Les faits justificatifs spéciaux

In this work, special justifications have been defined as objective defenses assigned to one or very few specific crimes, and provided for – unless they are judge-made – by legal texts centered on their justificatory function. The attempt to construct an accurate definition and a coherent regime was complicated by the conceptual fragmentation and normative entanglement of contemporary French criminal law. Not only are special justifications very subtle mechanisms in the broad scheme of criminal liability, but they do not have, to guarantee their conceptual integrity, the shelter of a dedicated institution or core legal principle. Consequently, special justifications have been carried along by the steady stream of political change, current events, institutional reform and European ambitions. The study of special justifications allows us to reconsider jurisprudential debates regarding judicial (re)definition of crimes under the influence of the European Court of Human Rights. It also gives a new perspective on the well-documented phenomenon of the “corruption” of criminal law caused by its instrumentalization. In a phenomenon some academics call “disciplinary” criminal law, other legal branches make use of criminal law’s symbolic strength. In these respects, the subtlety of special justifications exposes the immodesty of judges and legislators with respect to their ambitions for criminal law.