Science sociale, science morale ? Note sur la pénétration de l’économie dans la pensée juridique française au XIXe siècle

Thursday 1 January 2004 by Mikhail Dorel Xifaras

Heinz Mohnhaupt & Jean-François Kervégan (eds.) Droit, philosophie, économie, à paraître 2004
Klostermann, coll. Ius Commune, Frankfurt/Main

For the contemporary civilian jurisprudence, representation is the essence of mandate (agency). But the classical theory considers that the mandate differs from the hiring of industry or of service by the fact that it is free of charge. In France, in the middle of the 19th Century, the quarrel wasis raging between the tenants of each of these two theories. This quarrel illustrated the historical signification of the birth of the Economic Analysis of Law, the french version of the anglo-saxon Law and Economics. The study of the quarrel shows the penetration of the categories of the economical science into the legal dogmatic: a general conception of the value of work based in its material utility takes the place of a definition of the value of work based in its liberal or mechanic nature. In other words, the classical thesis proposes a justification of wage-earning based on the neo-stoician principles of a moral hierarchy of the human activities that contradicts the principles of modern law. The modern thesis does not take the posture of a practical or scientific refusal of any moral science of law; it considers itself as a moral science as well, but superior to the one it fights. It gives way to the modern principles of freedom of work and equality of workers, but fails to justify the relation of subordination inherent to the hiring of industry and more even to the hiring of service. Wage-earning is still waiting for its full justification. This paper follows the one on the Ecole de l’Exegese. It attempts at presenting the lines of force of a future conceptual history of the modern doctrine which would take into consideration the conceptual productions immanent to the legal phenomenon. Here is the point were the opposition between industrialism and spiritualism, both being the modern figures of the moral science of law, may be observed.

Mikhail Xifaras, Science sociale, science morale?

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