The major transformation to be made at this level is quite simply to move 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 much that of the Age of Enlightenment where what we wanted was to put an end to the arbitrariness of the Ancien Régime. But what has changed since then, which Marx notes in Capital, and which has grown considerably since then, is the complexity of our production organizations.
In fact, on the one hand, applying the letter of the law has become untenable on three levels. First, it has led to an explosion in the volume of laws, which makes 'no one shall be ignorant of the law' increasingly morally untenable. Moreover, as the Lehman Brothers affair showed, it has become possible to build a flourishing business, and toxic for the community, whose basis is to find tricks to circumvent the law. Finally, particularly in the United States, complexity fuels the proliferation of non-production jobs, in the form of a disproportionate and oppressive legal system, ultimately producing an exacerbation of 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 7th and 8th lessons, show us that this shift towards the spirit and not the letter of the law has already taken place, but inappropriately. Indeed, in current democracies, the highest courts, the Supreme Court in the United States, the Constitutional Council in France, already interpret the constitution in an increasingly extensive manner. However, as this is a very general law, this poses to democracy “a risk which is, in my opinion, nowadays, extremely heavy and obvious, of a government of judges, which under the cover of constitutional control, make their own political opinions prevail over those of the majority as it is democratically expressed through elections", to use the words of Alain Supiot.
We must therefore much better allow all judges to interpret the spirit of the law, to facilitate the work of the legislator by exempting him from foreseeing all cases, while giving him the possibility of completing his thoughts when the interpretation made by the judges does not satisfy him. We thus give the last word back to the national representation.
Concerning the limit of power fixed by the constitution to the executive, and of which we have come to see that the interpretation by the highest courts poses a problem, we can very well reduce the constitution to a single article which summarizes this book:
Decisions consistent with the general interest resulting from a methodology consistent with the scientific method.
From there, for the highest courts, the reason for overturning a decision is no longer a new, self-validated interpretation on their part; it is the fact of identifying a methodological defect in the process which led to the decision, or more frequently the insufficiency of analysis, as in the case of the replacement of the ISF by the IFI that we had mentioned in chapter 4, or subsequently the observation that knowledge has advanced since then, invalidating the reasoning of the time. The method of these highest courts therefore becomes inspired by the operational control presented in chapter 11.
Moving from the letter of the law to the spirit of the law is also a powerful lever to ensure the shift in power from action to reflection, therefore responding to Marx's problem of using progress for the benefit of the greatest. number.