April 6, 2023

Newsletter MAFR - Law, Compliance, Regulation

📧Deliberative rationality" and the proper use of the vigilance imperative

by Marie-Anne Frison-Roche

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► Full Reference: M.-A. Frison-Roche, "La "rationalité délibérative" et l'usage adéquat de l'impératif de vigilance" (""Deliberative rationality" and the proper use of the vigilance imperative"), Newsletter MAFR - Law, Compliance, Regulation, 6 April 2023.


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🔴The deliberative public space, a model method for the implementation of the duty of vigilance

In this new article of April 6, 2023 of the Newsletter MAFR - Law, Compliance, Regulation, the political philosophy construction that Habermas exposes about social networks and the method that the implementation of the duty of vigilance requires are correlated. Indeed, Habermas continues to advocate a space for discussion, contradiction, deliberation, opinion that can act with rationality. Communication and mediation are essential to ensure that the future, which is the object of vigilance, will not be a catastrophe: this monumental goal of compliance, of which Vigilance is a part, implies it.


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Jünger Habermas recently published a book whose French translation is: 📗Espace public et démocratie délibérative : un tournant (Gallimard, coll. "NRF Essais", 2023, 144 p.).

Many commentaries are available, for instance by JJean-Pierre Gabrielli pour Non-Fiction or by Marc Lebiez pour EAN.

What is remarkable is the constancy of the author's thought, in his conception, which considers that "public space" guarantees democracy, and in his spirit, the author seeing with optimism the situation in which we are now.

Indeed, because he is an optimist, Habermas considers that social medias may not destroy the public space, that they are now the very expression of it and can be the place of "deliberative politics" because public opinion can rationally be constructed there, through discussion.

He can therefore maintain its thinking, particularly of the "agir communicationnel" ("communicative action"), whereby educated people who take into account what others who contradict them say bring the public space to life in a relationship with the State, which thus finds a new balance between the political space and the public space nourished by these private people who actively interact. If social networks are not hijacked, they can consolidate this.

Like all the others, philosophers, sociologists, jurists, he underlines the punctual and systemic risks of these hijackings, but this state of mind, this faith in human beings, and therefore in the future, is remarkable, and distinguishes Habermas from so many other authors.


Let's share this optimism and the method that follows from it.


Indeed, starting with social medias and their need of "regulation", this regulation is largely based on the private actors themselves who must be "vigilant" about the content that is posted on the space they have built, even if they are not the editors. In this respect, they are asked to discuss with the human beings who express themselves there, i.e. everyone who is not on this essentially popular space, and to educate them.

The Law leads them to this, willingly or by force, through compliance mechanisms.

🔴M.-A. Frison-Roche, 📓L'apport du Droit de la Compliance dans la Gouvernance d'Internet (The contribution of Compliance Law to the Internet Governance), 2019


But this is only one example of the new standard of Vigilance.

The 2017 French law, known as the Vigilance Law, is attracting all the attention and is the gateway to this more general concept that permeates the whole of the Law.

🔴M.-A. Frison-Roche, 🚧Thinking and using Vigilance through its Compliance Monumental Goals, 2023


The "duty of vigilance" is about the future: for example, in this law, it is about detection and prevention today so that tomorrow the environment, the climate, and human rights are preserved. This "Monumental Goal", an advanced piece of the Monumental Goals of Compliance Law, involves the way technical mechanisms are to be used.

🔴M.-A. Frison-Roche (ed.),📘Compliance Monumental Goals, 2023


If we think in terms of "public space", of "agir communicationnel" ("communicative action"), of the effectiveness of the "contradictory discussion", if we think that public opinion expresses a rationality that enters into discussion with that carried in a discursive way by the States and by the companies in a position to act concretely, then the most important provision of the Law is the establishment of the "Vigilance Plan", co-constructed by the company and the stakeholders.


As dialogue between two people sometimes turns into a short or sham, a third party is often welcome.

This is why it is necessary to move from the "process" to the procedure in the more legal sense of the word, the procedure assuming that a third party is present.

🔴M.-A. Frison-Roche, 📝2+1 : la procédure (2 + 1: the procedure), in ðŸ•´ï¸W. Baranès et 🕴️M.-A. Frison-Roche (dir.), 📗La justice. L'obligation impossible, 1994


Because Vigilance must be thought of in the long term, embedded in the long-term economic operations for which it is required, for example in international value chains, by articulating the plan and its execution, the way in which it is executed instructing the way in which it is rewritten the following year, the figure of this third party could be a mediator.

Judges must support these mediations.


Because Compliance and Mediation are linked from the moment that, like Habermas, unless the future is catastrophic for everyone, one is optimistic and believes that contradictory discussion, the first principle of the rule of Law, is what makes the public space where the standard of Vigilance is now deployed.

🔴M.-A. Frison-Roche, 📕Généralités sur le principe du contradictoire. Étude de droit processuel (Generalities about the principle of contradictory. Study of Procedural Law), 1988


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