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The French DeviationAuthor(s): John Henry MerrymanSource: The American Journal of Comparative Law, Vol. 44, No. 1 (Winter, 1996), pp. 109-119Published by: American Society of Comparative LawStable URL: http://www.jstor.org/stable/840522

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JOHN HENRYMERRYMANThe French Deviation'

To a comparative lawyer, the end of the socialist revolution inthe Soviet Union and its satellites provides a number of topics forreflection. For one, why did the effort to build a socialist legal systemfollowing the 1917 Revolution produce such apparently inconsequen-tial results? The American and French Revolutions are generallythought to have had fundamental, lasting legal consequences thatare clearly visible today in legal systems throughout the world, butSoviet socialist law at its height seems never to have penetrated thesurface of the culture in the USSR or elsewhere. Socialist legal prin-ciples appear in retrospect to have been at most a sort of temporarysuperstructure erected on a legal base that was largely Western incharacter. With the end of the Soviet experiment that superstructurehas been dismantled, leaving few marks. To use a different meta-phor, the Western legal body appears to have rejected the socialisttransplant. The attempt to build a socialist legal order now looksmore like a temporary deviation than a new direction.My purpose here is to discuss a legal invention of a differentrevolution, one that also sought to introduce a radical change intoEuropean law. I will suggest that this history is in important waysanalogous to the history of Soviet law. It illustrates how an attemptto establish a fundamental legal reform derived from one nation'spolitical and historical imperatives, fuelled by the works of influen-tial theorists and widely exported to nations with different politicaland historical characteristics, eventually revealed itself to be a paro-chial product of a particular set of historical conditions. Rather thanthe relatively simple process of dismantling a temporary superstruc-ture, however, the effort to free legal systems from the consequencesof this deeply embedded innovation has been long and painful and isstill 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 ofArt, Emeritas, Stanford University. This article was originally published in Studi inMemoria de Gino Gorla 617-631 (1994).1. The title is taken from John P. Dawson, The Oracles of the Law (1968), ch. IV.

109

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110 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 44conscious members of an aristocracy of the robe, identified and sym-pathized with the landed aristocracy against the royal authority inParis. 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 OldRegime condemned the parlements and developed the theory that thefault lay with the judges, qua judges; there was a natural tendency tojudicial excess that could only be controlled by rigorously protectingthe legislative and executive powers of government from any form ofjudicial control. In the words of Montesquieu: "II n'y a point encorede liberte . . . si la puissance de juger n'est pas separe de la puissancelegislative 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.4Abolition of the parlements was one of the first acts of the FrenchRevolution.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 allFrench citizens, instituting representative government and centraliz-ing governmental power in Paris. Such reforms were reflections ofthe democratic revolution that swept through the West in the late18th 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 affectedevery aspect of the French legal process. Like the American, the

2. For discussions of the parlemants see Alexis de Tocqueville, The Old Regimeand the French Revolution; Georges Lefebvre, The Coming of the French Revolution17-18 (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 ofpowers was asymmetrical; he did not argue for separation of the executive from thelegislature. Americans who refer to the separation of powers, however, often have asymmetrical separation in mind, one that is centrally concerned with conflicts be-tween the President and Congress. See, e.g., Currie, "Separation of Powers in theFederal Republic of Germany," 41 Am. J. Comp. L. 201, 202 (1993);"Noless 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 aredivided, three distinct bodies must abuse their authority before the citizen'srights 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 thelegislative or executive powers. Checks and balances, which is the common way ofdescribing relations between the American powers of government, contemplates nottrue 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.

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1996] SOURCE AND TARGET-ORIENTED COMPARATIVE LAW 1llFrench Revolution was a great event in world history. It excited theimaginations and ignited the hopes of reformers and revolutionarieseverywhere, and as they came into power many of them tended toadopt the French revolutionary legal program whole. In this way the19th century saw the legal implications of the French doctrine of sep-aration of powers adopted by new post-revolutionary governmentsthroughout the world. Nations whose histories had included nothingresembling the French parlements thus embraced a powerful doctrinethat was the product of specific conditions in pre-RevolutionaryFrance.We have seen that one purpose of the doctrine of separation ofpowers was to protect the executive against judicial interference.This principle was soon put into practice by providing that judgescould not issue regulations, question the legality of administrativerules, orders or other executive action, examine the legality of theconduct of public officials or compel reluctant officials to performtheir legal duties. Common lawyers are familiar with an array ofmodern 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/executiveacts. After the Revolution, French judges were expressly denied suchpowers.5 The resulting vacuum was filled by creation of a conten-tious section of the Conseil d'etat that today looks very much like ahigh administrative court and the eventual establishment of inferioradministrative "tribunals" that look and act very much like adminis-trative courts of first instance. The large and influential body of lawthey have created out of meager statutory materials looks to commonlawyers today very much like judge-made law. It is true that the ad-ministrative tribunals and the Conseil d'Etat are formally separatefrom the (ordinary) judiciary and are formally part of the executivepower. 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/administrativeacts receives the sort of "judicial"review of legality that democraticjustice everywhere requires.The doctrine of separation of powers also required that the legis-lature be protected against judges. This obviously meant that judgescould not legislate or otherwise make rules applicable to future cases,but it also meant that judges could not question the validity or alterthe meaning of legislation. the judicial function was to apply the lawto 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; judgesmay 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).

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112 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 44mous phrase, "la bouche qui prononce les paroles de la loi." At theextreme this meant that judges should even be denied the power tointerpret the law; faced with a problem-an unclear legislative provi-sion or a lacuna in the legislative scheme-the judge was ordered tosuspend the action and refer the question to the legislator for authen-tic interpretation. The unworkability of the so-called refere legislatifsoon became evident, and the French courts were conceded the powerto interpret laws. The emphasis then shifted to justification and limi-tation. The justification literature sought to explain how the judgewho supplied meaning to an unclear statute, or chose between alter-native meanings of an ambiguous statute, or supplied a rule whenthe case was confronted by a lacuna in the formal legal order could doso 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 ofthe 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 legislativetribunal to the cour supreomede cassation, standing at the apex of the(ordinary) judiciary, is the topic of an interesting subsequent historythat cannot be explored here. The paradoxical outcome is that a leg-islative organ that was established to protect the legislature againstjudges 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 wasspecifically rejected. The judge who based his decision on case lawwould commit a grave offense. The only proper basis of the decisionwas "the law," and that meant legislation, or a regulation that wasitself authorized by and consistent with legislation (or custom, whichraises a different order of questions that cannot be given adequatetreatment here, although we should mention that the proposal totreat prior judicial decisions as evidence of, or as embodying, customhad some scholarly support). To insure judicial responsibility to thelegal mandate, judges were required to decide all cases that camebefore them and to "motivate" their decisions-i.e., to indicate thesource of law on which the decision was based.

These strictures placed a terrible burden on the legislator. Ifprior judicial decisions were not law, and if every judicial decisionhad to be based expressly on law, it was logically necessary that thelegislator 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 thepolitics and the popular legal culture of the time demanded it. To

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1996] SOURCE AND TARGET-ORIENTED COMPARATIVE LAW 113non-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 codeprovisions (or other sources of law) as the ostensible basis for theirdecisions, even though these provisions often were too general in lan-guage or too remote in applicability to lead the judge to particularresults in concrete cases. Thus the separation of powers was formallyobserved.6

What the judges actually did, however, was build a body of lawbased to some extent on earlier French law, nourished by Frenchlegal scholarship, but built largely through their own decisions. Thisis notoriously true of the French law of tort, but most other topics ofFrench civil and commercial law also contain substantial bodies ofjudicially created and perpetuated doctrine. This jurisprudence is infact, contrary to separation of powers theory, an important source oflaw. French courts, like courts everywhere, find it convenient, eco-nomical and fair to decide new cases consistently with their decisionsin prior cases. Arguments before the lower courts and even beforethe 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 thejurisprudence in preparing their written decisions and seek to decideconsistently with it. But they never cite it; prior decisions are neverdiscussed 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 judicialrole in the legal process had a demeaning effect on the French judici-ary. While the judges of the parlements in pre-Revolutionary Francestood high in the legal and social order, the position of the judge inthe 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, throughscholar and advocate in declining order of prestige, to judge at thebottom. Judicial recruiting practices, salaries, working conditionsand career patterns reflected this point of view. In the nomenclatureof government, the judiciary was denied the status of a governmental"power"and was instead referred to as the judicial "authority": "Destrois puissances dont nous avons parle, celle de juger est, en quelque

6. Professor Dawson remarked on the freedom to innovate that this method hasgiven 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 thatjudges lacked lawmaking power. The judges joined in this disclaimer and expressed itthrough 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 towardrestraining judicial power thus serves to enlarge it." op. cit. supra n. 1, at 431.

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114 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 44fagon, nulle."7 Judges, even on the highest courts, were faceless,anonymous career bureaucrats. This view of the judicial function,and ofjudges, became self-fulfilling. The best legal minds chose othercareers. Any proposal to give greater responsibility to judges couldthen be met with the argument that, as a group, they lacked the nec-essary imaginative scope and intellectual resourcefulness to dealwith large questions or to exercise substantial discretionaryauthority.

The ancien regime was a scapegoat of the French Revolution. Inthe popular Revolutionary ideology, everything associated with theimmediate past was painted in dark colors. Any problem could beattributed to it, any change justified as a desirable reform. One re-sult was a tendency to reinterpret history in terms congenial to theRevolutionary program. Legal institutions and practices that hadlong 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 theFrench Revolutionary legal program a claim to timeless universalityand encouraged its adoption wherever in the world the DemocraticRevolution spread. It also encouraged a tendency to ignore or to mis-represent pre-Revolutionary European legal history. One result hasbeen a serious lacuna in European legal scholarship, a tendency toneglect the study of law in 16th-18th century Europe.

Renewed attention to that period, particularly in the work ofItalian8 and German9 scholars, strongly suggests that it was theFrench post-Revolutionary legal reforms that were deviant.10 GinoGorla's work in particular, based on original research in Europe andEngland, led him to conclude that, prior to the 19th century, therewas a European common law which was, for the most part, a judge-made law:[T]he "jurisprudentia forensis," progressing in a cumulativeway through lawyers' interpretation and judicial opinions(especially those of judges sitting in the Supreme Courts ofthe 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 the16th-early 19th centuries was Gino Gorla, whose studies on the Europeanjus comuneare embodied in a number of disparately published articles. Those published up to1983 are collected in Gino Gorla, Diritto comparato e diritto comune europeo (1981)and in Gino Gorla, II diritto comparato in Italia e nel "mondooccidentale"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, Rivista dir. civ. XXIX.I.1 (1993).9. Helmut Coing, Handbuch der Quellen und Literatur der neueren europaischenPrivatrechtsgeschichte (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.

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1996] SOURCE AND TARGET-ORIENTED COMPARATIVE LAW 115tinuous literary legal tradition, was the principal source oflaw, a far more important one than any other in that sameperiod. Indeed, the internal unification of the legal system ofeach state was achieved, just as in England, also on the Con-tinent, albeit here some centuries later, mostly by means ofjudicial precedents handed down in the higher courts ofjustice."

With the decline of the European common law on the Continent inthe 19th century (a decline hastened, if not caused, by the FrenchRevolutionary legal reforms) the English legal system was left as theonly 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 itselffrom the experience of past centuries.... But, whilst Conti-nental legal systems ... cut off their links with the Europeancommon law tradition, the English legal system, because ofthe continuity of its historical evolution, kept alive that tra-dition.... Therefore what today appears to be unique in theEnglish legal system (or, generally speaking, in the Commonlaw family of legal systems) was during the sixteenth toeighteenth centuries shared to a large extent in common be-tween Continental and English law.'2Gorla'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 ofReason, whatever their apparent suitability to the Revolutionarypolitical program may have been, French practice has long sincefound it necessary to return to a more balanced distribution of legalpowers of the kind that had previously existed throughout Europeand that continued to exist in England. Some formal signs of the ef-fort to make the law judge-proof remain, but their substance hasdwindled under the pressure of necessity and the natural tendency oflawyers and judges to do what seems reasonable, fair and effective intheir work. If we look at what French courts (including the Conseild'Etat and the Administrative Tribunals) do, rather than how whatthey do is disguised in separation of powers apparel, the similaritywith 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 Lawand English Law (XVI-XIXCentury)," 1981 Journal of Legal History 147 (1981).12. Id. at 552.

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116 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 44a. The Conseil d'Etat and the Administrative Tribunals,though they still are not called "courts,"provide an effectiveforum forjudicial 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 interpretand apply legislation and other sources of law and, in theprocess, they "make law." Whole areas of French law are ju-dicial creations.c. Although prior decisions are formally denied status assources of law, French courts, like courts everywhere, try todecide similar cases the same way: prior decisions are citedby lawyers in their briefs and arguments and are consideredby courts in reaching their decisions in ways that are notsubstantially different from the use of precedent by courts incommon law nations. The statute may be cited as the au-thority for the decision, and often the statute may indeed bethe remote source of the rule applied to the case, but priorjudicial decisions (and the works of scholars) are more oftenthe 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 somethingnarrow, mechanical and uncreative and to portray judges as clerks,as we have noted, has had a self-fulfilling effect. Judges are at thebottom of the scale of prestige among the legal professions in Franceand in the many nations that adopted the French Revolutionary re-forms, and the best people in those nations accordingly seek otherlegal careers. One result has been to cripple the judicial systems in anumber of developing countries. In France, where everyone knowshow to do what needs to be done behind the separation of powersfacade, misrepresentation of the judicial function does not have se-vere consequences. But when the French exported their system theydid 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 withlimited 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 popularlyelected 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

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19961 SOURCE AND TARGET-ORIENTED COMPARATIVE LAW 117seemed necessary to do so, interpreted laws in ways that clearly werenot contemplated by the legislator. Everyone engaged in the Frenchlegal 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 orother (e.g., natural law) grounds was clearly prohibited. No proposi-tion could be more basic to the French doctrine of separation ofpowers.

Judicial review of the constitutionality of legislation remains thelast refuge of the French post-Revolutionary effort to make the lawjudge-proof in France and in nations that have been influenced by theFrench model. In Germany, Italy and Spain, for example, judicialreview has been lodged in a special "constitutional tribunal" (Spain)or "constitutional court" (Germany and Italy). Ordinary judges aredenied 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. InLatin America, where a limited version of judicial review has longbeen established, it is usually lodged only in the highest courts. Eventhey do not rule on the validity of legislation; they merely treat theconstitution as a superior source of law and decline to apply a statutethat they find to be in conflict with a constitutional provision. Thelaw continues to exist. The decision binds only the parties. Otheragencies of government may, and often do, continue to treat the lawas 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 supremecourt 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 withjudicial review. The Conseil Constitutionnel acts before a proposedstatute 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 deCassation also have roles, actual in the case of the Conseil,13 stilllargely potential so far as the Cour is concerned,14 in the emergingdrama 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, commentingon the Constitutional Council'sFreedom of Association decision of July 16, 1971, 1971Journal Officiel (July 18). Duverger suggested that the French courts must sooner orlater recognize and deal directly with the principle of the superiority of the Constitu-tion over ordinary laws.

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118 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 44and procedures ("system"would be an inappropriate term) is explain-able only by reference to French history and to a felt need to preservethe 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, inthe 19th century, adopted the Code Civil and the model of the legalprocess that accompanied it.

By the term "the French deviation" I refer to the independentdirection taken by the French during and after the Revolution of1789, when they parted from the European jus commune and optedfor a new national legal order. Much of the revolutionary program-establishing individual rights of personality, contract and propertyfor 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 sametime, a peculiar doctrine of separation of powers, born of conditionsspecific to 17th and 18th century France and generalized and univer-salized in the works of Montesquieu and other Frenchmen, came toplay 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 oncontemporary French law, but its main purpose-to protect the lawagainst judges- failed. The legal imperatives of justice in a demo-cratic society, the practical limits on what a legislature can do andthe 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 Frenchdeviation is, for most purposes, at an end.

To be sure, there are relics. Some of them, like the ContentiousSection of the Conseil d'Etat, the Administrative Tribunals and themagnificent 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 Courde 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 judicialfunction, continue to hamper legal development, particularly in na-tions that imported the French codes and the set of propositionsabout the legal process, including the separation of powers, that waspart 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": theattempt to turn Soviet law from its European course and build a so-cialist law on the principles stated by Marx and Engels. This led tospeculation about a possible parallel with French law and the at-tempt to model its post-Revolutionary legal system according to a

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1996] SOURCE AND TARGET-ORIENTED COMPARATIVE LAW 119principle-the separation of powers-stated by Montesquieu. I haveset out the elements of an argument that, although the differencesbetween 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 systemfrom the European jus comune and move it in an independent direc-tion by following persuasive theoretical principles appears to haveended with a return to the mainstream. There will of course be relicsof the experiment with socialist law in the nations that once formedthe Soviet Union and its satellites, just as there are relics of theFrench deviation in France and in the many nations that followed theFrench 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 andis based on limited impressionistic contact with the Soviet legal expe-rience, although the basis for the French part of the argument ismore solid. I welcome discussion, criticism and possible refutation.At a more general level, this discussion invites speculation of otherkinds. Might there be a social truth here? Does the accumulatedlegal culture of Europe, the product of more than twenty centuries ofcontinuous experimentation, development and refinement, containwithin 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 beyondthe power of reformers, even of revolutionaries? Is the same true ofthe Anglo-American common law? Of all of western law? Of all thegreat legal traditions?