The ideology of guilt and resentment takes advantage of the "totem" of the rule of law-talking

Since the Second World War, the rule of law has gradually changed form.In a new essay (the totem of the rule of law, vague concept, clear consequences, the artilleryman) lawyer Ghislain Benhessa deplores the decline of sovereignties for the benefit of a badly defined law of law at allure of toteprogressive.

Jérôme Blanchet-Gravel. L’une des thèses centrales de votre livre est que l’État de droit est passé d’une simple architecture juridique sous forme de hiérarchie des normes, à une notion floue dont on se sert pour restreindre la souveraineté des peuples et des parlements… Comment revenir à l’équilibre d’antan entre le politique et le juridique? Est-ce encore possible?

Ghislain Benhessa.Since the Second World War, the rule of law has gradually changed form.In short, we have gone from a functional principle - a pyramid of standards with the Constitution at its top - to a composite team of heterogeneous rights and freedoms in the service, first of the individual, then minorities.This revolution is the combined result of the trauma of the Holocaust and the takeover of the judges.On the one hand, protective barriers have been built to avoid past horrors and ensure, in all circumstances, the defense of individual freedoms.On the other, we wanted to put the policy under the supervision of the judges, erected in ultimate.

This is the sense of development of the Court of Justice of the European Union, armed arm of law secreted by the bodies of Brussels, and of the European Court of Human Rights - being specified that their case law feed theOne of the other.The problem is that in surveillance of politics, we entrusted the keys to the truck to the judges who, in the shadow of the courtrooms, by the grace of decisions that only the initiates know, came to put theDemocracy under guardianship.Including in regal fields par excellence-immigration, insecurity, education, army-, the office of judges has a direct influence, in the name of respect for the values of the rule of law, including the sacrosanct principle of non-non-nondiscrimination.

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However, I do not believe that this situation is immutable. Who would have imagined, some time ago, right -wing candidates like Michel Barnier, former European Commissioner, call for the establishment of a "constitutional shield" to sanctuarize France's ability to act in the face of the assaults of the judges Europeans? And I am not even talking about the questioning of soil law, shared by most LR candidates, as well as their insistence on the referendum, considered, until a short time, as a extreme right tool … Obviously, the path is still long, and some promises sound more like electoral postures than concrete changes. Nevertheless, at the very moment when Europe does everything to sanction the countries of the East - Poland and Hungary in mind - in the name of the values ​​of the rule of law and the supremacy of its jurisprudence, our policies Rediscover, in parallel, the virtues of popular sovereignty! Certainly, the fight is just beginning. But he begins.

One of the classic themes of science fiction is the man who ends a slave to the technology he himself created.In the same way, have we created a "monster" to which we are now chained, the rule of law?

Absolument. À l’origine, l’État de droit est une construction née du cerveau de quelques juristes au début du XX^ème siècle, l’Autrichien Hans Kelsen en tête. Certes, on en trouve des traces auparavant, notamment dans les pays anglo-saxons, attachés à ce qu’ils nomment le Rule of Law, considéré, à tort, comme l’équivalent de notre État de droit. Toutefois, la «machine» de l’État de droit que nous connaissons est le fruit d’une construction artificielle jaillie, couche par couche, durant les dernières décennies. Partir du principe que le droit pouvait réguler la politique, l’enserrer dans des limites n’était pas, en soi, une idée stupide. Le problème, c’est que «tout homme qui a du pouvoir est porté à en abuser», pour reprendre la célèbre formule de Montesquieu.

However, by thinking that the law would be objective in relation to politics, that the work of the judges would be neutral because depending on the rule they apply, it has been forgotten that, by nature, case law is itself political.There are not, on the one hand, above-ground and without affect judges, devoted to the application of pure and perfect law and, on the other, obscure political music by the only desire to satisfy thelow instincts of the people.The takeover of the judges has turned the West - and above all Europe - in the fantasy of a world pacified by the reign of law.This is the major error, which results as much from the naivety of our leaders as from the victory of the ideology of guilt and resentment.

Basically, the rise of the rule of law made believe that in the long term, the Kantian ideal of perpetual peace could triumph.This is obviously false, and some finally become aware of it.But deconstructing a machine as well oiled - and whose devotees are legion - will take a long time.Especially since by immediately classifying skeptics among populists and extremists, our elites do not do much to accept dialogue and open the debate.

In a surprising passage, you say that the rule of law is called upon to survive the health crisis.Are you sure, when most of the worlds have recovered a large part of a power, many of which are still abusing today?

This is one of the great perverts of the ideology that underpins the rule of law and that I call, in my book, the scale of freedoms.On the one hand, most Western countries submit more to the diverse ideology carried out by associations and pressure groups.The freedom to change and spare sex, repeatedly celebrated by the European Court of Human Rights, aims to allow everyone to self-build in the name of their gender fluidity.Under this prism, the rule of law as a promotion of freedoms - and correction of all discrimination - has a bright future before him.

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On the other hand, the health crisis has revealed how much what one can call "old" freedoms - one of the most essential, that of leaving home - are much more easily suppressible than the new freedoms of active minorities . Basically, the rule of law is concerned with "point" freedoms which correspond to the demands of minorities fighting against their "invisibilization", to use the lexicon in fashion, while it deals with elementary freedoms. It is this paradox that COVVI-19 revealed in broad daylight. Taking up the slightest doubt as to the reign of all-health leads to social death-proof is the stigma thrown on opponents of the health pass-at the same time when the Robert adds the pronoun "IEL" to his dictionary. This is why I try to explain the ideology behind the growing control of the rule of law. It is not neutral, and reflects the reading grid plated on freedoms.

You closely associate the rise in the rule of law in France as a new "supreme value" with the European construction and the philosophy of Jürgen Habermas.Do you count on Eric Zemmour to restore the Gaullist model you defend?

As on a number of subjects - immigration, insecurity, etc.-, Éric Zemmour takes out the bazooka to shoot the rule of law.If some have already been offended, before him, of the delusional grip of European judges on the capacity of action of France, he imposed at great listening to a theme hitherto reserved for experts, most of the time submittedto the leaden screed of politically correct.

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You know, it is enough to take a first year of law lessons to realize that in any peace of mind and without the slightest reserve, students integrate that France is subject to international law, that it must comply withdecisions of European judges, as if it went without saying.While the Constitution is the sacred instrument of the sovereign people, the tutorship of France is taught as a presupposition.General de Gaulle would turn into his grave ... Éric Zemmour has the merit of having put the subject on the table, rightly recalling, that in the perspective of De Gaulle, the President of the Republic had to be the guardian of theConstitution.Not the Constitutional Council, as the latter has affirmed since the general's death.

On the other hand, beyond the figure of Zemmour, I think that all those who believe in the sustainability of our institutions should remember the lessons of constitutional Gaullism.The future does not go through a "big evening" but a return to the origins.In our time of Tabula Rasa and Cancel Culture, a little history would do us the greatest good.