Introduction
In January 1851, French legislators enacted a law organising the public provision of legal aid. Its primary focus was assisting poor citizens who could not pay the costs of civil actions.
The debates and commentary surÂrounding the drafting of the new law make clear that lawmakers had to reckon with France’s turbulent revolutionary history—and set their own histories of governmental responsibility for the poor in an appropriate moral and temporal frame—before the proposed legislation could satisfy the political demands of the day. Legal historian Bernard Schnapper has suggested that although the day-to-day operation of public legal aid in France has an important post-1851 history, the institutional and legalS. Schafer (*)
Department of History, University of CT, Storrs, CT, USA e-mail: sylvia.schafer@uconn.edu
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F. Batlan, M. Vasara-Aaltonen (eds.), Histories of legal Aid, World
Histories of Crime, Culture and Violence, https://doi.org/10.1007/978-3-030-80271-4_8
history of the regime of !'assistance judiciaire requires little attention after its establishment because it remained relatively unchanged until it was reorganised in 1972 under the title of l'aide judiciaire. At that point, he argues, legal aid was finally embraced as a critical element of a modern rights-based welfare state.[694] Yet the juridical writing on the subject both before and after 1851, along with the multiple projects for legal revision that were brought forward between the late 1870s and 1901, when the French assembly finally approved an amended version of the text, indicate that the 1851 law did not secure a stable understanding of the nature and status of public legal assistance to the poor, even in the decades immediÂately following its enactment.
Nor was its place in France’s vexed history of poverty and its politics settled. Was state-provided aid for poor litiÂgants—the !'assistance judiciaire of 1851—to be understood as an apolitiÂcal form of public charity to which no individual had any a priori right? Was it a new sort of social right born of France’s long revolutionary past and tempestuous present even if unnamed and unrecognised by the antiÂrevolutionary liberals of the Second French Republic who would affirm only government’s moral duty to help?Through a close examination of legislative debates and expert comÂmentary on !'assistance judiciaire at two key points in its nineteenthÂcentury history, this chapter explores the domain of juristic reflection on the uncomfortable tension in France between inherited ideals of charitable obligation made secular and public, on the one hand, and a developing discourse of social rights, on the other hand. In particular, I explore the layered uses of the past and visions of the future that framed the issue of public legal assistance. What kind of historical work was embedded in the founding articulations of public legal aid and how did those articulations later undergo translation into other political idioms? What practices of appropriation, rewriting, or assimilation were employed to adapt the work of an anti-revolutionary liberal political imagination of 1851 to republican frameworks of understanding and interpretation in the 1880s and 1890s?
In his explication of Jacques Derrida’s notion of “hauntology,” Ethan Kleinberg suggests that we might see any recounting of history as “haunted by the ghost of the past, which is neither present nor absent, neither here, nor gone.”[695] Drawing on Derrida, Kleinberg contends that this way of approaching history can help illuminate the work of repetition. “When history is written,” he notes, “it is made repeatable, but the repetition itself can become part of another conceptual chain pulled out of the initial context.”[696] This chapter examines the kinds of political ghosts that surÂfaced, openly or in the shadows, when the law on l'assistance judiciaire and the history in which it was grounded were proclaimed in mid-century and then repeated and retold as part of quite different conceptual chains at the century’s end.
Both the debates on the law organising l'assistance judiciaire in the early 1850s and the late-century commentary on its failÂings reveal how retrospective narratives of invention and inauguration can ground politically powerful new claims of genealogical authenticity, authority, and plenitude, even in a code law regime that does not rely, at least in formal terms, on precedent in the making of law. This chapter thus takes up the complex, unavoidable historical work undertaken by French jurists and lawmakers who sought to write and overwrite the history of state-provided legal aid into highly political narratives linking past, presÂent, and future. In the first moment, they aimed to repudiate the revoluÂtionary demands of the poor. In the second, their successors aspired to retell the history of the law’s incomplete or primitive “origins” in a story of presence and absence that would anchor their claims of founding, at last, a moderate, just, and well-regulated republican democracy.[697]
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