The French Deviation

To a comparative lawyer, the end of the socialist revolution in the Soviet Union and its satellites provides a number of topics for reflection. For one, why did the effort to build a socialist legal system following the 1917 Revolution produce such apparently inconsequential results? The American and French Revolutions are generally thought to have had fundamental, lasting legal consequences that are clearly visible today in legal systems throughout the world, but Soviet socialist law at its height seems never to have penetrated the surface of the culture in the USSR or elsewhere. Socialist legal principles appear in retrospect to have been at most a sort of temporary superstructure erected on a legal base that was largely Western in character. With the end of the Soviet experiment that superstructure has been dismantled, leaving few marks. To use a different metaphor, the Western legal body appears to have rejected the socialist transplant. The attempt to build a socialist legal order now looks more like a temporary deviation than a new direction. My purpose here is to discuss a legal invention of a different revolution, one that also sought to introduce a radical change into European law. I will suggest that this history is in important ways analogous to the history of Soviet law. It illustrates how an attempt to establish a fundamental legal reform derived from one nation's political and historical imperatives, fuelled by the works of influential theorists and widely exported to nations with different political and historical characteristics, eventually revealed itself to be a parochial product of a particular set of historical conditions. Rather than the relatively simple process of dismantling a temporary superstructure, however, the effort to free legal systems from the consequences of this deeply embedded innovation has been long and painful and is still incomplete. The revolution to which I refer is the French Revolution of 1789. The innovation was the effort to make the law judgeproof. Part of the story is familiar. In pre-Revolutionary France the regional parlements became centers of conservative power. The judges,