La liberté d'expression et l'administration de la justice : le choc de deux paradigmes
The present thesis examines the relations between the freedom of expression and the administration of justice. Historically, these relations have been set down as being those of the journalists and the public to be admitted to court hearings, those of the media to report and criticize the judicial decisions and the judiciary itself, and those, correlative and opposing, of the judges to order the proceeding to be held in camera, to issue non-publication orders and, if need be, to sentence for contempt of court. More recently, the protection of the journalistic sources has become a new stake about which the constellation of law and that of information collide. Our thesis is inspired by a materialistic approach to the relations between the law and the society. The materialistic vision, of which the marxian thought may have represented an element - not to mention the varied metamorphoses of that thought constitued by diverse marxist schools - sets down the necessity of a synchronic and diachronic confrontation between the world of law that of information in ail the dimensions and surfaces of their interaction - hence the use of the term paradigm to designate those two constellations. Essentially, this fundamental requirement imposes the form and the dimensions taken by this thesis. This work is divided in two Parts. The First Part expounds the analysis framework and the empirical data, whereas the Second Part in dedicated to the examination of the legal norms themselves. The First Part is dedicated to the relations between law and society. The Second Part analyses the international legal norms regarding the relations between the media and the judiciary, while our analysis of the canadian legal nonns in this matter will be found in the Second Part. Each Section of each Chapter explores, from a diachronic standpoint, a specific subject of study, generally respecting the four fundamental modes of production of the social wealth in which law and information are inscribed as a specific mode of normalization. Rigorous observance of those architectronic rules has seemed to us the best way to lay out such a wide ranging and complex subject. However considering the extent of our work, it seemed to us that our abstract should be used to expound this structure in order to guide the reader somewhat. The First Part sets out our theoretical analysis of the relations between law and society, more specifically, the relations between the freedom of expression and the administration of justice. Its Chapters successively tackle the over all issue, our standpoint and our procedure (Chapter I), expound the materialistic theory of the relations between law and society (Chapter II), explore the moments and surfaces of their confrontation and emphasize the common epistemological characteristics that unite them and that make the appeal to the public the essential mode of their action and their legitimation. The Second Part is considering, as we have already pointed out, the legal norms concerning the relations between the media, the judiciary and the world of law. We have chosen models laying a very wide perspective on these questions or presenting historical links with the Canadian law in this matter. In this way we examine the International Covenant on Civil and Political Rights and the jurisprudence of the Human Rights Committee of the United Nations, the Convention for the Protection of Human Rights and Fundamental Freedoms and the jurisprudence of the Strasbourg Court and the American and French nonns (Chapter IV). The Second Part is dedicated to the canadian legal norms. We examine the rights to be admitted to court hearings and that of media to report and criticize the judicial decisions, the judges and the judiciary, on the one hand (Chapter V), and, on the other hand, the right of the journalists to protect their joumalist sources (Chapter VI). A last chapter completes our work, summing up our conclusions, however provisional they may be. Finally, we would like to point out that this thesis is but the first phase of a more comprehensive approach that will be completed by sociological and economical studies on the same subject. Bonne lecture to you all !
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