PRESENTING THE research programme for this workshop on legal scholarship, Mark Van Hoecke proposes that ‘in order to develop a suitable methodology of comparative law one needs a better view on the methodology of legal scholarship within domestic legal systems’. However, like Geoffrey Samuel,1 I am not entirely convinced that this is so, at least insofar as it might suggest that any methodology in the field of comparative legal research is in some way the mirror image of its domestic counterparts. On the other hand, it is certainly true that understanding the role assigned to legal scholarship within any given legal tradition may provide considerable insights into the way in which that tradition portrays itself for the benefit of its own actors or beyond, how it functions and evolves, or how it balances the various political forces which play out in the arena of legal power. Students of comparative law are familiar, for instance, with the traditional distrust shown by English courts towards the learned writings of living authors and, at least until recently, the correlatively undeveloped state of speculative academic scholarship, as opposed to the remarkable influence of doctrinal writings on the courts in civilian legal systems.2 They are told that this difference bears a direct relationship to the composition and hierarchy of the sources of law – or, what is presented, significantly, in the civilian legal vocabulary as a ‘theory of sources’ – within these different traditions, in which the courts are respectively all-powerful or reduced to the Napoleonic status of automat, and therefore either majestically oblivious to academic guidance or on the contrary subjected to scholarly interpretation of their own case law.
While this received comparative wisdom certainly corresponds to the official judicial and academic ‘self-portraits’ which have formed the legal mentality in each of these traditions,3 Mark Van Hoecke’s invitation to explore the relationship between domestic legal scholarship and comparative law provides an interesting opportunity to further the exploration of the foundational discourse which, within the civilian tradition, and particularly in France, personifies academic legal scholarship as ‘la Doctrine’, made flesh through the scholarly community of jurisconsults.4 At least in its current representation as an ‘entity’,5 ‘la Doctrine’ may indeed be an idiosyncratic feature of the French legal heritage. Although it is clearly akin to the German Professorenrecht, it has come to mean both the droit savant and the société savante which produces it. As the latter, it is represented as exerting influence over the judiciary, whose decisions, increasingly ‘massified’,6 it rationalises and orders;7 by the same token, it holds the keys to the way in which legal knowledge is framed and transmitted within the French legal tradition. From an external perspective, Mitch Lasser’s ‘Judicial self-portraits’ has already suggested that ‘la Doctrine’ developed essentially as a discursive device secreted within a tradition geared to the muzzling of the judiciary.8 Attempting to respond, therefore, to Mark Van Hoecke’s working proposal, this chapter explores the epistemological function played out in the French legal tradition by ‘la Doctrine’, and attempts to situate ‘la Doctrine’ within a cultural matrix made of forms of legal knowledge and methods of reasoning. This in turn may be helpful to grasp the profound changes which are currently taking place.
II. THE CURRENT DEBATES OVER THE EXISTENCE AND FUTURE OF ‘LA DOCTRINE’ AND WHY THEY ARE SIGNIFICANT
This exploration draws upon Philippe Jestaz’s and Christophe Jamin’s excellent critical, historical account of the rise of ‘la Doctrine’ as an ‘entity’, which progressively acquired control during the nineteenth century over access to legal knowledge. Their book sparked considerable controversy, generating angry critique from within la Doctrine’s own ranks from those members of the academic sub-community who style themselves as free-thinkers and thus not in any way part of an ‘entity’.9 Of course, this very reaction encourages further research on the epistemological function of this community, or at least of its controversial representation, within the legal system as a whole. In its least controversial acception, the idea of an entity refers to the community (or rather, the professional sub-community) of jurisconsults (les savants juristes), described in Christian Atias’ leading classic on ‘Epistémologie juridique’10 as sharing distinctive methods of legal reasoning (savoir-faire), modes of recruitment (the concours d’agrégation) and legal knowledge (le savoir juridique).11 Atias emphasises, however, that the community is epistemological, not ideological, insofar as it shares forms of legal knowledge while remaining potentially divided over substantive solutions or policies. It may well be that the sensitive point is that, as an entity, ‘la Doctrine’ is to a large extent anonymous,12 in the sense that it is as it were the collective regulator of a national corpus of legal knowledge, to which each member, even if named, remains to a large extent the servant.13 ‘La Doctrine’ thinks or favours this or that, with a citation in a footnote to one or more scholarly writings. This fosters a certain untraceability of new ideas. When launched, these tend to disappear into the corpus to enrich a common intellectual heritage. The downside is conformism, a common form of quasi-plagiarism, and frequent use and abuse of second-hand sources. To say ‘la Doctrine says’ dispenses with detailed citation and even verification of handed-down ideas.
Atias predicts an underground and invisible march, as far as the French scholarly community of lawyers is concerned, towards the overthrowing of tradition.14 I would tend to agree, insofar as the decline of traditional forms of legal knowledge seems inevitable in today’s changing and interconnected world. However, I am not entirely convinced that this march will necessarily lead, as Atias thinks, to the dominance of a technocratic, political, rule-based legal approach, which would tend to make law subservient to the State. Basically, the fears voiced by Atias are linked to the risk of loss, through technocratisation of legal knowledge, of the methods of legal reasoning ‘specific to private law’. Hence,
[l]a réforme souterraine de la tradition juridique est en marche; indolore, insoupçonnée, apparemment indélibérée, elle transforme le savoir juridique et ne va pas tarder à donner raison aux maîtres de la philosophie de l’Etat, qui rêvaient de lui asservir le droit. La rencontre fortuite de leurs théories, de la révision des programmes d’enseignement et de la modification des procédures de recrutement aura des conséquences qui seront bientôt présentées comme le résultat d’un mouvement (ou d’un progrès) nécessaire, spontané, irrépressible; nul n’en portera donc la responsabilité.15
It is true that the current upheaval within the French system of legal education indisputably involves a decline of the national community of legal scholars. The rise of competing communities fosters changing perspectives on law and alternative modes of creation and transmission of legal knowledge. However, to a large extent, it is precisely those traditional visions and forms which accompanied the rise of ‘la Doctrine’, which contained the seeds of its own discontent. Building on Jestaz’ and Jamin’s account, a body of remarkable contemporary introspective literature on ‘la Doctrine’ by its more critical fringe is no doubt the sign of these underground upheavals,16 at present still barely perceptible or least largely denied on the surface.
III. HOW THE EMERGENCE OF ‘LA DOCTRINE’ IS LINKED TO THE DECLINE OF THE CODE AND THE MASSIFICATION OF ‘LA JURISPRUDENCE’
Despite the venerable Roman roots of the function of jurisconsult, the current epistemological function of ‘la Doctrine’ seems to be as recent as its appearance as a term – around the middle of the nineteenth century.17 During the first part of the nineteenth century, legal scholarship was devoted to the exegesis of the Code,18 so that it is only when the Code was no longer able to deal with changing social and economic conditions that the fragmented and increasingly voluminous body of case law, which then came to be called ‘la jurisprudence’ – meaning at the same time or variously the corpus of judges, the decided cases themselves, and the implicit underlying principles awaiting doctrinal revelation – became the main object of academic study in the law faculties.19 It was thus quite naturally that the appearance of ‘la jurisprudence massive’ heralded the birth of ‘la Doctrine’ by creating the need for a new interpretative function for academic scholarship.20 The justification for the latter grew out of the progressive obsolescence of the Code and the perceived need to formulate new principles out of the body of cases, whose motivation remained minimal simply because la jurisprudence was still fictionally the mouth-piece of the Code.
At this point, beyond the quarrels over whether ‘la jurisprudence’ was authentically a ‘source’ of law or merely an ‘authority’ (which continue to this day), whether or not it was social custom (Planiol) or a tool of social engineering (Gény), legal scholars recognised it – superseding the Code itself – as a new object of ‘legal science’. In turn, ‘la Doctrine’ represented itself as interpreting and ordering the ‘sources’ of law. The institution of la jurisprudence