Ghislain Benhessa is a lawyer and doctor of law, author of
The Totem of the Rule of Law, vague concept, clear consequences
(L'artilleur, 2021).
Is France still a rule of law worthy of the name? The question burns lips. François-Xavier Bellamy, one of the intellectual compasses of the Republicans, has been worried for months about the “disintegration of the rule of law” which has become, to use the phrase of Muriel Fabre-Magnan, “sick with Covid-19”. It is true that in these times when public places - restaurants, theaters, performance halls - are reserved for citizens with the precious sesame, where taking your time to eat crisps on the train is punishable by fine, where boxes of night are seen as virus machines, where adolescence no longer rhymes with first kisses but wearing a mask in the courtyard, where the low lethality of the omicron variant does not prevent psychosis from keeping its cover on the country, the debate is legitimate.
Some of our fundamental rights, celebrated for decades - dignity of the person, protection of privacy, freedom of movement, freedom of trade and industry - seem to disappear every day in the graveyard of the gains of yesteryear. The restrictions follow one another and pile up, in a sort of technocratic - or Kafkaesque - tree structure that no one can understand any more. It is in this context that, four days after wishes which transpired benevolence, optimism and unity, Emmanuel Macron launched to have "very want to piss off the unvaccinated until the end". More than its rudeness, more than the personalization of the power it exhibits, this formula reveals the meaning of government action: even though vaccination is not compulsory, it isis in his name that millions of French people see themselves little by little out of the visible, banned from coffee or the cinema. Like a mass of refractory Gauls, the unvaccinated have no choice but to adapt. Freedom or death, once claimed the revolutionaries. Vaccination or exclusion, say the Walkers today.
Whether we like it or not, what the unvaccinated people defend, a nebula of antivax, anti-pass and skeptics of all stripes, cousins of the yellow vests in their rejection of institutions, is the maintenance of freedoms gregarious.
Ghislain Benhessa
Beyond the prohibitions that accumulate, our relationship to freedoms is at stake. Whether we like it or not, what the unvaccinated people defend, nebula of antivax, anti-pass and skeptics of all stripes , cousins of the yellow vests in their rejection of institutions, it is the maintenance of gregarious freedoms. On the one hand, the antivax claim the right to refuse vaccination - that is to say the putting into practice of the inviolability of the human body, derived from the constitutional principle of safeguarding the dignity of the person. On the other hand, anti-passers claim the right to free movement and respect for private life, guaranteed by the tools for the protection of human rights. That is to say almost primitive freedoms, known and recognized for a long time by judges, European and national.
Now, what do we observe during the same period? On the one hand, last October, the Council of Europe embarked on a campaign to promote the Islamic veil in the name of
"freedom in diversity"
- finally aborted - presenting the hijab as "a choice" and a "human right". Or how militant anti-racism, false nose of Islamist lobbying, hides in the clothes of tolerance of the rule of law to subvert it. On the other hand, in January 2021, the European Court of Human Rights sanctioned Romania for its law refusing the modification of sex in civil status without prior surgery. The freedom to change and re-sex by simple declaration is now a fundamental right, integrated into the values of the rule of law promoted by Europe against "illiberal" democracies like Hungary or Poland.
Result of the races: a scale of freedoms is emerging before our eyes.
On the one hand, the supporters of old-fashioned freedoms, attached to the right to leave their homes, to "take a cannon" at the counter, as Emmanuel Macron wants to deprive them of, or to keep control of their own at all costs. bodies, are portrayed as unreadable reactionaries stuck in their ignorance.
Even "irresponsible" not even worthy of being citizens, to use the scathing statements of the Head of State.
On the other hand, the advocates of freedoms at the forefront, sporting the colors of diversity or gender fluidity, are perceived as those whom the rule of law must above all pamper.
The rule of law may not have been swept away by the Covid-19, but its decomposition is underway.
Ghislain Benhessa
It is this score that pierces our time.
Not so long ago, the rule of law, descendant of the Rule of Law from England, meant the defense of the individual against the arbitrariness of power, protection of the small against the powerful.
No doubt the old liberals would have been horrified by the words of Emmanuel Macron, ready to wage war on the unvaccinated, dream scapegoats in this electoral period.
Today, the revamped rule of law defends societal freedoms and the rule of the minority, in the name of the sacrosanct principle of non-discrimination.
During this time, the refractory to all-sanitary see their freedoms ruthlessly eaten away.
The rule of law may not have been swept away by the Covid-19, but its decomposition is underway.
