Un modèle français de jugement des pairs. Les tribunaux de commerce, 1790-1880

Abstract : This research is based on a simple puzzle. France is supposed to be a very State-centred society with a sharp divide between the private and the public and an early rationalized bureaucracy (which is supposed to include law and justice). In addition, the 19th century could be seen as the paroxysm of this tendency, as guilds, trade unions, and all sorts of " medium bodies " based on a common occupation were theoretically forbidden from 1791 to 1884. And yet France has had commercial courts since the 16th century, i.e. special courts with lay judges elected by fellow " merchants "; and the century that I study is arguably the moment when they were the less criticized, when they dealt with the most cases and when they were considered as a model in many if not all foreign countries. What I wish to understand is therefore both the very long-term persistence of this institution and its special situation at this moment in time. What I study is not commercial courts per se, but a French model of peer judgement, as it was something that was considered as a model to be followed by many actors, and as what was to be followed was an ideal-type, not a specific, precise institution. The model consists in the simultaneous presence of four characteristics: there were only lay judges; they were, in principle, elected by peers on the basis of a common economic activity; they used a procedure that was specific and supposedly simpler than that of normal courts; but the special courts were an integral part of the official justice system. What I want to understand is how this model worked, especially in relationship to French political and economic peculiarities (how it relied on them/how it contributed in shaping them), and particularly how it could survive the important political and economic changes of my period. My puzzle is all the more relevant because of the weaknesses of parts of the literature addressing the resolution of commercial disputes, namely the " legal traditions " school (that neglects the existence of commercial courts in the " civil law " context) and most of the discussions of " lex mercatoria " (that describes the emergence of a " private " law and of " private " but organized forms of justice or arbitration as a natural process). More generally, I question the representation of the public and the private as a simple dichotomy or a continuous scale, and I emphasize the need for a study of different forms of " co-regulation " that all mix " private " and " public " elements, but in different ways. I argue that the French model of peer judgement is part of a specific form of relationships that I call " putting the private in the State ": putting people that are legitimized as experts of economic activities because they are themselves merchants/bankers/even workers, etc. in official positions, as experts of these activities. This is different from other ways to articulate the private and the public, for example from sanction by the State of privately organized regulations (e.g. professional rules, arbitration awards). I establish this by studying the practices of French courts at a macro scale, linking them to discourses about the institution, and comparing them to practices in England and the State of New York and to discussions about the introduction of commercial courts on the French model that took place there in the 1850s-1870s.
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Habilitation à diriger des recherches
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https://tel.archives-ouvertes.fr/tel-00685544
Contributor : Claire Lemercier <>
Submitted on : Thursday, April 5, 2012 - 1:12:27 PM
Last modification on : Monday, June 17, 2019 - 6:26:06 PM
Long-term archiving on : Friday, July 6, 2012 - 2:36:38 AM

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Claire Lemercier. Un modèle français de jugement des pairs. Les tribunaux de commerce, 1790-1880. Histoire. Université Paris VIII Vincennes-Saint Denis, 2012. ⟨tel-00685544⟩

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