8/12/2019 Turenne. Judicial responses to civil disobedience. A comparative approach.pdf http://slidepdf.com/reader/full/turenne-judicial-responses-to-civil-disobedience-a-comparative-approachpdf 1/21 SOPHIE TURENNE JUDICIAL RESPONSES TO CIVIL DISOBEDIENCE: A COMPARATIVE APPROACH ABSTRACT. In this paper, I compare the extent of Anglo-American judicial engagement in response to civil disobedience with that of the French judiciary. I begin by examining what the civil disobedient can realistically expect to achieve in a court of law.Ishallarguethathispriorityshould betorequire thejudge, actingas amouthpiece for the law, to respond to his complaints. To do this, the civil disobedient must be able to deny liability for the offence he has allegedly committed by urging a different interpretation of the law on the basis of an alternative – but plausible – reading of constitutional or human rights. If the civil disobedient can do this, he can claim a victory of sorts, even if his claims are ultimately unsuccessful. But legal culture can present a further barrier. Judges have different roles in different jurisdictions and therein lie further difficulties for the French civil disobedient. KEY WORDS: civil disobedience, constitutional rights, Cour de cassation, human rights, interpretation In this paper, I explore what the civil disobedient should expect to achieve in court. This might strike some as surprising. If it is part of the definition of civil disobedience that the disobedient knows that he is breaking the law, then surely he also knows what to expect if he is summoned to appear in court – viz. conviction and punishment, if he has committed a criminal offence. Moreover, that would not neces- sarily concern him, since his aim might be to make a political point in the strongest way possible (the decapitation of the statue of Margaret Thatcher springs to mind here). Many a civil disobedient would actually welcome an appearance in court; indeed to become the subject of prosecution might even have been his primary objective, for he may perceive her trial as a suitable platform for the expression of his moral or political views. The judge and jury will be required to listen to him, and he may also hope that the media will attend his trial and report her views to the public at large. But, in this respect, he may be seriously disillusioned. The judge and jury will not be required to listen to everything he has to say. If his views are irrelevant to the legal question of whether he has committed an offence, he will not be permitted to express them and, in any event, the jury will be told Res Publica 10: 379–399, 2004. 2004 Kluwer Academic Publishers. Printed in the Netherlands.
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8/12/2019 Turenne. Judicial responses to civil disobedience. A comparative approach.pdf
JUDICIAL RESPONSES TO CIVIL DISOBEDIENCE: A COMPARATIVE
APPROACH
ABSTRACT. In this paper, I compare the extent of Anglo-American judicial
engagement in response to civil disobedience with that of the French judiciary. I begin
by examining what the civil disobedient can realistically expect to achieve in a court of
law. I shall argue that hispriorityshould be to require thejudge, actingas a mouthpiecefor the law, to respond to his complaints. To do this, the civil disobedient must be able
to deny liability for the offence he has allegedly committed by urging a different
interpretation of the law on the basis of an alternative – but plausible – reading of
constitutional or human rights. If the civil disobedient can do this, he can claim a
victory of sorts, even if his claims are ultimately unsuccessful. But legal culture can
present a further barrier. Judges have different roles in different jurisdictions and
therein lie further difficulties for the French civil disobedient.
KEY WORDS: civil disobedience, constitutional rights, Cour de cassation, human
rights, interpretation
In this paper, I explore what the civil disobedient should expect to
achieve in court. This might strike some as surprising. If it is part of the definition of civil disobedience that the disobedient knows that he
is breaking the law, then surely he also knows what to expect if he is
summoned to appear in court – viz. conviction and punishment, if he
has committed a criminal offence. Moreover, that would not neces-
sarily concern him, since his aim might be to make a political point in
the strongest way possible (the decapitation of the statue of Margaret
Thatcher springs to mind here).
Many a civil disobedient would actually welcome an appearance
in court; indeed to become the subject of prosecution might even
have been his primary objective, for he may perceive her trial as a
suitable platform for the expression of his moral or political views.
The judge and jury will be required to listen to him, and he mayalso hope that the media will attend his trial and report her views
to the public at large. But, in this respect, he may be seriously
disillusioned. The judge and jury will not be required to listen to
everything he has to say. If his views are irrelevant to the legal
question of whether he has committed an offence, he will not be
permitted to express them and, in any event, the jury will be told
Res Publica 10: 379–399, 2004.
2004 Kluwer Academic Publishers. Printed in the Netherlands.
8/12/2019 Turenne. Judicial responses to civil disobedience. A comparative approach.pdf
to dismiss them. Perhaps his views will, or should be, relevant to
the mitigation of his sentence upon conviction,1 but he would
hardly have looked forward to having his day in court merely to
plead for mercy.
In this article, I shall dissect the notion of civil disobedience. Only
the disobedient whose action is motivated by a plausible interpretation
of human rights which, if correct, would have justified his act (or
would at least have required the state to refrain from prosecuting
him) can expect to be allowed to express his views in court. Even this,
perhaps modest, conclusion is contingent upon the prevailing legal
culture.2 The disobedient is likely to be heard in court – whether or
not he is ultimately successful – in England or America; but in the
positivist French courts his arguments will not be openly entertained
at all.
THE RELEVANCE OF HUMAN RIGHTS FOR CIVIL DISOBEDIENCE
I am not here arguing for a radical interpretation of civil disobedience. I
agree with those who define civil disobedience as an act performed
deliberately, in knowing violation of the law, because the actor has a
different moral or political view of what the law should be, or of the
policy objectives that politicians should be pursuing. Further, the act isdone publicly (that is, the actor does not seek to hide what she has
done). It is typically not violent3 and it is done accepting the possibility
of punishment, but in the hope that the disobedient can persuade others
that the objectionable law or policy should be changed. I agree too that
civil disobedience can be either direct or indirect. It is direct when the
actor violates the very law with which she disagrees: e.g. she may smoke
cannabis because she disagrees with its criminalisation. It is indirect
when the target of the disobedient’s protest is something other than the
1 R. Dworkin, Taking Rights Seriously (London: Duckworth, 1977).2
John Bell defines a legal culture as ‘a specific way in which values, practices, andconcepts are integrated into the operation of legal institutions and the interpretation
of legal texts’, in ‘English Law and French Law – Not So Different?’, Current Legal
Problems (1995) 63–101, p. 70.3 See esp. M.J. Falco ´ n Y Tella, ‘Un droit a ` la de ´ sobe ´ issance civile ? Quelles
law she breaks: e.g. she may trespass onto a military base to protest
against a war, in which case it is the war, rather than the law of trespass,
that is the object of her complaint. The trespass is merely her way of
expressing her political views. The decapitation of Margaret Thatcher‘s
statue is another example of indirect civil disobedience, for it was
capitalism, rather than the law on criminal damage, that was the target
of the decapitator’s act. In all such cases,however, the aim must be legal
or political change. A person who refuses to perform compulsory
military service because he personally disapproves of fighting (i.e. she
conscientiously objects to war) seeks only a personal exemption – she
does not necessarily disagree with the general principle of conscription.
His refusal to perform military service would count as civil disobedi-
ence only if it manifested the beliefthat no one shouldbe required by law
toserve in the army or to support the systemby optingfor analternative
form of service.4
However, whilst accepting this broad definition of civil disobedi-
ence, I would argue that only in a subset of such cases could the dis-
obedient hope to air his dissenting views in court. For that purpose, I
distinguish between cases in which the law is challenged on moral or
politicalgrounds andcases in which theinterpretationof thelaw itself is
at issue. Thus, the poll tax instituted by Margaret Thatcher was alleged
to be unfair, but not unlawful, so that refusal to pay it would not
constitute the sort of case I have in mind here. I shall argue that it is onlyin cases based upon interpretation of the law that civil disobedients can
expect judges to engage with their dispute. These are cases in which,
though the disobedient acts knowingly in violation of the law as it has
been traditionally interpreted , he believes that he can argue that this
traditional understanding is wrong and that his act is already lawful . We
can call such cases of civil disobedience ‘intra-legal’.5 Such claims
should not be ignored as irrelevant by the judge. They should be ad-
dressed, even if they are ultimately rejected.
But on what basis can the disobedient argue that the law is wrong?
Judges must follow precedents6 and there is often no room for dis-
agreement as to what the law is. No one, until recently, could seri-
4 J. Bengoextea and J.I. Ugartemendia, ‘Civil Disobedience as Constitutional
Patriotism’, Legal Studies 17 (2000), 434–47.5 I am grateful to Peter Jones, who suggested this phrase for the concept to which
I am referring here.6 That is, in England; other countries are more likely to have codified their
criminal law and other legal principles.
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ously have doubted that the possession of cannabis for religious
purposes was as much of an offence as its possession for any other
purpose (apart from purposes connected to law enforcement). Thus,
the disobedient must be able to point to some principle or principles
which, in his view, over-ride the law as currently applied and which
open that law to more than one interpretation. These overriding
principles will be based upon constitutional and/or human rights. To
my mind, then, judges should be able to engage with civil disobedi-
ence only when the disobedient’s claim concerns the legality of the act
he committed (or rather, its criminalisation under the law as presently
interpreted ) from the perspective of a different interpretation of
rights. I shall focus in this article upon human rights, since they
represent a common set of values for European lawyers; but consti-
tutional rights, where a country has a written constitution, also
present opportunities for disobedients to present their arguments in
court. The open-endedness of human or constitutional rights seems to
allow plausible interpretations of human or constitutional rights to be
raised by disobedients in most domains of the law. So, if a person
who has arguably exceeded the boundaries of reasonable force in self-
defence wishes to defend herself on the ground that he thought that
she should be allowed to use such force under the law of self-defence
(e.g. lethal force against a burglar), then even he could be said to be
invoking the scope of his (human) right to life.7
Some might think thata right to self-help in the event of the failure of the state to fulfil its
duty of protection would raise constitutional issues as well. So the
disobedient would at least be appealing to a human or constitutional
right in arguing about the proper scope of the liberty of self-defence.
Whilst it is accepted English law that she cannot act upon a divergent
interpretation of self-defence,8 the point for present purposes is that
she ought to be allowed to argue that her own interpretation is in fact
the legally correct one. Someone in this position can be characterised
as a civil disobedient who is arguing for a different interpretation of a
human or constitutional right.9
Focusing upon acts which, set in the context of human rights, are
at least arguably non-criminal is the clearest way to distinguish these
7 See Article 2 (2) of the ECHR which permits lethal force which is ‘absolutely
necessary ... in defence of any person from unlawful violence’.8 R v Owino [1996] 2 Cr App R 128.9 He might thus become entitled to a reduction in sentence, even if his claim is
rejected and he is convicted, as I go on to suggest.
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cases of civil disobedience from cases of ‘resistance’. In France, the
right to resist oppression is ‘natural and imprescriptible’ (Article 2
DDHC 1789). However, despite the constitutional enshrinement of
the right of resistance, rebellion against the positive law cannot be
lawfully grounded upon this right of resistance,10 but would remain
founded upon a moral and political right of resistance. For a lawyer,
this means that the ‘right’ of resistance is unenforceable, a conclusion
supported by its narrow legal definition as the duty of a civil servant
to disobey (only) an illegal order.11 ‘Intra-legal’ civil disobedience,
however, seeks to challenge the positive law from within the law itself,
by appealing to wider legal parameters. It is dissent ‘against the law,
within the law’ that characterises this type of civil disobedience.12 It
seeks a balanced point at the boundary between the legal and the
illegal: those who practise this type of civil disobedience are trying to
‘loosen’, ‘enlarge’ or even ‘exceed’13 society’s legal system rather than
to overthrow it.
Intra-legal civil disobedience is thus distinct from any notion of
resistance14 insofar as it resorts to legal protest, and may include
resort to petitions and judicial review. This explains too why civil
disobedience must be non-violent and an act of last resort used only
when other democratic mechanisms, such as voting, have failed to
achieve the legal reform that is sought, characteristics which need not
be definitive of resistance. It also means that civil disobedience
10 S. Goyard-Fabre, ‘Le ‘‘peuple’’ et le droit d’opposition’, Cahiers de philosophie
politique et juridique 2 (1982), 69–85. Seefurther J.-F. Spitz,‘Droit de re ´ sistance‘, in eds
Ph. Raynaud and S. Rials, Dictionnaire de philosophie politique, 145–52; P. Wachs-
mann, ‘Un sujet de droit peut-il se revolter?’, Archives de philosophie du droit 34 (1989),
89–102.11 Conseil d’Etat, Langneur, November 1944, in J.-F. Lachaume, Les grandes
de cisions de la jurisprudence, (Paris: Presses Universitaires de France, 1999) ; E. Des-
mons, Droit et devoir de re sistance en droit interne. Contribution a ` une the orie du droit
positif (Paris: Librairie Generale de Droit et de Jurisprudence, 1999).12 T.R.S. Allan, ‘Citizenship and Obligation: Civil Disobedience and Civil Dis-
sent’, Cambridge Law Journal 55 (1996), 89–121. Allan’s claim relies upon the rea-soned and morally inclusive nature of legal obligations. He originally used the
expression to argue that a journalist’s refusal to disclose his sources could be plau-
sibly understood as a claim about the nature of the legal obligation to disclose his
sources, a claim ‘within the law’, ‘based on a different but eligible interpretation of
what the law truly requires’: see ‘Disclosure of Journalists’ Sources. Civil Disobe-
dience and the Rule of Law’, Cambridge Law Journal 50 (1991), 131–61, p. 151.13 F. Proust, De la re sistance (Paris: Presses Universitaires de France, 1997), 158.14 Ibid., 176.
383JUDICIAL RESPONSES TO CIVIL DISOBEDIENCE
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illustrates a democratic paradox: civil disobedients disobey the law,
but not because they hold the law as such in contempt. On the
contrary, they are working upon the same basis – human rights – as is
the legal order itself. It might also follow that this type of disobedi-
ence should not be interminable.15
This strong connection between rights and civil disobedience has
been most forcefully argued by John Rawls and Ronald Dworkin.
Rawls usefully integrates civil disobedience into his theory of justice by
understanding acts of civil disobedience as cogs in the machinery of
liberal democracy.16 For Dworkin, civil disobedience is a method of
last resort for protecting human rights. Most interestingly, Dworkin
requires civil disobedients to show that their acts of disobedience are
grounded in a ‘plausible’ interpretation of a constitutional right en-
trenched in the US Constitution.17 Civil disobedience thus relies upon
what has been described as the ‘fuzzy’ nature of human rights18 and the
consequent legal variations in their construction and implementation.
It follows, for Dworkin, that judges should be lenient towards civil
disobedience; though a judge should uphold the conviction, she may
lighten the sentence. Dworkin would not, however, grant the civil
disobedient a legal defence per se. Like other jurists, he is concerned
only that thedefendant shouldbe able to put his different interpretation
of the human right in question before the courts. Thus, a Rastafarian
who claimed that he should not have been prosecuted for possessingcannabis his was able to argue before the trial judge, and again on
appeal, that his right to worship was being violated.19 Whilst the
15 It might be thought that, if the contested interpretation of the law fails after a
fair and balanced judgement has been given, the disobedient should, in consistency,
accept defeat and not repeat his offending conduct; but this need not be so. At least,
the point is open to argument. See below.16 A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971).17 R. Dworkin, Taking Rights Seriously (London: Duckworth, 1977), 208–10.
Dworkin distinguishes various types of civil disobedience for the purpose of devel-
oping different types of moral justification within a theory of civil disobedience – see
his A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985), ch. 4.But he finally argues that all morally justifiable types of civil disobedience could
further be understood as resting upon proper alternative interpretations of the
American or German Constitution, insofar as these Constitutions recognise abstract
political rights as legal rights and are therefore subject to a potentially wide inter-
pretation (Matter of Principle, 115–16).18 M. Delmas-Marty, ‘Vers une autre logique juridique: a ` propos de la jurispru-
dence de la Cour europeenne des droits de l’homme’ Dalloz 1988, chr. XXXV.1.19 R v Taylor (Paul) [2001] EWCA 2263.
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of 1946.31 It might seem surprising that the constitutional principle
of human dignity should be thought to sustain the ambitions of
proponents of a ‘right to housing’. But, to militant eyes, it is not
unthinkable that the French government should accept that the
right to dignity includes the right to material goods necessary for
dignified living. Following a number of trespass actions by mili-
tants pressing for a right to housing, the shift towards the recog-
nition of some legal meaning to a right to housing can be found in
a few judgements of the lower and appellate courts given during
the 1990s.32 In 1995, for example, a court of first instance held
that some homeless people could be temporarily allowed to occupy
an empty property, on the ground that the value and utility of a
property was greater when it was occupied than when it remained
empty.33 Of course, the fact that judges must constantly balance
the need for housing against the right to property does not mean
that they must regularly find in favour of the claims of trespassers,
but insofar as these claims constitute plausible assertions of the
right to dignity, they should at least receive judicial consider-
ation.34
31 Conseil Constitutionnel 29 juillet 1998, (1998) Actualite Juridique du Droit
Administratif 705; B. Mathieu, ‘Le droit au logement’, in eds D. Gros and S.
Dion-Loye, La pauvrete saisie par le droit (Paris: Seuil, 2002), 215–31, p. 215. The
recognition of the right to housing as a ‘constitutional objective’ provided the
impetus for the approval by the Constitutional Council of the Act of 29 July 1998,
which imposes a tax on empty properties (art. 232 CGI, L. 29 July 1998, art. 51) with
the aim of encouraging the occupation of properties in urban areas where there is a
strong imbalance between the need for housing and the supply of houses, to the
detriment of individuals with modest resources. The 1998 Act also provides for a
mechanism of pre-emption of property by the occupant when the property goes to
forced auction and when the occupant has modest resources (art. L.616 c.constr., L.
29 July 1998, art. 108).32 See the decision by the Tribunal de Grande Instance de Paris, holding that there
is an ‘imperative necessity’ to have the right to housing prevail over the right toproperty (decision of 2 September 1996). See also a similar decision by the Cour
d’Appel d’ Orle ´ ans 19 June 1996, Juris Data 043484; but contra: Cour d’Appel de
Paris 27 November 1997, Dalloz 1998. IR.6.33 See Le Monde, 30 mars 1995.34 See also the need for housing mentioned in the Universal Declaration of Hu-
man Rights of 1948 as part of the requirement of a sufficient standard of life (Article
25, §1) and in the International Convention on Economical, Social and Cultural
Rights of 16 December 1966 (Article 11, § 1).
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compass than one might have expected.37 Thus, the mental anguish
of a rape victim was cited in order to justify an abortion at a time
when abortion could be performed legally only to save the life of
the mother, or to save her from serious bodily harm; the reasoning
used was that it can be difficult to separate mental suffering from
bodily harm and that one might lead to the other.38 Indeed, one
can find an imaginative application of the necessity defence outside
the common law courts too, and also in cases in which it would
have been more natural for the civil disobedient to have argued
her case through a plausible interpretation of human rights.39 But
this sort of reasoning is more typical of the common law.
If one can persuade a common law court that it is at liberty to
balance social or political interests, then it has proven quite ready to
do so.40 In America too, law can be attacked on constitutional
grounds and judges can be called upon to justify and/or explain it.
Much more emphasis is placed on the argumentation of the judicial
decision, in order to give greater legitimacy to the Supreme Court’s
decisions.41 As a result, many an American legal judgment develops a
socially responsive judgement, through an overt deliberation of the
decision, by integrating divergent and dissenting opinions as well as
extra-legal matters. In Roe v. Wade,42 for example, there was a
conscious balancing of interests. The Supreme Court found that the
Texan legislation prohibiting abortion, unless it were done on med-ical advice to save the mother’s life, violated the Due Process clause
37 Cf . the earlier discussion of ‘reasonable force’ in self-defence.38 R v Bourne, [1939] 1 KB 687.39 As in the Spanish case of a conscientious objector, who, having been exempted
from military service, refused also to perform any alternative social service. The
judge found that, given that the conscientious objector aimed at the abolition of
compulsory military service and was willing to accept any penalty imposed on him,
the moral conflict made his breach of the law necessary for him; and further, that the
harm done by his disobedience was proportionate to the need for him to preserve his
dignity (judgment of 6 March 1992). See this case detailed in J. Bengoextea and
J.I. Ugartemendia, op.cit., 444–45.40 M.-Th. Meulders-Klein, La personne, la famille et le droit. Trois de cennies de
mutations en Occident, (Paris: Librairie Ge ´ ne ´ rale de Droit et de Jurisprudence, 1999),
515.41 M. Lasser, ‘Anticipating Three Models of Judicial Control, Debate and
Legitimacy: The European Court of Justice, the Cour de cassation and the United
States Supreme Court’, Jean Monnet Working Paper 1/2003 at 25, available on
www.jeanmonnetprogram.org/.42 Roe v Wade, 410 US 113 (1973).
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discussion47 and to secure acknowledgement that his interpretation
of the right does have some merit, even if the judge rules that an
alternative interpretation must prevail.
Let us then first consider the difficulties involved in engaging the
judiciary in France. The judicial style of the Cour de cassation reflects
a single-mouth conception of the law, dealing with matters of law only
and thus excluding any consideration of facts as well as any extra-legal
element. For this reason, it does not seek to explain the law in response
to the civil disobedient. It will regard the law as having provided its
own conclusion without the need for further discussion. For example,
it is an offence in France to try to prevent a lawful abortion. On the
31st January 1996, the Cour de cassation convicted a group of anti-
abortion militants for trespassing upon the abortion centre of a hos-
pital.48 The militants claimed a necessity defence: they had acted in
order to save children – that is, children for them, but mere foetuses
for others – whose death had been, in their view, ‘unlawfully’ planned.
They claimed that the existing legal criterion of a ‘necessity’ to abort
should be scrutinised by the courts in each individual case and inter-
preted restrictively. In this case, the judge was asked to balance the
right of a foetus to life against the right to abort, but the Court
reaffirmed the prevailing legal understanding of abortion: it was not
for the court to assess the distress caused by pregnancy to the woman.
This decision, in true French tradition, was succinct. The Courtmade no allowance for the fact that the anti-abortionists had acted in
order to prompt the legal debate which the court had just concluded.
There was no discussion of the fact that the necessity defence was
understood by the civil disobedients as a form of moral coercion,
which required them to act on a specific interpretation of a right – the
right to life. The enshrinement of human rights in the Declaration of
the Rights of Man of 1789 is not accompanied in France by the
47 I do not necessarily mean a traditional ‘debate’ in which one would expect two
equal parties to try to persuade the other. The court, of course, has a higher status
than any defendant or advocate in so far as it is whatever the court decides whichshall determine the case; and the court is also less likely to have its own viewpoint in
the first place, let alone want to convince anyone of its rightfulness. But the court
must listen to the defence and attempt a reasoned refutation or dismissal of their
arguments in its final judgement.48 Crim 31 January 1996, Revue de sciences criminelles et de droit pe nal com-
pare 1996.670, obs. J.-P. Delmas Saint Hilaire. The wording developed here was
replicated in two judgments on similar facts: see Crim 27 November 1996 and Crim 2
September 1997, Dalloz 1998.I.106, at 141–42.
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detailed style of judicial reasoning found in common law systems and
in both the US Supreme Court and the English House of Lords.
My complaint is not that the Court upheld a particular interpreta-
tion of the law on abortion, but that it provided no discussion of its
decision. For judges do make surprising judgements and, in France as
elsewhere, they do change the law. Reports and conclusions are pre-
sented by the Advocate General and by a judge of the Cour de cassation
at the deliberative stage, and these will include considerations of pol-
icy.49 But these are not openly acknowledged and the law is declared as
though it were obvious and in no need of detailed justification. So the
complaintof thecivildisobedientin Franceis not that thelaw cannot be
changed, but that she cannot openly cause it to be changed by engaging
thejudge in open argument. Nor canthe judge acknowledge theforce of
the argument by which he has been persuaded. This contrasts sharply
with judicial balancing that has been used in the case of the right to
housing but that balancing is to be found only in a few lower court
decisions and is not typical of the Cour de cassation’s reasoning.
The judges’ inability to do anything beyond barely declaring the
law means that the French judiciary cannot distinguish between
purely legal problems (for example, a case of privity of contract)
and cases which require a balancing of competing rights, such as the
right of a foetus to life and the right of a woman to self-determi-
nation. This inability is sometimes justified by reference to thestatutory mission of the Cour de cassation, which is to ensure
uniform interpretation of principles by the lower courts. This is
achieved through an abstract formulation of those principles and by
strictly avoiding discussion of the facts, which are debated only by
the lower courts.50 The Cour de cassation declares the law and does
49 M. Lasser, ‘La MacDonald-isation du discours judiciaire francais’, Archives de
philosophie du droit 45 (2001), 137–48.50 See the following lower courts’ judgments in which some anti-abortion mili-
tants were acquitted of the offence of trying to prevent a lawful abortion. In the first,
the Court of Appeal of Chambe ´ ry (20 November 1996, (1997) Droit Pe nal 157observations. J.-H. Robert) did so on the ground that the anti-abortion militants
successfully demonstrated that some of the legal criteria allowing abortion had not
been satisfied by the clinic; while the Court of Appeal of Lyon (judgment of 13 mars
1997, see Juris-classeur Pe riodique 1997 II. 22955, note G. Faure) did so on the
ground that abortion was a homicide. The decision by the Court of Appeal of
Chambe ´ ry was tersely quashed by the Cour de cassation (Crim 2 September 1997, see
Juris-classeur Pe riodique 1998.I.105 at 141–42) using the exact wording of the ratio
decidendi applied in the decision of 31 January 1996 (see supra).
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