The philosophy of the right is the study and analyzes concepts and basic principles of the law and laws.

One can wonder about the value of the " du": it is about a " de" genitive, or objective? In other words, is this the philosophy which takes for object the right, or the right which expresses its philosophy, or, its spirit? There is, in fact, a stake which is not other than that, to take again the expression of Kant, of the conflict of faculties. The philosophy of the right, historically, does not merge with the hermeneutics of the texts of right, even less with jurisprudence. It is well the philosopher, or rather the philosophers, who judge the right from a point of view which wants to be founder (or refondator) for the right itself. Thus the philosophy of the right is not a branch of the right, but well of the Philosophie. Admittedly, that does not oblige us therefore following in any point the analyzes of Kant, in particular when it estimates, in its Doctrine of the right , that the right is not in oneself, independently of philosophy, that a beautiful head, but without brain. Any lawyer is not positivist. In any case, a Herméneutique of the right must suppose like its condition of possibility that the right, beside its technical merits, is agent of a spirit and even of values.

The Anglo-Saxon tradition is different. Under the term of " legal philosophy" ; it narrowly connects philosophy of the right and jurisprudence. According to these authors, jurisprudence is defined as the theory and the philosophy of the right. Specialists in jurisprudence, i.e. " legal philosophers" , wish to arrive to a major comprehension of the nature of the right by studying the legal reasoning as well as the work of the legal institutions.

In France, the tradition resulting from Montesquieu can be close to this current.

The philosophy of the right will analyze the fundamental questions relating to the right such as for example:

• What right? is
• Which the relationship between Droit and Justice? is
• Comment born the standards from right? is
• Which the base of the validity (of their normative nature) of the right? is
• Which the relationship between morals and right?

History of the philosophy of the right

August 1st The history of the philosophy of the Right can be taken several manners. Easiest for a beginner or not expert is to work on the philosophy-legal schools which claim to teach this discipline. Precisely one can find two categories, positivism and the legal jusnaturalism.

The first school tries to create on this what must be founded true a " Sciences of Droit" (base of a legal theory and objectifies right). It is satisfied to say, explain, expose the right such as it is. Especially not thus criticisms in the name of the science of right. On the other hand, criticisms on the right and what it must be emanates from the subjective position of the actors of the right and the policies and not of a question of truth. It is a question of being able altogether, which is far from what must be the theory of the Right. The version of origin of this school is presented in the first writings of Hans KELSEN, founder of this school. In the United States one can find the writings of Oliver Wendell Holmes Junior who is one of the precursors of the philosophy of the right to the United States of America.

Legal Jusnaturalisme, which one finds in France presents oneself as a science which teaches what must be the right, which must be the Juste. I excuse myself not to spread out me more I really quote of memory of my studies a certain time ago now. And information which I have just quoted remainder to be checked for more precise details. I will try to contribute of advantages in the future, when time me permet.il is necessary it to note by ailleirs that the philosophy of the right knows today a double bursting .d' with dimensions between the specialities and other between in particular European traditions and angloamericaine. what in a very broad measurement justifies the controversy around its object.

Systematic approach of the right

Nature of the right

They is because men are in relation the ones with the others in the sensitive world and that the actions of the ones have consequences for the others, their companies and their freedom in the world, that the question of the right arises, considered Kant at the beginning of its Doctrine of the right . The Right is thus not the morals, which relates to the relationships of the subject with itself, with complete freedom. The Right supposes an external constraint, a force higher than all that available to an individual. The English Hobbes concludes from it that only the monopoly of the force of the State makes possible the right, and impossible the war of each one against each one, born from the competition, the desire, mistrust. That leads it to make sacrifice of freedom, in the name of safety, the root of the law. The law supposes a limitation of the right originating, but illusory, of each one on any thing, right which because it common to all is led to violence. The Reason thus advises us to intend us with all the others in order to give this absolute right to only one person, the Sovereign. It is understood that with Locke, the Libéralisme political and legal, born him as in England, will work to save the individual of arbitrary despotic of the law, by showing as the individual has inalienable natural rights, even by contract. These liberal designs are with the root of the modern concept of subjective rights and human rights.

Ainsi the modern problems of the right is tied in the tension between the value granted to the freedom of the person and the requirements resulting from the operation of the social group.

Let us note initially that if the right must be strong, it is not violence. The right does not merge with the needs which govern in fact the inter-human relations, for example the economic reports/ratios. It arose from the Duty-being, not To be it. In other words, it is normative i.e. organized by rules. These rules do not merge with the arbitrary one of one of the parts (nor of the judge himself, which is not a simple referee). Hegel watch which the right is not revenge. In the vendetta, the avenger intends to wash infinite offense that it has just undergone, according to him, and who concerns his person considered as a whole. On the contrary, the right leaves the particular damage undergone, and gravity estimates some, which supposes a scale of value, development by the company, or at least an enlightened legislator. The right aims at an ideal of accuracy.

There is however right that if there are recognition of human dignity, refusal to assimilate the individual, or his actions, with simple instruments of the social group, deprived in oneself of value and intentionality. Only a being equipped with personality, capable of free decisions, can be regarded as person in charge, subject of rights, but also of duties. For this reason, the legal question cannot be separate political question. The citizen is not only one wheel economic and social, which would make a slave of it, he is a member of the City. Now, without the moral prospect for the universal City, i.e. of Humanity, the right would be cruelty, negation of the Humanity from abroad. The Romans thus could codify with much precision slavery. Also Eirick Prairat distinguishes it legal State and Rule of law itself. The right does not merge therefore with some altruistic morals, it does not aim to force each one to like the other, or to sacrifice its interest to him. He opposes to the force, not the duty, but a larger force; with the pleasure, the threat of a sanction, i.e. of a larger displeasure. The right intends to regulate the conflicts between the individuals by the intervention of an authority which is higher to them, and which is distinct from them. Contrary to the educational responsibility (see Philosophie of education), which is for others, the right defends me against others, or at least makes possible repair, real or symbolic system.

Inside a nation, an individual does not have really rights that if he is recognized like end in itself, and not like a simple wheel of the economic and social machine. The profit of the majority never justifies the suffering or the humiliation of the minority, shows the American philosopher John Rawls, which intends to take some distance with the utilitarian concept of right (Bentham). The utilitarian ones justify the sanction by the maximalisation of the collective interest. According to them, justice merges in each situation with the interest of the group taken as a whole, the right, product of an erudite reflection, will be able to replace with profit in the whole of the human relations spontaneous morals. But is according to Rawls to take the risk to justify largest of the injustices, for example torture, since the company as a whole benefits great from it, or a great pleasure. In short, the utilitarian ones would have underestimated the irreducible existence of the individuals, their particularization indépassable, by drowning them in the " société" (holism, of a Greek word which wants to say " tout").

Aristote, criticizing the Republic of Plato and the idea that the City must be as one as possible, rétorquait already that " the process of unification continuing with too much rigor, it will have there no more City: because the City is by nature plurality. " (Political, II, 2,1261a 15-18) Rawls, in order to solve this tension between the respect due to the individual and the interest of the group, works to bring back the theory of the social contract to its most abstract expression (theory of the veil of ignorance): one could agree to return in a company only if our elementary rights are guaranteed to us, and so in addition we let us benefit unspecified from it. That does not involve an equality in fact, an arithmetic equality said Aristote. Simply, we more may find it beneficial to belong to the company to be excluded about it. The basic rights, distinct from the economic play, are the guarantee.

Legal idealization and " nature of the choses"

Normative, about the duty-being and not to be it, the right still supposes a idealization of reality, and even the introduction from a point of view on reality distinct from that of the recipients, presumedly partial. To say the right, it is, to some extent, to say reality, to pass it to the prism of the language, or a specific language, the legal language. Also the legal language, in particular the formulas which have a " effect; performatif" (by saying them, I make, or I engage) interested the philosophy of the language, Anglo-Saxon in particular (John Langshaw Austin). In spite of the highly conventional character of the legal language, there exists a tradition, inherited Thomas d' Aquin, which consists in binding the right to nature of the things and the relations concerned. For example a bread is above all food, also the distress of famished passes before the property right on this thing.

While bringing back each concrete, legal or criminal relation, with an essential dimension, which constitutes the " of it; nature" , the right rejects the residue in the contingency.

As Alain underlines it, to buy an old engraving with its framework, it is not to buy the tickets hidden inside, because the salesman, if it had been with the current, would certainly not have liked to lose this treasure. It is thus necessary to substitute for the real actors of the ideal agents. One sees it with this example, the right will not put at the service these two private interests, partly at least contradictory, but well of the freedom and equality of the contractors, inseparable from the transparent character of the market. It does not matter the technical processes which make it possible to reproduce a work, they could not call into question the intellectual property of the artist; at least of right if not fact…

Thus, the right cannot be reduced to an arbitrary convention. It is well rather a question of revealing, if not eternal nature, at least the raison d'être, the significance, of a real relation, with the risk to remain dependant on the existing representations at a given time, to also lose themselves in the infinity and the complexity of social reality.

The substantive law is the whole of the texts which determine at a given time and in a place given the legal one and the illegal one, as well as the sanctions. It is not a question of one will fatras, but of a system, which expresses the spirit of the laws in a given political regime (Montesquieu). Thus when Montesquieu theorizes the separation of the capacities, it is not to make right a system without political significance. The autonomy of the right is the autonomy of a capacity, whose significance is thus quite political.

It must obviously take account of the multiplicity of the circumstances and the interests concerned. A deposit should be restored, but not if it is about a weapon which the depositor intends to use to kill, considered holy Thomas. If it does not introduce any order into this infinity of case, perhaps the substantive law will make it possible to make decisions in the event of litigation, but not to support this decision by attaching the circumstances to an acceptable hierarchy of the values and interests, i.e. with an ideal of Justice which constitutes the spirit of the laws.

The risk exists whereas the law is satisfied to establish medium term between divergent interests, without wondering about their legitimacy. This temptation is large at one time when reign cultural and moral relativism. Conversely, the judiciarisation of our companies undoubtedly expresses the decline of the other forms of mediation, and the authority.

The right cannot certainly merge with some system a priori, comparable with a mathematical building, which however believed the Utopians, who tried to build an ideal company with the way in which one builds a sphere starting from his definition. In the third of the Gulliver's Travels, Swift will make fun of this whim. It is necessary on the contrary to take account of the significance of the particular circumstances, which one can sometimes with difficulty bring back to a general standard. However, the right overhangs the infinity of the relations between the men, makes reign on a territory given a whole of requirements that no one is not supposed to be unaware of.

Formal rights or social justice?

There can be right only if one decides which reasons are admissible and which are not it, or less.

Passion does not make legitimate the crime. However, one can sometimes reproach the right, necessarily formal, his excessive general information, especially if this formalism goes paradoxically in the direction of the sanctification of existing social reality, so often however concretes, obviously unjust. It is not indeed the same thing to proclaim that each one is born free in right and to pretend to believe that each one is free in fact, not taking account of the circumstances which block the use of freedom.

In the first case, the Revolutionists of 1789 revealed the illegitimacy of slavery. In the second, one makes weigh on some the responsibility for decisions which are not theirs. The right thus contains a casuistry, with the risk of a complexity itself source of iniquities. Aristote attached to the concept of equity this need for supplementing the law by the study of the specificity of the cases. If not, the strict application of the right confines with the injutice (highest juice summa insulted). It is necessary to attach this design to the thought of Plato, who saw in the written law only one imperfect substitute of the decision of the legislator. In any case the reflection on the right cannot make the saving in a reflection on the writing (see Derrida). That it is of legislation or simple jurisprudence, the right has a dynamic slope, and thus policy: a company must approach the values called upon in its right, under penalty of being taxed with hypocrisy. Which direction with political freedom without the access in fact to the means of propagating its ideas, without autonomy and the culture necessary to think truly? Thus Condorcet justified the right to the state education. The " right à" (right-credit) is not simple a " right de" (formal right). In the first case, the State ensures the real pleasure of a right, when, in the second case, it does nothing but protect this pleasure.

Lastly, beside the traditional formal rights and of these right-credits, the requirement of the recognition by the State of the " develops; différences" , which gives rise to sometimes specific cultural rights, and with a questioning of the universal character of the law (Marcel Gauchet). The Early middle ages had known a comparable situation besides, where a different right applied to the various people, according to their ethnic membership.

One can certainly distinguish from the rights more essential and more urgent than of others, to also refuse to substitute the État-providence for the principle of individual responsibility. But, Raymond Aron in 1972 required, why " wouldn't the State have the same obligation to ensure at all the standard of living compatible with the richness (or the poverty) of the nation only to guarantee the freedom of expression or the equitable administration of justice? " It is not inevitably to adhere to a humane vision of the citizen. It is necessary to support its human development, and initially its citizenship and its perspicacity. Thus sometimes one opposes to the vision humanitarist right a vision which wants to be humanistic. What an human right, universal and condition of humanity, if it is reserved for those which have the privilege to exert it?

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