This fragment applies negative thought to the French statute prohibiting ostensible religious attire at school and shows the radically alternative comparative law model that I defend at work.

Chapter 2 examines the largely overlooked writings of nineteenth-century clinicians, scientists, lawyers, and jurists who actually called for a third sex to be added alongside the ranks of “male” and “female” because, quite plainly, there were individuals for whom no “true sex” could be identified. The inflexibility of the Napoleonic Code, which required that all infants be sexed as either male or female at birth, was challenged by doctors and legal forensics experts who believed either that the Code was out of step with scientific progress, or that it did not do enough to protect citizens from “hermaphrodites.” In sensationalized court cases that riveted domestic and international audiences – both scientific and lay – doctors and jurists struggled to reconcile cases of “doubtful sex” with scientific evidence, social welfare, and the Code itself. Intersex people came into conflict with the law from the moment of their birth. Jurisconsults enthusiastically contradicted one another about the veracity of sex determinations, while influential men labored to revise laws regarding birth certificates, marriage, divorce, and inheritance. Ultimately, the only party remaining silent on “hermaphrodism” was the Code itself, ensuring that a legal blind spot only increased the visibility of those it tried not to see.

In this chapter, I argue that the local paths of reception of proportionality by French and English lawyers in the field of the convention are shaped by local patterns of cultural change. In the monist and rationalist French system, proportionality and European human rights standards have been received as already inherent in domestic concepts and methods. In contrast, English dualism and analytical formalism long impeded the application of proportionality as a human rights principle in common law cases. Differences in domestic lawyers’ reactions to proportionality affect the ways in which proportionality deploys its acculturation dynamic in the field of convention rights. In France, the institutional/procedural aspect of proportionality has generally been neglected by domestic lawyers. The employment of proportionality as a European standard in judicial reasoning is residual and accomplishes a rather symbolic function. Since its reception under the HRA, on the contrary, proportionality has systematically served the fulfilment of the UK’s international obligations. Proportionality as a European principle generates an important cultural shift in English public law.

European integration is in crisis. Paradoxically, disintegration seems to be a transnational tendency. While one cannot say that proportionality bears the dynamics of disintegration itself, relevant tendencies affect its form and function in different settings. This chapter offers a particular reading of proportionality cases that have provoked much discussion among French, English and Greek legal actors. I argue that what is new about these cases is not so much the application of proportionality itself, which follows already existing local patterns characterising the reception and the evolution of proportionality. Rather, it is the particular context of disintegration in which proportionality operates. Indeed, what is observed in these much debated uses of proportionality is a rupture in the traditional local patterns of Europeanisation.

In 1967, AWB Simpson published a landmark article which demonstrated that the concept of ‘continuous and apparent’ easements, a fundamental part of English law (then and now) on the implication of easements was derived from the French Code civil via an English treatise written by Charles Gale in 1839. Simpson justifiably described his contribution as ‘a cautionary tale, containing several morals’. However, his account is incomplete principally because he used only English sources. This chapter shows that many other ‘morals’ emerge from a more extensive comparative and historical analysis of this reception. The roots of the concept of ‘continuous and apparent’ did not run very deep in the pre-Revolutionary law when it emerged in the Code civil in 1804 and, remarkably, it had never before been used for the purposes of implying easements. Unsurprisingly, given these inauspicious origins, the interpretative problems which the concept caused in English law were already visible in French law in 1839 but, intriguingly and significantly, they were omitted in the first and subsequent editions of Gale’s treatise. This omission is critical; the inherently flawed French concept of ‘continuous and apparent’ was absorbed into English law by judges who relied almost exclusively on the various editions of Gale’s treatise. Filling in the gaps in the story told by Simpson reveals much about English private law in the second half of the nineteenth century and in the first decades of the twentieth; it also has important implications for theoretical thinking about transplants in comparative legal scholarship.

This chapter traces the genealogy of the notion of “human dignity” in modern French law. My goal is to explain how and why dignity has come to be associated with national belonging and public order, as evidenced, for example, by the 2010 law banning “face coverings” in public spaces or by the recent pleas to revive “national indignity” after the attacks on the offices of Charlie Hebdo. I argue that that the definition of dignity circulating in French law since the 1990s is primarily a corporatist one. Rather than promoting abstract individual freedom, human rights, and democratic inclusion, this understanding of dignity (theoretically much closer to that of political Catholicism and personalism than to the Kantian or liberal understanding of dignity that we see in American law) insists on the obligations that the individual has toward the community, toward the social, and, in its most recent formulations, toward France. I propose to consider human dignity in the French context not as a value intrinsic to a person but as a project of biopolitical rule.

National courts have generally embraced a multifold account for causation in virtually all Member States. However, the different national tort law systems structure the multi-stage accounts differently. National judges enforce competition law rules largely relying on their domestic laws of obligations. For this reason, this chapter examines the bundle of tort law and competition law that applies to establish causation in competition damages actions before national courts of England, Germany, France and Italy. These four jurisdictions were selected because of the size of their economies, the amount of litigation and the fact that they show four different, almost paradigmatic, approaches to causation.