Chapter 21

The great transformation to be made at this level is quite simply to pass from the application of the letter of the law to the application of the spirit of the law.

Our vision of justice is still very largely that of the Age of Enlightenment where what we wanted was to put an end to the arbitrariness of the Old Regime. What has changed since, which Marx notes in The Capital, and which has grown considerably since, is the complexity of our production organizations.

In fact, on the one hand, applying the letter of the law has become untenable on three fronts. First of all, this has led to an explosion in the volume of laws, which makes the "no one is supposed to ignore the law" increasingly morally untenable. In addition, as the Lehman Brothers case showed, it has become possible to build a flourishing business, which is toxic to the community, on the base of finding tricks to get around the law. Finally, particularly in the United States, complexity is fueling the proliferation of non-production jobs, in the form of an excessive and oppressive legal system, ultimately producing an exacerbation of the stress on individuals.

On the other hand, the courses Legal Figures of Economic Democracy, given by Alain Supiot at the Collège de France, which we mentioned in Chapter 5, and more particularly the 7ᵉ and 8ᵉ courses, show us that this shift towards spirit instead of the letter of the law has already occurred, but inappropriately. Indeed, in current democracies, the highest courts, the Supreme Court in the United States, the Conseil constitutionnel in France, already interpret the constitution in an increasingly extensive way. As this is a very general law, this puts democracy “at risk [...] of a government of judges, which under the guise of constitutional control, make prevail their own political opinions on those of the majority as it is expressed democratically through the elections ”, to use the words of Alain Supiot.
It is therefore much better to allow all judges to interpret the spirit of the law, to facilitate the work of the legislator by dispensing it from foreseeing all cases, while giving it the possibility of completing its thought when the interpretation made by the judges did not give it satisfaction. This gives the last word to the national representation.
Concerning the limit of power fixed by the constitution to the executive, and which we have just seen that interpretation by the highest courts poses a problem, we can very well reduce the constitution to a single article which synthesizes this book:
Some decisions in accordance with the general interest resulting from a methodology in accordance with the scientific method.
From there, for the highest courts, the reason to quash a decision is no longer a new interpretation on their part, self-validated; it is the fact of noting a methodological defect in the process which led to the decision, or more frequently the insufficient analysis, as in the case of the replacement of the ISF by the IFI which we had mentioned in chapter 4, or later the observation that knowledge has advanced since, invalidating the reasoning at the time. The method of these higher courts therefore becomes inspired by the operational control presented in Chapter 11.

Going from the letter of the law to the spirit of the law is also a powerful lever to ensure the shift of power from action to reflection, therefore responding to Marx's problem of using progress for the benefit of the greatest number.