APESA device is operational since two years in the Commercial Court of Saintes, and since one year in the Commercial Courts of Bordeaux and La Roche-sur-Yon. This is the result of a pragmatic process that tends to answer, if necessary, to the distress and the dark thoughts of some litigants.
However, more than a simple tool created by practitioners, APESA device can be linked to philosophical movements or different innovative approaches. It tends to become well-known in the French legal environment.
- « The Preamble to the Universal Declaration on Human Rights »
This Preamble only reminds us that “the recognition of dignity (…) is the foundation (…) of justice”.
The expression of dark thoughts or desperate behaviors during audiences attests that some people feel like they lost dignity. APESA aims at contributing to restore it.
- « Therapeutic Jurisprudence »
This concept of Therapeutic Jurisprudence (TJ) was created in 1991 by David B. Wexler, Professor, and consists in a multidisciplinary examination of the effect of the law on mental and emotional health of persons implicated in the judicial process, from the litigant to other economic actors such as judges, lawyers, clerks, mandatories…
Christophe Delattre, Vice Prosecutor at the Tribunal de Grande Instance of Valenciennes, recently published an editorial called The CEO suffering facing his company failure (BJE juill. 2015, p. 201, n° 112h1; published thanks to the authorization of Lextenso éditions).
An article of Michael L. Stines (2005; in English) called Must We Bankrupt The Spirit Also?: The Benefits Of Incorporating Therapeutic Jurisprudence Into Law School Bankruptcy Assistance Programs, deals with the basis of Therapeutic Jurisprudence and the benefits of this doctrinal movement for students learning law of collective procedures.
Mental suffering transcends all sociological categories. In Great Britain, a national Campaign for Awareness of mental illness among debtors (CAMIAD) is organized.
In France, Martine Evans, Professor at Reims University, Law University, drew the attention on this innovative approach in an article called Revolutionize judiciary proactive: inspiration from American inventiveness, published in Recueil Dalloz on 22th December 2011, n° 44.
A direct contact is now established with Professor Wexler, and an article of Maître Binnié (Court Clerk at the Commercial Court of Saintes) was published by Lexis Nexis in the collective procedure review: A Special Unit To Avert Entrepreneurs’ Relocation To A Better World (2014, étude 6) was integrated in the international bibliography on TJ.
- Sustainable Justice
Paul Ricœur said it magnificently in his lecture pronounced to the French Court of Cassation on December the 12th, 1991, ” behind the trial, there is a conflict, a dispute, a quarrel, a litigation; and in the background of the conflict there is a violence.” And we can add the suffering.
In its first purpose, thus the act of judging consists in separating, in distributing what is fair and unfair, to decide, at the end. But to decide, also is “to make clear for everyone that the other one belongs to the same society”
Alexandre de Savornin Lohman, former Dutch lawyer endorsed Paul Ricœur’s approach and applied to the justice the principles of the sustainable sociability.
” Sustainable sociability brings to the legal systems of important guiding principles which encourage a progressive change in order they can contribute more effectively to the social harmony. The judicial systems have to take advantage of conflicts around material interests and of criminal acts to encourage the improvement of the relations and the social network by considering the most favorable and sustainable future for all the stakeholders. ”
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- « The approach by the capacities »
Practitioners and processualists say that “the litigant (i.e. the debtor) must be an actor of his procedure”. Yet, for some, their mental state enables them to be an actor of their life.
In addition of principle of formal justice (see article 6 of the European Convention on Human Rights), there also is a room for an approach of justice based on the verification of the litigant capability “in the flesh and blood” to exercise his rights. This approach is particularly defended by Amartya Sen, Nobel Prize in economics, and Martha Nussbaum. It enables to articulate precisely the necessary respect of equality and “the fact that individuals may need different quantity of resources to reach the same level of capacity”.
- « The acknowledgement of the litigant mental suffering »
To sum it up, APESA device consists in acknowledging the acute illness of the litigant during the judicial process.
The problem is not the acknowledgement but the denial.
Well-known philosophers such as Axel Honneth and Paul Ricœur already had opened this notion.
« The danger inherent to the daily attraction of the knowledge model is so strong that it requires we constantly remind the fact of the mutual sympathy”. What makes tell to Master Binnié (associated clerk at the Commercial Court of Saintes) « the litigant is not an invariant » ».
Used to verify identities, justice, overtaking thanks to Paul Ricœur the initial fear for the “bad infinity” of recognition, must contribute if necessary to remember that “man is a stranger to the man indeed, but always a fellow man still.
- « Philosophy of care »
Philosophy of care, advocated by Joan Tronto, brings us back to simplicity.
« The vulnerability has important moral consequences. It gives a denial to the myth according to which we would be always autonomous citizens and potentially equal”. Highlighting the false dichotomy between care and justice, it recalls that “in times of transition, problems posed by the relation between theory and practice complicate. »
Care preserves APESA from distraction by describing precisely the items of a professional ethic: attention of others, taking over, competence and capacity to answer. They all must adjust to the other to create a set of new professional competences.
- « Olivier Torres’ work on manager health »
Olivier Torres’ statements are clear because it is an obviousness (sometimes denied) and his innovative work realized in his observatory of The CEO’s health Amarok is a reference.
“The entrepreneur is a soldier of modern times, an infantryman (…)
The only problem is that we forgot the infirmary”.
They demonstrated a link between the entrepreneur’s legal statute and his relation to physical and mental health.
A research work lead by Olivier Torres, in collaboration with the Commercial Court of Saintes recently began. Its goal is to specifically evaluate entrepreneurs’ health in the framework of collective procedures.
Entrepreneurs’ under collective procedures are offered to answer to a detailed survey, by phone. No refusal has been noted yet.
This work will, of course, be published.
The description of the phenomenon of suffering the litigant in the court process is facilitated by the use of phenomenology, founded in the early nineteenth century by the German philosopher Edmund Husserl.
This is to “save the phenomena” in order to “pull the concealment in which our preconceptions and our thought patterns relegate”.
This practice phenomenological, summarized in the Greek term “epoche,” which means suspension of judgment involved and the APESA device, already in itself a therapeutic virtue.
- The ethics of discussion
The ethics of discussion next to the “instrumental rationality” or the “strategic rationality” theorized by Max Weber and embodied for example in the maximization of own homo economicus utility, or utilitarianism, gives place for a “communicative reason”, quoted by Habermas and Karl-Otto Apel, which integrates the ethical values and the moral principles into an argued discussion process.
Contrary to the “instrumental rationality” focusing on the adaptation of the means to the purposes, communicative rationality is thus at the same time procedural and morally directed, since it opens the reason to the spheres of ethics and morality.
The diversity of approaches to comprehend APESA device shows its novelty in the French jurist universe.
Far from confusion and the emergence of a “sentimental jurisprudence”, the trivialization that will result from its generalization, from a better harmony between theory and professional practices, from the evolution of the legal pedagogy, will show that it only concurs, in fact, to the “realization of the law”.