces that each individual can employ to maintain himself in that state", to the point that "the human race would perish if it did not change its way of being". 4. The domain of natural law is shrinking or outdated For several centuries, natural law has played a role in filling gaps in various fields: in the 17th and 18th centuries, relations between states evoked a state of nature which, if it could not be governed solely by a few scattered treaties, had to appeal to jusnaturalist considerations. It will be remembered that De Vitoria drew on natural law to describe the law common to all nations and that it was in introducing his treatise on international law entitled Law of War and Peace that Grotius developed his thoughts on natural law. Similarly, Kant relies on the 'provisional' dimension of natural law to describe his project of perpetual peace between nations. In terms of constitutional law, too, natural law made it possible, before the adoption of the written constitutions of modern states, to lay down the main principles that were supposed to govern relations between sovereigns and their subjects, often on the basis of very old charters (such as the Magna Carta) that were similar to natural law. With Locke, followed by the French and American declarations, it is individual natural rights that are supposed to frame and justify the action of public authorities. Page 55 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni More generally, legal gaps of any kind could be easily filled by resorting to natural law. At a time when many areas of law were still undeveloped, there was no shortage of such cases. Positivists such as Kelsen observed that these different fields were rapidly becoming 'positivised': public international law has undergone considerable development (UN, WHO, EU) and even such a vague notion as ius cogens, the ideal vehicle for natural law, is defined in Article 53 of the Vienna Convention on the Law of Treaties, with the added indication of the sanction for its violation: 'A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a new norm of general international law of the same character. The same applies, if not more so, to constitutional law, which in most modern states has been based on a written text since the 19th century. The natural rights of the great declarations are often the subject of specific provisions (e.g. Title II of the Belgian Constitution), in addition to texts of international law such as the European Convention for the Protection of Human Rights and Fundamental Freedoms. Finally, gaps are becoming rarer, according to the positivists, given the exponential multiplication of legal rules. Those that remain can generally be apprehended by means of the general principles of law, norms which, as we have seen, the Court of Cassation accepts, unlike natural law or equity, to control compliance with. §2. The defence of natural law 1. Natural law is difficult to identify There is no doubt that natural law poses problems with regard to Hart's 'rule of recognition': how can the 'pedigree' of such a rule be determined, provided there is agreement on its existence? It must be put into perspective from the outset that all rules of positive law would meet such requirements: think of usages, customs or general principles of law! More generally, the uncertain status of case law complicates the task of the positivist armed with his rule of recognition. Moreover, natural law does not have a monopoly on legal insecurity, which has been denounced for several decades by many authors who nevertheless confine their study to positive law. Moreover, the positivist critique confines itself to the formal sources of law (the Constitution, the law, the regulations) and ignores its material sources. Law students will remember that formal sources refer to various technical procedures for enacting legal rules (the "legal containers"), whereas material sources refer to the ethical, psychological, sociological, economic and political foundations of these rules (or, in the words of G. Ripert, the "creative forces of law" ). Shouldn't a broader reflection on law be interested, beyond the instituted forces, in the instituting forces of law, which are the movements, forces and social actors that explain its mutations? Alongside 'posited' law, we can distinguish, with the legal sociologist André-Jean Arnaud, between lived law (which refers to the way in which legal subjects appropriate formal sources in practice) and law conceived (by learned doctrine or by legal subjects). In a dynamic view of law, these categories are not static but interact, with the law as it is laid down influencing the practices and perceptions of its addressees, who in turn are likely to influence it, notably through case law. If we want to make the picture even more complex, we should also mention legal pluralism, which confronts a person with different legal orders that apply to him or her simultaneously. Finally, the imprecision attributed to natural law is not true in all cases. Thus, the same Court of Cassation that disqualified natural law as a means of cassation considered, admittedly more than a century ago, that the basis of everyone's right to regulate his or her own funeral was to be found in natural law: “bien qu’elle ne soit pas expressément réglée par la loi, elle a été de tous temps et universellement admise comme de droit naturel ; (…) le droit pour le défunt de régler le mode de ses funérailles constitue, en tant que manifestation de la liberté individuelle et de la liberté de conscience, non pas un simple intérêt moral, sans garantie et sans sanction, mais un véritable droit susceptible d’être poursuivi en justice (…)". Page 56 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni It is also by reference to the "nature of things" that the Court of Cassation has deduced a right of access of grandparents to their grandchildren: "Attendu que (la communauté de sang) crée chez les ascendants l’obligation de s’intéresser à leurs descendants et comporte pour eux comme corollaire, dès lors que la loi ne l’exclut pas, le droit de les connaître, de les protéger et d’exercer sur eux l’influence que l’affection et le dévouement leur dictent ; Attendu que le droit de visite trouve son fondement et sa justification dans ses éléments et que le caractère de la filiation ne peut, dès lors, constituer un obstacle à l’exercice d’un droit qui découle de la nature même des choses" (Cass., 22 September 1966, Pas., I, p. 78) Finally, the Attorney General Jean du Jardin did not hesitate to link the concept of the right of defence with natural law: "Le concept de « droit de défense » (…) n'est pas proclamé d'une manière formelle en tant que règle, quoiqu'il soit admis qu'il représente une valeur fondamentale dans tout Etat de droit. Il est même considéré comme un droit naturel, appartenant à la conscience collective avant même de relever du droit positif ". 2. The natural right is not guaranteed by a sanction It must be admitted that natural law is, in a way, disarmed in relation to positive law. It does not benefit from the institutional apparatus on which the rules that have been 'laid down' by the State can rest. It should be noted, however, that not all rules of positive law are necessarily accompanied by sanctions, which does not deprive them of their legal force. One example, among a thousand: judges are required to give their decision within one month of the closure of the proceedings (Article 770 of the Judicial Code). No sanctions are provided for (as long as the delay remains less than three months), the magistrate only having the obligation to justify this delay in the court sheet. More generally, is it not the nature of soft law instruments to escape state sanction? However, it is hard to imagine a consensus on the exclusion of all soft law norms from the field of positivist research. We must then consider the place of sanctions in the law. It is certainly a guarantee of effectiveness but, at the same time, it is widely accepted that the sanction (or even the threat of it) is insufficient to guarantee this effectiveness. There is no shortage of research that puts the dissuasive effect of sanctions in criminal matters into perspective. Let us also consider the number of police officers that would be needed if the subjects of law obeyed the rules only because there is a sanction for their violation... the question of the effectiveness of the law cannot be understood without mentioning that of its legitimacy, which in turn refers to the question of the adherence of the subjects of law to the rules that concern them. In other words, a right based solely on coercion is, paradoxically, a particularly vulnerable right, especially as it generally goes hand in hand with an authoritarian political regime whose maintenance is always precarious. Finally, if the absence of sanction of natural law is indisputable, the conclusion could be more simply that it needs positive law to ensure its effectiveness, without this making it possible to demonstrate its non-existence. 3. Natural law cannot guarantee social peace It should be noted at the outset that this argument is aimed primarily at modern theories of natural law, which emphasise the state of nature and the social contract. Indeed, there was no doubt in the minds of ancient thinkers that natural law was essential to guarantee social peace. As far as modern natural law is concerned, for the same reasons as mentioned above, the argument is not decisive and does not demonstrate the non-existence or even the uselessness of natural law. At most, it can indicate that natural law does indeed need positive law to ensure a certain social peace. Here we find the Kantian idea of a natural law that must be completed by positive law. Page 57 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni 4. The domain of natural law is shrinking or outdated As François Ost pointed out, this argument illustrates a certain naivety of positivist critics who seem to measure law by the kilo. The increase in positive law does not necessarily lead to a correlative decrease in natural law, as in a system of communicating vessels. This is particularly the case if, again following François Ost, natural law is considered to be the shadow of positive law: the extension of positive law would then lead to a proportional extension of natural law! The image of the Gruyère cheese also makes it possible to understand, in the same vein, that the proliferation of legislation is not a guarantee of a reduction in gaps. Secondly, the idea of a certain 'positivisation' of natural law can be perceived very differently, depending on whether one considers the glass to be half full or half empty: defeat or victory of natural law, which has succeeded in making its way into positive law so that, on this point, the first three criticisms will have lost their force? The consecration of the general principles of law illustrates this well: "Quand des juges sentent sourdre en eux une exigence de justice qui prétend à la puissance normative mais qui n’a pas accédé à l’expression écrite, quand ils veulent abriter leur pulsion de justice derrière le paravent du droit, quand ils veulent faire du droit naturel en le déguisant derrière du droit positif, il est tentant d’invoquer un principe plutôt qu’une règle car ce mot ‘solennise la matière’" (P. Martens, « Y a-t-il des principes généraux de valeur constitutionnelle »). Finally, some positive law texts do not simply 'positivise' a rule that could previously be considered to be part of natural law, but sometimes make explicit reference to natural law, reflecting the importance that it still retains today. Some examples: Article 51 of the UN Charter: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security" , Article 43 of the Irish Constitution: "The State recognises that man, as a reasonable being, has a natural right, prior to positive law, to private ownership of external property" , Article 6 (2) of the German Constitution: "The upbringing and education of children is a natural right of parents and a primary obligation of parents”, Article 11 (3) of the Luxembourg Constitution: "The State guarantees the natural rights of the human person and the family”. Commenting on the latter provision, the Luxembourg Constitutional Court confirmed, as far as necessary, the meaning to be given to it: "Considérant que le droit naturel est celui découlant de la nature humaine et existe, même sans texte de loi ; qu'appliqué à la famille il comporte le droit à la procréation et à la communauté de vie ; Considérant que parallèlement le législateur a par l'adoption établi une filiation de substitution qui, si elle exige de justes motifs dans le chef des adoptants, doit avant tout présenter des avantages pour l'adopté ; Considérant que cette institution prend son fondement dans le droit positif et non dans le droit naturel ; qu'il appartient donc au pouvoir législatif d'y apporter toutes les conditions et limites nécessaires au bon fonctionnement et répondant à l'intérêt de la société et de la famille adoptive" (C. Const. Luxembourg, 13 November 1998) Although the reference to natural law is not always explicit, it can sometimes be derived from the interpretation to be given to the text of positive law. For example, Article 20(3) of the German Constitution states that "the legislative power is bound by the constitutional order, the executive and judicial powers are bound by the law and the law". What does the word "law" refer to if not to something beyond "law" in the material sense ? The same provision states in paragraph 4 that "(a)ll Germans have the right to resist anyone who undertakes to overthrow this order, if there is no other possible remedy". Here we find the right of resistance defended by Locke. The 'jusnaturalistic' dimension of this right can also be deduced from Article 79 (3) of the same constitution, which states that '(a)ny amendment of this Basic Law which would affect (...) the principles laid down in Articles 1 and 20 is prohibited'. Going further, it could be argued that Article 5 of our Judicial Code, which provides that "there is a denial of justice when the judge refuses to judge on any pretext whatsoever, even on the grounds of silence, obscurity or insufficiency of the law", also leaves a door open to natural law. This provision in fact takes up the substance of the former Article 4 of the Civil Code of 1804, which provided: 'The judge who refuses to judge on the pretext of the silence, obscurity or Page 58 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni inadequacy of the law, may be prosecuted as guilty of denial of justice'. If we look at the intention of the authors of this text, we find some interesting indications in Portalis: "Il serait sans doute, désirable que toutes les matières pussent être réglées par des lois. Mais à défaut de texte précis sur chaque matière, un usage ancien, constant et bien établi, une suite non interrompue de décisions semblables, une opinion ou une maxime reçue, tiennent lieu de loi. Quand on n'est dirigé par rien de ce qui est établi ou connu, quand il s'agit d'un fait absolument nouveau, on remonte aux principes du droit naturel. Car si la prévoyance des législateurs est limitée, la nature est infinie ; elle s'applique à tout ce qui peut intéresser les hommes. (…) Quand la loi est claire, il faut la suivre, quand elle est obscure, il faut en approfondir les dispositions. Si l’on manque de loi, il faut consulter l’usage ou l’équité. L’équité est le retour à la loi naturelle, dans le silence, l’opposition, ou l’obscurité des lois positives". In conclusion, it is difficult to deny the relevance of the positivist attacks, even if a closer look at the matter allows us to at least relativise their scope. The problem for natural law is that it faces other, equally serious criticisms. Chapter 2. Natural law is ambiguous 1. Legitimation function If a jurist is instinctively asked what the main function of natural law is, he or she may reply that it is to be able to challenge a rule of positive law that is unjust. The history of natural law has shown us, however, that natural law and positive law were essentially not thought of as being in opposition but as being complementary. For Aristotle, the very idea of a conflict was not envisaged, whereas for Christian thinkers, positive law was necessary to take account of the sinful nature of men, as Augustine pointed out. Positive law was then conceived as a necessary, if not always satisfactory, concretisation of natural law. Even in Hobbes, or in Grotius, the idea of invoking natural law against positive law hardly arises, if at all. 2. Challenge function The function of challenging positive law through natural law refers to the idea that it is possible to challenge the validity of positive law, or of these rules, by invoking natural law. In its most radical version, this idea legitimises a genuine right of resistance, even a right to make revolution. This idea is at the heart of Locke's theory and, as we have seen, has been taken up in the great declarations (American and French) and even in the German constitution adopted after the Second World War. A less radical version of this challenge function is to consider refusing the application of a law deemed to be contrary to a higher norm, even if that norm is not part of the legal order concerned. This is the purpose of the concept of civil disobedience, on which we should dwell somewhat. When we talk about civil disobedience, we immediately think of Antigone, Thoreau, Gandhi or Martin Luther King, as figures who denounced the injustice of a legal order or rule of law. However, the concept deserves to be analysed more rigorously in order to answer the following questions: How should it be defined? What conditions must be met to speak of civil disobedience? Can civil disobedience be considered legitimate and, if so, under what conditions? Two definitions are often put forward, namely that of John Rawls and that of Jürgen Habermas, two major philosophers of the 20th century who debated the question of democratic legitimacy together in The Journal of Philosophy in 1995. According to the American philosopher, civil disobedience is defined as 'a public, non-violent, consciously decided, but political act, contrary to the law and performed most often to bring about a change in the law or in government policy'. Habermas considers that civil disobedience 'includes unlawful acts, usually by collective actors, defined both by their public and symbolic character and by the fact that they are principled, acts which involve primarily non-violent means of protest and which appeal to the people's capacity for reason and sense of justice'. Based on these two definitions, François Ost proposes to identify seven constitutive traits (these are cumulative conditions) that make it possible to distinguish civil disobedience from other forms of transgression of the law. To speak of civil disobedience. Page 59 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni i. there must be a conscious and intentional violation of a rule of positive law The first condition does not pose a serious problem of understanding. It is easily encountered, for example, when environmental activists enter an industrial site without authorization or when hackers access protected information on a website. ii. which is expressed publicly The second condition is essential to distinguish civil disobedience from 'simple' criminality. While the latter seeks clandestinity, the former is part of the public arena in that, on the one hand, it takes the form of public acts and, on the other, it appeals to the public conscience. It is clear that this distinction is based on the effectiveness sought by these two types of disobedience with regard to their aims: in one case, to bring about the modification of a rule by virtue of higher principles; in the other, to allow personal gain. iii. by a collective movement The third condition of civil disobedience is its collective character. This condition is emphasised by Hanna Arendt and allows civil disobedience to be distinguished from the isolated situation of a conscientious objector. It goes without saying that these categories are not watertight and that an individual initiative will often turn into a collective movement, with many collective movements having their origin in an individual initiative. It should also be noted that to assert this condition is to deny the 'status' of civil disobedience to Antigone, but also to Henry David Thoreau, who is credited with coining the term. Thoreau was imprisoned in 1846 for refusing to pay a tax in protest against the slavery that still existed in the American South and against the Mexican-American War. He published a book three years later, initially entitled Resistance to Civil Government, which was later renamed Civil Disobedience. iv. using peaceful means The fourth condition, which is also open to discussion, is that civil disobedience is in principle peaceful, as Gandhi and Luther King (who opposed Malcolm X in the method) have shown. In this respect, it is different from revolution. However, it is not always easy to answer the question of whether or not an action is 'violent', especially when it involves the infringement of other people's property. v. with the aim of changing the rule in question The fifth condition identified by François Ost is that the authors of civil disobedience wish to obtain the abrogation or modification of a norm, understood in the broadest sense (law or jurisprudence), or even of an administrative practice. It is not essential that the law being transgressed is also the one whose reformation is sought. This condition distinguishes it from revolution, which aims to overthrow the entire institutional system, and from crime, which has little concern for the general interest and possible adaptation of the rule in question. vi. by invoking higher principles The sixth feature of civil disobedience is absolutely essential and also distinguishes it from 'common law' crime: it appeals to higher principles. What is the nature of these principles? According to a first approach, they are principles compatible with the rule of law. Unlike the anarchist, who rejects all forms of instituted authority, civil disobedience challenges certain norms from within the rule of law, so that paradoxically it can be said that it works to strengthen institutions by reminding the majority of the principles of freedom that it claims to defend. In the words of Martin Luther King: 'I contend that he who breaks a law which his conscience tells him is unjust, and willingly accepts the penalty of imprisonment in order to awaken the conscience of the community to the injustice of that law, is in reality expressing the highest respect for the law. It is easy to see that natural law offers a wide range of higher principles that a civil disobedient could claim in this respect, provided that there is agreement on its content. However, one may ask whether these higher principles can also be extended to principles that are not inherent to the notion of the rule of law, such as religious principles (absence of separation between church and state) or principles that would be qualified as 'moral' by some (superiority of this or that race). The question is not simple, but it could be argued that following this second approach would be close to a revolutionary type of approach, as it would call into question the foundations of the democratic rule of law Page 60 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni vii. and accepting the risk of sanction The final condition is that the civil disobedient must assume the risk of punishment. This does not mean that they seek it at all costs, but that they do not try to avoid it. And for good reason: his intention is to open up the public debate and what better place than the courts? This is again an essential difference between the criminal and the civil disobedient. In his letter written in prison, quoted at the beginning of the course, Martin Luther King said: "He who breaks an unjust law must do so openly, with love, and with a willingness to accept the punishment. If civil disobedient people are convincing enough, it is possible (and happens) that the courts will acquit them or give them only symbolic sentences, which will certainly stimulate and promote public debate. The third question that concerns us is that of the legitimacy of civil disobedience. It should be clear from the outset that such a question cannot be answered in a firm and definitive manner, applicable to all cases. At the very most, we can suggest avenues for reflection and invite students to be critical. 1. The starting point must be respect for the law. In a democratic regime, the law enjoys a presumption of legitimacy which entails, in principle (and therefore with limited exceptions), the duty to obey it. The democratic game implies, again in principle, that even the minority has had the opportunity, before the adoption of the law, to express its point of view (at least by voting). On the other hand, any other starting point would undermine the credibility of laws in general and the authority of institutions. The risk here is obviously to allow an à la carte compliance with the laws which may lead to anarchy and ultimately to a Hobbesian or even just a Lockean state of nature where there is no guarantee that the laws will be respected or that their violation will be sanctioned. Needless to say, in such a situation, there is one law that often takes precedence: that of the strongest, or the most devious. From this point on, it must obviously be admitted that this presumption of legitimacy can be rebutted, and it must be pointed out that in a pluralist democratic regime, there is no a priori and univocal criterion of what is right, so that the legitimacy of laws must be open to renewed debate. o The obligation of loyalty to institutions, as Kant would say, is coupled with a right to express disagreement by submitting laws to public criticism. Although each voter can express his or her opinion when it comes to determining which authorities will be responsible for adopting laws, it must be admitted that this is a very punctual intervention, which is not always in phase with the democratic dynamic (as the health crisis has clearly shown). In the words of François Ost, we can therefore say that "civil disobedience is an institution - paradoxical without doubt, borderline certainly - of the rule of law itself" and that the "political project of a city of free men" consists of "building the city in the confrontation of ideas" and "always keeping open the possibility of redefining the founding values". On this basis, we can consider two well-known legal guidelines that could be used as criteria to assess the legitimacy of an act of civil disobedience: subsidiarity and proportionality. The first guideline implies that the rules of the game of the rule of law must first be applied: civil disobedience must therefore be based on a logic of subsidiarity. There are indeed procedures and constitutional guarantees that allow a minority to challenge decisions taken by a majority. Appeals to the courts of the judiciary, the Council of State or the Constitutional Court, preliminary questions to the Court of Justice of the European Union or proceedings before the European Court of Human Rights (which, it should be remembered, requires that domestic remedies have already been exhausted). In other words, the system must be given a chance to rectify the injustice it is alleged to have committed. Violation of the law should in principle be the ultimate remedy, otherwise the risks outlined above will be encountered. This being said, it is conceivable that certain emergency situations may justify not resorting to legal action. However, it should be remembered that our system provides for procedures, such as summary proceedings or summary hotel proceedings, which enable a decision to be obtained very quickly. The second guideline is the principle of proportionality. This principle comes into play in two ways: Page 61 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni o on the one hand, the necessary social cooperation that stems from the democratic system requires us to accept a minor injustice, or at least not to resort, in this case, to the ultimate remedy of civil disobedience. In other words, the violation of a higher principle must be serious, even if it does not have to be personal to us. o On the other hand, in view of the infringement of the principle of respect for the law, it is also necessary to ensure the proportionality of the actions taken in the form of civil disobedience, and therefore to limit the transgression to what is necessary to achieve the objective of modifying the norm in question (always within the peaceful framework described above). Chapter 3. Natural law is undemocratic A fourth criticism, and not the least important one, can be levelled at natural law: it is its undemocratic character. Indeed, the very nature of natural law is in principle to escape the human will (which is embodied in positive law), and therefore the will of the democratic majority. The argument seems unassailable. However, further reflection on the notion of democracy should lead us to at least qualify this conclusion. We can only refer here to the Constitutional Law I course (3th part), where the notion of democracy is approached from a genetic, philosophical and legal perspective. We will simply recall that one of the conclusions of this course on the subject is that it is delicate to enclose the democratic requirement in a definition containing legal principles with very precise contours, but that it is possible to describe in broad strokes the conditions of possibility of the democratic fact. Hugues Dumont and Mathias El Berhoumi write that the democratic regime presupposes the existence of spaces for discussion governed by rules that make the discussion in question both possible and likely to lead to decisions, rules at the heart of which fundamental rights and freedoms occupy a prominent place. Agreeing with Philippe Gérard's thesis, they specify that democracy is based on two principles: o namely the principle of the equality of the members of the political community on the one hand, and o the principle of collective autonomy which is expressed in the sovereignty of the people and whose conditions of possibility are precisely the fundamental rights and freedoms relating, in substance, to the moral and physical integrity of individuals, to the freedoms of conscience, expression and association and to political rights. And to quote this fine judgment of the European Court of Human Rights: "There is a very close link between the rule of law and democracy. Since the function of the law is to make distinctions on the basis of relevant differences, there can be no real rule of law over a long period of time if those subject to the same laws do not have the final say on their content and implementation". In other words, if we move away from a purely formal definition of democracy, and accept the idea that there are conditions of possibility for its functioning whose principle (and not the specific modalities and implementation) escape political deliberation, we can envisage natural law (insofar as it is identified with these fundamental rights and freedoms) as not being radically anti-democratic but as being indispensable to democracy. Here we come back to the problematic mentioned in the introduction to the course, concerning the relationship between democracy and the rule of law, which is undoubtedly one of the most beautiful and complex questions in legal theory and political science. It should also be remembered that there is no ontological and incontestable assimilation between the notions of the rule of law and natural law. Chapter 4. Natural law is not natural If legal positivism disputes that natural law is law, one can just as legitimately question whether it is 'natural' law. Is it possible that law is not always of human origin? To understand the scope of this criticism, we need to examine the 'naturalist' argument, according to which what is natural is good, or else: because something is, it must be. This argument is probably as old as humanity itself, and has been used many times in the service of natural law theories. However, it contains the risk of confusing the order of what is with the order of what ought to be, statistical recurrence with what is desirable. It will be remembered that Page 62 sur 73