Jurists should usefully draw inspiration from the famous formula of Georges Clemenceau according to which “war is too serious to entrust it to the military”. The Constitution, which is the fundamental law of all citizens, is also a matter too serious for its fate to be taken in hand, even indirectly, by constitutionalists. The temptation is however great, among the latter, to encroach on the field of politics by proposing that legal science can “nourish and generate” the writing of the Constitution.
attests to this at the recent platform of Jean-Philippe Derosier, published in these columns and well argued moreover. Sensitive, rightly, to the need to modernize our Constitution, its author calls for “scientists” and “experts” to suggest some modifications of the 1958 text, not likely to alter its mind. Here is that when approaching his sixty-fifth anniversary, the regime founded by General de Gaulle is in the process of beating, in fact, the longevity record held so far, in French constitutional history, by the III
It should first be remembered that the factory of legal standards is not a science. The standards that govern us, from the constitution to the simple decree of an official, reflections of the will of the political and administrative authorities, are neither true nor false. So that the lawyer does not have to dictate to the legislator or to constitute a conviction adorned with the seal of knowledge to signify the values he must translate into positive law. Some legal doctrines, in the twentieth e century, inherited from the positivism of Auguste Comte, naively believed in the ability of science to prescribe a normative ideal in the policy. There is no need to recall the cost that this scientist illusion would bear in democracy in the terms of which the expert would be able to tell the elected official what good government is.
Normative appropriation of knowledge
What the knowledge of lawyers can produce, without betraying its status as a scientific discipline, are not legal rules but concepts, universal and general, drawn from the empirical observation of the norms adopted in a sovereign and contingent manner by the legislator or the constituent. Quite the opposite of what constitutionalists consider when they claim, far from this speculative asceticism, accompany the pen of politics in its democratic work of factory of the Constitution.
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