La fonction de juger : Etude historique et positive

Abstract : From the established truths of medieval legal philosophy to the intellectual frameworks developed by contemporary scholars, the judicial function has been theorized in many ways. Historical analysis of discursive shifts and transformations reveals a distinction between, on the one hand, a stress on the subjection of the judge to the rule of law and, and on the other, the role of the judge in the realisation of the rule of law. These ideological images emerge as medieval scholars, drawing on roman and cannon law sources, construct a theoretical apparatus to describe and justify the judicial power of royalty. Based on respect for institutional hierarchy and obedience to the legal text, this conceptual framework is reiterated and refined by lawyers from the Ancien Régime to modern times. Such principles are expressed in theories as to the authority of the judiciary and appropriate forms for the organisation and exercise of its power : in relation to each of the issues, over more than eight centuries legal discourse emphasizes the theme of the necessary compliance of the judge to the rule of law. Still influential, this conception of legal justice is blurred by the appearance during the 20th century of another discursive construction of the judicial role which celebrates the rule-making power of the judiciary, its new administrative functions and the increasing part played by legal proceedings in social regulation. Combined with the loss of prestige of statute law and legal globalisation, these conceptual transformations indicate a shift in theoretical discourses which increasingly stresses the central function of judges in the implementation of the rule of law.
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Renaud Colson. La fonction de juger : Etude historique et positive. Fondation Varenne. LGDJ, pp.348, 2006, Fondation Varenne. ⟨halshs-00402659⟩

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