July 14, 2011
The American and French legal systems share a common origin, each arising from 18th-century movements aspiring to create democratic government. But both nations have taken largely different approaches to the development of their legal systems.
On June 13, a panel of American and French legal scholars gathered at Harvard Law School for a conference, "Franco-American Legal Influence, Then and Now," to examine the similarities and dissimilarities between French and American legal institutions and jurisprudence. The conference stemmed from a new partnership between HLS and Sciences Po Law School in Paris, one of the conference sponsors. Other sponsors were HLS’s Institute for Global Law & Policy, along with the Harvard Program on International Legal Studies, the Mahindra Humanities Center at Harvard, and the HLS Program on Law and Social Thought.
|HLS Professor Mark Tushnet|
Participants included HLS Professors Janet Halley, Duncan Kennedy and Jeannie Suk ’02, who also served as moderators of the program. The day's five panels focused on various movements and developments in both countries over the last 100 years, starting with the Pre-World War I French Juristes inquiets (“worried jurists”) movement and its fears of socialism and emphasis on legal classicism to preserve social equilibrium.
Stanford Law School Professor Amalia D. Kessler said that in the U.S. the pressures brought by industrialization and urbanization in the early 20th century gave rise to a new kind of law and a new manner of critical thinking about the law. Older bodies of law focused on the individual, but the rise of financial markets, class warfare and social unrest demanded new legal responses.
|HLS Professor Duncan Kennedy|
"Judges on both sides of the Atlantic stepped into the breach and remade the law in accordance with the new social reality—and all this gave the lie to the myth that law was some kind of self-contained sphere that operates as a science removed from social facts," Kessler said.
Christophe Jamin, dean of the Sciences Po Law School, pointed to similar pressures and responses in France, but said that by 1936 the advocates of legal realism had changed their minds "because they thought things were going too far" in creating new rights for some classes of people and thus creating more social tension.
The concept of "legal realism"—the idea that law is made by humans and therefore subject to human imperfection—has emerged and re-emerged in both nations over time in different forms and was a common theme throughout the conference.
Nathaniel A. Berman ’85, a professor at Brown University’s Watson Institute for International Studies, described his own involvement in the nascent Critical Legal Studies movement in the early 1980s. At the time, he said, CLS was divided into the Marxist-leaning rationalists and the irrationalists, who were more interested in "post-'60s experiences of ecstatic, radical breakthrough performances."
The apex of the CLS movement may have been the election of Bill Clinton to the U.S. presidency in 1992, according to Berman. "All our tools were directed at a critique of left-liberal, center-left policies and legal approaches,” he said. “The Clinton years were when CLS exploded because we were trying to figure out the neo-colonialist, neo-imperialist underpinnings of what looked like progressive Democratic Party policies and legal strategies in the world."
Columbia Law School Professor Kendall Thomas said that one outcome of this sort of critical thinking has been the development of "critical race theory" that has had an impact in France. The issue of "race law" has taken on an urgency in France since the 2005 riots that prompted "energetic discourse in French legal circles over the relevance of U.S.-style affirmative action laws and policies."
In this milieu, he said, critical race theory—and with it, an emergence of color consciousness—has taken hold in France.
"Critical race theory emphasizes the centrality of the lived, socially grounded experience of people of color in their relationship to the law,” Thomas said. “It doesn't presume to understand the law of race solely through the internal perspective. It's very much a strand of realism."
However, in broader terms, legal realism in France today "has very little in common with any of the movements correlated with realism in French civil law in the first half of the 20th century," said University of Paris law professor Michele Troper.
And unlike in the U.S., legal realism in France, he said, is seen as completely non-normative and solely useful as sociology, but not for legal scholars.
Vincent Forray, law professor at the University of Savoy, concurred.
"We can say there is critical legal theory in France, but it suffers from being a thought,” Forray said. “It suffers from thinking of itself as a thought.
"It is as if critical legal theory in France has to develop outside reality,” he continued. “I have the impression that its own project is failing. The problem is that critical legal theory is thinking, not doing. However, we all know that juristes have this extraordinary responsibility to change the world using their concepts because trials change the world."