Society’s acceptance of a judge who is third party to the parties and independent of the royal will dates back to 1789. It has since carried its share of human errors and recurring criticism: have we only substituted the arbitrariness of the judge for that of the king? In any democracy, the criminal judge is nevertheless led to deprive citizens of their rights, to deprive them of their freedom; role as thankless as necessary.
More specifically, the relationship between criminal justice and political power has never found its point of balance since 1791. Already at the time, our ministers could be declared guilty of misuse of public funds but no sanction was possible without a prior act of the Assembly.
A miracle solution
Ineligibility itself only entered the penal code in 1992: it hits those who are guilty of national indignity, depriving them of the right to be elected. Since the judgment of February 3, 2026, a putative candidate, very well placed in the polls, has found herself ineligible to the point that her candidacy for the presidential election is obstructed by the courts. There is nothing in this decision that is not faithful to the law and the principles of citizenship. And yet, the fight for the law seems lost in advance.
At the sources of ineligibility are “moralization” laws, passed in response to scandals. The deplorable French habit is to legislate on the spot, under the influence of emotion, without having thought out or articulated the system. This was the case in 1992, after the Urba affair, Carrefour du développement, then in 2017, after the Fillon affair. Conceived and supported by the almost unanimity of the parties (including the RN), ineligibility then appeared to be the miracle solution.
A complementary penalty to the criminal or electoral trial, ineligibility was initially automatic: as soon as the main conviction was pronounced, it applied by law – this was the case for Alain Juppé. Many European countries still operate according to this model.
A loss of citizen rights
Faced with this rigor, and contrary to what the collective memory has retained, the legislative movement has moved towards relaxation. In 2010, the Constitutional Council ruled that the automaticity of the sanction was contrary to the principle of individualization of sentences, leaving it to the judge to assess its necessity. Electoral legislation then followed this movement, although contrary to its initial intention!
At birth, each person inherits a dual heritage: civil (money, rights, obligations) and citizen (taxpayer status, public service user, right to vote). This is the direct legacy of the Declaration of the Rights of Man and of the Citizen. From the age of 18, young adults become voters and eligible – but a conviction can deprive them of their civil rights (incapacity) or citizens (long detention depriving them of the right to vote).
As such, ineligibility sanctions the capacity to be elected, when the offense committed involves it. These offenses are grouped, for the most part, under the section of the penal code relating to “breaches of duties of probity”: embezzlement, fraud, etc. Loss of eligibility is a forfeiture of citizen rights.
Thus, by the level of his conviction, the judge decides the political future of a candidate and influences the electoral contest – negatively of course, since he eliminates without choosing. This interference is often referred to as “government by judges”.
A question of legitimacy
But does the judge really choose to convict? The entire philosophy of criminal law is based on a precise logic: beyond an inevitable part of intimate conviction, judicial reality is built on years of investigation, testimonies, documents which reveal the truth. The investigation reveals; the judge finds – even if his leniency or severity can be expressed through mitigating or aggravating circumstances.
When the evidence establishes facts classified as misdemeanor or criminal, the judge must pronounce a sentence, the maximum limits of which are set by law. Is there an arbitrary choice here? It is the characteristic of financial crimes to suggest this, as they seem less tangible than those committed against property or people.
A question of pure legitimacy then arises, which no longer has anything to do with legality. Can we let a leader govern when he has embezzled, for years, astronomical sums of public money? The answer seems more obvious when it comes to the public service. Would we imagine letting a judge guilty of favoritism judge again? Would we entrust the commitment of expenses to an accountant guilty of false invoices?
The useful effect of punishment
However, the offense committed by the RN, as a party, and by its leader, does not appear so scandalous in the eyes of citizens nourished by sentimental speeches about “leather” that the candidate would have in the face of the “system which threw the bomb” (sic). For the RN and many of its supporters, the judge would have taken away from the voter their “freedom of choice” by declaring Marine Le Pen ineligible.
However, the Constitutional Council ruled that ineligibility did not constitute, in itself, an obstacle to the voter’s freedom of choice, as long as it remained proportionate – including with immediate execution. The useful effect of the penalty in fact sometimes assumes that ineligibility applies without delay, when the electoral deadline is close. Can we seriously imagine an ineligibility so ineffective that it would leave the convicted person eligible at the precise moment of their election? Would we not see this, then, as a complacency on the part of the judge with regard to the universal application of criminal law?
It is not up to the voter to decide whether a presidential candidate must respect the law, but to the judge, who enforces it in the name of the French people. The penal code traces the values that a society chooses for itself. There cannot be a double-speed law.
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