Doctrines (right)

Definitions

In the legal Vocabulary of Association Henri Capitant of the friends of the French legal culture, directed by Professor Horned Gerard, the doctrines is defined in four points:

“ Doctrines

Lact. docrina , of docere : to teach.

Opinion commonly professed by those which teach the Right ( communis opinio doctorum ), or even those which, without teaching, write on the Right. In this direction, doctrines are opposed to jurisprudence. V. doctrinal, authority, source.
Together of the legal works. Syn. literature (but it is a germanism of XX^e S.).
Together of the legal authors of works. Syn. the authors, the interpreters (but the courts can be included/understood in the interpreters).
In restricted directions: opinion expressed on a particular point of Law. In this direction, can indicate the reasons for right on which a legal decision rests (e.g. doctrines of a stop); design developed about an institution or of legal problems. In this direction, can indicate assertion of principle emanate from controlling; e.g. the Monroe doctrines in public International law. NB: it seems that the three terms - thesis , theory , doctrines - can be classified according to the increasing general information of the object (doctrines touches more with the principles, with philosophy; e.g. doctrines of the natural Right). V. reasoning legal, science, interpretation, legal technology ”.

These very rich definitions open ways of reflection, and suggest developments on the sources of the right, the method , the value and the carried of the doctrines. Comparative developments could show how the doctrines are considered in the world.

Historical elements

The doctrines really took its place with the Roman epoch, with the pleas of Jurisconsulte S, such those of Cicéron in Ier front century J. - C., the consultations of the second and third centuries, taken again by Justinien (Institutes, 533, Digeste, 534 and Code, 534), without omitting Julien (coding of the Edict of the praetor, 131), Gaius, in II^e century, Papinien, in 212, Ulpien, in 223, and the Code of Théodose under the Lower Empire, in 438.

François Ground, Member of the Institute, opportunely point out that the bases of the Code Napoleon, in the preliminary Discours of Portalis, are founded on the bringing together of the sentences of the courts and the doctrines of the authors, which not merging, and that according to eminent Jurisconsulte " it with the magistrate and the jurisconsult, is penetrated of the general spirit of the laws, to direct the application " of it;. There exists " in addition; a deposit of maxims, decisions and doctrines which is audited daily by the practice and the shock of the legal debates. It is too happy that jurisprudence (lato sensu) form a science which can fix the talent, flatter the clean love and wake up the emulation " ".

The Ancien right French less did not leave prints of them after the Revolution, under the feathers of Beaumanoir ( Coutumes of Beauvaisis , 1283), of Jacques d' Ableiges (the large usual one of France) , of Dumoulin to XVIe century, Pothier (1699-1772), or of writers and lawyers such as Beaumarchais and Montesquieu, at the 18th century, to only quote most famous.

The 19th century is naturally marked by the Napoleonean codings; the Civil code of the French is at this respected point that the doctrines follow from there the letter without much consideration of incipient jurisprudence. It is the time of the École of Interpretation , studying the articles of the Napoleon Code to extract some, by this method, of the general principles. This fidelity with the text is readable in the work of Troplong, Toullier, Demolombe or Laurent. Like notes it Mr. François Ground, although respectful of the interpretative method, Aubry and Rau, in their Cours of civil law (1838-1847) , these two famous Professors managed to transcend interpretation to build theories whose echo still resounds in this beginning of the 21e century.

With the rut of, the doctrines disabled Code for better investing the courts; thus appeared the “notes” or “comments” of stops, based either only on the Napoleonean legal matrix, but enriched by sociology, philosophy, the economy and the compared right, in particular.

The contemporary authors made doctrines a subject with the mode: the doctrines write on the doctrines. The writers of the Treaty of civil law, under the direction of Jacques Ghesin, general Introduction, prevent that this attitude can seem egocentric person. It is indeed necessary to be defied some and such is not the step taken in this teaching contribution.

Concept lato sensu of doctrines

In addition to the works of academics, it should be counted on work of the magistrates, certainly less quite widespread than on the the United States, for example, or, according to the precepts of Alexis de Tocqueville, the constitutional system confers to the judges a to be able being equivalent to the executive powers and member of Parliament, while in France it is legal question only of authority , reminiscence of the rejection of the Old right and the stops of payment (the judge legislator) that the French revolution made disappear… to a certain extent.

It does not remain about it less than the stops of High jurisdictions, especially the stops of principle , the conclusions of prosecuting attorneys or other members of the public ministry, those of the government commissioners near the Council of State, generally published, bring enormously to the doctrines.

Methodology

Which place the doctrines does it occupy in the Hiérarchie of the standards? All is question of method : for some, doctrines, even majority even unanimous, should not in no case to influence the judge unless it does not adapt the entirety reasoning of the author (S) having influenced it in the respect of the law. That is not infréquent, but " is needed; that the doctrines take up its duty of oracle and omen of the substantive law, in order to take care to make the right more coherent and better adequate to the social requirements ". On the other hand, the doctrines can be a " guide " for the magistrates, like the legislator… with the need to prevent it " nuire" , or to help it to improve the state of the right. The right is according to the ones a science, according to others Article Of prestigious authors of the doctrines sign works of a rare quality in the social sciences. But it is about an approximate science, in the sense that the doctrines are often worried polemical questions, and that it lends to controversies .

Source of the law or the force of law?

To affirm that the doctrines are " source of the droit" appears rather haughty on behalf of authors of doctrines. Nevertheless, without it, of the reversals of Jurisprudence would never have taken place, as well as sources of inspiration for the legislator, for example at the Palais Bourbon or the Palate of Luxembourg, (law on the traffic accidents, 1985), drawn from the courts and, before them, the searchs for authors of doctrines. In fact, the Civil code of Quebec of 1994 was primarily nourished of French doctrines as regards contractual obligations, of which that of J. Ghestin in this discipline. For Mr. F.Terré, " it does not remain about it less than the doctrines are consubstantial with the droit". The doctrines would be more a guide for the courts and the legislator, but does not have the force of law. It is necessary to hold transnational doctrinal work here, such those of the International institute for the unification of the private law which proposed point-keys as regards contracts of the international business: the Principles of Unidroit (1994-2004, 2006-).

Role of the doctrines

First of all, it aims to the transmission of the legal knowledge , by forging the lawyers of tomorrow or, in continuing education, by reinforcing the knowledge of the state of the right by the professionals of this one. Also the authors, professors and university lecturers, take part in many conferences, extremely remunerative moreover… In the same spirit, the doctrines is consulted , especially in right of the businesses; open then in addition to-courts a kind of disputatio to the Roman direction of the term, that one even as the lawyers apply to the bar or in their pleas, but to a probably higher scientific level.

Then, the doctrines have a role of put in order of the legal decisions, laws, decrees, in short, right, while it making erudite .

Lastly, the doctrines are source of principles which will be taken again later on by jurisprudence even the legislator taking into account their relevance; one can lend to him a role of avant-garde but also of parapets , against the iniquitous decisions and the unjust laws. For Mr. F. Ground, " the role of the doctrines is all the more irreplaceable as one can with the rigor imagine a legal system without laws or habit or jurisprudence, but that one cannot imagine a legal system without doctrines, because it is it which makes become aware of their own existence ".

Criticisms of the doctrines

The handing-over of cause by some “positivists” of the role of the doctrines proceeds of the desire of obliteration of this one to the profit of the formal sources of the right. According to an author, " the lawyers are actually illusionnistes" … That leaves thoughtful. The real causes of criticisms actually come from academics against their colleagues. Not without presupposed social or political. To cure this legal ethnocentrism, Professors J. Ghestin and alii suggest probing more in-depth legal sociology, the philosophy of the right, the compared right and the economy. At the time modern, according to these authors, the Palate would ignore the doctrinal opinions more and more. Such is not our opinion as for the prospective right, many magistrates of the jurisdictions lend assistance, out of international or arbitration matter, for example, with work of the doctrines. If there remains true that the Supreme court seems to listen to only itself and obviously the law, not the professors, it appears exaggerated to affirm " that there are today undeniable and undoubtedly regrettable inflation of the doctrinal publications ". Remarks very little encouraging for those and those which intend to take part in this gigantic company even if immodeste to rationalize the science of the right for the benefit of justiciable and of the students.

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