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The entity of French doctrine: some thoughts on the community of French legal writers*

Published online by Cambridge University Press:  02 January 2018

Philippe Jestaz  and
Christophe Jamin
Philippe Jestaz
Affiliation:
University of Paris XII, Institut universitaire de France
Christophe Jamin
Affiliation:
University of Lille II, Institut universitaire de France
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Extract

‘Doctrine’, from the legal point of view, is often understood, in France at least, as a collection of works. For example, Le Petit Robert defines it as ‘the entirety of legal works whose aim is to expound or interpret the law (as opposed to legislation and judicial decisions)’. This definition is not erroneous, but it only captures one aspect of the matter. If doctrine were only a collection of works, it would be nothing more than a university or law court library. However, it is clearly much more than that. Likewise, it is clear that poetry cannot simply be reduced to a huge collection comprising the works of all French poets. Beyond the production of doctrine (or poetry) lie the workings of doctrine (or poetry), that is to say the persons who devote themselves to it. It is at this point that one encounters other meanings of the term.

Type
Research Article
Information
Legal Studies , Volume 18 , Issue 4 , December 1998 , pp. 415 - 437
Copyright
Copyright © Society of Legal Scholars 1998

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Footnotes

*

This article is a revised version of an essay which initially appeared in France as ‘L'entité doctrinale française’, D 1997 Chr 167.

References

1. The Roberf is the nine-volume dictionary of the French language. There is also a reduced one-volume edition called Le Petit Robert.

2. Although dating back to the nineteenth century, the Littré dictionary remains an unequalled masterpiece. In France, semantic discussions usually begin with a quotation from Littré or Robert.

3. In his findings (conclusions) of Cass civ, 22 December 1931 (DP 1932. 1.113), Public Prosecutor Matter advocated interpreting French law as having put aside the application of prior treatises. While generally followed by authors, this suggestion had not been formally approved by the courts which explains why it remained a ‘doctrine’. Conversely, we speak of jurisprudence Matter to designate a case where the latter's ideas had indisputably come into force (Cass civ, 17 May 1927 (DP 1928. 1. 25)) concerning the notion of international payment.

4. Bellet, P. Rapport de sythèse Works of the Henri Capitant Association t XXXI (1980) p 11 Google Scholar.

5. Eg doctrine as we understand it has an equivalent in Quebec, and consequently an author in Quebec writing in French would refer to the term. However, in the English abstract of the article, the term will not be translated: it remains in French and, thus, in inverted commas ( MacDonald, R. A. ‘La nature, le rôle et I'influence de la doctrine universitaire en droit administratif québecois’ (1985) 26 cah dr 1071 Google Scholar. Compare, announcing a paragraph devoted to Doctrine, Brierley, J E C and MacDonald, R. A. (eds) Quebec civil Law (Toronto: Edmond Montgomery Publications, 1993)Google Scholar no 102: ‘Expert or “doctrinal” opinion (la doctrine).

6. See eg Posner, R. A. The Present Situation in Legal Scholarship’ (1981) 90 Yale Law Journal 1113–1119.CrossRefGoogle Scholar

7. See eg Patterson, E. W. Jurisprudence (Brooklyn: Foundation Press, 1953), p 217ffGoogle Scholar.

8. Termes juridiques (Paris: Dalloz, 10th edn)Google Scholar, vol as Doctrine.

9. All different meanings are summarised in Cupitant's dictionary: ‘1. An opinion commonly professed by those who… write on law …, 2. The totality of legal works …, 3. The totality of the authors of legal works … 4. In restricted meanings: an opinion expressed on a particular point of law…’.

10. Corbeille is the usual expression to indicate the Paris Stock Exchange (due to the circular rail in the form of a basket, around which the traders group together). To assert that government policy should not be made ‘à la corbeille’ is to say that the financial world ought not to be allowed to dictate a line of conduct to government officials.

11. Emile Durkheim (1858–1917), the founder of French sociology, gave of a social fact a definition which has become commonplace: a collective phenomenon whose origin can be attributed to none of the members in particular and which, for that reason, surpasses each one of us.

12. Physicians (together with other professionals: architects, chartered accountants, lawyers, etc) are grouped together in an association in an authoritarian way. This association exercises prerogatives of public authority, since the (elected) board of the association has the power to regulate the profession and take disciplinary measures against its members.

13. The three highest jurisdictions in France are the Cour de cussation (the Supreme Court of Appeal -judicial jurisdiction), the Conseil d'Etat (administrative jurisdiction) and of course the Conseil Constitutionnel.

14. Of course, it is still a question of dogmatic analysis, since this notion includes by definition any structural analysis of the legal standard. Yet it is dogmatic analysis in the mild sense of the term (see below, 1 (b)(i)). Conversely, we are outside the field of dogmatic analysis when an author, whichever country he comes from, writes on law with an external perspective to it, for example sociological, economic or anthropological (see below, 1 (b)(i)).

15. This unauthorised movement is a short-lived group of those who attempt to organise a generally spontaneous demonstration after an event and to co-ordinate those making it up.

16. Or at least believe that they do!

17. Until 1958, French tradition, following Montesquieu, always referred to three powers: legislative, executive and judicial. Yet in the Constitution dated 4 October 1958, the judicial power gave way to simple judicial authority, somewhat of lesser importance compared with the legislative and executive powers.

18. It must be noted that in France those who decide have no time to devote to doctrine-type work: our Members of Parliament have other issues in mind apart from legal technique, our judges have too many cases to judge and moreover are obliged to devote most of their time to the study of facts etc. Only authors have the opportunity to carry out their unending legal structures.

19. Jean Foyer and Robert Badinter, both professors of private law, were French Minister of Justice in the 1960s (under the Presidency of General De Gaulle) and in the 1980s (under the Presidency of François Mitterand) respectively.

20. At the instigation of J Foyer, then French Minister of Justice, J Carbonnier was entrusted with the drafting of the text of various bills which were to become important Acts in family law (among which is the law of 13 July 1965, reforming marriage settlements, and the law of 3 January 1972 on filiation).

21. Now a collection of essays: Carbonnier, J. Essais sur les lois (Paris: Defrénois, 2 edn, 1995)Google Scholar.

22. Given in the field of guarantee, the Ernaut judgment (Cass com, 29 June 1982 (DS 1983. 360, n Ch Mouly) was inspired without express mention from a distinction put forward by ProfessorMouly, Christian in his thesis (Les causes d'extinction du cautionnement (Paris: Litec, 1979) spéc no 352)Google Scholar.

23. In his work on judicial decisions (La Jurisprudence (Paris: Dalloz, 1991) Professor Zenati constantly distinguishes between the law of authority and authoritarian law. The former is devoid of a compulsory aspect, but is seen to be applied as one might expect especially when the authors' demonstrations convinced the judge (hence the idea that doctrine is authority). Conversely, authoritarian law is imposed by the authorities. Yet we must admit that these opposite meanings, contained in the same stem, are not obvious to understand for non-specialists. The latter completely lose track when it is explained that the authoritative argument (which is quite different from the reasoned argument) stems from the purest authoritarian law.

24. New on the legal scene, the independent administrative authorities (the Commission des clauses abusives, dealing with unfair clauses, or the Conseil de la concurrence, dealing with competition) appear as being subdivisions of Administration, but which are not placed under the authority of the government. The question of their legal nature has aroused abundant comments in the literature.

25. Cf the judgment ‘Libertés universitaires’, dated 20 January 1984, given by the Conseil Constitutionnel (DS 1984, 593, n F Luchaire).

26. Of all the French daily newspapers, Le Monde is the one read by intellectuals and those occupying leadership positions in various fields. Both gladly publish specialized articles or ‘free opinions’.

27. It has become a ritual to note the following: ‘The University intends to give neither approval nor disapproval of the contents of theses. The opinions given must be considered as purely the author's.’.

28. This distancing is also shown by his signature. According to the case, the judge signs his name, merely puts his initials, or even puts initials which do not correspond to those of his name, thus the equivalent of a pseudonym. However, the latter (extreme) case merely confirms the absence of real difficulty in the most widespread case.

29. In spite of the modest title, the famous Leçns de droit civil is a treatise in four parts and nine volumes by ProfessorsHenri, and Mazeaud, Léon and Mazeaud, Jean, a member of the Cour de Cassation (Paris: Montchrétien, first editions published in the 1960's)Google Scholar.

30. Les grands arrêts de la jurisprudence administrative is a famous work, the 11 th edition of which is dated 1996, written by M Long, P Wed, G Braibant, P Devolvé and B Genevois – ie three members of the Conseil d'Etat and two professors (Weil and Devolvé).

31. In spite of the name, the Government Commissioner is not subject to the executive power and formulates his findings completely independently (to the Conseil d'Etat). However, the judges who give rulings in judicial jurisdictions (public prosecutors, advocates-general) are placed under the authority of the Department of Justice.

32. Often published in the same ruling, the findings and the case note must not be confused. The findings (or the report itself) are based on a function exercised before a jurisdiction, while the case note comes from any person wishing to make a learned commentary.

33. This maxim applies to public prosecutors and advocates-general who must obey instructions from the Department of Justice in their written findings, but may express orally a personal opinion which is different at the hearing.

34. Generally feared by taxpayers, the tax administration ‘doctrine’ is actually an official interpretation of the law adopted by this administration. In no way is it to be confused thus with an independent doctrinal comment (which is often more favourable to the taxpayer!).

35. Invented by the writer and caricaturist Henri Mounier (1799–1877), M Prudhomme is an emphatic and narrow-minded bourgeois character. The sword he mentions in the well-known saying quoted here, if we are not mistaken, is that of the Garde Nationale (an armed civilian unit which no longer exists).

36. See, in that sense, Savaux, E. La théorie du contrat, mythe ou réalité? (pref J-L Aubert (Paris: LGDJ, 1997)Google Scholar. This author has shown that ‘the general theory of contracts’ of which the civil law specialists speak as if it lay at the basis of the Code civil only constitutes a pure doctrinal construction, which represents positive law less than it transfigures it. The same step could be taken in many other fields. This is perhaps why, having become aware of this phenomenon earlier than ourselves, American authors show such reluctance with regard to systems and the dogmatic method in the widest sense of the term. At times, moreover, practitioners regret this (see the striking article by Edwards, H T, ‘The Growing Disjunction between Legal Education and the Legal Profession’, (1992) 91 Michigan LR 34 Google Scholar).

37. See eg Simpson, A W B, ‘The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature’ (1981) 48 Univ Chicago LR 632. esp at 676–679 CrossRefGoogle Scholar; Honvitz, M J ‘Special Sources of American Legal History, Part III - Treatise Literature’ (1976) 69 Law Library Journal 460ff.Google Scholar

38. This conception of the legal literature probably results from the influence of the realist school which since the thirties has considered that the lifeblood of law is not logic but experience and which goes as far as defining law as the simple forecast of the judge's ruling.

39. The French garden is meticulously constructed according to a geometric model (eg Versailles), whereas the English one (eg Blenheim), on the contrary, respects - or imitates - nature.

40. The Centre National de la Recherche Scientifique is a public establishment which recruits many researchers, giving them civil servant status, consequently the right to carry out their research without any constraints.

41. This expression means that the lawyer helps in solving legal disputes, while not being an employee of justice (unlike the judge). In fact, he remains independent, contrary to what we could infer from the modest term ‘assistant’.

42. Of German origin, Henri Motulsky became a French professor who remained famous for his thesis (Principes d'une réalisation méthodique du droit privé, préf P Roubier (Sirey, 1948) and for the intellectual influence he exerted on the Code deprocédure civile (rescinded in 1970).

43. Instituted in 1855, the national competitive examination called the Agrégation, which takes place every two years in Paris, constitutes the main and most prestigious manner for the state of recruiting university professors in the legal disciplines.

44. The unity of time (the play takes place over 24 hours), of place and action: this rule of the three unities governed classical tragedy (Corneille, Racine), before disappearing just as mysteriously as it had appeared. In the same way, the rules for the Agrégation competition have been in force for almost a century both for candidates and examining boards, without positive identification of their authors being possible.

45. In many countries, law professors are not recruited by competitive examination and consequently the Agrégation has no equivalent. This does not necessarily prevent (for example in Belgium) the development of a doctrinal entity, as the latter remains basically linked to the existence of dogmatic analysis in the strongest sense of the term. Yet where no Agrégation competition or strong dogmatic analysis exists, we may note that authors have a much more splintered and diversified view of law (the USA) and this is probably not a chance finding. Perhaps they are also more creative; as for ourselves, we waste a great deal of time and energy bringing innovations into line.

46. The reference to robed bourgoisie is a simple pun, making allusion to university professors' robes and also to the nobility of France of the ancien Régime: indeed, until the eighteenth century, the robed nobility (that is the judges) were opposed to the old nobility, those who were armed with a sword.

47. The theory of patrimony is a theory of doctrinal origin (stemming from two nineteenthcentury authors, Aubry and Rau) which explains a part of positive law and which, for this reason, is considered as a pillar of the French legal system. Yet it is contradicted by other elements of positive law (cleverly presented as exceptions to the theory). Thus, certain authors denounce the artificial character of this presentation and the theory itself.

48. According to Bergel, J L, ‘There is no one doctrine, but law authors, whose freedom favours diversity of thought’ (Théorie générale du droit (Paris: Dalloz, 2 edn, 1989) no 59)Google Scholar; and according to Malaurie, P., ‘Doctrine does not constitute a body of organized thought, whose trends and feelings could be coherently outlined. It depends on the authors’ (Travaux de l'Associarion Henri Capitant, t XXXI, 1980, p 83 Google Scholar). We totally disagree with these opinions: the condition for existence of a body is not that all its members speak with the same voice - in that case there would never be any bodies existing in France, a country of individualists! A body is characterised by the acceptance of common values, a tradition, a spirit, etc and not by a touching community of opinion on all subjects. No one would dream of disputing the quality of the ‘body’ of the Académie françiLaise, although all types of opinions may be found there.

49. La capacité en droit is a democratically inspired, short academic cycle aimed at introducing students who have not obtained the French High School leaving certificate (baccalauréat) to law. The text books corresponding to this syllabus are thus for educational purposes, and therefore less learned than other text books.

50. The Henri-Capitant association draws together persons from within French legal culture and was created in the 1930s. It is an international association which organizes annual congresses and publishes the proceedings (the Travaux Cupitant mentioned in a previous note). The association also edits the Vocubulaire Capitant (likewise mentioned in a previous note).

51. We know that in English clubs, votes to admit a new member take place using white balls representing agreement and black balls representing disagreement; a single black ball of disagreement is sufficient to eliminate the candidate. It is less well known that, in the last century, examining boards in French university law departments used a similar system.

52. This rough outline of tripartite distinction must be taken for what it is, that is to say a simple approximation with only a relative scientific value. Between the three categories, the borders are uncertain and not at all impassable.

53. The synecdoche is a figure of style consisting of designating the whole by one of its parts (for instance: ‘ten guns’ for ‘ten armed men with guns’ or, in French, ‘la corbeille’ given in a previous note for the whole of the Stock Exchange).

54. A mémmento is a brief work, which, in summarising a subject, helps the student to remember it, but which clearly has no intellectual ambition.

55. The notion of order used by Romano, Santi, Ordinamento giuridico (Florence: Sansoni, 2 edn, 1946)Google Scholar as that of an institution used by the Frenchman Hauriou, in substance designates a social organisation producing law.

56. Do we need to recall here the decisive works of the CERCRID (Centre d’études et de recherches critiques sur le droit) and of the St Etienne school, embodied by A Jeammaud, E Serverin and C Beroujon?