Teleological Law

Traditionally, a branch of Law and each of the rules that make it up is developed, interpreted and applied according to a vertical model: the hierarchy of norms implies this. The reason why the rule was adopted, the effects pursued by its application, the effects sought by the person who adopted a rule are peripheral elements, which can certainly shed light but are auxiliary. In addition, certain provisions are by their very nature exceptions, such as Criminal Law, or the "criminal matter" to which Repressive Administrative Law belongs, which implies that their interpretation and application are always restrictive, because of their exceptional nature with regard to the principle of Freedom.

Everything changes if the heart of the branch of Law becomes the goal: the rules, or even the particular decisions, become "teleological" ("telos" in Greek means "goal"). 

A branch of Teleological Law is built around one or more Goals, in relation to which everything has the status of a means. For example, Competition Law is a branch of Teleological Law: its Goal is to safeguard, or even build, Competition. This is why not only are all the technical rules interpreted in this way, but also the role of the Independent Administrative Authorities (IAA), in this case the Administrative Competition Authorities, is defined in this way (safeguarding the free functioning of competitive markets), as is the role of the courts when they rule on competition matters. This gives rise to principles of effectiveness, because the means provided by the legal rules, "instrumentalised" in this way, must tend towards these goals. The principle of "useful effect" follows from this: the necessary burdens on operators are justified, but no more than is necessary to achieve the ends. The principle of proportionality is also generated.

It is clear that the teleological nature of a branch of Law entirely determines its application. This gives rise to specificities and even difficulties.

The specificity comes from the fact that it was pleasant and erudite to know the ratio legis et decidendi of classical Law: it has become imperative and central to master the ends of the teleological branches of Law. But not only is this not always said, it is sometimes disputed. For example, this tautological conception, which restricts the Goal of Competition Law to Competition, is contested by those who want a more humanist conception. But if you change the Goal, the whole interpretation and technical application of the rules changes. The practical implications of these disputes, which could be described as almost philosophical (the place of human beings in society), are immense.

Moreover, a teleological branch of Law may have several goals, which must be arranged, classified and ranked. For example, the day the French Cour de Cassation (French Judicial Supreme Court) decided that the goal of safeguarding the business was more important than safeguarding the interests of its creditors, the Bankruptcy  Law has changed.

What is more, since the legal system is an architecture of branches of Law, the Goal of one branch of Law may interfere with the Goals of another branch of Law, for example Insolvency Law, the Goal of which being to preserve the company, and Banking Resolution Law, the Goal of which being to preserve the banking system.

 The branches of Economic Law are all concerned with teleological logic, which explains why, since their Goals are also economic, financial, political and social, they are more open to other disciplines, principally Economics and Finance. The resulting risk of the vassalisation of Law in relation to Economics has often been denounced.

It is the duty of the Regulator and the Judge, whose place is central, to ensure the balance between the disciplines. This is particularly true of Regulatory Law, an Ex Ante branch governed by Goals, and Compliance Law, whose normativity is housed in Monumental Goals, all of which imply a teleological application of legal rules and techniques.

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