Eric Millard

La teoria de las "contraintes" jurídicas

Starting from a theory of interpretation stating that legal interprets are free, the Theorie des contraintes (Theory of constraints) tries to isolate some specific factors that influence, determine or simply occur in the law-decision process. The “constraints” reduce the field of possibilities for authors producing a legal enouncement, decision, or reasoning. Its not synonymous of obligations in the common legal sense, defining an obligation as a set of duties imposed by legal norms. The concept of “constraints” is not conceived in the order of “sollen” (ought) but in the order of “sein” (is). The hypothesis is as follows: there are specific legal constraints that are different from moral, economical, psychological or social factors, and such constraints also determine the legal decisions. This paper aims to conceptualize the specificity of such constraints and to establish typologies in order to allow a more precized identification.

Chapter 12 20th-Century Legal Philosophy in France

The very expression “French philosophy of law” has long sounded like an oxymoron, and it still does.

Alf Ross and Realist Conceptions of Legislation

Abstract Alf Ross was certainly the best-known and consistent theoretician within the movement known as Scandinavian realism. In his main work, On Law and Justice, Ross constructs an empiricist theory of law on the basis of a positivist methodology and non-cognitivist meta-ethics. In this constellation, legislation does not occupy the same place as in formalist theories like normativism. Legislation instead is an element of the sources of the law, and for that reason, considered a part of the normative ideology of judges. Despite this, according to Ross there is no call from a scientific point of view for a specific study of legislation, and in particular of law-making. One of the most surprising aspects of the theory proposed by Ross in On Law and Justice is found in its final chapters, where Ross develops his concept of legal politics. Legal politics is not a scientific activity, but a scientifically-based practical activity: Guidance for the legislator for the purpose of articulating premises for influencing social action and proposing formulations instructing legislative organs when they enact the law. There is no inconsistency in the way Ross deals with this issue, and the entirety remains coherent to his non-cognitivist premises. On the other hand, his theory of legal politics appears unrealistic as the preconditions for its efficacy are scarcely tenable. In a sense, this theory appears more to be a self-justification for the practical activities of certain Scandinavian lawyers rather than a true realist theory.

La Constitution ignore les étrangers

La Constitution de 1958 ne contient quasiment pas de dispositions relatives au statut juridique des etrangers. Si bien que les juges constitutionnels ne s’interessent a leur sort qu’a la faveur de l’examen a priori des lois ou lorsqu’une question prioritaire de constitutionnalite est soulevee dans un proces. Or cette absence de dispositions constitutionnelles fait que les droits et libertes des etrangers s’effacent derriere les principes de sauvegarde nationale, au risque d’une inegalite des statuts fondee sur la nationalite.