French Jurists Research Articles

What Have Introductory Books on Legal Reasoning Ever Done for Us?

The purpose of this article is to investigate, and to review, a number of recent introductions to law with the emphasis being on those introducing students to legal reasoning. The investigation will have as its focus not just reasoning methodology but equally the ontological and epistemological foundations upon which the reasoning is based. The investigation will be comparative in its orientation; it will examine, in particular, works from common lawyers and French jurists, with references also to books produced by Roman law specialists (Romanists). It will show that many introductions are based on an ontological foundation that emphasizes rules—the rule model—and that, with regard to some of the introductory books, this emphasis has engendered what is arguably a simplistic view of legal knowledge and method. Are such books, it might be asked, epistemologically reliable? To help answer this question, another comparative orientation to be undertaken is to examine some introductory works in the social sciences in order to see not only how these works may differ in their approach to knowledge and methodology but also how methodological discussions in the social sciences could be valuable for lawyers. Keywords: analogy; epistemology; introductions; logic; ontology; perception; rule model; syllogism.

Toward an Account of the Nineteenth-Century Emergence of the Comparative Accusatorial/Inquisitorial Divide

Abstract Although the terms “inquisitorial” and “accusatorial” (or as those in the common law world prefer, “adversarial”) are fixtures of the comparative literature on procedure, there remains considerable disagreement regarding their definitions and indeed whether to continue using them at all. Yet, despite these debates, we know remarkably little about how the terms first emerged as central to comparative analysis. This Article begins the work of recovering this neglected history. It argues that the immediate spark—especially in Germany, Italy, and France—was the ongoing debate over the French Code of Criminal Procedure, introduced through Napoleonic conquest into large portions of Europe. After the 1815 Congress of Vienna and its pact of restoration, extensive discussion arose regarding whether, and to what extent, to preserve French law—including criminal procedure. So too, in the ensuing nationalist awakening, debates raged over the constitutional foundations of government, pitting defenders of the old order against proponents of more liberal regimes. As these debates regarding criminal procedure and constitutional politics unfurled, they came to intertwine, and were framed in the 1830s in terms of the accusatorial/inquisitorial divide. Since no comprehensive account of these distinct, but intersecting, debates is possible within these brief pages, the Article focuses primarily on France—the country whose revolution and subsequent wars of conquest played such a decisive role in launching these pan-European arguments in the first place. Profoundly influenced by their liberal nationalist (and imperialist) commitments, as well as by their embrace of an historicist approach to law that was widespread among contemporary scholars, French jurists developed the accusatorial/inquisitorial distinction in ways that continue to reflect these core aspects of their mindset. This forgotten history highlights several deep-rooted continuities in how the accusatorial/inquisitorial terminology has long been deployed, affording valuable cautionary notes, while also pointing toward more fruitful lines of procedural inquiry.

How Icelandic Is French Law? A Few Remarks about the Discovery and Usage of Icelandic Antiquities in French Legal Historiography during the Nineteenth Century

How Icelandic Is French Law? A Few Remarks about the Discovery and Usage of Icelandic Antiquities in French Legal Historiography during the Nineteenth Century

The Betrayal of the French Civil Code: A Tragedy in Three Acts

French jurists have thought that their Civil Code expresses an individualism characteristic of the ideals of the French Revolution and the principles of liberalism. Property was regarded as a right of the owner that was unlimited in principle. Contract was defined in terms of the will of the parties to contract on whatever terms they chose. The drafters of the Code, however, were among the last adherents of an older natural law tradition in which the rights of an owner were limited by the purposes for which property rights were created, and the terms of a contract must be just. This article describes the drafter’s debt to that tradition and how it was ignored by jurists in the 19th century.

Analysis of the Revival of Roman Law and the Strengthening of French Kingship in the 12th Century

Around the 12th century, the Roman law revival movement came into being as the commodity economy developed, cities saw a revival, and traditional Germanic customary law could not solve the new problems that arose in society. Under the influence of the Roman law revival movement in the 12th century, the influence and recognition of Roman law were greatly enhanced. Many excellent jurists emerged in various countries in Western Europe, especially France. This article examines the connection between the Roman law revival movement and the strengthening of royal power in France in the 12th century. The author argues that the Roman law revival contributed to the rise of the French jurists, who actively interacted and cooperated with the French crown. The King sought to strengthen his power, made solid arguments for the construction of the legitimacy of the crown, and made significant contributions to the construction of a national legislative and judicial system, effectively contributing to the strengthening of the French crown.

The Imperial Precipice: Jurists and Diplomats of the French Empire at the United Nations War Crimes Commission

Abstract Delving into world-spanning legal agencies, histories of exiled diplomats and lawyers, this paper explores how Free France defended at the United Nations War Crimes Commission the vision of the interwar liberal order, one that reached across the global territories of the mandate system administered by the League of Nations, into the colonial territories of the French empire. From London to Chongqing, facing Vichy collaborationist authoritarian dictatorship in metropolitan France and anti-colonial pressures from the turbulent colonial frontiers, a handful of Free French jurists and politicians worked day and night to establish the imperial sovereignty of the French exile committee of general Charles de Gaulle, and restore French republicanism rooted in the legal tradition of Nicolas Fouquet, Jacques de Maleville and Léon Duguit. Drawing upon newly-unsealed UN and French archival materials, this paper documents Free France’s intervention at the UNWCC, the activities of its representatives and reflection on empires, race and international law.

Piercing Proverbial Crows’ Eyes: Theft and Publication in Renaissance France

The ironic Latin proverb “cornicum oculos configere” was classically illustrated by the example of Gnaeus Flavius, celebrated for his theft and valuable but unauthorized publication of Rome’s legal secrets. Erasmus’s discussion of the proverb in the Adages consequently focuses on the tension within the transfer of knowledge between openness and secrecy, and on the fragile status of intellectual authority within a scholarly domain made increasingly public by the printing press. This article uses the example of Flavius to trace the idea of theft within Renaissance attitudes to the possession and dissemination of knowledge. It compares the reception of Flavius in three contexts: Erasmus’s ambivalence towards publication as a form of theft in the Adages; ancient criticisms of theft as social presumption; and the more positive representation of epistemological theft in the works of four Renaissance French jurists. It thus argues that Erasmus represents a turning point both in the reception history of Flavius and in attitudes to intellectual theft—and thereby to intellectual property—in the Renaissance.

Les traductions françaises des Commentaires de William Blackstone à la fin du XVIII<sup>e</sup> siècle

Summary The numerous translations through which the Commentaries on the Laws of England by William Blackstone – a milestone in the history of the common law – became known in France, and thus contributed for the first time to acquaint French jurists with English law, have been largely neglected by legal historians. The first section of the present contribution introduces the French anglophile visitors to England who, during the second half of the eighteenth century, disseminated the work of William Blackstone and its first translations in France. The biography and work of these first translators require a detailed examination. A second section assesses the influence of these translations, particularly in the legal and political debates on the English trial by jury in the context of revolutionary legislation. A third section considers the later translations of Blackstone’s work during the Napoleonic period and the following years. Finally, a call for further research outlines the impact of that translation literature.

Un jurista en el nacimiento de la ciencia política moderna: los estudios de las organizaciones de partido de Moisei Ostrogorski

Moisei Ostrogorski’s work on North American and English party organizations (1903) has been considered a foundational stone by political science in the second half of 20 th century and beyond. The current article discusses the genealogic character of such a approach, arguing that Ostrogorski was also a jurist. His biography, his research on women’s rights and even his political science oriented work on parties, all show that the Russian author made use of juridical tools. In addition, the readings of its work by French jurists contemporary to him, show the problems of looking to the past by the lens of current disciplinary divisions. Fecha de envio / Submission date: 13/03/2019 Fecha de aceptacion / Acceptance date: 23/04/2019

Le sexe des anges ? L ’Église, les fiançailles et le mariage des enfants. Le point de vue de quelques canonistes méridionaux (XIIIe-XIVe s.)

The sex of angels ? The Church, betrothals, and marriage of children. The point of view of several southern French canons (XIIIth-XIVth centuries.) The elaboration of the model of Christian marriage constituted one of the major achievements of medieval canon law, and is the one which has left the most profound imprint on social practices and norms in later periods. In order to understand this, the choice has been made to address this development from the position of one extreme case. In fact, it is often in the description of excesses of the flesh, where, on the contrary, it is in the evocation of the absence of this that the canonical discourse on marriage is most transparent in itself, revealing the contradictions which go through it. The report on the sexuality of children and the young, and the manner in which this sexuality was perceived by law, offers, in this perspective, an interesting point of observation. More precisely, the study analyses the statements of southern French jurists in the XIIIth-XIVth centuries on the sexuality of prepubertal children. Their propositions are organised according to a double approach, normative and realist. From the normative point of view, the authors assign limited roles a priori to the child and the prepubertal young, on the verge of sexual activity, weakly asserting the consequences of law. Similarly, the principal of reality encourages them to reverse the presumptions erected through the rule of law, and to describe the sexuality of the young no longer in terms of limits but of power and capacity, from the moment that they are medically perceived.

French and Indians in the Heart of North America, 1630–1815 ed. by Robert Englebert and Guillaume Teasdale (review)

Reviewed by: French and Indians in the Heart of North America, 1630–1815 ed. by Robert Englebert and Guillaume Teasdale Andrew Sturtevant Robert Englebert and Guillaume Teasdale, eds., French and Indians in the Heart of North America, 1630–1815. East Lansing: Michigan State University Press, 2013. 256 pp. $25.95. In his magisterial The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region (1991) Richard White argued that the “Algonquians” and “French” carved out an accommodative “middle ground”—a physical and metaphorical space in which both sides pursued their goals, not by force and intimidation, but by compromise and insinuation—in the Great Lakes Region. For the last quarter century, the “middle ground” has served as the master metaphor of Native—French relations, prompting scholars to explore the compromises and cultural mixing that White describes. Both indebted to and critical of the “middle ground,” the essays in this collection offer a less sanguine and more complicated picture of Native—French relations in the interior of North America, defined broadly to include the Great Lakes region and the Mississippi Valley. Suggesting that the people of the region often remained divided and distinct, rather than blurred and mixed as White suggested, editors Guillaume Teasdale and Robert Englebert argue that the metaphor of “bridge-building” is more apt. Instead of forming a “middle ground” that is, French and Indian peoples formed “bridges” that sought, and often failed, to span the dramatic differences among peoples. In so doing, they seek to move “beyond the paradigms of the middle ground or métissage [cultural mixing]” and understand the “historical bridge-building process” which linked these groups together (xxi). Such bridging took many practical forms. As Kathryn Labelle shows in her study of the 1636 Wendat Feast of Souls, French and native people sought to build bridges through religious and diplomatic rituals. Labelle argues that the Wendat of Georgian Bay sought to “solidify a Wendat—French alliance” by inviting Jesuit missionaries to participate in the Feast of the Souls, a ritual in which the Wendat interred the bones of their dead in a common pit (3). By literally mingling Wendat and French bones, the Wendats hoped, they could figuratively integrate the French into their diplomatic and social networks. The Jesuits’ refusal to participate precluded a potentially fruitful alliance. Later Jesuit attempts to build bridges to their Illinois charges, however, proved more successful. Robert Morrissey explains how the Jesuits and Illinois neophytes cooperatively created a distinctive Illinois Christianity “on the Indians’ own terms” and literally in the Illinois’ terms as the Jesuits translated Christian concepts into the Illinois [End Page 104] language (63, emphasis in original). Such efforts allowed the Jesuits—initially at least—to bridge the religious divide with the Illinois, although it put them at odds with the Jesuits’ less accommodating Recollect competitors. If the Jesuits faltered in building bridges with their indigenous neighbors, the French people utterly failed to build lasting connections with the Natchez living in Louisiana. Summarizing French—Natchez relations from 1682 to 1736, Arnaud Balvay concludes that the French Company of the Indies “tyrannized” and “mistreat[ed]” their Natchez neighbors, provoking the devastating Natchez “Revolt” in 1726 (152). That the bridges with the Wendat, Illinois, and Natchez ultimately failed, even though both sides earnestly desired them, demonstrates the difficulty of the process and suggests that Franco—Native relations were more fraught and less cooperative than White suggests. Other bridges were more abstract and intangible. Christopher Parsons, for example, describes the attempts of Native peoples and the French to define the “ontological dimensions” of tobacco (36). Seen by the French as utilitarian and secondary to the diplomatic symbolism of the act of smoking, tobacco held greater intrinsic meaning to many of the native peoples who smoked it. Parsons argues that native peoples saw smoking as a means of transmitting a valued substance—tobacco—to “other than human” beings that craved the substance. Although the French and natives could share in the act of smoking, ultimately, they did not share the interpretation of that act. Gilles Havard likewise explores such ontological bridging, albeit a bridging that only incidentally involved indigenous people. Havard describes how French jurists, scrambling to classify native peoples...

Social Partner Agreements and Local Regulatory Legal Acts in the Labor Law of Belarus, Russia, and Ukraine

The legal nature of a tariff agreement became the subject of study first by French jurists (Lambert, Deslenre, B. Reno) in the 1890s, and, since the beginning of the XXth century, by German (F. Lotmar, H. Zinzgeimer, etc.) and Russian jurists (L.S. Tal , I.S.Vojtinsky). Moreover, already in 1900 G. Zultser and F. Lotmar elaborated and published a draft Swiss law on a working tariff agreement, and in 1906 a similar draft government law was prepared in France.

THE FRENCH RESPONSE TO THE WORLD BANK'S DOING BUSINESS REPORTS

In its 2004 and 2006 Doing Business reports, the World Bank endorsed the conclusions advanced in the ‘legal origins’ literature, according to which legal systems belonging to the common law tradition better foster economic performance than systems belonging to the civil law tradition, and systems within the French family fare the worst among civil law systems. This article comments on the response offered to those reports by a group of French legal academics. The author suggests that this response would be more effective if it treated as separate issues (1) the traditional resistance of French jurists to the economic analysis of law (eal), (2) the efficiency of the French legal system, and (3) the merits of analysing French law from an eal perspective. With respect to the first issue, the author argues that the reasons behind the French jurists' traditional resistance to eal are largely sociocultural and, accordingly, can be expected to bear directly on French jurists, and French legal thought more generally, but only minimally on the economic pedigree of the French legal system. With respect to the second issue, questions are raised as to the possibility of reliably assessing the relative efficiency of entire legal systems, whether the French or any other. With respect to the third issue, the author notes that the objections raised against economic assessments of entire legal systems do not apply to the more traditional form of eal, which accordingly remains as valuable a tool for analysing French law as it is for analysing any other body of law.

The French response to the World Bank's <i>Doing Business</i> reports

In its 2004 and 2006 Doing Business reports, the World Bank endorsed the conclusions advanced in the ‘legal origins’ literature, according to which legal systems belonging to the common law tradition better foster economic performance than systems belonging to the civil law tradition, and systems within the French family fare the worst among civil law systems. This article comments on the response offered to those reports by a group of French legal academics. The author suggests that this response would be more effective if it treated as separate issues (1) the traditional resistance of French jurists to the economic analysis of law (eal), (2) the efficiency of the French legal system, and (3) the merits of analysing French law from an eal perspective. With respect to the first issue, the author argues that the reasons behind the French jurists' traditional resistance to eal are largely sociocultural and, accordingly, can be expected to bear directly on French jurists, and French legal thought more genera...

Is Law an Economic Contest? French Reactions to the <I>Doing Business</I> World Bank Reports and Economic Analysis of the Law

The economic analysis of law has provoked strong reactions among French academics, in particular since 2004 when the first of the Doing Business reports was published. French jurists have joined forces to expose the methodological limits inherent to these reports, which rated France a long way behind other legal systems allegedly more able to facilitate business. In its first part, this article examines the various reactions to these reports, almost all of which were published in French only. In the second part, the focus is on the position of economic analysis in French law, its role, and, in particular, the impact of the Law and Economics school on comparative law in France. It also takes a look at the studies that followed, especially the legal origins thesis. The article shows that the various approaches are complementary and that economic analysis, without supplanting the traditional comparative approach, has considerable use. At a time when the globalization of business relationships is leading more than ever to a competition between the various national laws, comparatists should include more of this dimension into their field of study. Comparatists can also take a cue from economists on how to improve the relevance and the influence of their research in the public debate.

POLITICIZING REPRODUCTION IN COMPARATIVE PERSPECTIVE: OTTOMAN, TURKISH, AND FRENCH APPROACHES TO ABORTION LAW

AbstractIn this essay I discuss modern abortion legislation in the Ottoman Empire, Turkey, and France. Using late nineteenth and early twentieth century fears of population decline and "race suicide" as a starting point, the first half of the essay examines the relationship between nationalist or authoritarian state formation and the criminalization of abortion in all three states. The second half of the paper discusses the gradual de-criminalization of abortion after the Second World War and its relationship to twentieth century rights rhetoric. In this essay I argue that both the criminalization and de-criminalization of abortion in the Ottoman Empire, Turkey, and France were central to modern citizenship formation, each process equally essential to the increasing politicization of reproductive behavior over the modern period. At the same time, I also argue that legislators in all three states looked back to unique "traditions" to serve as foundations for their post-eighteenth century laws—Ottoman and Turkish jurists making use of medieval and early modern debates in the Islamic world surrounding abortion and French jurists making use of an equally well-established Catholic tradition.

Vera Philosophia and Law in Montaigne's "De la cruaute"

Vera Philosophia and Law in Montaigne's De la cruauté Sue W. Farquhar Montaigne's Essais are rarely included in the curriculum of philosophy outside France. With the exception of the "Apologie de Raimond Sebond," his essays are more readily seen by non-specialists as 'table-talk' than philosophy, recalling Plutarch's aphorisms in the Moralia or the witty, practical wisdom of an amateur like Benjamin Franklin.1 Recently, such an authoritative source as the Oxford Companion to Philosophy conceded that Montaigne's insights were "recognizably philosophical" yet reserved the distinction of "first French philosopher" for Descartes. Montaigne's popularity as a homespun sage stems in part from his conversational 'disorderly' style combined with an unrelenting hostility to all systems of thought, scholastic and ancient. For readers attuned to his diatribes against pedants and dogmatists, his sudden transformation in the "Apologie de Raimond Sebond" (II, 12)into "un philosophe impremedité et fortuite" is somewhatstartling.2 Having discovered by chance his new vocation, he impulsively embraces philosophy, not as a systematic search for universal and unchanging truths, but as a historical project. How, then, does moral philosophy in the Essais coincide with the aims of philosophy seen, not from a post-Cartesian perspective, but through the eyes of a sixteenth-century humanist like Montaigne whose training and professional experience were intimately bound with the law? Assuming that Montaigne's reflections on legal issues, or the rule of law, in private and public life involve more than a topical interest, I shall relate his personal inquiry to the prevailing legal philosophy of his time, acclaimed by leading French jurists as the vera philosophia, or in the words of François Baudouin, "the true and supreme philosophy . . . contained in laws which pertain to public action."3 Montaigne's ethical approach, while profoundly informed by the law, is also in striking ways the antithesis of the legal doctrine which extolled the laws as true philosophy. At stake is a certain conception of nomos, a normative world of law, held together by narratives which offer not only models for behavior and bodies of rules but also problems to be explored and "worlds to be inhabited."4 The aims of vera philosophia will be compared initially with Montaigne's notion of "la vraie philosophie," a term appearing in several essays, to show that his inquiry partly fits sixteenth-century [End Page 39] juridical definitions of a civil science yet differs markedly in tone and emphasis. Attention will then be directed in "De la force de l'imagination" (I, 21) to his theory and use of the fictional example, a key discursive strategy in the Essais, to suggest that he draws on a legal concept of fiction to redefine "vera philosophia." His own articulation of "la vraie philosophie" is of a humbler, more skeptical sort, embedded in ordinary practices and the historicity of events. As such, it opens his discourse in "De la cruauté" (II, 11) to questions of alterity and engages a sharp critique of the juridical ideology informing vera philosophia. In his study of human behaviors, Montaigne admitted that universalist assumptions and methods simply cannot account for the inconstancy of our actions. They seem not to "come from the same shop" so "strangely" do they contradict one other, making any systematic comparison impossible, "car elles se contredisent communément de si estrange façon, qu'il semble impossible qu'elles soient parties de mesme boutique" ("De l'inconstance de nos actions" [II, 1, 331A, 329A]). Instead he drew on a legal mode of reasoning, based on opinion or endoxa rather than apodictic knowledge. As André Tournon, Ian Maclean and others have recently argued, Renaissance jurisprudence served as a training ground for Montaigne's topical approach in the Essais.5 As a non-analytical method used by jurists for studying probable or plausible "truths," it allowed him to pursue a logic of difference. The infinite range of human variability experienced in ordinary lives, especially his own, was found to be irreducible to philosophical definition. Turning his back on classifications that presume a universal human nature, he opted somewhat sardonically for a legal approach based on a logic of distinguo: "Distingo est le plus universel membre de...

Comparative History and the Internal View of French, German, and English Private Law

This Article explores the different intellectual and socio-political contexts that attended the emergence of the French, German, and English legal systems with a view to understanding French, German, and English private law from the perspective of the participants in these systems. The French legal system is a child of the Cartesian dualism that marked the Age of Reason, according to which the material world can and ought to be fully dominated by the human intellect. This conception of the relation of facts to ideas arguably is reflected in the structure and design of the French civil code, in such institutional features as the French conception of the role of the judge, as well as in the tendency of French jurists to view contractual consent subjectively. In contrast, the German legal system congealed at a time when Cartesian dualism was losing ground to German idealism. The dialectic conception of facts and ideas favoured by the German idealists arguably made its way into several institutional features of the German legal system, including the content of the BGB, the codification process, the conception of the role of the judge, the style of judicial decisions, and the greater inter-penetration of public and private law. It may also partly explain why German jurists have tended to view contractual consent as simultaneously objective and subjective. Finally, whereas both the French and the German legal systems emerged from highly intellectual contexts, the English legal system grew from a maize of pragmatic political and administrative considerations that left little room for explicit ideas. The emphasis on hard facts still is palpable in many aspects of contemporary English law, in particular, the doctrine of stare decisis, the conception of the judicial function, and the mode of reasoning by analogy. It arguably also is reflected in the tendency of English judges to privilege the objective conception of contractual consent.

Contribution(s) du modèle de concurrence régulatrice à l'analyse des modes et niveaux de régulation

Contribution(s) of the Regulatory Competition Model to the Analysis of Modes and Levels of Regulation Not well known to French jurists, regulatory competition is an economic model in which the regulators themselves elaborate regulation, in function of the demand on the part of end-users and other regulators, viewed here as competitors. Elaborated in the United States, the aim of the theory is to make territories attractive by ensuring optimal regulation. The author presents three possible approaches to the model, shedding new light on the study of regulation in general.

Shifting Identities: Foreign State Servants in France and the Ottoman Empire

AbstractThis essay compares the use of "foreign" state servants in the early-modern kingdom of France and the Ottoman Empire. In both realms, identity was understood as a matter of loyalty not to a defined territory but rather to a dynasty; hence service to the dynasty offered a ready path for assimilation. For a contemporary Ottoman historian, "the inhabitants of Rum" were a people of diverse origins, often descended from converts to Islam. For French jurists, the basic component of citizenship in the kingdom was personal choice; thus French "identity" was gained or lost as outsiders chose to serve the king, or natives of France chose to serve one of his rivals. This fluidity in matters of identity may be illustrated by three careers. George Paleologus Dysphatos (d. 1496), having converted to Roman Catholicism, rose to prominence under Kings Louis XI and Charles VIII, while a man known only as Hüseyn, the subaşt of Lemnos, was important as a diplomat and intelligence-gatherer in the service of Sultan Bayezid II; only from a chance reference in a letter of Charles VIII concerning Hüseyn do we know that he was George's cousin, obviously a convert to Islam. Christophe de Roggendorf (1510-post 1585) who was an Austrian nobleman and who had fought in Austrian armies against Ottoman forces. When Emperor Charles V ruled against him in an inheritance dispute he switched sides, moving to Istanbul where he served Sultan Süleyman for a time. But since he would not convert to Islam, preventing his being eligible for an important office, Roggendorf changed his allegiance again, ending his active career as an honored commander and diplomat under Kings Henri II and Charles IX. As these examples suggest, this was an era in which rulers competed for the loyalty of talented men, regardless of their origins, and potential state servants chose identities that served their own ambitions.