Legal History

► Full Reference: M.-A. Frison-Roche, ""Juge modeste" ou "check and balance" :alternative aux Etats-Unis, alternative en France" ("modest judge" or "check and balance": alternative in the United States, alternative in France), Newsletter MAFR Law, Compliance, Regulation, 6 October 2025.. - 📧Read by free subscription other news from the MAFR Newsletter – Law, Compliance, Regulation - ► Summary of this article: Recent, if not forthcoming, decisions by the US Supreme Court show that the American political system that was based on the unwritten principle of Check and Balance, requiring the Justices to constitute one Power facing the other two could be replaced by a political system based on the principle of a "modest Justice" enforcing decisions made by the Federal Executive. They would then have a new Constitution. In Western Europe and especially in France, it is possible that the letter of the Constitution, which states that judges are not an autonomous power vis-à-vis the other two powers, will be abandoned and that, in the name of an unwritten principle, the Rule of Law, its transformation into an autonomous Power facing the executive in its own right will be adopted. The path would be exactly the opposite. We would then have changed the Constitution. That's conceivable, and there are many arguments in favour of it. We have to say so. And draw all the consequences. - 📧read below the article published the 6 October dans the Newsletter MAFR – Law, Compliance, Regulation ⤵️ - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law 🌐subscribe to the Video Newsletter MAFR Surplomb 🌐subscribe to the Newsletter MaFR Droit & Art

► Full Reference: M.-A. Frison-Roche, "Naissance d'une branche du Droit : le Droit de la Compliance" ("Birth of a branch of Law: Compliance Law"), in Mélanges offerts à Louis Vogel. La vie du droit, LexisNexis – Dalloz – LawLex – LGDJ, 2024, pp. 177-188. - 📝read the article (in French) - 🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks - ► English Summary of the article:  The study focuses on the various movements that have given rise to Compliance Law, with particular emphasis on Competition Law. After a preliminary reflection on the construction of the legal system into branches of Law, their classification in relation to each other, the difficulty encountered in this respect by Economic Law, and the various movements that give rise to one of them, the diversity of which the branch subsequently keeps track of, the study is constructed in 4 parts. To find out what gave rise to Compliance Law, the first part invites everyone to reject the narrow perspective of a definition that is content to define it by the fact of "complying" with the applicable regulations in the sens to obey them automatically. This has the effect of increasing the effectiveness of the regulations, but it does not produce a branch of Law, being only an efficiency tool like any other. The second part of the study aims to shed light on what appears to be an "enigma", because it is often claimed that this is the result of a flexible method through the "soft law", or of an American regulation (for instance FCPA), or of as many regulations as there are occasions to make. Instead, it appears that in the United States, in the aftermath of the 1929 crisis, it was a question of establishing an authority and rules to prevent another atrocious collapse of the system, while in Europe, in 1978, in memory of the use of files about Jews, it was a question of establishing an authority and rules to prevent an atrocious attack on human rights. A common element that aims for the future ("never again"), but not the same object of preventive rejection. This difference between the two births explains the uniqueness and diversity of the two Compliance Law, the tensions that can exist between the two, and the impossibility of obtaining a global Compliance Law. The third part analyses the way in which Competition Law has given rise to conformity mechanisms: they had only constituted a secondary branch which is a guarantee of conformity with competition regulations. Developed in particular through the soft law issued by the competition authorities, the result is a kind of "soft obedience", a well-understood collaboration of a procedural type through which the company educates, monitors and even sanctions, without going outside Competition Law, of which compliance  (in the sens of conformity) is the appendix. The distance between a conformity culture and Compliance Law can be measured here. The fourth part aims to show that Competition Law and Compliance Law are two autonomous and articulated branches of Law. Since Compliance Law is a autonomous and strong branch of Law built around Monumental Goals, in particular the sustainability of systems and the preservation of the human beings involved so that they are not crushed by these systems  but benefit from them : the current challenge of European integration is to build the pillar of Compliance Law alongside the competitive pillar. Jurisdictions are in the process of doing this and articulating them. - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

► Full Reference: M.-A. Frison-Roche, Births of a branch of Law: Compliance Law, Working Paper, November 2023. - 📕This Working Paper was drawn up as a basis for a contribution to the collective book given to Professor Louis Vogel, published in 2024 - ► Summary of this Working Paper: The study looks at the various movements that have given birth to Compliance Law, with particular emphasis on Competition Law. After a preliminary reflection on the construction of the legal system into branches of Law, their classification in relation to each other, the difficulty encountered in this respect by Economic Law, and the various movements that give birth to one of them, the diversity of which the branch subsequently keeps track of, the study is constructed in 4 parts. To find out what gave rise to Compliance Law, the first part invites us to reject the narrow perspective of a definition that is content to define it by the fact of "being conform" with all the applicable regulations. This has the effect of increasing the efficacy of the regulations, but it does not produce a branch of Law, being just a set of tools like others. The second part of the study aims to shed some light on what appears to be an "enigma", as it is often claimed that this is the result of a soft method, or of an American political decision, or of as many regulations as there are occasions to make. Instead, it appears that in the United States, in the aftermath of the 1929 crisis, it was a decision of establishing an authority and rules to prevent another atrocious collapse of the system, while in Europe in 1978, in memory of the use of files of personal and racial information, it was a question of establishing an authority and rules to prevent an atrocious attack on human rights. A common element that aims for the future ("never again") but not the same object of preventive rejection. This difference between the two births explains the uniqueness and diversity of the two Compliance Laws, the tensions that can exist between the two, and the impossibility of obtaining a global Law. The third part analyses the way in which Competition Law has given rise to conformity: a secondary branch which is a guarantee of conformity with competition rules. Developed in particular through the soft law issued by the competition authorities, the result is a kind of soft obedience, a well-understood collaboration of the procedural type through which the firm educates, monitors and even sanctions, without leaving  the cercle of Competition Law, of which conformity is an appendix. The distance between a culture of conformity and the substantial Compliance Law can be measured here. The fourth part aims to show that Competition Law and Compliance Law are two autonomous and articulated branches of Law. Since Compliance Law is a branch of Law built on Monumental Goals, in particular the sustainability of systems and the preservation of the human beings involved so that they are not crushed by them but benefit from them, the current challenge of European integration is to build the pillar of Compliance Law alongside the competitive pillar. Jurisdictions are in the process of doing this and of linking the two.   - 🔓read the Working Paper below⤵️ - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law  🌐subscribe to the Video Newsletter MAFR Surplomb