The French Bifurcation
The French Bifurcation
This chapter examines the Cour de cassation in France, which has generally been considered the archetype of civilian judicial theory and practice. Three major American comparative analyses — those produced by Roscoe Pound, John Dawson, and Duncan Kennedy — share a deeply pragmatic, realist (or proto-realist or post-realist, as the case may be) distrust of the syllogistic and apparently formalist style of the French civil judicial decision. All three analyses assume that something must be going on behind the facade of the French judicial decision, and that what is going on turns out to be judicial lawmaking. This chapter argues, however, that French judicial argument is bifurcated into two distinct spheres. In addition to the syllogistic argumentative sphere of the official French judicial decision, a vibrant — though well hidden — discursive sphere exists within the French civil judicial system. In this sheltered argumentative space, French magistrates argue not so much in terms of textual deduction, but rather in terms of the advantages and disadvantages of adopting one judicial interpretation over another.
Keywords: Cour de cassation, France, civil judicial decision, judicial lawmaking, judicial argument, judicial system, magistrates, judicial interpretation
Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.
Please, subscribe or login to access full text content.
If you think you should have access to this title, please contact your librarian.
To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .
