February 15, 2011
The following story by Emily Newburger, "The Shape of The World To Come," appeared in the Winter 2011 Issue of the Harvard Law Bulletin.
In 1981, a young Frenchman attended Harvard Law School’s graduate program. Like many alumni, after he received his LL.M. degree, he worked for a firm in the States. When he went back to France, Laurent Cohen-Tanugi LL.M. ’82 became an associate at the Paris office of the firm, but he also published an elegant comparative analysis of the French and American legal and democratic traditions. The book, “Le droit sans l’État” (“Law without the State”), which was called “Tocquevillian,” influenced the transformation of the French idea of democracy and the legal profession, and it launched the 27-year-old’s career in France as a writer and intellectual.
Cohen-Tanugi has since written other books that articulate the tensions facing France and Europe at different stages in their political and economic development, as well as the relationship between Europe and the U.S. in the globalized world. He also served as an adviser to the French government on issues related to the future of the European Union.
At the same time, Cohen-Tanugi is an international M&A and arbitration lawyer who has been involved in some of the major trans-Atlantic mergers of the last 25 years—as a partner at Cleary Gottlieb Steen & Hamilton, then Skadden, Arps, and as general counsel of a French pharmaceutical company. (In 2009, he taught a class at HLS on those deals and he is offering it this spring at France’s leading business school.) He now runs an independent practice in what he calls the traditional “trusted adviser” model.
HLS Professor Lucian Bebchuk LL.M. ’80 S.J.D. ’84 says of Cohen-Tanugi, whom he first met when they were both students at HLS: “He offers the rare and fascinating combination of a sophisticated corporate lawyer and a broad-ranging and prolific public intellectual. His intellectual body of work is a reflection of his passion for ideas, creativity and gift for writing.”
A graduate of the prestigious École Normale Supérieure and the Institut d’Études Politiques, Cohen-Tanugi decided to take a detour on the path to French civil service and applied to study law in the United States. He saw it as a compromise between “intellectual activity and real life.”
He was accepted to Harvard Law but hesitated. What sealed the deal, he says, were a few words from writer and international lawyer Samuel Pisar LL.M. ’55 S.J.D. ’59, a survivor of Auschwitz, who had written a highly acclaimed book about the experience and was practicing in Paris.
“When I finally got him on the phone,” recalls Cohen-Tanugi, “I explained my choice: Should I become a high-ranking civil servant or go to Harvard Law School? Without any hesitation, Pisar replied, ‘Go to Harvard Law School,’ and hung up the phone.”
“So I did, and it changed my life,” says Cohen-Tanugi. “I discovered what law meant in the United States—I mean, how different the role of law and lawyers in society, in politics, in the economy were between the United States and France at the time.” His first book stemmed from that realization and was directly inspired by his Harvard experience. Cohen-Tanugi says people in France still want to talk to him about this book. He laughs, “I’ve since written eight more, but this is the one they come back to most often.”
Many in France had very negative views of the American legal system, Cohen-Tanugi says. He concedes that in some respects, they were justified. But in the book he argued that law and lawyers and legal regulation were central to American democracy. “In the ’80s, France was trying to reduce the role of the state, in the economy and in society,” he says. “It was the Reagan era and there was a lot of talk about the market as the solution.” Cohen-Tanugi argued that you can’t have the market alone; you also need the rule of law because you need to regulate the market. He made the case that the way to reduce the role of the state in France was to encourage the rise of law and lawyers. “It was a message that was really new at the time,” he says, “and it’s the direction French democracy, and the legal profession, have followed over the past 20 years.”
Through his focus on France, Cohen-Tanugi began to write about Europe—first “as an interesting political science animal, something that was actually an embodiment of the ‘law without the state,’ the title of my first book,” he explains, “because it was really a legal system without being a state.”
He wrote an essay (translated into English as “Europe in Danger”) on the political issues that he anticipated would arise as Europe moved toward unification. Two months after it came out in 1992, French President François Mitterrand submitted the Maastricht Treaty—which created the European Union and would lead to the birth of the euro—to a referendum. This was a first, says Cohen-Tanugi. There had never been a referendum on a European treaty. “That prompted a huge national debate, a huge partisan campaign and the coming out of the anti-Europeans,” he says.
Jacques Salès LL.M. ’67, a Paris-based attorney, founder of Salès Vincent & Associés and former head of the Harvard Law School Association, has known Cohen-Tanugi for years. He remembers his visibility and eloquence on the issue of the referendum, at a time when French public opinion was highly divided. “There were many opponents,” Salès says, from many factions. “We did not know how it would go.”
“I found myself engaged in the campaign in favor of the treaty, taking a very pro-Europe stance,” recalls Cohen-Tanugi. “I met Jacques Delors [then president of the European Commission] and became part of the movement.
“From being an analyst of Europe as a political science concept, I became a European militant, if you will,” he says. “And I’ve remained that since then.”
For Cohen-Tanugi, that has meant a hard, clear-eyed look at the institution that he champions. In books, articles, and regular columns for French and international newspapers, he has addressed the challenges facing Europe since the signing of the Maastricht Treaty, as the EU has grown from 19 to 27 states “without institutional reform, a sufficient financial commitment, or popular consultation or support.”
In 2007, he wrote a book putting his concerns about Europe in the bigger context of the global geopolitics of the 21st century. “Guerre ou paix,” titled in English “The Shape of the World to Come,” looks at how the rise of economic powerhouses such as China and India, the diminishing influence of Europe and the U.S., and the transformation represented by the attacks of 9/11, have created a new geopolitical reality with new power dynamics. He says it’s not a question of “the West against the rest.” But he believes that there is an important role for Europe and the U.S., and that their ability to rise to the challenge is not a given. “For all their democratic shortcomings, China’s and even Russia’s ruling classes have demonstrated strategic vision and the leadership skills to bring about change and use globalization to restore national power,” he writes. “The long-run superiority of democratic government over authoritarian regimes to produce stable … societies does not eliminate the need for political vision and courage.”
In 2008, he approached some of the same issues from a different angle. In anticipation of the French presidency of the EU, Christine Lagarde, the French minister of finance, asked Cohen-Tanugi to lead a task force assessing the Lisbon Strategy—an economic growth and employment strategy for Europe launched in 2000, which called for structural reforms across countries to compete with the U.S. in terms of productivity and innovation.
For almost a year, Cohen-Tanugi traveled through Europe holding interviews and staging debates. In the end, he says, the report his task force issued called for something more ambitious than was outlined in the original plan. “Beyond Lisbon: A European Strategy for Globalisation,” the report and a related book, came out just as the financial crisis broke. But Cohen-Tanugi says the central theme is more relevant than ever. “Europe has to upgrade its ambition and its means to cope with globalization in a meaningful way.”
In late August, when the Bulletin interviewed Cohen-Tanugi, talk of reforms to France’s retirement system had been in the news all summer, and he predicted demonstrations would break out after people got back from their holidays. Sure enough, in the fall, after the French government voted to increase the retirement age from 60 to 62, Parisians took to the streets, and strikes spread across the country. Cohen-Tanugi believes changes to the entitlement system throughout Europe are necessary and inevitable. “There is a moment of social protest in this country,” he says, “but it will happen, because everyone knows that it has to. There is only a debate as to the modalities.”
Another debate that had been raging in France this summer centered around immigration. French President Nicolas Sarkozy’s government issued orders to expel more than 100 Roma. There also had been talk of stripping French citizenship from naturalized citizens if they threatened or took the life of a police officer.
Cohen-Tanugi says when it comes to immigration, France is in a “gloomy” period. “We haven’t been successful at integrating immigrants and making them part of society,” he says. And in the suburbs, in particular, this had led to violence.
“There’s this whole debate right now in France about national identity, immigration and security. It’s been very politicized,” he says, “with extreme right tonalities.”
The situation is all the more challenging, he adds, because “Europe needs immigration. We have a demographic decline and an aging workforce. We will not be able to remain competitive and have the workforce we need without immigration.”
Much of Cohen-Tanugi’s writing focuses on, or at least engages with, the issue of trans-Atlantic relations (their recent low point was the topic of “An Alliance at Risk: The United States and Europe since September 11”).
“French and Americans have a very ambivalent relationship of love and hate,” he says, “or at least admiration and irritation, that is very strong, certainly among the French,” he laughs. But there are lots of commonalities, he adds. “The two countries were at the heart of the revolution of modern democracy. It’s really two democratic traditions in competition.”
In foreign policy, he says, “the Gaullist tradition in France, which has influenced Europe, was really just to assert French independence against the U.S.” On the European level, it’s less confrontational. “But essentially one of the elements of trying to build a European identity is to distinguish from the U.S. in terms of values.” He adds that there are certainly important differences between U.S. and European society in terms of the role of the state and the existence of the social safety net, for example. “But there’s been a temptation to raise the profile of these differences here without really knowing the United States very well. It can be overblown and create unnecessary conflict. That happened during the Iraq war,” he says. “The difference in values was really exaggerated when you compare it to the common interests, the huge weight of the trans-Atlantic economy.”
“I am seen as an Atlanticist—that’s true,” he says, “but I happen to also be a proponent of European integration. I see no contradiction in wanting a strong Europe that is allied to the United States.”
In 1983, Cohen-Tanugi married American Jodie Einbinder ’82, whom he met in antitrust class. She now works in the French Ministry of Economy and Finance and for many years was a partner and corporate lawyer at Salès Vincent & Associés in Paris. They have two sons who are attending college and graduate school in the States.
But Laurent Cohen-Tanugi says his inclination to see himself as part of something bigger than France goes beyond his connections to the U.S. Born in Tunis, he is from a Jewish family that had lived in Tunisia, at least on his father’s side, since the 17th century, after the Inquisition drove his ancestors out of Spain.
He thinks his background influenced him in wanting to have a more international career, outside of just one state, just one national framework. That goes back to “the environment I grew up in,” he says, “the cosmopolitan atmosphere of Tunis,” the Mediterranean mix of cultures and religions, and “the values that my parents instilled.”
From early on, after hearing the stories told by his parents and grandparents, Cohen-Tanugi formed very positive images of Americans as liberators. He also grew up with the idea of Europe as a product of World War II—an answer to the era’s atrocities and a way to end the continent’s entrenched rivalries.
Many of these influences may have been unconscious. “But to me, Europe is about transcending nationalism,” says Cohen-Tanugi. “I think without the European project, it would feel really provincial to live in France or in most of the other member countries, if we didn’t have the European dimension to really have a say in the global world. And that’s what I’m advocating for, that we haven’t gone far enough.”
— Emily Newburger