Chapter 21
Justice

The major transformation to implement at this level is simply to shift from applying the letter of the law to applying the spirit of the law.

Our vision of justice is still largely that of the Enlightenment era, where the goal was to put an end to the arbitrariness of the Ancien Régime. What has changed since, as Marx notes in Capital, and has significantly increased since then, is the complexity of our production systems.

Indeed, on one hand, applying the letter of the law has become unsustainable in three respects. First, this has led to an explosion in the volume of laws, making the principle that “no one is presumed to be ignorant of the law” increasingly morally untenable. Furthermore, as shown by the Lehman Brothers case, it has become possible to build a flourishing yet toxic business, whose foundation is to find loopholes to circumvent the law. Lastly, particularly in the United States, complexity has fueled the proliferation of non-production-related jobs, taking the form of an excessive and oppressive legal system, which ultimately generates increased stress on individuals.

On the other hand, the courts Legal Figures of Economic Democracy, presented by Alain Supiot at the Collège de France, which we mentioned in Chapter 5 and particularly the 7th and 8th lectures, show that this shift to the spirit rather than the letter of the law has already taken place, albeit inappropriately. Indeed, in current democracies, the highest courts—the Supreme Court in the United States and the Constitutional Council in France—already interpret the Constitution in increasingly broad ways. Since the Constitution is a very general law, this poses a significant risk to democracy, as Alain Supiot puts it: “a risk I believe is today extremely heavy and clear, of a government by judges, who, under the guise of constitutional review, impose their own political opinions over those of the majority, as expressed democratically through elections.”
Judges must therefore be allowed to interpret the spirit of the law more effectively, helping lawmakers by freeing them from the need to foresee every possible scenario, while also enabling them to refine their intentions if they are not satisfied with judicial interpretations. This way, the final word is returned to the national representative body.
Concerning the limit of power set by the Constitution for the executive, which we just saw poses a problem due to interpretation by the highest courts, it is entirely feasible to reduce the Constitution to a single article that synthesizes this book:
Decisions conforming to the general interest, based on a methodology consistent with the scientific method.
From this perspective, for the highest courts, the reason to strike down a decision is no longer a new judicial interpretation that they themselves validate; it is the identification of a methodological flaw in the process that led to the decision, or more frequently, an insufficient analysis—as in the case of the replacement of the ISF (Solidarity Tax on Wealth) by the IFI (Annual Wealth Tax), which we discussed in Chapter 4, or the subsequent finding that knowledge has advanced since then, invalidating the previous reasoning. The approach of these highest courts then becomes inspired by the operational review described in Chapter 11.

Shifting from the letter of the law to the spirit of the law is also a powerful lever for transferring power from action to reflection, thus responding to Marx’s concern about using progress in the interest of the majority.