Evolution, constitution, security. An outline of the Really Realist Theory

The “really realist theory” (théorie réellement réaliste, TRR) is not conceived by the Author as a theory, which is limited to the recognition that judges create the law (as it is today commonly accepted), but as a theory, which follows Ronald Dworkin’s ideas by shifting the capital of “Law’s Empire” from the legislature to the judiciary. The truth is that nobody creates the law, since it is found by the judges when deciding individual cases, by the legislators in limiting the administrative discretion, by the constituent assembly in restricting the arbitrariness of legislature etc. In the first section of the paper the TRR is presented as a form of evolutionism. Firstly, because creationism – a naive idea that the law can be created ex nihilo – is strongly rejected by the TRR. Secondly, since the TRR adapts some ideas of Charles Darwin in relation to law. In the second section of the paper the evolution of law is outlined: from the state of the law called “judicial” to the states called “legislative”, and “constitutional”. Finally, in the last section the TRR is applied to a very important current problem: the finding of an equilibrium between freedom and security in the time of the global fight against terrorism.