Extract
[...] This formal coherence reflects the Court of Cassation's desire for temporal coherence regarding the substance of the matter.8 Therefore, in the face of judicial time, which is itself deeply rooted in the notion of uncertainty, the cassation discourse has a long-term impact: 'The judgment has not only a logical content as a discursive act but also a moral content, in that the ultimate purpose of the act of judging, consisting in its contribution to civic peace, exceeds the short-term purpose of the act that ends uncertainty.'9 However, this scope of the treatment of uncertainty by the discursive technique of cassation shows another angle of approach to uncertainty: uncertainty as a rejected datum or, more precisely, to be contained under certain conditions. II. A cassation technique based on a negative instrumental uncertainty Despite its positive importance, uncertainty can also be approached as a negative instrument of cassation operations. In two respects at a minimum in fact, uncertainty can represent a danger to be minimized. [...]
[...] Uncertainty against the rationalization of a legal order The cassation technique is also a technique of rationalization of a legal order. In the 1960s and 1970s, the Court of Cassation thus proceeded to a rationalization of the French legal order by subordinating the latter to the international legal order, which, in fact, neutralize the situations of uncertainty in the face of the hierarchy of norms between internal type norms and conventional type norms. Thus it is with the Costa judgment (1964) with respect to European law norms, but also with Jacques Vabre (1975) with international law norms. [...]
[...] Therefore, legal action is also a form of response to the present dissatisfaction of a legal agent: entering into a contractual relationship is a peaceful response to an initial state of dissatisfaction; resorting to cassation is the expression of dissatisfaction with initial situations (confirmed by the judges of the facts) from certain parties present. The preservation of uncertainty is therefore, to a certain extent, the preservation of a prerequisite for all legal action and, consequently, for the exercise in concrete of all freedom or all fundamental rights. [...]
[...] In the same hypotheses, the cassation technique is first a technique of neutralization of the negative uncertainty that can affect, in the end, the scope of the right to legal action and recourse of the litigants themselves and, consequently, civil liberties in general. B. Uncertainty against Civil Liberties Negative uncertainty also poses a risk to civil liberties by directly opposing the legal certainty that underpins the possibility for litigants to exercise their fundamental rights; however, legal certainty is also intrinsically linked to the notion of legal uncertainty, because "by making legal certainty an ideal of coherence and stability, is not one of the objects of law to drive out uncertainty?".10 The exercise of rights therefore requires to "drive out uncertainty" of the non-possibility of the exercise of the rights of the litigants at the heart of the cassation technique, "literary genre" and "support of a dialogue between the litigant and the lawyer (or the lawyer to the Councils) then the lawyer (again) and the judge11 like rules of grammar that neutralize the uncertainties of a language by fixing its rules in the transmission of an idea. [...]
[...] It is possible to analyze two facets of the thesis as instrumental uncertainty used by the Court of Cassation. First, the thesis of a positive instrumental uncertainty is approached in the technique of cassation as a model of potential decision: it is precisely in the name of uncertainty that lower judgments will be or will not be overturned in order to preserve it and to preserve, in extenso, the freedom of agents But uncertainty can also be a factor of disorder and, in particular, a danger to the legal order and the fundamental rights and freedoms of individuals in their civil relationships. [...]
