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Published online by Cambridge University Press: 27 December 2018
Throughout the 19th century, lawyers in France were deeply involved in political action to pursue an overriding goal–to become recognized as spokesmen for the public. This strategy governed their history; it explains their brilliant social ascent and their subsequent slow decline. As long as the conflict between state and civil society raged, lawyers were able to we assets–political mobilization, the power of the word, the esteem enjoyed by law–which had allowed them faithfully to embody public opinion in its struggle to limit state powers. From this embodiment of public ideals they derived independence, prestige, and a dominant position in the state. But when the nature of the political regime ceased to be a bone of contention and when public life became organized around other cleavages, lawyers were gradually deprived of their representative function. This marked the beginning of a social decline that became visible between the two world wars and lasted until the 1950s.
1 This brief presentation of the main elements of the debate lays no claim to being a general survey of the pertinent literature. A critical examination of certain theories will be found at the beginning of Part II.Google Scholar
2 T. Johnson, Professions and Power (London: McMillan, 1972); N. & J. Parry, The Rise of the Medical Profession: A Study of Collective Mobility (London: Croom Helm, 1976).Google Scholar
3 M.S. Larson, The Rise of Professionalism: A Sociological Analysis (Berkeley: University of California Press, 1977) (“Larson, Rise of Professionalism”).Google Scholar
4 D. Rueschemeyer, Power and the Division of Labor, 131 (Oxford: Basil Blackwell, 1986); id.“Comparing Legal Professional Cross-nationally: From a Profession-centered to a State-centered Approach,” 1986 ABF Res. J. 437–39.Google Scholar
5 The primacy of the market in the United States is asserted by Larson, Rise of Professionalism, and that of the state in Europe by G.L. Geison, ed., Profession and the French State, 1700–1900 (Philadelphia: University of Pennsylvania Press, 1984) (“Geison, Profession”); M.S. Larson, “The Changing Functions of Lawyers in the Liberal State: Reflections for Comparative Analysis” (Working Group for Comparative Study of Legal Professions, 1984); and Rueschemeyer, 1986 ABF Res. J. (cited in note 4). This division between the primacy of the market and that of the state is called into question by the work being done on the influence of the state in the United States: M. Burrage, “Revolution and the Collective Action of the French, American, and English Legal Professions, 1988 Law & Soc. Inquiry 225; E. Freidson, Professional Powers: A Study of the Institutionalization of Formal Knowledge (Chicago: University of Chicago Press, 1986).Google Scholar
6 Rueschmeyer suggests for Europe a “state-centered view,” which authorizes a direct relation between the characteristics of the state and the evolution of lawyers, while Larson interjects her “mobility project” between the market and the action of the professions.Google Scholar
7 The term, in this context, is not restricted to conscious choices alone; it also designates semiconscious orientations whose coherence becomes apparent in the course of time. Everything pertaining to preferences is not necessarily governed by lucid conceptual commitments.Google Scholar
8 It should be pointed out that the French lawyer and the American lawyer are not directly comparable: the former carries out only some of the activities normally done by the latter. In France, during the entire 19th century and the first half of the 20th, the legal material dealt with by the American lawyer was parceled out among several professions. For instance, clients were represented in court jointly by the avocat à la cour d'appel (lawyer at the Court of Appeals, called simply “lawyer”) and by the avoué (attorney): the avocat advised and had a monopoly on pleading, the avoui directed the procedural details and dafted the conclusions. There were two main exceptions to this general organization: the client was represented in commercial courts by an agrée (attorney), and before the Council of State, for those trials involving public administration, and the Supreme Court by the avocat au Conseil d'Etat et à la Cour de Cassation. Insofar as nonjudicial activities were concerned, a distinction must be made between (1) legal advice, drafting, negotiating on the behalf of industrial and commercial firms, all carried out by conseils juridiques (legal advisers), and (2) the authentication of acts and contracts, the preserve of notaires. During this period, lawyers comprised the most numerous and prestigious of the legal professions, but for reasons to be examined later, their activities were restricted mainly to pleading in courts. In the 1950s, the legal professions began developing in two main directions. On the one hand, an increasing number of lawyers turned to the business market and hence, in response to the demands of the corporate clientele, to consulting, drafting, and negotiating. On this transformation, see Karpik, L., “Avocat: une nouvelle profession? 4 Revue francaise de sociologie 571–600 (1985). On the other hand, a reformist movement was pushing for the unification of legal functions. One result was the 1971 law which eliminated avoués and agrées by integrating them into the profession of lawyer. Quite recently (June 1988), the Council of the Order of Paris came out in favor of fusing lawyers and legal advisers, a measure that had been rejected in 1971, and of bringing into the same law firms lawyers, avocats au Conseil d'Etat, and notaires; however, this plan would have to be enacted into law before it becomes reality.CrossRefGoogle Scholar
9 Contemporary historians have, on the whole, passed over the legal professions. So for the period in question, a variety of sources must be consulted: clues contained, e.g., in the general histories of the 19th century, older, specialized studies and primary sources such as professional treatises, defense pleadings, brochures containing professional grievances, lawyers' memoirs, etc.Google Scholar
10 For this period, Jules Fabre's study, La Barreau de Paris, 1810-1870 (Paris, 1895) (“Fabre, La Barreau de Paris”), although purely descriptive, remains essential reading; J.A. Gaudry's Histoire du barreau de Paris (2 vols.; Paris, 1864) stops at the 1830s; O. Pinard's work, Le Barreau au XIX' siècle (2 vols.; Paris, 1864), is valuable for its portraits of lawyers. See also A. Damien, Les Avocats du temps passé (Versailles, 1973). and J.-L. Debré, La Republique des avocats (Paris: Librairie acadCmique Perrin, 1984).Google Scholar
11 Along with the new statutes for the Order imposed in 1822; see below at page 111.Google Scholar
12 For an overview of these trials, see P. Jacomet. La Palais sous la Restauration (Paris, 1922), and La Palais sous la Monarchie de Juillet (Paris, 1927). The author points out that in Paris, up until 1830, there had been 181 convictions for violation of the press law. Between July 1830 and October 1834, the number of lawsuits brought against the press rose to 520 wich 182 convictions resulting globally in sentences of 106 years of prison and heavy fines.Google Scholar
13 These pleadings, which were commonly published in booklet form for the public or in collected works of famous lawyers, are an important source of documentation on the defense techniques used in court. Among others, we have consulted, e.g., Plaidoyer de M. Dupin pour le Constitutionnel prononcéà l'audience de la Cour Royale le 26 november 1825t (Paris, 1825); Des arrestations arbitraires ou débats du procès intentéà M. Isambert (Paris, 1827); Michel de Bourges, Plaidoyers et Discours (Paris, 1909); Joseph Reinach, Discours et plaidoyers poolitiques de Gambetta (11 vols.; Paris); Le Procès des Treize, En appel (Paris, 1864).Google Scholar
14 There are numerous examples: Marshal Ney was defended in 1815 by the Royalist Berryer, the moderate Liberal Dupin, and the advanced Liberal Maugun; in the 1820 national subscription trial, the Royalist Tripier found himself side by side with Dupin; the Royalist Hennequin, the Liberal de Martignac and Republicans Sauzet and Crémieux joined forces to defend the ministers of Charles X; in 1863, the Republican Jules Favre found himself next to Berryer in the “Trial of the Treize.”Google Scholar
15 The meaning of this indifference to political camps was formulated clearly by Berryer, the greatest orator of the century, during a trial in 1864: “I want their freedom [that of the accused] because it guarantees my own…. This is why we are gathered here, accused and defenders alike, united in a wholly common interest. No! I do not want what all of you want, you who are seated in the dock; I am not seeking the triumph of your ideas; what I am protecting is your righr to have ideas, to have convictions, to uphold them, to defend them and to endeavor to have them prevail.”Le Procès des Treize, En appel (cited in note 13).Google Scholar
16 The Tableau designates the official list of lawyers; control of this list is one of the basic prerogatives of the Order.Google Scholar
17 H. Buteau, L'Ordre des avocats, Histoires, legislation, jurisprudence (Paris, 1895); Fabre, La Barreau de Paris (cited in note 10).Google Scholar
18 Treatises dealing with the rule of the profession are one important source of material on the evolution of the organization and the policy of the profession. See in particular M. Mollot, Règlees de la profession d'avocat (Paris, 1842; 2 vols., 1866); Cresson, Usages et règles de la profession d'avocat (2 vols.; Paris, 1888); J. Appleton, Traité de la profession d'avocat (Paris, 1928); J. Hamelin & A. Damien, Les Règles de la nouvelle profession d'avocat (Paris: Dalloz, 1981); and J. Lemaire, Les Règles de la profession d'avocat et les usages du Barreau de Paris (Paris: LGDJ, 1966, 1975).Google Scholar
19 These indications, as well as those which follow, are based on a statistical analysis of the disciplinary decisions of the Council of the Order contained in the 1866 edition of Mollot's Traité. The publication of decisions was dropped after this date.Google Scholar
20 The 1865 decision stipulates that being a lawyer is incompatible with serving on the board of directors of a public or a limited liability company, serving on the board of trustees of a limited partnership company, or serving as commissioner of a limited liahility company.Google Scholar
21 Except for a short time between 1822 and 1830, when the leaders of the Order appointed by the political powerholders used their disciplinary powers–not wlthout encountering violent reaction–to uphold moral and political order within the profession, this strategy provoked no internal conflicts, since the advantages, even though unevenly distributed, benefited everyone.Google Scholar
22 On this period the fundamental work is Y.-H. Gaudemer's Les Juristes et la vie politique de la IIIime République (Paris: PUF, 1970) (“Gaudemet, Les Juristes”); among its features is a good bibliography.Google Scholar
23 While the number of Parisian lawyers hovered around 700 between 1834 and the early 1880s, it rose to 1,000 at the turn of the century, to 1,500 on the eve of the First World War and, after a short period of stability, climbed to 1,900 shortly before World War II. Between 1880 and 1920, the number of lawyers increased by 113%, the number of civil, criminal and minor cases, by 17%; business cases seem to have fallen by 50%. See F. Payen, Le Barreau 60–61 (Paris, Grasset, 1934).Google Scholar
24 The reformists' claims can be found in brochures such as Moysen's Le Barreau de Paris. Réformes pratiques (Paris, 1898) and in a livelier style in what are sometimes fictionalized memoires: A. Juhelle, Sous la toque (Paris, 1901); C. Damiron, Souvenirs d'un avocat de province (Lyon, 1949); and R. Hesse, Quarante ans de Palais (Paris, 1950).Google Scholar
25 Concerning the ANA, see J.B. Sialelli, Les Avocats de 1920 à 1987 (ANA-RNAFCSA) (Paris: Litec, 1987).Google Scholar
26 Although its industrial growth was slower than that of England and, later, of the United States or Germany, France was one of the leading economic powers, ranking between second and fourth in the world. Moreover, the intransigent rejection of the business market occurred between 1830 and 1870, in the middle of a dazzling period of industrial development.Google Scholar
27 A. Abbott, “Jurisdictional Conflicts: A New Approach to the Development of the Legal Professions,” 1986 A.B.F. Res. J. 187–224.CrossRefGoogle Scholar
28 The same has been said about market control and American lawyers by T. Halliday, Beyond Monopoly: Lawyers, State Crises, and Professional Empowerment ch. 12 (Chicago: University of Chicago Press, 1987); id., “Professions, Class and Capitalism,” 24 Archives Eur. Sociologie/Eur. J. Sociology 321 (1983).CrossRefGoogle Scholar
29 For example, in one of his most famous pleadings, Dupin, the best-known lawyer of the Restoration period, clearly illustrated this method when he stated that judges were “the kings of the Nation,” that the “magistrature [was] more highly respected than any public office,” that the courtroom was church–everything was couched in terms of transcendence.Google Scholar
30 Problems and arguments circulated constantly between the political sphere and the courts, and the defense used its pleading in a constant attempt to blur the dividing line.Google Scholar
31 On the evolution of the French public, see R. Remond, La Vie politique en France, 1789–1879 (2 vols.; Paris: A. Colin, 1969) (“Remond, La Vie politique”).Google Scholar
32 C. Ledre, La Presse à l'assaut de la monarchie, 1815–1848 (Paris: A. Colin, 1960); Remond, La Vie politique 348–49.Google Scholar
33 For a general analysis of the concepr “public,” see J. Habermas, L'Espace public (Paris: Payot, 1986). For the formation of the public: Baker, K., “Politique et opinion publique sous l'Ancien Régime,” 1 Annals 41–71 (1987); in English: “Politics and Public Opinion under the Old Regime,” in J. Censer & J. Popkin, eds., Press and Politics in Pre-Revolutionary France 206–46 (Berkeley: University of California Press, 1987) (“Baker, 'Politique et opinion publique'”); R. Koseleck, Kritik und Krise (Verlag Karl Albert, 1959); in French: Le Règne de la critique (Paris: Editions de Minuit, 1979); Maza, S., “Le Tribunal de la Nation: les mémoires judiciaire et l'opinion à la fin de l'Ancien Régime,” 1 Annales 73–90 (1987).CrossRefGoogle Scholar
34 Baker, “Politique et opinion publique” at 44.Google Scholar
35 There was another possible analysis, as K. Marx showed in his 18 Brumaire de Louis Bonaparte.Google Scholar
36 A more general analysis should follow the public as it shifts, with the extension of the mass media, from the political to the cultural sphere, provoking as it goes the rise of new representatives.Google Scholar
37 “American scholars have tended to see an inherent opposition between the state and professions, between government control of supervision and the 'free' exercise of professional authority by autonomous individuals belonging by choice and training to sharply contained 'communities of the competent.'” Geison, Profession 1 (cited in note 5).Google Scholar
38 La Gazette des Tribunaux in 1825, Le Droit in 1835.Google Scholar
39 This was the case, and at a time when the Order had not yet been reinstated, when lawyers rose, in 1804, to the defense of the opponents of Bonaparte, which cost them dearly: it was also the case when, in the early days of the Restoration, lawyers energetically defended the generals and marshals of the Empire, thus appearing to be hostile to the new political regime of which they nevertheless expected much. Fear of seeming intransigent does not seem to have slowed them in any way; but rather than speak of courage, a highly relative value, the constancy and all-pervasiveness of the phenomenon seems to have been the result of the definition of their occupation, which goes back to the ancien regime, as a faithfully respected collective duty.Google Scholar
40 M. Buteau, L'Avocat-Roi (Paris, n.d.).Google Scholar
41 M. Foucault, La Volonté de savoir (Paris: Gallimard, 1976).Google Scholar
42 Gaudemet, Les Juristes (cited in note 22).Google Scholar
43 The analysis presented confirms and places in context the meaning of the proposition: “A strong expression of working-class interests in the political process will diminish the role of lawyers in politics.” Rueschemeyer, 1986 ABF Res. J. 441 (cited in note 4).Google Scholar
44 M.P. Fitzsimmons. The Parisian Order of Barristers and the French Revolution (Cambridge, Mass.: Harvard University Press, 1987).Google Scholar
45 Works on law firms consistently show that lawyers follow the economic logic of their firms, but do not identify completely with it. This contradiction is not only verbal, it can be found in forms of organization and in strategies. See among others “Symposium on the Corporate Law Firm,” 37 Stan. L. Rev. 2 (1985).Google Scholar