Le devoir de vigilance des entreprises françaises : la création d’un système juridique en boucle qui dépasse l’opposition hard law et soft law

The due diligence takes the form of an obligation imposed by law on companies. When the content of rules of law is first examined, it appears that the obligation of means created presents all the characteristics of soft law in so far as the undertakings have control of the perimeter and the choice of vigilance mechanisms. Of course, this soft law may fall under the purview of the hard law through the judge, who can sovereignly assess these devices and retain the responsibility of a company for lack of vigilance. But the approach of the legislator innovates above all, by its methodology. The due diligence goes beyond the traditional opposition between hard law and soft law through a succession of texts, linked in a loop to each other, with a view to strengthening the obligations of global companies by a gradual normativity. A real catch-up is at work to extend vicarious liability. The cross-fertilization of the approaches, the impetus and the multimodal control of the State, on the one hand, and the vigilance strategies left to the discretion of the companies, on the other hand, also creates a hybridization of legal cultures between compliance and conformity, or even a mutual enrichment linked to the resulting internormativity. It is therefore possible to develop the idea of a right forming a new system, composed of elements gathered by a network of more or less complex relations, between soft law and hard right, which gives substance to the social responsibility of (CSR).