Dogmatism

►   This working document was intended to serve as a support for a conference pronounced in French in the conference Droit et Ethique ( Law & Ethics) of May 31, 2018 in a symposium organized by the Court of Cassation and the Association Française de Philosophie du Droit.  French Association of Philosophy of Law on the general theme Law & Ethics. See a general presentation of this conference.  Rather, it has served as a support for the article to be published in the Archives de Philosophie du Droit (APD). This article is written in French.    ►   Summary: It is through the Law that the human being has acquired a unity in the West (I). What religion could have done, the Law also did by posing on each human being the indetachable notion of him of "person" (I.A). But this is what is challenged today, not the personality and the power that the human being has to express his freedom but the unity that implies in the disposition that we have of ourselves in repelling the desire that others have always had to dispose of us. Current law tends to "pulverize" human beings into data and transform into neutral legal services what was considered before as the devouring of others. The legal concept of "consent", ceasing to be proof of a free will but becoming an autonomous concept, would suffice (I.B.). To prevent the reigning of the "law of desires", which merely reflects the adjustment of forces, we must demand here and now the ethical sovereignty of Law, because Law can not be just just be just the interests adjustment (II). We can form this request if we do not want to live in an a-moral universe (II.A), if we see that the unity of the person is the legal invention that protects the weak human being (II.B.). If we admit this imperative, then we must finally ask who in the legal system will express and impose it, especially the legislator or the judge, because we seem to have lost the ability to recall this principle of the Person on which the West was so centered. But the principles that are no longer said disappear. There would then remain only the case-by-case adjustment of interests between human beings in the world field of particular forces. At this yardstick, Law would be more than a technique of securisation of particular adjustments. Law would be reduced at that and would have lost its link with Ethics. (II.C). .   

I propose to reflect on how the legal system requires companies to take into account the interests of those who aren't shareholders, for example the interests of employees and even the interests of those who don't yet exist, for example the interests of future generations, or interests that are traceable to group interests, for example the interests of "minorities" or interest that can't be attached to anyone in particular, such as interest of the Planet. It's like in the fairy tales. Dream or nightmare. The future will tell. The evolution of the law can be presented in three parts as souvenirs or wishes Christmas, which remain under each other like so many open roads choices and decisions for legislators and judges. Let slip into the clothes of the legendary usurer and talk about the first ghost of the three Christmas that made him famous: "Christmas past." At a time when the company built on the partnership agreement served the interests of the shareholders, the French judicial courts had  taken into account the interests of employees and the interest of the environment by Tort Law. The generality of this branch of law has allowed such judicial policy. It was much easier to build than Procedural Law opened the doors of the courthouse, for example by allowing works commitees to access the court for an expert analyse, to make their voices heard in moments of transformation of the company. The evolution of Law in favor of stakeholders has therefore taken form Ex post but in an imperative way. The "Christmas Present" comes from Financial Law. Influenced by economic thinking. A French author could say he prefers no translate "skateholders" because French Corporate Law is influenced directly be this economic theory now¹Trebulle, F.-G., Stakeholders Theory et droit des sociétés, 2006. He wrote that the French translation of "stakeholders" by "parties prenantes" is not convincing and prefers to keep the original term..  Laws require listed companies they and they alone to inform the market about what they have done and will do spontaneously in favor of employees, "minorities", diversity policy or the environment, and probably more generally in favor of the social group and the planet. These recent laws aren't prescriptive : they oblige to inform. By an feedback effect, they are an incentive for responsible investors, responsible shareholders, Legislator hoping that the company is rationally selfishness for "well" performing towards stakeholders at the end of the day. There are no legal sanctions, the European Commission referring to self-regulation. Calculation or ethical share the causal role, an issue to which the law doesn't lend relevance.   The "Christmas yet to come" is already showing its premises. An author writes Corporate Social Responsibity is "irresistible"²Malecki, C., L'irrésistible montée en puissance de la RSE : les impulsions européennes et françaises de l'année 2013,  2013.This article begins by : "Toujours plus ! (Always more!)".… It will be to turn these legal standards of information into legal norms with binding effect: laws require companies, not just listed companies but everyone to take into account the interests of employees, "minorities", environmental issues and future generations. Not only to inform what is done, but to oblige to do.This is the challenge, for example, the composition of the boards, or more radically the rewriting of Article 1833 of the Code civil (French Civil Code). Like any future, such rewriting promises possible changes, which converge to an increased power of the judge The question for the future is: "who will decide the consistency of these interests and will make the balance?". At less, it might be a "coregulation³Berns, T., Docquir, P.-F., Frydman, B., Hennebel, L and Lewkowicz, G., Responsabilités des entreprises et corégulation, 2007." between State and companies. At the end, it might be a transformation of companies into new legislators through soft law. Fairy tale or nightmare ?  

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