L'assistance judiciaire Under the Third Republic

After the assembly enacted the 1851 law on l'assistance judiciaire, expert observers watched closely to see whether this new form of state aid would in fact help the poor legal outsider.

Expert writing on !'assistance judiciaire after 1851 regularly examined national-level data to determine what the proportion of requests for aid granted by assistance bureaus might say about the law’s impact on access to civil justice as well as the success or failure of the procedures it set in place to identify ill-founded suits and dishonest petitioners. Emile Roux, whose 1896 study of !'assistance judiciaire quickly became one of the most cited works in the field, remarked approvingly that in 1892 almost 30,000 of 70,000 applicants in France had received aid, while 18,000 or so withdrew their requests or “found other solutions,”—likely coming to some extrajudicial negotiated agreement—while roughly 23,000 applica­tions had been denied.^[733] In 1897, according to advocate general Joseph Vieillard-Baron, the number of requests across France had risen to more than 80,000.

Official tallies of requests and allocations would nevertheless be an important part in the assessment of the new regime of public legal assis­tance. Indeed, because the terms of the law strictly limited the documentation of the bureaus’ decisions to a bare minimum, the opera­tion of !’assistance judiciaire was captured most systematically in the aggregate records generated in keeping with the French state’s increas­ingly ardent quantitative passion.^[737] Numbers, however, were only one aspect of the later nineteenth-century texts dedicated to evaluating the effects of public legal assistance on the operation of civil justice. Seen more broadly, assessments of the 1851 legislation in action, along with the increasingly insistent demands for reform, all kept the allocation of !’assistance judiciaire aid alive in later nineteenth-century legal and politi­cal imagination.

The discussion about whether and how to revise the 1851 law gathered significant momentum after the founding of the Third Republic in 1870. Retelling the story of !’assistance judiciaire gained special urgency in the 1880s and 1890s, when the moderate liberal republicans who had tri­umphed their monarchist opponents in the late 1870s struggled to define and further stabilise the new democratic regime. Their political task was formidable; it entailed announcing the Third Republic’s permanent rup­ture with France’s monarchical and Napoleonic legacies, on the one hand, and repudiating any affiliation with the radical revolutionary politics of the first and second republics, on the other hand. Indeed, one of the most challenging problems for late-nineteenth-century moderate republicans was to rewrite the republican tradition so that its most unruly moments were blotted out by carefully selected monuments of enduring liberal democratic principles, especially the broad republican commitment to law and the affirmation of individual civil rights, at least for those who met the cultural and political criteria of citizenship.^[738]

An important piece of this new round of discussion thus lay in the nar­rative work undertaken by late-nineteenth-century French republican jurists and lawmakers who sought to rewrite the history of !'assistance judiciaire as a matter of non-revolutionary republican rights firmly tied to their own dreams of a well-regulated republican democracy. In so doing, they participated in the broader assertion of the legitimacy of the moder­ate Third Republic through a selective reading of its continuities with their stories of a durable moderate republican past.

Late-nineteenth-century calls for reform generally centred on a similar core set of grievances about the system of aid laid out by the 1851 law. According to some critics, the assistance bureau’s panels comprised too many members who met too infrequently or failed to meet with a suffi­cient number of their members for aid to be allocated in a timely fashion.^[740] Observers such as Mestre-Mel also had their doubts about the local organ­isation of the bureaus, especially at the municipal courts of first instance, asking whether this system inclined the legal professional who served on the bureaus towards corruption and cronyism.^[741] Those concerns were the subjects of two failed efforts to revise the law on !'assistance judiciaire in 1879 and 1882. The first aimed at expanding allocation for a wider range of matters adjudicated by justices of the peace. The second, more radical draft bill attempted to democratise the bureaus by adding non-expert citi­zens to their panels, a demand that scandalised those who insisted the system could function only with the technical knowledge of experienced legal professionals and perturbed those who feared the politicisation of the institution.^[742] Legislators on the more radical left also challenged the cum­bersome bureaucracy and drawn-out process in 1882, particularly egregious in their view when poor workers sought damages for injuries sustained in industrial accidents, an increasingly common matter as France underwent another wave of industrialisation towards the end of the nine­teenth century.^[743] Other reform-minded critics of this time proposed expanding the limited allocation of aid to foreigners living on French soil, another feature of the changing labour pool.^[744] Both projects, according to Roux, were “lost in the maze of parliamentary formalities” and did not receive further consideration.^[745]

Among these points of debate, three issues in particular increasingly organised juristic commentary and reform bills that issued from it as the century drew to a close.

Operating in a code law environment, French reformers could not eas­ily turn to precedent for solutions. Interpretation that might have had some standing came in the form of circulars from the Ministry of Justice. A circular issued in 1857, for example, firmly declared that the 1851 law was explicit that !'assistance judiciaire must not be allocated to offset the costs of execution.^[751] More liberal circulars issued in 1877 and 1878, in contrast, suggested that understandings of the 1851 law’s existing ambit might simply be stretched in practice to include non-contentious civil court appearances and acts of execution such as the appointments of guardians without recourse to legislative revision.^[752] This view was roundly rejected as ill-founded in law by fin-de-siec!e officials and legal experts, including the very reformers who wanted the regime of legal aid to extend in these same directions. As Roux put it, these interpretations could not nullify the ministry’s earlier instructions; these later circulars have “defi­nitely been more liberal than the law.”^[753] Instead, reformers advocated for a strict return to the law, in both the sense of acknowledging the 1851 text’s undeniable constraints and in the sense of returning to the law to change its meaning through redrafting, the only available course of action.

It is this later return to the 1851 law, and this continental version of concern with “original intent,” that brought some of the most influential legal commentators to ground their claims for change not only in a review of the law’s apparent failings but also in generating a revised historical nar­rative that made the liberal charitable impulse of the 1851 law into an origin of right, and the proposed changes of the fin-de-siecle into the com­pletion of an unfinished programme of republican rights-based welfare. Some, including Mestre-Mel, described the project in precisely these terms of perfecting an unfinished republican project that was also sadly marred by “vague formulas and fallacious promises.” The anticipated moment of completion, for Mestre-Mel, was thus also a moment for affirming a republican genealogy for l'assistance judiciaire while attempt­ing to exorcise the spectre of the illiberal repudiation of rights that had grounded the enactment of the 1851 law. “It was the republican govern­ment of 1848 that made the law on l'assistance judiciaire,” Mestre-Mel insisted in his conclusion. “The government that is in power now has the duty to complete the work that was begun. It would be an honour for the Republic to assure, even to the poorest of people, the full exercise of their civil rights.”^{[754] [755]}

Like Mestre-Mel, jurist Fernand Roux set himself the task of reckoning with the ghosts of 1851 by retelling the story of the law on legal assistance and the intentions behind it in his widely cited doctoral thesis of 1896, LAssistance judiciaire et sa reforme ⁶ “The legislator of 1851,” he wrote, “despite himself, recalled the long evolution of the idea. He combined charity, professional obligations, equality of rights with the new principle, poorly defined, of the right to assistance by the state. Then, marrying these different conceptions, he attempted to make them into a harmoni­ous whole.” For Roux, moreover, this precocious mid-nineteenth-century movement towards “the right to assistance by the state” bore no relation to the first French Revolution’s vision of free justice for all, including free representation, an extreme position with “detestable consequences” that he attributed to the “feverous logic” that characterised the revolution of the late-eighteenth century. In this way, Roux’s text solidified a new republican genealogy, refusing—as had the liberal anti-revolutionary jurists and legislators of 1851—any affiliation with the reforms set in motion during French Revolution of 1789. Instead, it located the germ of the Third Republic’s approach to public assistance in an alternative story about public legal aid’s founding moment in the aftermath of 1848. A “wise, rational, and fecund solution” to the problem of poor French peo­ple’s limited access to civil justice,” Roux observed, is “already written in our laws.”^[756] In this retelling that attempts to make visible a point of origin that had always been there, Roux’s history, in short, is haunted by a past, neither fully present nor ever absent, that also promises, at last, the full realisation of justice for the poor under the Third Republic.

Roux’s narrative attempted to domesticate the revolutionary possibili­ties embedded in assertions of the rights of the poor even further by weav­ing a new relationship between past, present, and future around the persistence of the French state’s charitable sentiment. A language of rights for the poor, which always threatened in the French context the reawaken­ing of revolutionary “egalitarian passion,” could not serve the moderate republican’s programme of reform without being moderated by a secular­ised discourse of charity. “[A]s ideas superimpose themselves without destroying each other, and that the human spirit always seeks the example of the past even in its innovations,” Roux wrote, “the old idea of charity and of corporate duty have not completely disappeared. They survive side- by-side, and sometimes to the exclusion of the new and pressing need for justice, which is transformed into the right of the poor.”^[757] This Third Republic retelling was no doubt influenced by the growing appeal of Solidarist ideology in the 1890s and the ethos of corporate mutual sup­port it celebrated.^[758] Yet Roux’s text did more than assert a new ethos of cooperation and a vision of people in modern society as bound to each other by a social contract based upon their debts of mutual obligation rather than at large in a sea of individual rights.^[759] It claimed that the seed of legal aid as a legitimate social right was tacitly sown by the Second Republic in a law that “hesitated to pronounce the word ‘right’ for fear of making it into an entitlement that would become oppressive.”^[760] The con­juring and naming of this unspeakable right under the Third Republic, as Roux told it, would always be accompanied by the even more powerful spirit of the mid-century charitable impulse, now extracted from its found­ing reactionary context. The law on legal aid, he contended, must be able “to surround these new principles of our modern age, equality of rights, right to the state’s intervention, with these two other terms which bring to it an inexplicable mysterious and fecund tempering: charity and duty.” Yet here too, the fears of predatory suits and legal harassment that had dogged supporters of !'assistance judiciaire a half-century earlier returned to haunt once again. Maintaining this careful balance, he concluded, would be essential to making sure that reformers did not “make this work of charity and justice into an irksome and vexatious one.”^[761]

The documentary archive of reform in this era contains numerous simi­lar attempts to retell the story of the l'assistance judiciaire in ways that would reveal the germ of a “right” in the 1851 law while at the same time reckoning with the legacy of the mid-century legislative debates and com­mentary that framed the law as conceived in reaction against any radical rights claims for the poor. “[T]he law that set up l'assistance judiciaire dates from 1851,” declared Deputy Raoul Bompard in his introduction to an 1898 draft bill revising the terms of legal aid in France. “It is far from being inspired by a truly democratic spirit.” Instead, he argued, lawmakers just after 1848 were tied in knots by their ambivalence, eager to improve access to justice for the poor but terrified at the same time of the disorder and chicanery that the provision of legal aid might bring. Their goals were further obstructed by the heavy hand of the government and the Conseil d'Etat. Yet the 1851 law could nevertheless be recuperated as a “primitive draft” that could be brought fully into the republican canon by enlight­ened Third Republic legislators. Its completion through revision, in turn, would improve France’s national standing, once again, as a nation of advanced justice.^[762]

The fin-de-siecle saw a number of similar efforts to reveal nascent rights embedded in the post-1848 languages of public charity or duty. A few commentators, including Bompard, took a more left-leaning position than Roux and knit their republican stories back to the most radical revo­lutionary demand for cost-free justice dating to the era of the first revolu­tion. Another very influential turn-of-the-century jurist, Joseph Vieillard-Baron, thus justified the proposed reforms as the truly republican step in realising the eighteenth-century revolution’s commitment to equality before the law “whose necessary collorary is free justice in the most absolute sense.” The legislators of the Second Republic, he con­tended further, “did their best” under circumstances in the way they drafted the 1851 law, allowing the spirit of cost-free justice “to survive thenceforth as an intangible principle.” Although not a radical remedy to the poor’s lack of access to the courts, he added, the 1851 law was “at least a tempering of this regrettable iniquity” and a “step in the evolution that leads us more and more toward the egalitarian ideal.”^[763] That the Third Republic’s reforms recognise that !'assistance judiciaire had always been the poor individual’s right rather than a matter of state charity, Vieillard- Baron insisted in his treatise, would mean affirming “the real conception of the law” that had been animated in 1851.^[764]

The Third Republic discussion of how the 1851 law might best be revised was not strictly theoretical. Between the mid-1880s and 1898, several more unsuccessful attempts to rewrite the law emerged from com­mittee for consideration by the Chamber of Deputies. A number addressed the size and inefficient operation of the bureaus, the question of aid for non-contentious acts of justice, and the allocation of !'assistance judiciaire for acts of execution. Others focused on the plight of the labouring poor and the pursuit of compensation for workplace injuries.^[765] None were met with success. “[T]he farther they went,” Monteux railed at the end of the 1890s, “the more the question lost its interest, although it was more nec­essary than ever to pay attention to it.”^[766] It was in the end Bompard’s more modest proposal for reform, presented to the Chamber in late 1898 and to the Senate in 1900, that won the day. It is likely that the assembly was readier to adopt the proposed reforms after the law of 8 April 1898 separated out the highly charged issue of workers’ compensation that had reinvigorated the fear of the predatory poor in the debates on the uses and abuses of !'assistance judiciaire, making workplace accidents a matter of state welfare policy rather than adversarial proceedings between increas­ingly militant industrial labour and employers. Here too, the threat so long posed in the republican political imaginary by politicised poverty was defused—but not eliminated—by reform that rewrote the relationship between the state, the poor, and the law.^[767]

The law of 12 July 1901 made a number of changes, including the desired revisions that had predominated in republican stories and the political arguments those stories supported. Among its most powerful his­torical statements, the new law dipped back into the debates preceding the passage of the 1851 law to replace the word “indigent”—imposed then by the Conseil d'Etat against the protests of Vatimesnil and the legislative commission of 1849—with the phrase “insufficiency of their resources.” Here, then, the reforms of the Third Republic succeeded where the illib­eral liberals of the mid-century had failed. The spirit of revolutionary pov­erty, along with the remains of the reactionary effort to shame the poor with the historically freighted term “indigence,” were both cast out of the new discourse of legal aid. The revision further specified that the “per­sons” to whom aid might be accorded could be corporate entities such as public or private charities devoted to helping those without means as well as private individuals. The new law also extended the provision of aid to parties appearing before a much wider range of courts, for a wider range of causes, and allowed its allocation for the execution of verdicts and for the costs of non-contentious matters. In addition to these core changes, the 1901 law laid out many new and specific requirements for the size and operation of the bureaus at the different courts, and included provisions for the emergency allocation of assistance as well as more stringent require­ments for the timely issuing of the bureaus’ decisions.^[768] Explaining his vision of a revised law in relation to the past and future of ^assistance judi­ciaire, the republican Bompard conjured the conflicted spirits of 1849 and 1850. “The historical background that I have presented,” he argued in 1898, “show how much the rough draft law on ^assistance judiciaire, conceived in a more than prudent spirit, was subjected in course of its preparation to restrictions prejudicial to the interests of the assisted indi­vidual.” In enacting these minimal reforms, he assured his colleagues, France would be unearthing the buried promise of legal access first declared by the early French revolutionaries, “a step toward the return of that democratic principle proclaimed by the Constituent Assembly: justice is delivered free of charge.” At the same time, the nation would be saved from a damaged international reputation for a law on legal aid that stood in the later nineteenth century “in state of real inferiority compared with the law of the states that surround us.”^[769]