40 “[The institutions and the practices that characterise the Welfare State] ought not to be analysed as a series of particular provisions in the two areas of labour and social security, but as the formation of a new legal system from the viewpoint of sources as well as logic and modes of application.”
41 “Whereas the classical contract is analysed as an immediate relationship between sovereign, autonomous individuals, from which there emerges a State with powers limited to guaranteeing contracts arrived at more or less without it, in the social law concept of the contract the whole has an existence of its own independently of the parties — it is no longer the State, but Society — and the parties can never undertake obligations directly, without passing through the mediation of the whole.”
42 “a priori employer liability[:] The head of the undertaking is declared liable for accidents that his workers may be subject to within the work relationship. This was not possible as long as the wage relationship was conceived of on the basis of the classical contract of hire”
43 “solidarity contracts [are] founded on ideas of fair distribution or equitable allocation of social burdens and profits”
43 “Everyone lives by others, profits by their activity and their labour and would be nothing without them; it is up to society to ensure that the burdens and profits produced by all these interdependent activities, which all need each other, are equitably distributed”
44 NOTE 6 GEORGES CLEMENCEAU “Slavery, serfdom, ‘free labour’ of the wage-earner, all these stages of progress rest on the common foundation of the defeat of the weaker and his exploitation by the stronger. Evolution has changed the terms of the fight, but under the changing appearances, the mortal combat remains. Taking over others’ lives to aid one’s own is, from the cannibal to the slaveowner or serfmaster, to the feudal baron, to the big or small employer of our own days, the whole effort of the most active. Man has barely ceased being an object of commerce when his labour becomes a commodity, and a one-sided contract still binds him with a solid chain”
45-46 “social law arrives at the abandonment of the idea that the law ought to be the same for everyone; firstly, because this type of law could not be the expression of any kind of social compact, but solely of the interests of some class or group; and secondly, because in its abstract universality it can only be an instrument of oppression of the weak by the strong.”
46 “social law seeks to be an instrument of intervention which is to serve to compensate and correct inequalities, to restore threatened equilibria.”
46 NOTE 12 JEAN-BAPTISTE HENRI LACORDAIRE “Between the strong and the weak, it is liberty that oppresses and the law that liberates.” !!!
46 “If social rights can through abstractness of statement — right to life, to health, to housing, to development, etc. — look as if they may constitute common rights, it would be contradictory if in practice they gave the same rights to all. […]
Special rights are distributed as so many counterweights.”
48 “Social law does not complement the old civil law; it is not that it fills up lacunae in it. Its programme is no longer the same; social law introduces and organises the conflict of rights. Its novelty lies not so much in the content of the rights that it grants as in its way of bringing the conflict under the law.”
48 “Since each exists only in relationship to all, no-one can claim to exist independently of others and demand the enjoyment and the exercise of absolute rights.”
49 “We must understand that what has to be tolerated is not only the difference, the otherness, the equal value of the other, but even, for our benefit, the restriction of our right.” !!
49 “The factor of solidarity has replaced the contract as the primitive form of the social bond. At the outset, there is no law, but instead war. And the history of humanity is one of advancing awareness of solidarity, of the need to substitute “arrangements”, and therefore law, for the non-law of the struggle for existence.” !!
52 LÉON MICHOUD “Man is a social being. His destiny can be fulfilled only if he associates his efforts with those of his fellows. Isolated in the face of nature, he can achieve nothing through his own individual strength alone. For humanity to reach the degree of civilisation we have seen him attain, what was needed was the collective, continued work of successive generations. If the law is to meet humanity’s needs, to find the formula that most exactly expresses the relationships that exist in human society, it must not only protect the individual’s interest, but also guarantee and elevate to the dignity of subjective rights the collective and permanent interests of human groupings.”
53 GEORGES VEDEL “the public (or general, since it amounts to the same thing) interest is not the sum of the particular interests. That would be absurd, for the public interest would then be the sum of the interest of alcohol producers and that of victims of alcoholism . . . The public interest is not different in essence from the interest of persons or of groups; it is an arbitration among the various particular interests”
53 “The societies based on solidarity are, in theory and practice, organised so as to be able continually to compromise with themselves.”
55 “what has to be reached through settlement is not the crushing of one by the other, but the affirmation of their solidarity.”
56 NOTE 43 JEAN-PAUL MURCIER “negotiation is essential for any society that wants to avoid despotism, whether political or economic. […]
workers and unions must be allowed to intervene themselves to change the situation they find themselves in. The law must guarantee the necessary free space for their interventions.” !!
58 “the segmentation of society into groups, and indeed the very principle of collective bargaining, impose as their necessary correlative a body that, if not central, is at least federal, and represents the interests of society as such.
Correlatively, the fact that the law is no longer so much the expression of the general will as the form taken on by the endlessly renewed settlements of society with itself profoundly changes its economy. The law no longer conceals that it is at once the effect and the prize of particular interests in conflict. Its value is no longer related so much to its constitutional status as to its technical advantages as an instrument for the sociological administration of society.”
63 LOUIS JOSSERAND “rights are considered as synallagmatic relationships, imposing on their holders, in compensation for the prerogatives they assure them, more or less numerous and far-reaching obligations; as relative, social values, to be used in accordance with the spirit of the institution. The idea of the balance of rights has supplanted the dogma of sovereignty”
63 “On the basis of a society conceived of as naturally conflictual, where the protagonists of conflicts are considered as equally deserving of respect because all contribute to the common effort, settlement and balance become two commutative notions, referring back to each other”
64 “The traditional idea that social law is never anything but the historical product of workers’ struggles leads one to overlook the fact that, for these struggles to have an effect on the law, a transformation of legal rationality itself was called for. It must be repeated: what characterises social law is not so much the proliferation of legislative and regulatory measures that go more or less beyond the common law, as the fact that such measures have been taken and have been deemed necessary.”
65 “In connection with contracts [..] the point is no longer so much to know whether the consent given is valid, but rather to evaluate the appropriateness of the terms of exchange. [… NOTE 71]
As shown by the process of increasingly wide recognition of amendment of contracts for burdensomeness. Consumer law can only be a law of burdensomeness, for it there seems that protection of consent is no longer capable of ensuring contractual justice.” !!
69 NOTE 83 RAYMOND SALEILLES “There are rights which can be exercised only on condition of paying for the risks involved. To eliminate the right on grounds of the dangers inherent in its exercise would be to strike a mortal blow at individual activity in its most productive aspect, to dry up one of the wellsprings of the national life. To exempt the exercise of the right from the risks which are its inevitable concomitant would be to disregard individual interests and rights, and to put all the benefits on one side, without the burdens they imply.” !!!
70 NOTE 85 GEORGES CANGUILHEM “The concept ‘normal’ is itself normative.”
46 Kant/law
61 balance