Farmers in particular are protesting against the inflation of standards affecting their sector. They are not the only ones who are fed up with the overflow of laws and decrees that overwhelm us.
Sixty-seven laws published, 91 ordinances, 1,843 decrees, 83,570 pages in the Journal Officiel, and more. Despite promises to combat the flow of new standards, the year 2021 will have broken many records. This is nothing new. Here’s what we wrote back in 2014, in “Les dessous des Affaires judiciaires” (MaxMilo Editions) with Frédéric Crotta.
“Even the best legal experts have trouble finding their way through the thicket of laws, decrees, regulations and other European directives applicable in France. With a “stock” of some 400,000 administrative standards in force, justice has become totally incomprehensible to the vast majority of citizens. So much so, in fact, that it has become a source of legal uncertainty.
An anomaly denounced by, among others, Jean-Michel Darrois, a business lawyer specializing in financial markets, mergers & acquisitions, litigation and international arbitration. We have more and more texts, more and more illegible, longer and longer, more and more complex,” says the renowned lawyer. Professor Soyer has compared the American Declaration of Independence, which contains just under 200 words, with a circular from the 1980s on the marketing of duck eggs, which contains over 70,000 words!”
Some 400,000 standards
Too many laws, yet no one is supposed to ignore the law. This is obviously a legal fiction, as no one can possibly know all the laws and regulations (decrees, circulars, etc.) applicable in France today.
How many are there? Far too many. We’ve known this since Montaigne who, as early as the 16thᵉ century, asserted: “We have more laws in France than in all the rest of the world, and enough laws to govern all the countries of the world together” (Essais, Livre III). Montesquieu added in L’Esprit des Lois (1758): “Useless laws weaken necessary laws”. Finally, Portalis, one of the main drafters of the Civil Code, recommended “being sober about new legislation”.
Too many laws? Let’s do the math. There are currently 64 legal codes (the Civil Code, the Criminal Code, the Code of Criminal Procedure, the Town Planning Code, the Health Code, the General Tax Code, the Heritage Code, the Consumer Code, the Insurance Code, the Local Authorities Code, etc.). Together, the number of articles of law with which the French must comply is 22,334. But the number of decrees specifying the standards in force is 137,219. To this must be added the hundreds of thousands of administrative standards of all kinds that govern every aspect of our economic and social life. In all, there are some 400,000 standards in “stock”. Not to mention the 7,400 treaties and 17,000 Community texts.
Transposing European directives
Another way of assessing the accumulation of laws and decrees applicable in our country is to measure the average length of the Official Journal. It has gone from 15,000 pages per year in the 1980s to 23,000 pages today. As for the Recueil des lois de l’Assemblée nationale, it has grown from 433 pages in the early 70s to almost 4,000 pages.
It is true that part of the legislative activity is linked to the need to transpose European Union directives into our national law.
France in the 21ᵉ century is still beating records in terms of normative inflation. All the more so as the problem of overabundance is compounded by a problem of text quality, which contributes to confusion.
Added to this is the fact that the law must adapt to the world around it and to the incessant progress of techniques and sciences. This leads to the emergence of new, sometimes complex constraints.
We’re witnessing the rise of Anglo-Saxon law and international regulations,” observes Me Darrois. This has many disadvantages, as international regulations are generally compromise regulations that take into account the legal history of each member state. The result is unreadable, lengthy and complex texts.
The lawyer notes that Anglo-Saxon firms are the most powerful, that the United States dominates the world, and consequently their legal practices tend to develop. “They run the risk of leading to a situation of such confusion, with a multiplication of texts and case law that is increasingly incomprehensible, random and unpredictable, that we may well have to return at some point to the determination of simple rules. Will States or Unions of States be able to do this? If this continues, we can foresee that it will not. It is conceivable that the drafting of standards will no longer be entrusted solely to States, but also to national or international institutions, more experienced in the fields they will have to decide on. We will see a multiplication of sources of standards, which will be particular, corporatist standards”.
Too many ad hoc laws
Finally, it has to be said that there are too many ad hoc laws. Politicians are tempted to make laws to “buy” a clientele on the political market. In 2008, Bruno Thouzellier, then president of the Union syndicale des magistrats (USM), deplored the fact that “the slightest news item gives rise to the adoption of a new law passed in haste”. That hasn’t changed since, quite the contrary!
Laws are no longer stable, because legislators react to every catastrophe, every scandal, every time the existing law seems unsuitable,” confirms Jean-Michel Darrois. The result is a proliferation of increasingly lengthy and illegible laws, and the legislator no longer intervenes to regulate general balances, but to try and balance out individual situations.”
“As for European texts, the result of laborious compromises marked by different legal cultures, they are often difficult to translate into our legislation. Reform and novelty do not oblige us to swirl laws, regulations, European directives or court rulings, which create confusion and a ‘ras-le-bol’ at least as strong as in tax matters”.
For instability and legislative inflation are a source of legal insecurity. This insecurity is exacerbated by the quality of the texts. Indeed, laws are no longer drafted by parliamentarians and jurists, but by senior civil servants, most of them enarques. The administration has “taken possession of the country”, observes Alain Lambert, former minister and chairman of the French Advisory Committee on Standards.
France is a country intoxicated with law,” he says, “one of the countries in the world with the most texts. The French fatality is to believe that all problems can be solved by law. He adds: “The law has become so complex that there is hardly a single politician capable of drafting a bill himself: out of 1,000 legislative texts, 950 come from the pen of a senior civil servant. The role of politics in the running of the country has become residual, apart from communication”.
That’s today’s problem. We give priority to ‘com’, i.e. bluster, appearances and chatter, over real politics, which consists of trying to solve the problems of the French people. Farmers are right: France is walking on its head!