Father

Full reference : Frison-Roche, M.-A., Au cœur du Droit, du cinéma et de la famille : la vie ("At the heart of Law, Cinema and Family: Life"), preface of La famille au cinéma. Regards juridiques et esthétiques ("Family in Cinema. Legal and Aesthetic Perspectives"), Florès-Longou, M. and Épinoux E. (ed.), coll. "Droit & cinéma",  Mare & Martin, 2016, pp. 21-27. Read a general presentation of the book Read the working paper from which the article was written, containing some notes and a hundred links, especially towards film extracts.  Read the article (in French) This introductive article, which constitutes the preface of the book, relies on approximatively one hundred movies to show that cinema does not stop to show legal situations and protagonists, even if "Family Law" seems to be less the darling child than the actors of the trial. We find the child, the mother and the father, the spouses and the engaged people. Often with the shape of drama, breaks and machinations and even murders, because it is like that that family appears on the screen. It is difficult to not fall asleep facing the peaceful happiness of happy families.   But why such a confluence between Cinema and Family Law?  Because both have a purpose: life.  Do not being anxious about family life, it is not understanding Family Law. And because Cinema take life itself as purpose, so when we want to learn Family Law, it is the path towards Cinema that we should take.   

The family is built on one basic idea which is so powerful that legal rules are organised around it as spontanely. But if the paradigm is changing, then all the rules change with the strength of the evidence. However, in the 1970s, we changed paradigm. Previously, for millennia, the basic idea was the family as a group. Depending on the time or period, the group has varied in its contours, squares and powers granted to individual members, but the idea of group was acquired. Family was a group which was a part of the social group, kept by the State. From the 1970s, the family becomes the developed project done by a free and independent person. This project designed by a person wishing to build family that suits him or her will result in the fact that the individual meets other individuals whose family project crosses his or her. Contract becomes the perfect tool for these home-made families This desires adjustment corresponds to the market model. Concretely, market of ideal family provides services for satisfaction of various projects, all legitimate as expression of desir. The sufficient link between individuals  is affection and will, the center is the child. The market offers new perspectives, such as ideal partner and even more perfect child, becoming jewel. The idea of ​​Market has triumphed.

► Full reference : J. Carbonnier, "Toute loi est-elle un mal ? (Is every law a bad thing?), in Essais sur les lois (Essays on Legisation), 2nd ed., Répertoire du notariat Defrénois, 1992, pp. 317-334. - ► Summary :  Jean Carbonnier takes as his starting point the coincidence in time between the announcement of Christ’s birth and the proclamation of the census by Caesar Augustus’s edict, and goes on to ask whether, in legal matters as in religious ones, the advent of the new law might be good news. It is accepted that many new laws were bad, but is the new law bad ‘in itself’? The author does not wish to let the distinction between favourable and unfavourable laws (a sociological criterion of interest) or the distinction between old and new laws (a psychological criterion of the clash between novelty and habit) interfere, so as to address the subject as neutrally as possible: is the law an evil in itself? This pits the law against case law, custom or equity, which might be superior, but then again the author takes a broader view and prefers to contrast law with non-law and pose the question even more radically: is law in itself an evil?   To begin with, Carbonnier demonstrates the necessity, the advantages and the beneficial effects of the law, which was particularly revered by the French Revolution and, above all, by the people because of the ‘benevolence of the law’. France remains steeped in this favourable legalistic prejudice. This stems from the sense of security it affords the people, because it is clear, precise and uncompromising, permanent, and because it serves as a means of communication between people. In the second part of the article, Carbonnier refers to Lacan, who, in relation to the law, invoked the figure of the father and predicted a future society without a father. Carbonnier wonders whether a lawless society is not about to emerge, or whether psychoanalysis, seeing castration in the law, still identifies it as an evil.  In any case, he sees in this an opposition to freedom and liberalism, the rejection of the law being associated with the rejection of the state. Quoting Maurice Barrès and his 1892 work, L'ennemi des lois, he shows that for Barrès, all law is an evil, because the world must organise itself spontaneously.  For liberalism, which is less romantic, every law is an evil because it hinders the spontaneous emergence of the general interest of the social group. Thus, to take Hayek as an example, the individual knows his own interest better than the law, and the sum of these interests gives rise to the general interest. Moreover, not only is the law pernicious, but, according to liberalism, it corrupts human nature, atrophies the will and diminishes responsibility, in a perverse pedagogy. In the third part of the article, Dean Carbonnier goes on to argue that the law acts more as a safeguard and is therefore a good thing, provided the legislator remains modest. He believes that the law is necessary because man is a sinner (in a nation of righteous people, the law would be unnecessary), citing Luther and Saint Augustine. The law is therefore indispensable insofar as it wields the sword. Indeed, the law must strike because the world is inhabited by evil. The Dean states: “It is in this sense that the law appears as an evil: not because it causes harm or does harm, but because it is linked to the existence of evil. It is the revealer of sin…”. He concludes: "Knowing that the law was given to curb evil, lawyers will use it without hesitation. Knowing that it is a source of evil, they will use it with restraint." It is in this self-imposed limitation that lawlessness emerges.   -