The French Deviation

Author(s): John Henry Merryman

Source: The American Journal of Comparative Law, Vol. 44, No. 1 (Winter, 1996), pp. 109-119
Published by: American Society of Comparative Law
Stable URL: http://www.jstor.org/stable/840522
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 JOHN HENRYMERRYMAN

The French Deviation'

To a comparative lawyer, the end of the socialist revolution in

the Soviet Union and its satellites provides a number of topics for
reflection. For one, why did the effort to build a socialist legal system
following the 1917 Revolution produce such apparently inconsequen-
tial results? The American and French Revolutions are generally
thought to have had fundamental, lasting legal consequences that
are clearly visible today in legal systems throughout the world, but
Soviet socialist law at its height seems never to have penetrated the
surface of the culture in the USSR or elsewhere. Socialist legal prin-
ciples appear in retrospect to have been at most a sort of temporary
superstructure erected on a legal base that was largely Western in
character. With the end of the Soviet experiment that superstructure
has been dismantled, leaving few marks. To use a different meta-
phor, the Western legal body appears to have rejected the socialist
transplant. The attempt to build a socialist legal order now looks
more like a temporary deviation than a new direction.
My purpose here is to discuss a legal invention of a different
revolution, one that also sought to introduce a radical change into
European law. I will suggest that this history is in important ways
analogous to the history of Soviet law. It illustrates how an attempt
to establish a fundamental legal reform derived from one nation's
political and historical imperatives, fuelled by the works of influen-
tial theorists and widely exported to nations with different political
and historical characteristics, eventually revealed itself to be a paro-
chial product of a particular set of historical conditions. Rather than
the relatively simple process of dismantling a temporary superstruc-
ture, however, the effort to free legal systems from the consequences
of this deeply embedded innovation has been long and painful and is
still incomplete. The revolution to which I refer is the French Revolu-
tion of 1789. The innovation was the effort to make the law judge-
proof.
Part of the story is familiar. In pre-Revolutionary France the re-
gional parlements became centers of conservative power. The judges,

JOHN HENRY MERRYMAN is Sweitzer Professor of Law and Cooperating Professor of

Art, Emeritas, Stanford University. This article was originally published in Studi in
Memoria de Gino Gorla 617-631 (1994).
1. The title is taken from John P. Dawson, The Oracles of the Law (1968), ch. IV.

109
110 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 44

conscious members of an aristocracy of the robe, identified and sym-

pathized with the landed aristocracy against the royal authority in
Paris. They "interpreted" royal legislation to deprive it of its in-
tended effects, refused to register royal edicts and hindered royal offi-
cials in the performance of their functions. 2 Critics of the Old
Regime condemned the parlements and developed the theory that the
fault lay with the judges, qua judges; there was a natural tendency to
judicial excess that could only be controlled by rigorously protecting
the legislative and executive powers of government from any form of
judicial control. In the words of Montesquieu: "II n'y a point encore
de liberte . . . si la puissance de juger n'est pas separe de la puissance
legislative et de l'executive."3 This "doctrine of the separation of pow-
ers" became part of the revolutionary program, and the slogan "sepa-
ration of powers" became a component of revolutionary rhetoric.4
Abolition of the parlements was one of the first acts of the French
Revolution.
The legal regime that emerged from the French Revolution in-
cluded a variety of measures abolishing remaining feudal institu-
tions, establishing rights of personality, property and contract for all
French citizens, instituting representative government and centraliz-
ing governmental power in Paris. Such reforms were reflections of
the democratic revolution that swept through the West in the late
18th and early 19th centuries. The new French legal order, however,
also prominently included measures designed to implement the sepa-
ration of powers, and the implications of the doctrine soon affected
every aspect of the French legal process. Like the American, the

2. For discussions of the parlemants see Alexis de Tocqueville, The Old Regime
and the French Revolution; Georges Lefebvre, The Coming of the French Revolution
17-18 (Palmer, tr. 1967); Dawson, op. cit. supra n. 1, at 362ff.
3. De l'esprit des lois, Livre XI, ch. VI.
4. The "separation of powers" locution is seductive, but it tends to take on differ-
ent meanings in different contexts. Montesquieu's interest was in protecting the exec-
utive and the legislature against the judiciary. His concern for the separation of
powers was asymmetrical; he did not argue for separation of the executive from the
legislature. Americans who refer to the separation of powers, however, often have a
symmetrical separation in mind, one that is centrally concerned with conflicts be-
tween the President and Congress. See, e.g., Currie, "Separation of Powers in the
Federal Republic of Germany," 41 Am. J. Comp. L. 201, 202 (1993);
"No less significant, however, is Montesquieu's famous argument for separa-
tion of powers as a fundamental safeguard of liberty (citing Montesquieu,
Book XI, ch. VI). For when legislative, executive, and judicial powers are
divided, three distinct bodies must abuse their authority before the citizen's
rights can be infringed."
That is a persuasive point, but it is not what Montesquieu was talking about. A fur-
ther difference is that Montesquieu, when he used the term "separation," meant pre-
cisely that: the courts should have no power to control or affect exercise of the
legislative or executive powers. Checks and balances, which is the common way of
describing relations between the American powers of government, contemplates not
true separation but its opposite, mutual oversight and control. A purist would sug-
gest that a better term for the American system is "allocation" rather than "separa-
tion" of powers.
 1996] SOURCE AND TARGET-ORIENTED COMPARATIVE LAW 1ll

French Revolution was a great event in world history. It excited the

imaginations and ignited the hopes of reformers and revolutionaries
everywhere, and as they came into power many of them tended to
adopt the French revolutionary legal program whole. In this way the
19th century saw the legal implications of the French doctrine of sep-
aration of powers adopted by new post-revolutionary governments
throughout the world. Nations whose histories had included nothing
resembling the French parlements thus embraced a powerful doctrine
that was the product of specific conditions in pre-Revolutionary
France.
We have seen that one purpose of the doctrine of separation of
powers was to protect the executive against judicial interference.
This principle was soon put into practice by providing that judges
could not issue regulations, question the legality of administrative
rules, orders or other executive action, examine the legality of the
conduct of public officials or compel reluctant officials to perform
their legal duties. Common lawyers are familiar with an array of
modern judicial remedies based on the old writs of prohibition, man-
damus and quo warranto, which were developed in England as de-
vices for judicial control of the legality of administrative/executive
acts. After the Revolution, French judges were expressly denied such
powers.5 The resulting vacuum was filled by creation of a conten-
tious section of the Conseil d'etat that today looks very much like a
high administrative court and the eventual establishment of inferior
administrative "tribunals" that look and act very much like adminis-
trative courts of first instance. The large and influential body of law
they have created out of meager statutory materials looks to common
lawyers today very much like judge-made law. It is true that the ad-
ministrative tribunals and the Conseil d'Etat are formally separate
from the (ordinary) judiciary and are formally part of the executive
power. It is also true that they are not called "courts"and their mem-
bers are not called "judges." Thus the separation of powers is for-
mally observed, while the legality of French executive/administrative
acts receives the sort of "judicial"review of legality that democratic
justice everywhere requires.
The doctrine of separation of powers also required that the legis-
lature be protected against judges. This obviously meant that judges
could not legislate or otherwise make rules applicable to future cases,
but it also meant that judges could not question the validity or alter
the meaning of legislation. the judicial function was to apply the law
to the facts and pronounce the result-to be, in Montesquieu's fa-

5. The Law of 16-24 August 1790, Title II, article 13 provided: "Judicial func-
tions are distinct and remain forever separate from administrative functions; judges
may not, on pain of forfeiture, interfere in any way whatever in the activities of ad-
ministrative officials nor subject them to judicial proceedings concerning their func-
tions." (my translation).
112 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 44

mous phrase, "la bouche qui prononce les paroles de la loi." At the
extreme this meant that judges should even be denied the power to
interpret the law; faced with a problem-an unclear legislative provi-
sion or a lacuna in the legislative scheme-the judge was ordered to
suspend the action and refer the question to the legislator for authen-
tic interpretation. The unworkability of the so-called refere legislatif
soon became evident, and the French courts were conceded the power
to interpret laws. The emphasis then shifted to justification and limi-
tation. The justification literature sought to explain how the judge
who supplied meaning to an unclear statute, or chose between alter-
native meanings of an ambiguous statute, or supplied a rule when
the case was confronted by a lacuna in the formal legal order could do
so without "making law." The literature on limitation sought to pro-
tect the legislature against judicial law-making in the guise of inter-
pretation. The legislature provided a check against judicial abuse of
the power to interpret the law by establishing the tribunal de cassa-
tion, described as pre du corps legislatif, to review judicial interpreta-
tion and application of the laws. The evolution of this legislative
tribunal to the cour supreomede cassation, standing at the apex of the
(ordinary) judiciary, is the topic of an interesting subsequent history
that cannot be explored here. The paradoxical outcome is that a leg-
islative organ that was established to protect the legislature against
judges has become a court standing at the head of the ordinary judici-
ary, staffed by judges.
The principle that judges cannot make law had many other im-
plications. One of the most obvious was denial of any effect of a judi-
cial decision beyond the case itself. The doctrine of stare decisis was
specifically rejected. The judge who based his decision on case law
would commit a grave offense. The only proper basis of the decision
was "the law," and that meant legislation, or a regulation that was
itself authorized by and consistent with legislation (or custom, which
raises a different order of questions that cannot be given adequate
treatment here, although we should mention that the proposal to
treat prior judicial decisions as evidence of, or as embodying, custom
had some scholarly support). To insure judicial responsibility to the
legal mandate, judges were required to decide all cases that came
before them and to "motivate" their decisions-i.e., to indicate the
source of law on which the decision was based.
These strictures placed a terrible burden on the legislator. If
prior judicial decisions were not law, and if every judicial decision
had to be based expressly on law, it was logically necessary that the
legislator provide a comprehensive norm structure, one that (with oc-
casional help from custom) provided a rule for every case. Every ex-
perienced lawyer knows that to be beyond human possibility, but the
politics and the popular legal culture of the time demanded it. To
1996] SOURCE AND TARGET-ORIENTED COMPARATIVE LAW 113

non-lawyers, one of the purposes of codification was to provide seam-

less statutory coverage of civil, commercial and penal law and proce-
dure. The outcome was that French courts dutifully cited code
provisions (or other sources of law) as the ostensible basis for their
decisions, even though these provisions often were too general in lan-
guage or too remote in applicability to lead the judge to particular
results in concrete cases. Thus the separation of powers was formally
observed.6
What the judges actually did, however, was build a body of law
based to some extent on earlier French law, nourished by French
legal scholarship, but built largely through their own decisions. This
is notoriously true of the French law of tort, but most other topics of
French civil and commercial law also contain substantial bodies of
judicially created and perpetuated doctrine. This jurisprudence is in
fact, contrary to separation of powers theory, an important source of
law. French courts, like courts everywhere, find it convenient, eco-
nomical and fair to decide new cases consistently with their decisions
in prior cases. Arguments before the lower courts and even before
the Cour de Cassation regularly refer to its jurisprudence, and schol-
ars refer to the jurisprudence in their notes on the Court's recent de-
cisions. Judges of the Cour de Cassation regularly consider the
jurisprudence in preparing their written decisions and seek to decide
consistently with it. But they never cite it; prior decisions are never
discussed or distinguished in the Cour's decisions. That would vio-
late the separation of powers.
Popular distrust of judges, the doctrine of the separation of pow-
ers and the post-Revolutionary measures taken to limit the judicial
role in the legal process had a demeaning effect on the French judici-
ary. While the judges of the parlements in pre-Revolutionary France
stood high in the legal and social order, the position of the judge in
the Republic was that of a civil servant who did relatively undemand-
ing work, merely following legislative and executive orders. The hier-
archy of legal occupations ran from legislator at the top, through
scholar and advocate in declining order of prestige, to judge at the
bottom. Judicial recruiting practices, salaries, working conditions
and career patterns reflected this point of view. In the nomenclature
of government, the judiciary was denied the status of a governmental
"power"and was instead referred to as the judicial "authority": "Des
trois puissances dont nous avons parle, celle de juger est, en quelque

6. Professor Dawson remarked on the freedom to innovate that this method has
given to French judges: "The chief legacy of the Revolution was not judicial submis-
sion to the disciplines of the codes but a deep-seated, widely-held conviction that
judges lacked lawmaking power. The judges joined in this disclaimer and expressed it
through a cryptic style of opinion writing whose main purpose was to prove their duti-
ful submission but which left them in fact more free.... A principle directed toward
restraining judicial power thus serves to enlarge it." op. cit. supra n. 1, at 431.
 114 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 44

fagon, nulle."7 Judges, even on the highest courts, were faceless,

anonymous career bureaucrats. This view of the judicial function,
and of judges, became self-fulfilling. The best legal minds chose other
careers. Any proposal to give greater responsibility to judges could
then be met with the argument that, as a group, they lacked the nec-
essary imaginative scope and intellectual resourcefulness to deal
with large questions or to exercise substantial discretionary
authority.
The ancien regime was a scapegoat of the French Revolution. In
the popular Revolutionary ideology, everything associated with the
immediate past was painted in dark colors. Any problem could be
attributed to it, any change justified as a desirable reform. One re-
sult was a tendency to reinterpret history in terms congenial to the
Revolutionary program. Legal institutions and practices that had
long existed as part of the Europeanjus comune could now be charac-
terized as improper and deviant, the French post-Revolutionary re-
forms as establishing what was just and proper. This gave the
French Revolutionary legal program a claim to timeless universality
and encouraged its adoption wherever in the world the Democratic
Revolution spread. It also encouraged a tendency to ignore or to mis-
represent pre-Revolutionary European legal history. One result has
been a serious lacuna in European legal scholarship, a tendency to
neglect the study of law in 16th-18th century Europe.
Renewed attention to that period, particularly in the work of
Italian8 and German9 scholars, strongly suggests that it was the
French post-Revolutionary legal reforms that were deviant.10 Gino
Gorla's work in particular, based on original research in Europe and
England, led him to conclude that, prior to the 19th century, there
was a European common law which was, for the most part, a judge-
made law:
[T]he "jurisprudentia forensis," progressing in a cumulative
way through lawyers' interpretation and judicial opinions
(especially those of judges sitting in the Supreme Courts of
the various states on the Continent), and resulting in a con-

7. Montesquieu, De l'esprit des lois, Livre XI, ch. VI.

8. The leading figure in European reinterpretation of the legal history of the
16th-early 19th centuries was Gino Gorla, whose studies on the Europeanjus comune
are embodied in a number of disparately published articles. Those published up to
1983 are collected in Gino Gorla, Diritto comparato e diritto comune europeo (1981)
and in Gino Gorla, II diritto comparato in Italia e nel "mondo occidentale" e una in-
troduzione al "dialogo civil law-common law." (1983). Gorla's entire body of schol-
arly work is brilliantly evoked and summarized by Giovanni Pugliese, Gino Gorla, Ri
vista dir. civ. XXIX.I.1 (1993).
9. Helmut Coing, Handbuch der Quellen und Literatur der neueren europaischen
Privatrechtsgeschichte (1973) passim.; Ind., Englische und Kontinentale Rechtsges-
chichte, ein Forschungsprojekt (1985) passim.
10. Professor Dawson, op. cit. supra n. 1, of course reached the same conclusion.
1996] SOURCE AND TARGET-ORIENTED COMPARATIVE LAW 115

tinuous literary legal tradition, was the principal source of

law, a far more important one than any other in that same
period. Indeed, the internal unification of the legal system of
each state was achieved, just as in England, also on the Con-
tinent, albeit here some centuries later, mostly by means of
judicial precedents handed down in the higher courts of
justice."
With the decline of the European common law on the Continent in
the 19th century (a decline hastened, if not caused, by the French
Revolutionary legal reforms) the English legal system was left as the
only example of what European legal systems had looked like:
With the disappearance of the "European common law" ...
the differences between English law and Continental law be-
came greater and greater, to the extent that the latter, en-
tering the path of closed legal systems, was detaching itself
from the experience of past centuries.... But, whilst Conti-
nental legal systems ... cut off their links with the European
common law tradition, the English legal system, because of
the continuity of its historical evolution, kept alive that tra-
dition.... Therefore what today appears to be unique in the
English legal system (or, generally speaking, in the Common
law family of legal systems) was during the sixteenth to
eighteenth centuries shared to a large extent in common be-
tween Continental and English law.'2
Gorla's thesis is indirectly confirmed by the French experience
(and the experience of other European nations, like Italy, that fol-
lowed the French example). However rational the theory of separa-
tion of powers and its corollaries may have seemed in the Age of
Reason, whatever their apparent suitability to the Revolutionary
political program may have been, French practice has long since
found it necessary to return to a more balanced distribution of legal
powers of the kind that had previously existed throughout Europe
and that continued to exist in England. Some formal signs of the ef-
fort to make the law judge-proof remain, but their substance has
dwindled under the pressure of necessity and the natural tendency of
lawyers and judges to do what seems reasonable, fair and effective in
their work. If we look at what French courts (including the Conseil
d'Etat and the Administrative Tribunals) do, rather than how what
they do is disguised in separation of powers apparel, the similarity
with the legal process in England (and in pre-Revolutionary France)
is obvious. As we have seen:

11. Gorla & Moccia, "A Revisiting of the Comparison between Continental Law
and English Law (XVI-XIX Century)," 1981 Journal of Legal History 147 (1981).
12. Id. at 552.
116 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 44

a. The Conseil d'Etat and the Administrative Tribunals,

though they still are not called "courts,"provide an effective
forum for judicial review of the legality of administrative ac-
tion and inaction and have built an imposing body of judge-
made administrative law.
b. French ordinary courts exercise full power to interpret
and apply legislation and other sources of law and, in the
process, they "make law." Whole areas of French law are ju-
dicial creations.
c. Although prior decisions are formally denied status as
sources of law, French courts, like courts everywhere, try to
decide similar cases the same way: prior decisions are cited
by lawyers in their briefs and arguments and are considered
by courts in reaching their decisions in ways that are not
substantially different from the use of precedent by courts in
common law nations. The statute may be cited as the au-
thority for the decision, and often the statute may indeed be
the remote source of the rule applied to the case, but prior
judicial decisions (and the works of scholars) are more often
the immediate source.
The most powerful consequence of the French doctrine of separa-
tion of powers may have been to demean judges and the judicial func-
tion. The attempt to depict the judicial function as something
narrow, mechanical and uncreative and to portray judges as clerks,
as we have noted, has had a self-fulfilling effect. Judges are at the
bottom of the scale of prestige among the legal professions in France
and in the many nations that adopted the French Revolutionary re-
forms, and the best people in those nations accordingly seek other
legal careers. One result has been to cripple the judicial systems in a
number of developing countries. In France, where everyone knows
how to do what needs to be done behind the separation of powers
facade, misrepresentation of the judicial function does not have se-
vere consequences. But when the French exported their system they
did not include the information that it really does not work that way,
and they failed to include a blueprint of how it actually does work.
That has created, and continues to create, problems in nations with
limited legal infrastructures and fragile legal systems whose histo-
ries included nothing resembling the conflict between the French
King and the provincial parlements.
In post-Revolutionary France, the legislative power was in the-
ory subject only to political control by the electorate. The popularly
elected legislature made the law, which the courts accepted and ap-
plied without question. In practice, through the power they unavoid-
ably employed in interpreting and applying the law to concrete cases,
the courts directed and moderated much legislation and, where it
 19961 SOURCE AND TARGET-ORIENTED COMPARATIVE LAW 117

seemed necessary to do so, interpreted laws in ways that clearly were

not contemplated by the legislator. Everyone engaged in the French
legal process, including legislators, scholars, advocates and judges,
knew this. Still, one area of legislative supremacy remained unchal-
lenged and, in practice, unimpaired: there was general agreement,
even among sophisticated lawyers and knowledgeable legislators,
that judicial review of the validity of legislation on constitutional or
other (e.g., natural law) grounds was clearly prohibited. No proposi-
tion could be more basic to the French doctrine of separation of
powers.
Judicial review of the constitutionality of legislation remains the
last refuge of the French post-Revolutionary effort to make the law
judge-proof in France and in nations that have been influenced by the
French model. In Germany, Italy and Spain, for example, judicial
review has been lodged in a special "constitutional tribunal" (Spain)
or "constitutional court" (Germany and Italy). Ordinary judges are
denied the power to rule on the validity of or to decline to apply legis-
lative acts alleged to be in conflict with a constitutional provision. In
Latin America, where a limited version of judicial review has long
been established, it is usually lodged only in the highest courts. Even
they do not rule on the validity of legislation; they merely treat the
constitution as a superior source of law and decline to apply a statute
that they find to be in conflict with a constitutional provision. The
law continues to exist. The decision binds only the parties. Other
agencies of government may, and often do, continue to treat the law
as valid despite the judicial refusal to apply it. Even within the judi-
ciary an obligation of lower courts to refuse to apply the law in ques-
tion arises only after a consistent series of decisions by the supreme
court establishes a binding "jurisprudencia."
As this is written, France remains the most "correct"(in separa-
tion of powers terms) of the major civil law nations in dealing with
judicial review. The Conseil Constitutionnel acts before a proposed
statute is promulgated, and its jurisdiction is invoked in the abstract,
without the necessity for parties or for a specific case or controversy.
It can accordingly be characterized as performing a non-judicial func-
tion, and hence it is not a court. The Conseil d'Etat and the Cour de
Cassation also have roles, actual in the case of the Conseil,13 still
largely potential so far as the Cour is concerned,14 in the emerging
drama of French judicial review. The resulting complex of structures

13. The leading case is Syndicat General des Ingenieurs-Conseils, 1959 D. Jur.
541.
14. See the August 7, 1971, Le Monde article by Maurice Duverger, commenting
on the Constitutional Council's Freedom of Association decision of July 16, 1971, 1971
Journal Officiel (July 18). Duverger suggested that the French courts must sooner or
later recognize and deal directly with the principle of the superiority of the Constitu-
tion over ordinary laws.
 118 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 44

and procedures ("system" would be an inappropriate term) is explain-

able only by reference to French history and to a felt need to preserve
the appearance, if not the substance, of the separation of powers.
There has been no tendency for other nations to emulate the awk-
ward French approach to judicial review, even among those that, in
the 19th century, adopted the Code Civil and the model of the legal
process that accompanied it.
By the term "the French deviation" I refer to the independent
direction taken by the French during and after the Revolution of
1789, when they parted from the European jus commune and opted
for a new national legal order. Much of the revolutionary program-
establishing individual rights of personality, contract and property
for all Frenchmen, establishing representative government, abolish-
ing feudal institutions, etc.-was in the mainstream of the demo-
cratic revolution, shared by other Western nations. But at the same
time, a peculiar doctrine of separation of powers, born of conditions
specific to 17th and 18th century France and generalized and univer-
salized in the works of Montesquieu and other Frenchmen, came to
play an important role in the design of the new French legal system.
That is the source of the deviation. It has left a number of marks on
contemporary French law, but its main purpose-to protect the law
against judges- failed. The legal imperatives of justice in a demo-
cratic society, the practical limits on what a legislature can do and
the realities of the judicial process have combined to lead French law,
in practice, back into the mainstream of the European common law.
The process of European Union completes the process; the French
deviation is, for most purposes, at an end.
To be sure, there are relics. Some of them, like the Contentious
Section of the Conseil d'Etat, the Administrative Tribunals and the
magnificent system of French administrative justice, have contrib-
uted much to the development of modern European public law.
Others, like the austerely parsimonious style of decisions by the Cour
de Cassation, remind one of certain relics of feudalism in English law:
they have a quaint antiquarian charm and are, on the whole, harm-
less. Still others, like the denigration of the judiciary and the judicial
function, continue to hamper legal development, particularly in na-
tions that imported the French codes and the set of propositions
about the legal process, including the separation of powers, that was
part of the French post-Revolutionary legal package.
This essay was stimulated by reflection on the apparently mea-
ger consequences of what might be called "the Soviet deviation": the
attempt to turn Soviet law from its European course and build a so-
cialist law on the principles stated by Marx and Engels. This led to
speculation about a possible parallel with French law and the at-
tempt to model its post-Revolutionary legal system according to a
1996] SOURCE AND TARGET-ORIENTED COMPARATIVE LAW 119

principle-the separation of powers-stated by Montesquieu. I have

set out the elements of an argument that, although the differences
between the two revolutionary legal programs and the respective na-
tional experiences under them are substantial, there is a basic equiv-
alence. In each case the attempt to detach a national legal system
from the European jus comune and move it in an independent direc-
tion by following persuasive theoretical principles appears to have
ended with a return to the mainstream. There will of course be relics
of the experiment with socialist law in the nations that once formed
the Soviet Union and its satellites, just as there are relics of the
French deviation in France and in the many nations that followed the
French model. History cannot be abolished. But in their main pur-
pose, each of these attempts was a failure.
That is the argument for suggesting an analogy between the So-
viet Deviation and the French deviation. It is thinly documented and
is based on limited impressionistic contact with the Soviet legal expe-
rience, although the basis for the French part of the argument is
more solid. I welcome discussion, criticism and possible refutation.
At a more general level, this discussion invites speculation of other
kinds. Might there be a social truth here? Does the accumulated
legal culture of Europe, the product of more than twenty centuries of
continuous experimentation, development and refinement, contain
within itself a body of empirical legal results that are in some impor-
tant sense valid? Is there a European jus comune that has such enor-
mous historical mass and inertia that fundamental change is beyond
the power of reformers, even of revolutionaries? Is the same true of
the Anglo-American common law? Of all of western law? Of all the
great legal traditions?