Comparative Contraventions

Comparative Contraventions Pierre Legrand* When the comparatist-at-law offers a critique of a Lorsque le comparatiste se livre à la critique d'une particular legal culture, individuals committed to that culture juridique, les juristes s’étant investis dans cette culture may seek to repress dissemination of this culture même pourront vouloir réprimer la alternative opinion. The author thus provides a personal dissémination de l’argumentaire dissident. L’auteur narrative of his failed attempts to publish texts critical relate ici comment ses tentatives répétées de publier of the Civil Code of Quebec in various Canadian law une critique du Code civil du Québec dans différentes journals while meeting with repeated success abroad. revues de droit canadiennes se sont ainsi révélées He shows how Quebec academics used the peer-review infructueuses alors qu'elles étaient couronnées de process to stifle an argument seen as liable to undermine succès à l’étranger. Il démontre de quelle manière des a local intellectual endeavour. The peer-reviewer is universitaires québécois sont intervenus auprès des exposed as a censor seeking to silence the expression comités de rédaction pour exclure une perspective of comparative, critical thought. envisagée comme susceptible de porter atteinte à une oeuvre intellectuelle façonnée localement. L’universitaire est dès lors révélé en tant que censeur souhaitant entraver l’expression d’une pensée comparative critique. * Professor of Law and Director of Postgraduate Comparative Legal Studies, Université Panthéon- Sorbonne; Visiting Professor, University of San Diego Law School; Senior Fellow, University of Melbourne School of Law; Distinguished Visitor, Faculty of Law, University of Toronto; B.C.L., McGill; LL.B., McGill; D.E.A., Panthéon-Sorbonne; M.Litt., Oxford; Ph.D., Lancaster; Docteur en droit, Panthéon-Sorbonne. I have on file all the correspondence discussed or quoted in the text. Three colleagues generously commented on this paper. They know how grateful I am to them. I dedicate this argument to Casimir and Imogene, who must also address obfuscation. Pierre Legrand 2005 To be cited as: (2005) 50 McGill L.J. 669 Mode de référence : (2005) 50 R.D. McGill 669 670 MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL [Vol. 50 c’était bon pour l’essai c’était philosophique c’était du journalisme il n’y manquait que les noms1 Nearly fifty speakers from approximately fifteen countries gathered in Quebec City on 19, 20, and 21 September 2004 to celebrate the tenth anniversary of the Civil Code of Quebec. I find it necessary to supplement the encomium that was produced on that occasion by recalling in what circumstances over the years comparative interventions taking the new Code as their object of critical study have been apprehended as comparative contraventions and suppressed as such. These repeated acts of censorship are an important part of the story. They hardly, however, call for celebration. * Notwithstanding a theoretical commitment to enculturation and interdisciplinarity and the assumption of a critical perspective such as might be expected to recommend them as strategic hermeneuts of legal experience, comparatists-at-law would be ill- advised to assume that legal cultures will readily accredit their observations as valid knowledge. Rather than question its own understanding of itself, a legal culture may seek to marginalize the comparatist’s account in various ways: for example, by admitting it only in reduced and distorted versions or by depriving it of a forum. Thus, censorship offers another instantiation of the presence of power within the field of comparative legal studies. The story I wish to tell is intended to show how challenging it can be for the comparatist-at-law to find an audience within the observed legal culture when the views being circulated about that legal culture within that legal culture itself fall foul of received and interested orthodoxies stubbornly seeking, especially against the most compelling evidence, to preserve a certain image of themselves. Specifically, my narrative illustrates the abuse of the academic peer- review process to obviate the menace represented by the comparatist’s singular perspective.2 The reviewer-as-censor is not simply concerned with the good working order of the community, but with the preservation of what he regards to be its foundational and constitutive fabric. He is entrusted with the constant reassertion of power and must accordingly remind the author at all times of what the author must not think and 1 Gérald Godin, Ils ne demandaient qu’à brûler, ed. by André Gervais (Montréal: Éditions de l’Hexagone, 2001) at 295. 2 Recent statements arguing for the merits of narrativization include Jane Gallop, Anecdotal Theory (Durham: Duke University Press, 2002) and Homi Bhabha, “Writing Rights” in Matthew J. Gibney, ed., Globalizing Rights (Oxford: Oxford University Press, 2003) 162 at 180. 2005] P. LEGRAND – COMPARATIVE CONTRAVENTIONS 671 of what the author must not not think. In exercising authority over the author, as he prescribes what he proscribes, the censor ensures that the dissentient is aware of the inevitable presence of the “prior law”, which cannot be undermined because it grounds the whole community order; the censor must, therefore, delineate a space of inhibition and repress any statement that might unsettle the collectivity and its shared achievements (whether illusory or not). Consequently, the heterodoxy of the comparatist-at-law finds itself suppressed by jurists occupying positions of power (deemed legitimate) from which they derive ascendance to do violence to others and to their ideas. The comparatist becomes malum nomen and must bear an ignominia. It soon appears to him that individuals, for whom censorship mediates a sentiment that they themselves and their community are beleaguered, simply cannot apprehend the restorative implications flowing from the act of critique, such as the way in which tension between conformance and dissent might be creative and confer meaning to the academic endeavour. In short, it is the predicament of the comparatist-at-law—whose critical vocation impels him to privilege a heterodox discourse—to encounter opposition from the academic-as-censor, who has failed to grasp how the “[dissolution of] antagonism” and the “[emasculation of] hostility” effectively intervene to render the university “culturally irrelevant”,3 and who is unable to appreciate that the basis for critique need not arise from detachment or enmity, but can find its source in idealism. So, to my tale—bearing in mind, all along, Edward Said’s reminder that “the intellectual must be involved in a lifelong dispute with all the guardians of sacred vision or text, whose depredations are legion and whose heavy hand brooks no disagreement and certainly no diversity.”4 On the occasion of a teaching engagement I undertook in Germany a little over ten years ago, Reiner Schulze, the executive editor of the then soon-to-be-established Zeitschrift für Europäisches Privatrecht and current director of the Institut für Deutsche und Europäische Rechtsgeschichte of the Westfälische Wilhelms- Universität, in Münster, invited me to contribute a brief text in English on the new Quebec Civil Code (which was just about to come into force on 1 January 1994). The fact that I had studied and taught law in Quebec was, of course, what chiefly recommended me to my German colleague, although it so happens that I had spoken and written about an early rendition of the Civil Code in the making.5 By the time I was asked to contribute to the German journal, however, I had been living in England for three years and had somewhat lost touch with the often perplexing political events that preceded the implementation of the new Code. Yet, I decided to accept the 3 Alasdair MacIntyre, Three Rival Versions of Moral Enquiry: Encyclopaedia, Genealogy, and Tradition (Notre Dame: University of Notre Dame Press, 1990) at 219. 4 Edward W. Said, Representations of the Intellectual (London: Vintage, 1994) at 65. 5 See Pierre Legrand, “Consolidation et rupture: les ambiguïtés de la réforme des contrats nommés” (1989) 30 C. de D. 867 (being the revised version of a conference given at Université de Montréal on 7 April 1989). 672 MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL [Vol. 50 invitation extended to me because it offered a salutary occasion to write about Quebec law not as an “insider”, but from a decidedly more external perspective, away from the pressures and anxieties that inevitably ensnare critique from within (which is not to say that I was able to ignore my own goals in formulating my theoretical ideas). One obvious problem involved getting reacquainted with the situation. Fortunately, I had ready access to the Bodleian Law Library, in Oxford, where a wide range of Canadian law periodicals can be found. I also received material assistance from friends based in Quebec. And, in the course of a few timely weeks spent in Montreal, I was able to raise various matters with a number of academic colleagues and practicing lawyers. On the basis of this information, I began to work in earnest on my paper, which I completed during a prolonged teaching visit at Uppsala University in the spring of 1993. The article was duly forwarded to Germany, peer-reviewed, accepted for publication with minor emendations, and published in December of that year.6 In the short space at my disposal in this paper, I focused on what I regarded as three salient features of the Quebec codification. First, I felt compelled to underline that the writing and intellectual organization of the Code were so poor as to be unworthy of a primordial legal text.7 Second, it seemed necessary to document the fact that the Code in various significant ways marginalized the minority anglophone community established in Quebec since the eighteenth century. In this respect, the Quebec codification broke with the civil law tradition in which civil codes have been used by the state to promote harmony within a society, either through the consecration of a political unity (as in Germany) or through the institution of a legal unity (as in France).

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