Law and the State
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Law and the State

A Political Economy Approach

Edited by Alain Marciano and Jean-Michel Josselin

Law and the State provides a political economy analysis of the legal functioning of a democratic state, illustrating how it builds on informational and legal constraints. It explains, in an organised and thematic fashion, how competitive information enhances democracy while strategic information endangers it, and discusses how legal constraints stress the dilemma of independence versus discretion for judges as well as the elusive role of administrators and experts.
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Chapter 10: Law, justice and republic: the French republican model of judicial regulation

Christian Barrère


Christian Barrère 1 INTRODUCTION Judicial institutions have a growing role in our societies. In France, some scholars have even introduced the idea of a ‘government of the judges’. However, while judicial institutions do not substitute for government and public administration they are becoming an important means of social regulation, perhaps the main one. In France, this tendency is not the result of desires within the judiciary to increase the power of magistrates, rather it arises from the social functions attributed to the judicial system by the French model of the republican law and justice. The development of European judicial cooperation, the establishment of a ‘European judicial area’ and building of a new European judicial system demand cooperation and highlight areas of competition between different national models. Consequently, an evaluation of these models is necessary. This chapter focuses on the structural logic of the French model. Starting from the standard analysis of judicial regulation (Section 2), I consider the basis of the model and the republican dualism (Section 3) to explain the present role of judicial regulation (Section 4). 2 THE STANDARD MODEL OF JUDICIAL REGULATION A judicial system is necessary to enforce the law by monopolizing the power of constraint which obliges everyone to accept legal consequences. But the judicial system plays other roles in the application of the legal system. It is the arbiter of the law when there are different interpretations of it, and when opposite claims are advanced. Hence the judicial system is 283...

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