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The French Deviation Author(s): John Henry Merryman Source: The American Journal of Comparative Law, Vol. 44, No.

1 (Winter, 1996), pp. 109-119 Published by: American Society of Comparative Law Stable URL: Accessed: 06/11/2010 22:27
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The innovation was the effort to make the law judgeproof. why did the effort to build a socialist legal system following the 1917 Revolution produce such apparently inconsequential results? The American and French Revolutions are generally thought to have had fundamental. Rather than the relatively simple process of dismantling a temporary superstructure. The revolution to which I refer is the French Revolution of 1789. It illustrates how an attempt to establish a fundamental legal reform derived from one nation's political and historical imperatives. however. ch. fuelled by the works of influential theorists and widely exported to nations with different political and historical characteristics. The attempt to build a socialist legal order now looks more like a temporary deviation than a new direction. IV. the end of the socialist revolution in the Soviet Union and its satellites provides a number of topics for reflection. The judges. The Oracles of the Law (1968). Stanford University. To use a different metaphor. This article was originally published in Studi in Memoria de Gino Gorla 617-631 (1994). the effort to free legal systems from the consequences of this deeply embedded innovation has been long and painful and is still incomplete. The title is taken from John P. 109 . one that also sought to introduce a radical change into European law. With the end of the Soviet experiment that superstructure has been dismantled. 1. My purpose here is to discuss a legal invention of a different revolution. JOHN HENRY MERRYMAN is Sweitzer Professor of Law and Cooperating Professor of Art. eventually revealed itself to be a parochial product of a particular set of historical conditions. For one. the Western legal body appears to have rejected the socialist transplant. Part of the story is familiar. lasting legal consequences that are clearly visible today in legal systems throughout the world. Dawson. Socialist legal principles appear in retrospect to have been at most a sort of temporary superstructure erected on a legal base that was largely Western in character. I will suggest that this history is in important ways analogous to the history of Soviet law. Emeritas. leaving few marks. but Soviet socialist law at its height seems never to have penetrated the surface of the culture in the USSR or elsewhere.JOHN HENRYMERRYMAN The French Deviation' To a comparative lawyer. In pre-Revolutionary France the regional parlements became centers of conservative power.

property and contract for all French citizens. . is Montesquieu's famous argument for separation of powers as a fundamental safeguard of liberty (citing Montesquieu. the 2. cit. however. 4. Montesquieu's interest was in protecting the executive and the legislature against the judiciary. 2 Critics of the Old Regime condemned the parlements and developed the theory that the fault lay with the judges. Livre XI."3 This "doctrine of the separation of powers" became part of the revolutionary program. e. tr. The legal regime that emerged from the French Revolution included a variety of measures abolishing remaining feudal institutions. executive. he did not argue for separation of the executive from the legislature. ch. and judicial powers are divided. one that is centrally concerned with conflicts between the President and Congress. there was a natural tendency to judicial excess that could only be controlled by rigorously protecting the legislative and executive powers of government from any form of judicial control. Dawson. identified and sympathized with the landed aristocracy against the royal authority in Paris. A purist would suggest that a better term for the American system is "allocation" rather than "separation" of powers. three distinct bodies must abuse their authority before the citizen's rights can be infringed. For when legislative. but it tends to take on different meanings in different contexts. Book XI. 1. VI). establishing rights of personality. when he used the term "separation. supra n. si la puissance de juger n'est pas separe de la puissance legislative et de l'executive. De l'esprit des lois. His concern for the separation of powers was asymmetrical. The Old Regime and the French Revolution. qua judges. 3. which is the common way of describing relations between the American powers of government. ch. . but it is not what Montesquieu was talking about. Like the American. In the words of Montesquieu: "II n'y a point encore de liberte . L. The Coming of the French Revolution 17-18 (Palmer. however. 44 conscious members of an aristocracy of the robe. "No less significant. For discussions of the parlemants see Alexis de Tocqueville. mutual oversight and control. Checks and balances. Comp. often have a symmetrical separation in mind. 1967). Currie. 201. and the implications of the doctrine soon affected every aspect of the French legal process." 41 Am. 202 (1993). and the slogan "separation of powers" became a component of revolutionary rhetoric. "Separation of Powers in the Federal Republic of Germany." meant precisely that: the courts should have no power to control or affect exercise of the legislative or executive powers. A further difference is that Montesquieu." That is a persuasive point. Such reforms were reflections of the democratic revolution that swept through the West in the late 18th and early 19th centuries.. . refused to register royal edicts and hindered royal officials in the performance of their functions. however.4 Abolition of the parlements was one of the first acts of the French Revolution. Georges Lefebvre. The new French legal order. instituting representative government and centralizing governmental power in Paris. They "interpreted" royal legislation to deprive it of its intended effects. Americans who refer to the separation of powers. op. See. at 362ff. VI. contemplates not true separation but its opposite. also prominently included measures designed to implement the separation of powers.g.110 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. The "separation of powers" locution is seductive. J.

We have seen that one purpose of the doctrine of separation of powers was to protect the executive against judicial interference.1996] SOURCE AND TARGET-ORIENTED COMPARATIVE LAW 1ll French Revolution was a great event in world history. while the legality of French executive/administrative acts receives the sort of "judicial"review of legality that democratic justice everywhere requires. In this way the 19th century saw the legal implications of the French doctrine of separation of powers adopted by new post-revolutionary governments throughout the world. but it also meant that judges could not question the validity or alter the meaning of legislation. Nations whose histories had included nothing resembling the French parlements thus embraced a powerful doctrine that was the product of specific conditions in pre-Revolutionary France. After the Revolution. question the legality of administrative rules. Common lawyers are familiar with an array of modern judicial remedies based on the old writs of prohibition. It excited the imaginations and ignited the hopes of reformers and revolutionaries everywhere. The doctrine of separation of powers also required that the legislature be protected against judges.5 The resulting vacuum was filled by creation of a contentious section of the Conseil d'etat that today looks very much like a high administrative court and the eventual establishment of inferior administrative "tribunals" that look and act very much like administrative courts of first instance." Thus the separation of powers is formally observed. on pain of forfeiture. . This obviously meant that judges could not legislate or otherwise make rules applicable to future cases. judges may not. the judicial function was to apply the law to the facts and pronounce the result-to be. which were developed in England as devices for judicial control of the legality of administrative/executive acts. It is also true that they are not called "courts"and their members are not called "judges. French judges were expressly denied such powers. article 13 provided: "Judicial functions are distinct and remain forever separate from administrative functions. in Montesquieu's fa5. It is true that the administrative tribunals and the Conseil d'Etat are formally separate from the (ordinary) judiciary and are formally part of the executive power. The Law of 16-24 August 1790. examine the legality of the conduct of public officials or compel reluctant officials to perform their legal duties. Title II. interfere in any way whatever in the activities of administrative officials nor subject them to judicial proceedings concerning their functions. mandamus and quo warranto. and as they came into power many of them tended to adopt the French revolutionary legal program whole. orders or other executive action." (my translation). This principle was soon put into practice by providing that judges could not issue regulations. The large and influential body of law they have created out of meager statutory materials looks to common lawyers today very much like judge-made law.

The principle that judges cannot make law had many other implications. The only proper basis of the decision was "the law. To insure judicial responsibility to the legal mandate. or a regulation that was itself authorized by and consistent with legislation (or custom.112 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. Every experienced lawyer knows that to be beyond human possibility. standing at the apex of the de (ordinary) judiciary. staffed by judges. which raises a different order of questions that cannot be given adequate treatment here. it was logically necessary that the legislator provide a comprehensive norm structure. "la bouche qui prononce les paroles de la loi. custom had some scholarly support). faced with a problem-an unclear legislative provision or a lacuna in the legislative scheme-the judge was ordered to suspend the action and refer the question to the legislator for authentic interpretation. 44 mous phrase." and that meant legislation. but the politics and the popular legal culture of the time demanded it." The literature on limitation sought to protect the legislature against judicial law-making in the guise of interpretation. although we should mention that the proposal to treat prior judicial decisions as evidence of.e. The unworkability of the so-called refere legislatif soon became evident. one that (with occasional help from custom) provided a rule for every case. and if every judicial decision had to be based expressly on law. judges were required to decide all cases that came before them and to "motivate" their decisions-i. These strictures placed a terrible burden on the legislator.. is the topic of an interesting subsequent history that cannot be explored here. or supplied a rule when the case was confronted by a lacuna in the formal legal order could do so without "making law. One of the most obvious was denial of any effect of a judicial decision beyond the case itself. The legislature provided a check against judicial abuse of the power to interpret the law by establishing the tribunal de cassation. to review judicial interpretation and application of the laws. The judge who based his decision on case law would commit a grave offense. To . The emphasis then shifted to justification and limitation. or chose between alternative meanings of an ambiguous statute. The justification literature sought to explain how the judge who supplied meaning to an unclear statute. The doctrine of stare decisis was specifically rejected." At the extreme this meant that judges should even be denied the power to interpret the law. The evolution of this legislative tribunal to the cour supreome cassation. described as pre du corps legislatif. The paradoxical outcome is that a legislative organ that was established to protect the legislature against judges has become a court standing at the head of the ordinary judiciary. to indicate the source of law on which the decision was based. or as embodying. and the French courts were conceded the power to interpret laws. If prior judicial decisions were not law.

find it convenient. cit. at 431. The outcome was that French courts dutifully cited code provisions (or other sources of law) as the ostensible basis for their decisions. economical and fair to decide new cases consistently with their decisions in prior cases. through scholar and advocate in declining order of prestige. The hierarchy of legal occupations ran from legislator at the top.1996] SOURCE AND TARGET-ORIENTED COMPARATIVE LAW 113 non-lawyers. prior decisions are never discussed or distinguished in the Cour's decisions. en quelque 6. working conditions and career patterns reflected this point of view. . That would violate the separation of powers. one of the purposes of codification was to provide seamless statutory coverage of civil. This jurisprudence is in fact. commercial and penal law and procedure. to judge at the bottom. an important source of law.. supra n. A principle directed toward restraining judicial power thus serves to enlarge it. celle de juger est. even though these provisions often were too general in language or too remote in applicability to lead the judge to particular results in concrete cases. was build a body of law based to some extent on earlier French law. Judicial recruiting practices. While the judges of the parlements in pre-Revolutionary France stood high in the legal and social order. 1. and scholars refer to the jurisprudence in their notes on the Court's recent decisions. Popular distrust of judges. but built largely through their own decisions. French courts.. however. But they never cite it. Thus the separation of powers was formally observed." op. like courts everywhere. the doctrine of the separation of powers and the post-Revolutionary measures taken to limit the judicial role in the legal process had a demeaning effect on the French judiciary. contrary to separation of powers theory. salaries. merely following legislative and executive orders. Judges of the Cour de Cassation regularly consider the jurisprudence in preparing their written decisions and seek to decide consistently with it. Arguments before the lower courts and even before the Cour de Cassation regularly refer to its jurisprudence.. the position of the judge in the Republic was that of a civil servant who did relatively undemanding work. The judges joined in this disclaimer and expressed it through a cryptic style of opinion writing whose main purpose was to prove their dutiful submission but which left them in fact more free. the judiciary was denied the status of a governmental "power"and was instead referred to as the judicial "authority": "Des trois puissances dont nous avons parle. nourished by French legal scholarship. Professor Dawson remarked on the freedom to innovate that this method has given to French judges: "The chief legacy of the Revolution was not judicial submission to the disciplines of the codes but a deep-seated. This is notoriously true of the French law of tort. widely-held conviction that judges lacked lawmaking power. In the nomenclature of government. but most other topics of French civil and commercial law also contain substantial bodies of judicially created and perpetuated doctrine.6 What the judges actually did.

Livre XI. It also encouraged a tendency to ignore or to misrepresent pre-Revolutionary European legal history. any change justified as a desirable reform. This view of the judicial function." (1983). 44 fagon.1 (1993). whose studies on the Europeanjus comune are embodied in a number of disparately published articles. Ri vista dir. a judgemade law: [T]he "jurisprudentia forensis. particularly in the work of Italian8 and German9 scholars. One result was a tendency to reinterpret history in terms congenial to the Revolutionary program. The leading figure in European reinterpretation of the legal history of the 16th-early 19th centuries was Gino Gorla.114 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. . Any problem could be attributed to it. and resulting in a con7. 9... One result has been a serious lacuna in European legal scholarship. Helmut Coing. Professor Dawson. In the popular Revolutionary ideology. The ancien regime was a scapegoat of the French Revolution. Gino Gorla. based on original research in Europe and England. op.10 Gino Gorla's work in particular. 8. there was a European common law which was." progressing in a cumulative way through lawyers' interpretation and judicial opinions (especially those of judges sitting in the Supreme Courts of the various states on the Continent). Any proposal to give greater responsibility to judges could then be met with the argument that."7 Judges. they lacked the necessary imaginative scope and intellectual resourcefulness to deal with large questions or to exercise substantial discretionary authority. cit. ch. Legal institutions and practices that had long existed as part of the Europeanjus comune could now be characterized as improper and deviant. This gave the French Revolutionary legal program a claim to timeless universality and encouraged its adoption wherever in the world the Democratic Revolution spread. Ind. of course reached the same conclusion. became self-fulfilling. ein Forschungsprojekt (1985) passim.I. VI. anonymous career bureaucrats. II diritto comparato in Italia e nel "mondo occidentale" e una introduzione al "dialogo civil law-common law. Diritto comparato e diritto comune europeo (1981) and in Gino Gorla. Englische und Kontinentale Rechtsgeschichte. 10. and of judges. prior to the 19th century. strongly suggests that it was the French post-Revolutionary legal reforms that were deviant. XXIX. a tendency to neglect the study of law in 16th-18th century Europe. the French post-Revolutionary reforms as establishing what was just and proper. for the most part. The best legal minds chose other careers. Handbuch der Quellen und Literatur der neueren europaischen Privatrechtsgeschichte (1973) passim. were faceless. De l'esprit des lois. supra n. nulle. civ. led him to conclude that. as a group. Montesquieu. even on the highest courts. 1. everything associated with the immediate past was painted in dark colors. Those published up to 1983 are collected in Gino Gorla. Renewed attention to that period. Gorla's entire body of scholarly work is brilliantly evoked and summarized by Giovanni Pugliese.

whatever their apparent suitability to the Revolutionary political program may have been.. Some formal signs of the effort to make the law judge-proof remain.. the English legal system. Therefore what today appears to be unique in the English legal system (or.. Indeed. the similarity with the legal process in England (and in pre-Revolutionary France) is obvious. by the French Revolutionary legal reforms) the English legal system was left as the only example of what European legal systems had looked like: With the disappearance of the "European common law" .. Gorla & Moccia. was the principal source of law. albeit here some centuries later.'2 Gorla's thesis is indirectly confirmed by the French experience (and the experience of other European nations. just as in England. . entering the path of closed legal systems. in the Common law family of legal systems) was during the sixteenth to eighteenth centuries shared to a large extent in common between Continental and English law. "A Revisiting of the Comparison between Continental Law and English Law (XVI-XIX Century).. rather than how what they do is disguised in separation of powers apparel. if not caused. to the extent that the latter. kept alive that tradition. at 552. also on the Continent. However rational the theory of separation of powers and its corollaries may have seemed in the Age of Reason. was detaching itself from the experience of past centuries.1996] SOURCE AND TARGET-ORIENTED COMPARATIVE LAW 115 tinuous literary legal tradition.. because of the continuity of its historical evolution. Id. mostly by means of judicial precedents handed down in the higher courts of justice. But. that followed the French example).. the internal unification of the legal system of each state was achieved. cut off their links with the European common law tradition. whilst Conti- nental legal systems . As we have seen: 11." 1981 Journal of Legal History 147 (1981). like Italy. but their substance has dwindled under the pressure of necessity and the natural tendency of lawyers and judges to do what seems reasonable. 12.. If we look at what French courts (including the Conseil d'Etat and the Administrative Tribunals) do.. a far more important one than any other in that same period. fair and effective in their work.." With the decline of the European common law on the Continent in the 19th century (a decline hastened. the differences between English law and Continental law became greater and greater. generally speaking. French practice has long since found it necessary to return to a more balanced distribution of legal powers of the kind that had previously existed throughout Europe and that continued to exist in England.

which the courts accepted and applied without question. and often the statute may indeed be the remote source of the rule applied to the case. where it . c. through the power they unavoidably employed in interpreting and applying the law to concrete cases. In practice. In post-Revolutionary France. The most powerful consequence of the French doctrine of separation of powers may have been to demean judges and the judicial function. mechanical and uncreative and to portray judges as clerks. That has created." Whole areas of French law are judicial creations. 44 a."provide an effective forum for judicial review of the legality of administrative action and inaction and have built an imposing body of judgemade administrative law. misrepresentation of the judicial function does not have severe consequences. and continues to create. b. But when the French exported their system they did not include the information that it really does not work that way. try to decide similar cases the same way: prior decisions are cited by lawyers in their briefs and arguments and are considered by courts in reaching their decisions in ways that are not substantially different from the use of precedent by courts in common law nations. Although prior decisions are formally denied status as sources of law. in the process. as we have noted. In France. the legislative power was in theory subject only to political control by the electorate. One result has been to cripple the judicial systems in a number of developing countries. French courts. where everyone knows how to do what needs to be done behind the separation of powers facade. though they still are not called "courts. The attempt to depict the judicial function as something narrow. The Conseil d'Etat and the Administrative Tribunals. The popularly elected legislature made the law. but prior judicial decisions (and the works of scholars) are more often the immediate source. like courts everywhere. and the best people in those nations accordingly seek other legal careers. Judges are at the bottom of the scale of prestige among the legal professions in France and in the many nations that adopted the French Revolutionary reforms.116 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. they "make law. French ordinary courts exercise full power to interpret and apply legislation and other sources of law and. has had a self-fulfilling effect. the courts directed and moderated much legislation and. The statute may be cited as the authority for the decision. problems in nations with limited legal infrastructures and fragile legal systems whose histories included nothing resembling the conflict between the French King and the provincial parlements. and they failed to include a blueprint of how it actually does work.

including legislators. unimpaired: there was general agreement. it is usually lodged only in the highest courts. Ordinary judges are denied the power to rule on the validity of or to decline to apply legislative acts alleged to be in conflict with a constitutional provision.. Even within the judiciary an obligation of lower courts to refuse to apply the law in question arises only after a consistent series of decisions by the supreme court establishes a binding "jurisprudencia. 1959 D. in practice. and its jurisdiction is invoked in the abstract. Jur. even among sophisticated lawyers and knowledgeable legislators. The resulting complex of structures 13. The leading case is Syndicat General des Ingenieurs-Conseils. they merely treat the constitution as a superior source of law and decline to apply a statute that they find to be in conflict with a constitutional provision. In Germany. 14. The decision binds only the parties. 1971 Journal Officiel (July 18). In Latin America. that judicial review of the validity of legislation on constitutional or other (e. for example. France remains the most "correct"(in separation of powers terms) of the major civil law nations in dealing with judicial review. Everyone engaged in the French legal process. 1971. judicial review has been lodged in a special "constitutional tribunal" (Spain) or "constitutional court" (Germany and Italy). The law continues to exist. scholars. continue to treat the law as valid despite the judicial refusal to apply it. 541. No proposition could be more basic to the French doctrine of separation of powers. See the August 7. and hence it is not a court. It can accordingly be characterized as performing a non-judicial function. Still. and often do. knew this. one area of legislative supremacy remained unchallenged and. interpreted laws in ways that clearly were not contemplated by the legislator. Duverger suggested that the French courts must sooner or later recognize and deal directly with the principle of the superiority of the Constitution over ordinary laws. Italy and Spain.g. natural law) grounds was clearly prohibited.19961 SOURCE AND TARGET-ORIENTED COMPARATIVE LAW 117 seemed necessary to do so. 1971." As this is written. Le Monde article by Maurice Duverger. The Conseil d'Etat and the Cour de Cassation also have roles. . where a limited version of judicial review has long been established. advocates and judges. actual in the case of the Conseil.13 still largely potential so far as the Cour is concerned. Other agencies of government may.14 in the emerging drama of French judicial review. commenting on the Constitutional Council's Freedom of Association decision of July 16. Judicial review of the constitutionality of legislation remains the last refuge of the French post-Revolutionary effort to make the law judge-proof in France and in nations that have been influenced by the French model. without the necessity for parties or for a specific case or controversy. Even they do not rule on the validity of legislation. The Conseil Constitutionnel acts before a proposed statute is promulgated.

shared by other Western nations. contract and property for all Frenchmen. for most purposes. adopted the Code Civil and the model of the legal process that accompanied it. the French deviation is.-was in the mainstream of the democratic revolution. if not the substance. have contributed much to the development of modern European public law. 44 and procedures ("system" would be an inappropriate term) is explainable only by reference to French history and to a felt need to preserve the appearance. Much of the revolutionary programestablishing individual rights of personality. harmless. Some of them. It has left a number of marks on contemporary French law. in the 19th century. like the Contentious Section of the Conseil d'Etat. This essay was stimulated by reflection on the apparently meager consequences of what might be called "the Soviet deviation": the attempt to turn Soviet law from its European course and build a socialist law on the principles stated by Marx and Engels. even among those that. came to play an important role in the design of the new French legal system. of the separation of powers. remind one of certain relics of feudalism in English law: they have a quaint antiquarian charm and are. This led to speculation about a possible parallel with French law and the attempt to model its post-Revolutionary legal system according to a . but its main purpose-to protect the law against judges. in practice. there are relics. abolishing feudal institutions. the practical limits on what a legislature can do and the realities of the judicial process have combined to lead French law. To be sure. That is the source of the deviation. By the term "the French deviation" I refer to the independent direction taken by the French during and after the Revolution of 1789. particularly in nations that imported the French codes and the set of propositions about the legal process. Others. continue to hamper legal development. back into the mainstream of the European common law. establishing representative government. like the denigration of the judiciary and the judicial function. Still others. on the whole. There has been no tendency for other nations to emulate the awkward French approach to judicial review. when they parted from the European jus commune and opted for a new national legal order. that was part of the French post-Revolutionary legal package. born of conditions specific to 17th and 18th century France and generalized and universalized in the works of Montesquieu and other Frenchmen. the Administrative Tribunals and the magnificent system of French administrative justice. But at the same time. a peculiar doctrine of separation of powers.118 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. including the separation of powers. at an end. etc.failed. The legal imperatives of justice in a democratic society. The process of European Union completes the process. like the austerely parsimonious style of decisions by the Cour de Cassation.

1996] SOURCE AND TARGET-ORIENTED COMPARATIVE LAW 119 principle-the separation of powers-stated by Montesquieu. Might there be a social truth here? Does the accumulated legal culture of Europe. History cannot be abolished. There will of course be relics of the experiment with socialist law in the nations that once formed the Soviet Union and its satellites. But in their main purpose. contain within itself a body of empirical legal results that are in some important sense valid? Is there a European jus comune that has such enormous historical mass and inertia that fundamental change is beyond the power of reformers. although the basis for the French part of the argument is more solid. just as there are relics of the French deviation in France and in the many nations that followed the French model. criticism and possible refutation. I welcome discussion. I have set out the elements of an argument that. That is the argument for suggesting an analogy between the Soviet Deviation and the French deviation. there is a basic equivalence. the product of more than twenty centuries of continuous experimentation. even of revolutionaries? Is the same true of the Anglo-American common law? Of all of western law? Of all the great legal traditions? . although the differences between the two revolutionary legal programs and the respective national experiences under them are substantial. development and refinement. this discussion invites speculation of other kinds. It is thinly documented and is based on limited impressionistic contact with the Soviet legal experience. In each case the attempt to detach a national legal system from the European jus comune and move it in an independent direction by following persuasive theoretical principles appears to have ended with a return to the mainstream. each of these attempts was a failure. At a more general level.