Dura Lex Sed Lex resonates with low intonations. However, the venerable maxim should invite circumspection; the law is tough, but it is not always the law.
This may come as a surprise as law seems to be an unalterable, scientific sum, already there, a series of rules to know and which govern everything. There is a profound error in this vision. Law is freedom and construction, it is a tool by which we create value by managing the inevitable conflicts of interest in life. Law is never anything but what you want it to be, because it is a tool for free use.
A principle of freedom: Laws are substitutes for the will
It often happens that a defendant enters his lawyer's office and asks him respectfully: “Master, what am I entitled to? ”. The most accurate answer is: “That you can convince the other party to give you.”
The rules of law in most cases are just an emergency exit unless otherwise agreed. There is no point in rushing in. The main entrance is not there.
Indeed, the rules of law in their entirety provide solutions that are applicable only in the absence of a contrary agreement between the parties. In the absence of contrary details, a law can always be set aside. They are called substitutes of will, they make up for the absence of a common will.
Let's take examples.
In a dismissal, the amount of compensation provided for by the Macron decrees is not binding. It is possible in the context of a contractual break to obtain more or less.
In a divorce, the amount of the compensatory benefit can be freely debated. Child care arrangements as well.
In other words, the will of the parties takes precedence over the case law solution. Through a contract, it is almost always possible to find a solution that can be Contra-Legem !
This is very important to understand in the context of amicable dispute resolution. It is clearly useless to start from what the law says! She says nothing, except for lack of agreement. It expresses a possible conditioned and uncertain. As long as public order and process standards are respected, let's live free and happy.
In negotiation, the rules of law only make it possible to find the best alternative to a negotiated solution, subject to the existence of a judicial hazard and to the success of a judicial procedure (long and expensive).
Contrary to the image of Épinal, the law is not necessarily fair. It may be inequitable, useless, or even inappropriate. While hundreds of doctoral students are working tirelessly to improve it, it still remains immeasurable to individual needs. The solution given by law can even be catastrophic!
This is normal and not serious, because the law and legal solutions are only a stopgap in negotiation.
The boundaries of the possible: The rules of public order & Processes
If you can do a lot with informed consent, you can't break a rule of public order.
These rules are limited in number and are completely inviolable (examples: fiscal and criminal rules, rules of safety, health, working time).
These rules are the only ones that must be taken into account in negotiations. They almost never prescribe a solution, but indicate the boundaries that should not be crossed.
Procedural rules are rules of public order that prescribe the procedure to be followed in order to give valid consent.
Thus, in a divorce, you need two lawyers, a withdrawal period, a trip to a notary, if there are buildings; in the case of a dismissal, for a contractual breakup, there is an appointment process, a procedure to be put in place.
In short, it is necessary to start from a reflection on the concrete situation, on what the parties want and to build a solution. The legal framework only provides guidance in the absence of agreement and sets limits.
Does the law really exist?
The alternative to negotiation is to go see a judge. Again, knowing what the content of the law is is more of a shamanic imprecation than of scientific work. The judge who will be seized at the end of a judicial procedure, which is contradictory, uncertain, long, is an autonomous decision-maker who sovereignly assesses the facts, takes a position on the applicable law (and there are often contradictory and parallel norms) and decides freely on the basis of case law, but also on the basis of the economic, political and social climate (a dismissal in Paris or Douai is not judged similarly) economic, political and social. The judge does not decide solely on the basis of law but is an actor in a multiple dialogue with the lawyers who present the case: two opposing versions (often point by point), the other judges via case law, the doctrinal positions of law professors (always influenced by their own vision of the law), the political context, the practice of the other judges of the jurisdiction, the doctrinal positions of law professors (always influenced by their own vision of the law), the political context, the practice of other judges in the jurisdiction, his own beliefs. This debate, in which the judge plays the role when he says the law, means that the judge does not state a decision on the basis of a clear rule of law set in stone; he decides for the parties after listening to them, according to his own reasoning and his own understanding of the facts, the law and the case. Lawyers speak of judicial hazard, which includes all cases where a judge did not agree with them, but this hazard is intrinsic to the judge's position, a third party to the conflictual relationship, who first reflects his position (in which decision I take the least risk of criticism) and based on a continuous debate. The law is in constant evolution; there is no prior concrete application by a given judge in a given case. The law only comes up here and there in its practical implementation.
The alternative open to the litigant is therefore not to listen to the law through the mouth of the lawyer and to obtain a legal judgment from a judge, but on the contrary, to face this position of passivity, and by overcoming it, to be yourself an actor and creator of your own right through negotiation, or to refer to the subjective decision of a third party, the judge, on a specific question. However, the judge's response will always be out of step with the needs and wishes of the parties.
The law applicable to a particular situation is therefore (i) what was decided between the parties and, failing that, (ii.) the concrete solution resulting from an adversarial procedure and given by a judge specifically to a particular case.
There are therefore several elements to take into account in the creation of law, specific to each relationship. First, the economic, sociological, psychological reality... of the business, social, family, and rental relationships... Then comes the interactional dynamic: can I negotiate, is there a way to communicate. This has a direct impact on the ability to negotiate an agreement, but will also have consequences on a judicial procedure and therefore on the decision of a judge. And finally, in a third position, legal norms that serve as an optional frame of reference (for substantive supplementary norms of will) or as a closure for public order and procedural rules.
Law is therefore not a significant, unalterable Other that falls on us like a lead screed that judges and limits, but on the contrary is simply what we do with it and what we manage to convince the other to accept.
What lessons can we learn from it :
- Practicing law is negotiating and not being a knowhow. While the lawyer must know the rules to guide his client, the right that will exist in a particular relationship will depend only on his ability to negotiate and understand the needs of his client;
- What the law says is much less than what the client wants and needs. Practicing law means listening and helping the parties to a legal relationship understand and state their needs;
- Law is not something that imposes but is on the contrary a set of tools in which you are the actor and the driver to create your own, tailor-made legal solution;
- The models, all done, do not make sense. You cannot buy a contract because a contract by itself does not exist. It is only an excuse to think about the underlying relationship, to set an accepted framework and is a tool for managing potentially conflicting human relationships. It is a tool to be built. Without this, it is just a piece of paper that will remain a dead letter and that will not even be really applicable in front of a judge, because it will have been violated on both sides making the judicial decision uncertain.
So what should the lawyer's position be?
If we derive the full meaning of the philosophy and structure of law and the types of norms, the role of the lawyer is not to say what the law could be, but on the contrary to be the artisan who manufactures, with his client, a solution that is completely his own. The lawyer is therefore not knowledgeable and certainly not a knower for his client, but he is an ear, an adviser, a coach, a co-builder. The lawyer is the architect of his client's solution, for his client and by his client. He transforms the negotiated needs of his client into legal production.
How to consume the judge?
The judge is a third party, a subsidiary third party who comes to the rescue of an impasse and an impossible discussion between the parties. Its recourse must therefore be subsidiary, limited to specific points. The judge should not be seen as the guardian of a legal table, but as a complementary actor in the discussion between the parties, in the context of their specific situation and the general legal debate.
If the law is only a virtuality in itself that is never non-existent but perceptible only by breaking and entering in an accidental and anecdotal way, during decisions influenced by the circumstances of a case, what is the function of law?
It is by no means a machine for providing solutions to given situations. In any case, the law as we know it is not like that. Code is law and smart contracts that want to automate legal relationships could come up with this solution. But we don't believe it. It is above all the Cartesian fantasy of scientific rationality victorious over the chaos of reality. The application that in one click will tell you “dear sir you have divorced and I am pleased to tell you that through the scientific application of law and jurisprudence, the apartment, custody of the children and your bank accounts have been attributed to your ex-wife and that you have renounced all recourse...” will not last long. In human relationships, too much rigidity more generally leads to breakups, clashes, and conflicts than it solves them. A good contract, an effective legal system, ensures a careful balance between legal security and permanent adaptation to the fluidity of relationships, precisely because this flexibility allows the right to breathe, but above all to be able to adapt to the various solutions of life and its turmoil.
Law is a tool for managing conflicts of interest, first by setting up contractual and legal systems and a posteriori by opening up means of settling disputes. The human need that the law meets is the management of conflicts of interest. The establishment of regulations and a judicial system are never more than tools to resolve these conflicts of interest. However, these balances are constantly evolving, as are the law and case law.
