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Droit et Société selon les juristes : 3 générations, 3 professions, 3 perspectives

Droit et Société selon les juristes : 3 générations, 3 professions, 3 perspectives

Incontestable, juste, indépendante : telle serait la loi selon les juristes, d’après le guide du bon petit sociologue. L’origine et le rôle politique du pouvoir judiciaire, les racines historiques et l’impact social du droit seraient donc ignorés de ceux qui le pratiquent ? Cette affirmation m’a questionnée et j’ai décidé de mener l’enquête auprès de trois praticiens  du droit : un juge de 76 ans, une juriste de 47 ans, un avocat pénaliste de 26 ans.

Mon hypothèse ? La perspective de chaque juriste sur la loi dépend de sa profession et, par extension, de sa formation et donc de sa génération. Plus le juriste est jeune, plus il est susceptible de contextualiser davantage le droit, d’en développer une critique sociale et politique, et de lui astreindre, au-delà de la justice rendue à chaque individu, des objectifs de justice sociale. A l’inverse, un juriste ayant bénéficié d’une formation plus traditionnelle aura davantage tendance à écarter politique et réalités sociales comme étant superflues dans la compréhension et l’application de la loi, celle-ci se suffisant à elle-même. Il y aurait donc un basculement vers plus de prise de conscience du rôle politique et social du droit parmi les nouvelles générations de juristes.

Enquête ci-dessous (en anglais).

  

The Shift

Three jurists’ take on the French legal system, as a function of their profession, training and generation

 

As a student in a Sociology of Law class, I was taught about the ideal type of the jurist’s conception of the law. Said classic jurist would consider the law to be universal, fair and static. He or she would also reckon that the legal field is independent from that of society, and care about the rule rather than about its actual impact. The idea that jurists would have strong repugnance to consider social realities and even more repugnance to take into account exterior sociological works peaked my curiosity. I realized that most current judges and lawyers had probably never had a single sociology course in their whole life, although this subject is to my mind necessary to anyone in the legal field. Does this imply that jurists are insensitive to the social and political roots underpinning law and legal practice? The take actual French jurists have on the legal system they evolve in, as well as their vision of the relationship between law and society, became a question of great interest to me. I decided to research this topic by interviewing three different actors of the legal field, belonging to three different academic trainings and generations. My research hypothesis was indeed that French jurists’ take on the legal system varied according to profession, generation and academic training. The jurists I interviewed were:

  • A male judge aged 76, with a classic legal training
  • A female jurist aged 47, of classic legal training, but having studied the law through other lenses on some occasions.
  • A male lawyer aged 26, trained at Sciences Po

How does a French jurist’s take on the legal system he or she evolves in, vary according to training, profession and generation? I would argue that the oldest and most exclusively legally trained jurists would tend to have a very procedural view of justice, and consider the legal field as autonomous from other social or political realities. The youngest a jurist is however, and the most he or she is trained to disciplines other than law, or to observe law through other lenses of analysis, the most likely he or she is to hold a more substantive view of justice and see the legal profession as a strongly political one.

In other words, I would argue that there is a shift towards substantive and social justice among the young generation of jurists. To make this point, I will first assess the three jurists’ attitudes towards the social and political functions & underpinnings of the French legal system.  Based on these conclusions, I will argue that the evolution of the French education and academic system paves the way for jurists’ attitudes to shift to a substantive and more socially and politically aware view of the justice system.

I. Jurists’ attitudes towards the social and political functions & underpinnings of the French legal system

 

A) The French legal system

 

First of all, I must rapidly present the facts of the French legal system, on which our three subjects have developed diverging opinions. The French democratic ideal of the separation of the powers implies that the judiciary power is to be separate from the executive and legislative powers. Yet the judiciary power in France is dependent on the Ministry of Justice which is part of the Government, namely of the executive power. It is even one of the three “ministères régaliens” of the French State. The financing of the French justice system therefore depends on the executive power. The budget of the Ministry of Justice –  on which the functioning of the whole legal system depends – is extremely small in comparison with its sovereign function. In 2015, the Justice’s budget was of 7, 94 billion euros[1], only 0, 94 billion euro more than the budget of the Ministry of Culture. [2] As for the global framework of the French legal system, France being a civil law country, its legislative system aims at drafting “a set of rules to organize society” rather than at “protecting the citizens against the state[3], as is the original goal of the common law system. Regarding how the law is made, the Parliament edicts it, and the Cour de Cassation- the highest instance- has the power to dictate the way in which a provision of law should be interpreted. Its name, “Cour de Cassation”, refers to its power to break any former judgement. It is the highest court in France with respect to jurisprudence and the only court whose jurisprudence it is mandatory to respect. We shall observe below the civil law framework of the French legal system, the dependence of the judiciary power on the executive one, and the very limited role of the French Ministry of Justice play in the jurists’ take on the legal system as a whole.

B) The Judge’s take

 

            The Judge interviewed is 76 years old and was originally trained as a lawyer. He chose law because, in his own words, he “had the choice between going into business, science or law. I hated the two first, so I went for the law”. Given his social class and the structure of business opportunities at the time- namely, almost exclusively family relations- he indeed had no other choice. An impressive amount of his cousins, aunts, uncles, grand-uncles and grand-aunts were in the legal field, the other part practicing in the medical field. A few were into “business”. While trained as a lawyer, the judge quickly turned to the profession of judge, through a specific application process for lawyers wishing to become judges. When I asked him why he had not chosen to be a magistrate right away, he answered that he had had an opportunity in his cousin’s practice- which did not work out. This simple anecdote reflects how one’s range of choices was essentially determined by family connections only 50 years ago. If connections obviously still play a great role in one’s career opportunities, the use of the internet, the greater awareness students have of their possible career paths makes it so that this judge, in 2016, in the same social class, would probably have been able to choose a career other than law, or would have been able to train as a judge directly. The importance of availability and awareness of diverse academic trainings and job opportunities will prove crucial when undertaking the study of jurists’ take on the legal field.

            Let me now add that the judge never studied law through any other lenses than pure law. His favourite field of law was public law, which was also his specialisation for 3 years at university. He however never practised it, except for one or two cases of public works. At the beginning of his career, the only litigations happening in the field of public law were to do with fiscal law and public works, and were rare in his jurisdiction. As for the judge’s decision to quit the profession of lawyer for that of advocate, he justified it by saying that “As a lawyer, what struck me first in a case was not the defence of my client, but the judicial solution of the disagreement”. Becoming a magistrate therefore seemed the right thing to do, and proved to be a good decision, for the judge has delayed the time of his retirement and is still in exercise. Most of his career took place in TIG (Tribunaux d’Instance), where litigations are comprised between 4 000 and 10 000 euros and rule on civil law.

            The judge disliked criminal law as a lawyer and never practised it as a magistrate. He explained his dislike by the fact that criminals almost systematically reiterated their behavior, giving him the impression that even by being their lawyer or giving them advice, it never proved useful. He holds the view that the three qualities necessary to a good judge are 1) liking people, 2) being able to take distance, 3) having solid legal knowledge.  It is to be noted that “liking people” was the first criterion offered by the judge, and that he repeatedly stated that his dislike for criminal law stemmed from the fact that he did not feel enough empathy for the persons guilty of crimes. Finally, the judge had never studied sociology and had a poor opinion of it: “To my knowledge, sociology has never achieved any change”.

C) The Jurist’s take

 

The jurist interviewed is aged 47. She has specialised in private law at university and wanted to become a judge, but given that her husband is a military and has to change positions every three years, she chose to follow him rather than to settle in a given tribunal. She maintains that this was the best decision available to her, yet recalls that “This is the feminine condition”, which allows us to think that she is likely to possibly have a more sociology-friendly approach than the judge. She has never actually studied sociology or sociology of law, but has followed courses of “Philosophy of law” and considers herself more of a naturalist.

The jurist has worked for more than twenty years in the same law practice held by two lawyers. She wrote the written argumentation which constituted the basis of the lawyer’s pleas. She wanted to become a judge because the idea of rendering justice appealed to her. She likes civil law, for it is “close to the people”. In her view, a legal system’s goal is to “give one what one is owed” and to prevent the recourse to private revenge. The law also has to enforce what is fair over the “justice of the strongest”. It can, and should, repair inequalities.  Its goal is therefore also to make society fairer.

The jurist criticizes the French law for creating and piling up too many laws, among which some are contradictory and not abrogated, while others might not be necessary. The law changes so fast that jurists, judges and lawyers themselves have a hard time keeping track, while law students’ books are out of date and full of mistakessomething which which, whilst she was studying. Now that she studies law again in order to become a court clerk, she is appalled by the number of mistakes in her books. She reckons there is over-legislation in France. Indeed, given the fact that the French law is so strictly codified, depending on constantly- changing laws, is a paradox for the legal professionals.

The jurist believes that we are all equal in front of the law in France, and that changes in the law can amend existing inequalities, such as contractual inequalities. She also thinks that jurisdictional aid and other provisions of the French legal system to make justice accessible to all social classes are sufficient to impair any fundamental inequality in front of the law. However she also believes that studying history of law, philosophy of law and sociology of law should be mandatory for first year law students, in order to allow them to have more distance with the law, and to know the role the field they are about to enter plays in society.

D) The Lawyer’s take

 

The lawyer interviewed is 26 and has sworn the lawyer’s oath at the Paris Bar in September 2015. He was trained at Sciences Po Le Havre, which he entered through the Convention d’Education Prioritaire procedure, before studying in Sciences Po’s “Carrières Juridiques” master. He holds firmly the view that a lawyer has a political role. This lawyer was interested in politics at first and wanted to go to ENA, but was disturbed by the lack of awareness of Enarques as far as social and practical realities were concerned. He therefore decided to become a lawyer, having in mind the lawyers of the Third French Republic, among which many were also deputies in Parliament and drafters of the law. The lawyer deems his role necessary to any functioning democracy. He also holds the view that the lawyer’s plea can also be a political and social plea, a call on society to listen to the concerns of those who are not in a position of power in society. Our lawyer is therefore a political lawyer, very aware of social realities and determined to make them heard, especially in the field of criminal law in which he is specifically interested.

He observes that all fields of life are increasingly “judiciarized”, which can explain the “over-legislation” problem observed by the jurist. He also denounces a slight, progressive but continuous overtake of the judiciary power by the executive one, since President Sarkozy’s mandate. This shift can be observed through the allocation of greater powers in the hands of the prosecutors, or of the judicial police officers. He calls this “a shift from the independence of the judicial power to the hierarchy of the public ministry”.

II. French Jurists- the Shift: from procedural to substantive justice

A) Three different approaches

 

Among the three subjects interviewed, three distinct approaches of the law can be observed. The perception of the judge is characterized by a very procedural approach to justice, epitomized in his take on the issue of the prisons. The judge holds that dangerous criminals and delinquents who commit repeated offences cannot be left out in society and should be in prison. The role of a punishment is, in his opinion, to both persuade people out of criminal offences, and to reinsert criminals and delinquents in society. The judge observes that the dissuasive power of the prison does not work anymore, for delinquents think of it as a necessary step in their delinquency routine, less costly than disobeying the orders of their superiors in a drug dealing group for example. The reinsertion function is not more efficient because the “Juges d’application des peines” responsible for looking after the convicted have too many cases at their charge and are unable to monitor them properly. Moreover the prison itself is criminogenic, as admitted the judge. Yet the judge’s view remains that if a criminal deserves to be in prison, for his sake and that of society, then the reality of the prison does not change anything to the fact that this person has to be jailed. This view of justice focuses on legal processes rather than on the end result of the judicial decision, which is why we call it procedural.

The lawyer’s view of justice was on the contrary significantly substantive, which can partly be explained by his background in political and social sciences. We must add on to this that having studied in a Zone d’Education Prioritaire, and then at Sciences Po, the lawyer must have developed a sense of the weight of society on individual’s decisions, than the judge, who grew up and remained in the same social class,.  As a consequence, the lawyer aims at making heard the claims of those jailed in criminality by their social environment, while the judge sees criminality as a fact that should be suppressed, without paying much attention to its roots.

B) The role of academic training

 

The jurist’s take on the legal system was a half way between these two opposite views. While acknowledging the need for the study of law to be associated with sociological, philosophical and historical approaches of the law in order for the law student to be acquainted with the impact of his future profession on society, she did give the same importance to the political aspect of the law as the lawyer did. Age seems to play as the determinant for “political consciousness of the law” here, yet we would argue that education and academic training are the determinant factors. The most heterogenic his or her training is, the more aware of the social realities that impact and depend on the law the legal student or professional is likely to be. The sociology and economic sciences in the Economic and Social Section, in highschool, are generally chosen by those who are willing to study law. Two years training in sociology do make an impact on people and are likely to change the next generation of jurists. As a student willing to become a lawyer, I must say that these two years did make an impression on me and my classmates, making us already defiant and careful of any institution, whether the state or the court, before even moving on to study them specifically.

To put it in a nutshell, I believe that while a classic, procedural view of justice exists among jurists, a more substantive view of justice, more comprehensive of other social facts, is visibly emerging with the youngest generation. The implementation of sociology in the ES training, something that the 47 jurist did not enjoy for instance, is likely have an impact on future students and lawyers. While this panel is obviously too small to allow me to make a claim on the French jurists as a whole, it gives me a firm insight that education and generation are likely to provoke a shift in jurist’s practice and theory of the law, towards a more comprehensive and substantive understanding of the field of law.

Isaure Simonin

BIBLIOGRAPHY

[1] Les chiffres clés de la Justice

[2] « La culture reste une priorité ». CultureCommunication.gouv.fr. 01/10/2014.Web. 20/04/2016.

[3] Session 1

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