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12 J. Comp. L. 518 (2017)
Judge-Made Justification and Democratic Legitimacy in French Criminal Law

handle is hein.journals/jrnatila12 and id is 826 raw text is: 

Judge-Made Justification and Democratic Legitimacy in French Criminal Law

           Judge-Made Justification and

       Democratic Legitimacy in French

                           Criminal Law

         Universit6 Panthdon-Assas (FR) and the University of Amsterdam (NL)

This article considers the judge-made justifications in French criminal law with reference
to contemporary debates in legal and political theory regarding democratic legitimacy.'
The research questions asks if judge-made justifications ought to be considered legitimate
in the French context. The paper opens by presenting the phenomenon  of judge-made
justification in French law. We consider both general justifications such as the state of
necessity and self-defence as well as narrower justifications called 'special justifications'
that are particularly 'discreet' and therefore popular among judges. Drawing on H.L.A.
Hart, Ronald Dworkin and Jeremy Waldron's  work, this paper puts forward a procedural
standard of democratic  legitimacy that attempts to establish non-arbitrary means of
adjudicating disagreement over the necessary exercise of the coercive power of the state.
We  argue that judge-made justifications in the French context usually do not meet this
standard. However, judge-made  justifications have an important function in French law.
A puzzle therefore arises as to how to address the democratic legitimacy concern while
preserving valuable flexibility.
   Judge-made  justifications in French criminal law are usually considered not to break
the 'principle of legality' and therefore to be a priori legitimate. The first part of this article
argues that debates surrounding the legality of such justifications turn on what we label
a  'liberal' conception of legitimacy. We seek to explore an alternative conception of
legitimacy for which there is a basis in Anglo-American jurisprudence and legal theory
to such judgements. It is argued that what we call 'democratic' legitimacy ought to be
considered as another relevant metric. Unlike liberal legitimacy, democratic legitimacy
does not prioritize protecting citizens from state power. Indeed, as we shall see in the
second part of the article, we consider democratic legitimacy to be another relevant aspect
to assess the legitimacy of judge-made justification because this mechanism works as a
'social-value ranker'. The article ends by proposing some compromises by which judges
are still able to use justifications as a tool, even in certain circumstances where they are

I The authors would like to thank the participants of the Journees internationales de jeunes chercheurs en philosophie
du droit [International Conference of Young Researchers in Legal Philosophy] and especially Olivier Chassaing
for interesting discussion. We would also like to thank the editors and anonymous reviewers of the Journal of
Comparative Law for comments and suggestions.
518     JCL 12:2

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