Marginalization and Myth: The Corporatist Roots of France's Forgotten Elective Judiciary
When American lawyers think of the French judiciary they imagine a system radically different from their own - a system, in short, of bureaucratized justice. Indeed, the French system is widely viewed as typifying the European judicial model - made perhaps most famous through John Langbein’s much cited article on The German Advantage in Civil Procedure. But while this bureaucratized model of the French judiciary is, insofar as it extends, accurate, it is also woefully incomplete and thus misleading. To depict the French judicial system in these terms is to ignore a vital component of the system (including especially the commercial and labor courts) that, while very different from the American model, is also premised on an elective judiciary. In this other, ignored component of the French judicial system, judges lack formal judicial (and usually legal) training of any kind and are elected mid-career to serve temporary terms of office. Those thus elected to office belong to the particular professional (and social) groups whose disputes they will resolve and which, in turn, are responsible for electing them. As a result, such judges are expected to have the substantive expertise (and social and political legitimacy) necessary effectively to resolve disputes among group members.
Strikingly, while France’s commercial and labor courts play a fundamentally important role in the contemporary French legal system, they have been marginalized not only within the comparative literature (largely written by American scholars), but also within standard French textbook descriptions of the French judiciary. This article provides the first account of this remarkable erasure of the French elective judiciary from the (transatlantic) scholarly literature and then addresses how this strange set of affairs came to pass. Tracing the roots of France’s elective judiciary to a set of Old Regime institutions described by contemporaries as “extraordinary courts,” the article shows that these courts were originally understood to be a form of administrative or regulatory institution, and thus to serve a clear function within the broader judicial framework. But for a variety of interrelated reasons - all stemming from the revolutionary turn against corporatism - nineteenth-century jurists ended up largely ignoring them, resulting in their marginalization within the standard account of the French judiciary. The ongoing inability to acknowledge the corporatist roots of these institutions helps explain the awkward, embattled position that they currently occupy within the French judicial landscape - including, in particular, the repeated calls for their abolition. At the same time, the failure to come to grips with history has contributed to an unfortunate narrowing of self-reflective and critical vision on the part of American comparative legal scholars, even while helping to generate a myth of the French judiciary that has shaped the professional identities of generations of lawyers, judges, and jurists on both sides of the Atlantic.