At the end of law studies, many of my classmates were stuck when faced with the question: “what is law?” Most had become good legal experts, but few had thought about the purpose of their discipline. At most they gave a technical answer: “the law is made up of all the binding social norms in a society”. The approach has the merit of neutrality, but ignores the question of meaning. Indeed, faced with a manifestly unjust law, on which side is the right?
The Roman jurisconsults, fathers of legal science, offer a definition of law which, in my view, is still valid today: where morality aims to perfect human action, the law aims to suum cuique tribuere (“giving back to each what is due to him”), as Ulpian put it in the 3rd century (cf. Digest 1.1, 10). The law would therefore be the instrument of a justice that aims for social balance, and this, according to a logic of interpersonal exchange (private law: bread costs four euros for a billionaire, as for a widow without income ), or even a logic of collective solidarity (public law: the billionaire will pay a lot of taxes, so that the State can help this widow).
Children of individualism, our contemporaries confuse the law with the fact of “enforcing one’s rights”. Today it is the subjective side of the law that seems primary and original: “It’s my right”, “I have the right to…”. It is enough to follow the invectives that flourish on social networks and, too often, during political exchanges, to be convinced of this. However, life in society consists precisely of an arbitration between contradictory demands. To lose sight of this transforms citizen debate into a dialogue of the deaf. I cite two topical examples, unleashing passions. The liberalization of abortion is not a “victory of the right of women to dispose of their bodies”. In this case, why not authorize it until the day before the birth? No, this liberalization is a trade-off between complete control of fertility and the defense of unborn life. Each society weighs competing values and then painstakingly decides. Ditto for the arbitration between animal welfare and religious freedom, invoked by defenders of ritual slaughter. The law is not to be confused with a party: that of the defenders of the right to abortion, of animal welfare… or that of their opponents. The law is a search for balance between different visions of life in society, which citizens agree to resolve through democratic debate and respect for the results of elections. This implies living with a law that never completely corresponds to one’s convictions… Thus, as far as I am concerned: the legislation on abortion.
Is there a “natural law”, or a compass of law? Yes, if one adheres to human rights, sometimes even invoked to counter the law of a State (sic. before the European Court of Human Rights). This reference is however not uniform. The law which is expressed in legislation, customs, legal decisions, etc., is dependent on the vision of the man it intends to serve. Sovereign individual? A liberal society is defended, insisting on private law. Member of a collective? Emphasis is placed on the social dimension and public law. Being a relation within a civil society? A hybrid version between private and public law is emerging with association law. Actor (ir)responsible for a suffering planet? Environmental rights are invoked. Quite different, alas, is the vision of man in an authoritarian society… The ideal of law only enlightens those who believe in spiritual freedom, more than in constraint.
Many of our contemporaries are mistaken about what the law is