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In addition to the contradiction inherent in the phrase, a further contradiction emerges. What is the purpose of “yet another” study on government by judiciary in an issue that is supposed to be taking a “critical approach” to justice? A critical approach is not necessarily a renewed one, just as a new approach can be brought to bear on a “classic” object, invested with the disconcerting authority attached to that adjective. If there is one expression whose critical profile, beyond the aesthetics of the slogan, has given it a surprisingly long lifespan, it is “government by judiciary.” However, through a series of sometimes relevant but often inappropriate uses, its profile seems to have been burnished. From a doctrinal expression born of the observation of a system utterly foreign to ours, “government by judiciary” has become the cherished slogan of skeptics and other “anti-everything” people, as well as the author of the present article, who regrets having once written a “plea for government by judiciary.” It often takes many years to understand the objects of one’s study. Science must not be sacrificed on the altar of polemics, and the comparatist view, however indispensable it may be, must remain humble: not everything is comparable, never mind transposable.
To put it another way, the criticism of government by judiciary is difficult to grasp for those whose main object of study is the US Supreme Court. Without giving in to the temptation to venerate one’s object of study, it is often difficult as a researcher to separate one’s thinking from what drives one’s day-to-day work…

English

In France, it was Édouard Lambert’s book which painted “government by judiciary” as a specter, yet the origin of the expression, as well as its reality, are American. A thorough analysis of its theoretical premises allows us to demonstrate the inconsistency of the appropriation of this expression by French jurists. The denunciation of government by judiciary has been misused and instrumentalized by a certain theory that denies the creative element in the work of judges and feeds the populist discourses eager to use any means to discredit justice. To criticize government by judiciary in France is a sign of weakness. Unable to prove that the judge’s discourse is an expression of truth, some attack the results of judicial action as “political.” In doing so, they nourish the very fear they set out to combat: to say that judges “govern” is to leave the field of judicial arguments and to enter the ideological arena.

Wanda Mastor
Wanda Mastor is professor of public law at Toulouse 1 Capitole University, and a member of the Research Institute in European, International, and Comparative Law (IRDEIC), where she directs the Comparative Law Center. A specialist in constitutional law, she has recently published L’Art de la motivation, substance du droit: Mieux motiver pour mieux juger (Dalloz, 2020).
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