Alexandre Lamy is a partner lawyer at Arsis lawyers. He is a specialist in social business law.
The strengthening of measures related to the state of health emergency, up to reconfinement, its climax - this time of silence which suspends the measure - seemed inevitable.
Even more, these measures seem to be widely approved, since a recent study carried out for Le Figaro and France Info shows that the vast majority of public opinion (70%) agrees with the re-containment, even going so far as to consider that the government was not doing enough.
»READ ALSO -
And for good reason, the end of the first period of health emergency, showed the difficulties in applying, outside confinement, the national measures of social distancing, yet still having to be observed in all places and in all circumstances.
After the seizure and the impediment, a distance was taken with the measures of social distancing.
As if their application had been reduced to the sole period of isolation.
Like a loss of meaning outside the strict framework of confinement.
This meaning must however allow the permanent adaptation of the law to singular and contingent cases, infinitely variable, for its effective application.
A wandering of the spirit which must nevertheless bring the letter to life.
There is certainly something here to see a Tocquevillian manifestation of veneration for the state by the French nation, which, "
more capable of genius than of good sense
", "
experiences a kind of vertigo as soon as it sees itself obliged to walking alone, which makes her believe at every moment that she is going to fall into an abyss
”.
It is therefore not surprising to see this interventionist bubble grow, made up of instructions and recommendations, sectoral measures, taken immediately.
The expansion of flexible law in the law of the state of health emergency, materialized by an inflation of recommendations and guides, particularly in social matters, is in this respect symptomatic.
Thus it was necessary to multiply the instruments, which, "
without creating rights or obligations by themselves, present by their content and their method of elaboration a degree of formalization and structuring which relates them to the rules of law, and are intended to guide the behavior of their recipients by encouraging their adherence as far as possible
”(Council of State, Le Droit flexible, annual study 2013).
»READ ALSO -
Therefore, failing to be spontaneously thought out and adopted in the face of circumstances, standards of behavior are defined by public authorities, and are multiplying.
It is therefore not surprising to see this interventionist bubble grow, made up of instructions and recommendations, sectoral measures, taken immediately, targeting singular cases in the face of a form of numbness, therefore necessarily leading to confusion and saugrenuities since the singularities it covers are infinitely variable.
The more direct, daily encounter of French people with flexible law came to an end
The Council of State was not mistaken there, accompanying and controlling this inflation, by recognizing in these instruments a normative value, even watered down, to subject them to a judicial control, even limited.
Thus, acts of general scope drawn up by public authorities and exerting an influence in law or in fact on the situation of the persons concerned can be submitted to the judges of the Royal Palace, whatever their nature (circulars, instructions, recommendations, notes interpretations of positive law, i.e. administrative doctrine).
»READ ALSO -
Undoubtedly the state of emergency, in the first sense, with the astonishment, the uncertainties and the concerns that accompany it, justifies that recommendations be taken, that guides come to orient behavior as close as possible to the situations. particulars of everyday life.
This urgency undoubtedly required giving meaning to the measures defined at the national level to be observed in all places and in all circumstances, by trying to foresee all these places and all these circumstances.
To this end, flexible law, the degree of normativity of which is limited and subject in any event to judicial review, is certainly the most appropriate.
But the more direct, daily encounter of the French with flexible law came to an end.
The procrastination around the compulsory nature of teleworking carried by the “only” national health protocol are symptomatic in this respect.
It is also not insignificant that the Council of State notes the exceptional number of requests referred to its litigation section, already up 60% by reference to a normal period between March 10 and the end of June, and still increasing, with 552 applications filed on October 13, including 320 in summary proceedings.
The situations and behaviors have also shown that the prescriptions having the consistency of "hard law", accompanied by sanctions, remain highly favored by most of our fellow citizens, forgetting that the law, of general application, thus seized of. particular situations, will come to regulate them by the means of the lowest common denominator.
»READ ALSO -
The procrastination around the compulsory nature of teleworking carried by the “only” national health protocol is symptomatic in this respect, forgetting that this measure is based on an obligation which is nevertheless quite legal and heavily sanctioned to protect the health of employees.
For ease, the spirit's temptation to rest, it is thus expected that everything is reduced to an objectivity, given identically to all.
So stick to the “only” letter.
We can bet that we will be able to come to our senses and rediscover our inventive genius, freed from the religion of the state.
