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De la sécurité des rapports financiers dénationalisés : exercice épistémologique sur la normativité juridique et scientifique

Abstract : The 2008 global financial crisis bas disrupted law and economy in their positive and doctrinal dimensions. Empowered to remedy an apparent error communis, both disciplines should consider the epistemology of their respective orthodox paradigms. The ensuing exercise relates to the analysis of law and science, which falls under the idiom of co-production, according to the Science and Technology Studies, and under the objective of fluidity, according to the epistemology of sciences. The argument here is that, at the end of the 20th century, epistemological barriers have arisen in the process of positive law, in relation to the apprehension of contractual financial relations concluded over the counter (OTC). These obstacles stem from the meta-normativities conveyed by neoclassical economy and normative positivism as orthodoxies in substantive law and in conflict of laws, respectively. The conceptual security that such orthodoxies provide co-occurs with a ritual that reproduces them, which predetermines and obscures the underlying social dynamics. This is reflected in the migration of financial actors from markets secured through state law to an OTC market largely standardized by contracts, which has become global. The process of denationalisation, guided by risk securitization as a rationale, could have been noted and disciplined through international litigation. However, the pro-cyclical regime of party autonomy, hacked by the neoclassical economy, prevents the new financial relations from being subjected to systemic (macro) requirements. The certainty of contractual effectiveness triggers a moral hazard which may result in an automated positive law without judge(ment).
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Submitted on : Friday, November 2, 2018 - 1:03:35 AM
Last modification on : Sunday, January 19, 2020 - 6:38:39 PM
Long-term archiving on: : Sunday, February 3, 2019 - 12:13:02 PM


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  • HAL Id : tel-01910808, version 1



Catalina Avasilencei. De la sécurité des rapports financiers dénationalisés : exercice épistémologique sur la normativité juridique et scientifique. Droit. Université Panthéon-Sorbonne - Paris I, 2017. Français. ⟨NNT : 2017PA01D084⟩. ⟨tel-01910808⟩



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