At the time of writing these lines, the Constitutional Council has not rendered its decisions on the pension reform. So I feel very comfortable not to talk about it. What, on the other hand, already occupies the middle of the village, is this incredible accumulation of forums and scholarly positions to explain in advance what will be judged but also to say what will have to be thought of the said Council if by chance he does not rule in the desired direction – generally, that of an annulment of the entire law.
Let’s skip the venial: many have suggested that the solution was simple, blatant, necessary. It would be better, however, to cultivate the idea that there is never any truth in law and therefore no certainty about what the sentence will be. We’ll see.
Let us also pass over the political contamination of the subject. Implied bias is the most common disease of college life and I’m not immune to it. But still: we are at the peak of an unprecedented epidemic and we have recorded a few severe cases. Few in any case are those who have choked on their scruples about passing off their opinions or their mental automatisms as a product of science. But well… There is no death of man.
What passes less is the indifference of our experts to the consequences of what they say, especially when the arguments they use fall into the hands of enemies of the rule of law and pave a straight path to their regression projects.
It’s quite simple. By trying to make believe that “the law” inevitably commands censoring the law on pensions, we make – and we want to make – hear that the Constitutional Council would have no choice if it wanted to rise to the occasion. Therefore, if he does not cancel this law, it is because he is playing politics and not law. The most involved also announce that this outcome is certain given the pedigree of the nine members: friends, rascals, politicians from the old world… Nothing to expect. Close the ban.
Whatever they judge, the Sages will be reviled
Nevertheless. Even in some of those who really mean it when they write it, I suspect a little manipulative background these days. All this prose tends to stress the Constitutional Council a lot; to force him, before deciding, to ask stinging questions about himself: about the image he gives, the love we have for him, etc. These concerns are hardly compatible with the jurisdictional (and therefore distanced) nature of its mission, but no matter: it is tactical to try to stuff it in its head.
The side effects remain. In this fog thus maintained on what will determine the Council, everyone will make a political reading of its decisions on April 14. There will be no room for anything else. And whatever he judges, he will be reviled. If he cancels nothing or almost, it means that his unworthiness will be verified; if he cancels trifles, it is because he will have made fun of the world; if he cancels everything (or large sections), it is because he will have understood where his own advantage lies and decided to take shelter, that is to say not to behave like a judge, since there is no judge other than a third party, impartial and disinterested (of himself).
Constitutional courts are threatened everywhere. The sovereignist vulgate has made them the enemies of the people. Even in countries with a strong legal tradition – what is happening in Israel should make you think. The conditions are met for everything to end badly. Badly, that is to say in abandoning what it took us centuries to build in order to contain “politics” a little within the limits of the law, that is to say in such a way that parliaments unleashed do not sacrifice most of our freedoms (even our honor) to the emotion of the moment and/or to the pettiness of partisan interests. Criticism of the government of the judges – and of their political diversion – serves and will always serve to light this fire.
Refrain. Do not say anything, anywhere, anytime. In the history of ideas, this is called the ethics of responsibility. It aims to temper this so-called ethics of conviction which, in its chemically pure state, has never been anything other than narcissism: an absolute love of oneself and one’s cherished ideas, whatever the cost.