Why (still) no trust in French law?
UNSPECIFIED (2002) Why (still) no trust in French law? In: 2000 W G Hart Legal Workshop, UNIV LONDON, INST ADV LEGAL STUD, LONDON, ENGLAND, JUL 04-06, 2000. Published in: COMPARATIVE LAW IN THE 21ST CENTURY, 4 pp. 75-100.Full text not available from this repository.
In the following piece Raffenne looks at the institution of trust and discusses why it has not entered French law. As most comparatists writing in the English language look at the impact of the civilian tradition on common law, this is a valuable and insightful departure. The author says: '[t]he Fiducie confirms the fact that the trust's dual ownership structure cannot be transplanted into French law: the trust had to be processed, modified and cleansed of its fragmented proprietary essence.' This study analyses this processing. To make the 'alien institution' legitimate, the trust had to be handled within the parameters of the French epistemic tradition and be regulated and transformed into Fiducie. The French drafter gave Fiducie a contractual structure to clearly distinguish it from the trust. The piece discusses the concept of Fiducie, the absolute ownership of the civilian tradition, the French epistemic tradition, the French mentalite and the dynamics of French legal culture.
We are offered a comprehensive analysis of the failed 1992 Bill, a first attempt to introduce the institution of trust into French law, by initially looking into the genesis of the Bill. Ensuring the Frenchness of the new device and its uniformity with the traditions of the Napoleonic codification was foremost in the minds of the drafters. Yet in spite of this, and also the absence of real opposition to the Bill, it was dropped from the agenda of Parliament in late 1994, without ever having been discussed. Was the reason for the failure the attempt to fit the trust into the 'existing legal system'?
However, Raffenne suggests that, despite the lack of a regulated status, a new conceptual element has been added to French law. A pragmatic recourse to fiduciary devices emerged and it has become a 'widely used conceptual tool', although Fiducie cannot be considered as a transposition of the trust into French law.
Within the French epistemic tradition, is the peculiarity of 'absolute ownership' related to the logical structures and mythological images of the French 'epistemic imaginary'? Obviously, the enduring significance of the symbolism of, 'absolute ownership' obstructed the transfer of the trust into the French legal framework. This persistent significance is shown by Raffenne to be mainly epistemic and symbolic. The author claims that, nevertheless, this absolute right is subject to the contradictory ethos of state surveillance of ownership'. This is the revelation of 'governmentalitly', existing on another epistemic plane, 'deeply ingrained in French legal culture'.
The trust also conflicted with the basic premises of French succession laws and challenged the concept of 'unitary patrimony', which, according to Raffenne, creates an 'examinable economic subject' in France.
If the trust cannot be transplanted into French law, with which it is seen to be incompatible, why is there still such an interest in it? One explanation offered is that the epistemic resistance is now overcome. Raffenne suggests that this is due to changes within the legal profession linked to the rhetoric and reality of globalization. The emerging global legal elite in France, shaped by the Anglo-American model of lawyering, acts as broker of the rules. Fiducie, all early illustration of the impact of globalization, is seen as 'a microcosmic expression' of 'two-tiered competition' by these brokers. Fiducie was not a competitor to the trust, which might have gained more support from legal and financial experts. Fiducie, made a useless device by the Bill, may nevertheless develop through lawyers' international practice.
The study shows that the epistemic tradition underlying French law is symbolically powerful, even though not anchored in economic power, and yet the restructuring of legal training and doctrinal research, especially as regards commercial law, helps to erode this mythology of the state. How jar does this example show the strength of epistemic structures in the process of transmigration of legal institutions? Does the transmigration of a commercial and business device depend oil the practice of local experts and stakes raised at national and global levels? One can look back to Foster and ahead to Carey-Miller.
|Item Type:||Conference Item (UNSPECIFIED)|
|Series Name:||W G HART LEGAL WORKSHOP SERIES|
|Journal or Publication Title:||COMPARATIVE LAW IN THE 21ST CENTURY|
|Publisher:||KLUWER LAW INTERNATIONAL|
|Editor:||Harding, A and Orucu, E|
|Number of Pages:||26|
|Page Range:||pp. 75-100|
|Title of Event:||2000 W G Hart Legal Workshop|
|Location of Event:||UNIV LONDON, INST ADV LEGAL STUD, LONDON, ENGLAND|
|Date(s) of Event:||JUL 04-06, 2000|
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