Nicolas Sarkozy's Conviction: The Myth of the Judges' Government

The administrative judge of Toulouse who decides that the A69 motorway is not in the public interest; the criminal court who sentences Nicolas Sarkozy to five years in prison with provisional execution; the constitutional judge who sanctions the legislator for having infringed the right to a healthy environment by allowing the reintroduction of pesticides...

France would have returned to the time of the parliaments of the Ancien Régime, where magistrates prevented the king from acting by refusing to register ordinances contrary to the laws of the kingdom. The government of the people by their elected representatives would be replaced by the government of the people by judges.

Invented to restore the authority of the executive branch, the ^Fifth Republic discovered judicial power. The power of the administrative judge who decides the legality of wearing the headscarf in schools. The power of the judicial judge who decides on compensation for a child born with a disability and the legality of redundancies.

The power of the constitutional judge who controls whether the laws passed by the people's elected representatives truly express the general will. The power of the European judge who decides whether or not homosexual couples can adopt, or recently whether assisted suicide can be authorized. And this judicial power no longer only affects "ordinary people"; it also catches ministers, parliamentarians, local elected officials, business leaders, clergy, and even a former president.

For France, this discovery came as a surprise. As much as it was a revolution against the king, 1789 was a revolution against the judges of the Ancien Régime, who had blocked all reforms, particularly fiscal ones, initiated by the executive branch.

From this particular history of France was born a constitutional model that overvalues ​​the role of politics and undervalues ​​that of the judiciary: under the legitimacy granted by universal suffrage, Parliament makes the law, the executive and its administration ensure its implementation, and justice settles the conflicts arising from its application. And, as Montesquieu wrote, justice is a "zero power" since it is only the "mouthpiece of the law" whose application it ensures without adding anything to it.

Hence the surprise of commentators when they discover that judges can decide to imprison a former president or declare an elected official ineligible. Suddenly, justice no longer appears as a null power but as a "strong" power, perhaps stronger than the executive and legislative branches.

This rise in the power of judges can be explained. First, the decline of traditional oversight bodies – Parliament for ministers, boards of directors for business leaders – has led citizens to turn to judges to establish accountability for decisions.

Then there is the need, in a society where the great ideological narratives of justification have disappeared, to find a "neutral" scene where, through the game of contradiction, the meaning of an action can be reflected upon and discussed. This rise in power is therefore not the expression of a desire for power on the part of judges.

If their job is to give the words of law their normative scope, this power of interpretation is not free or arbitrary; it is exercised within the constraints of investigation, instruction, adversarial proceedings and collegiality . Therefore, there is no point in lamenting a possible government of judges. Only a jurisdictional action which contributes, with others, to the democratic quality of a society.