Comparative Law Gets Entitled: The 1900 Paris Congress in Contexts By Mireille Fournier B.C.L./LL.B., McGill University, 2016 A Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of MASTER OF LAWS In the Faculty of Law © Mireille Fournier, 2018 University of Victoria All rights reserved. This thesis may not be reproduced in whole or in part, by photocopy or other means, without the permission of the author. Suvervisory committee Comparative Law Gets Entitled: The 1900 Paris Congress in Contexts By Mireille Fournier B.C.L./LL.B., McGill University, 2016 Supervisory Committee Dean Jeremy Webber, Supervisor Faculty of Law Dr. Thomas J. Saunders, Member Department of History ii Abstract Abstract This thesis examines the intellectual context of the first international congress of comparative law held in Paris, at the occasion of the 1900 World Fair. In particular, it articulates some of the unstated assumptions that made it possible for the conversation of this congress to unfold as it did. Using methods of conceptual history and discursive analysis, the author shows how this constitutive conversation for the discipline of comparative law drew from many discourses including conversations about the prestige of French legal science, claims to disciplinarity and the corresponding search for a scientific method, the desire to master the processes of legal unification arising from international trade, a concern with ensuring the place of France in the hierarchy of nations in a period of national malaise, and a mission befalling France to civilize the rest of the world. In showing how these different conversations shaped the discourse of the first congress of comparative law, the thesis outlines the ways in which they also participated in (re)shaping deeply entrenched conceptions of legal knowledge and legal scholarship. iii Table of Contents Table of Contents Suvervisory committee ........................................................................................................................................ ii Abstract .................................................................................................................................................................. iii Table of Contents ................................................................................................................................................ iv Acknowledgement ................................................................................................................................................ v Introduction ............................................................................................................................................................. 1 Chapter 1. Entitling Comparative Law ........................................................................................................... 6 Chapter 2. The World Fair of Thought ........................................................................................................ 15 Chapter 3. Disciplining Comparative Law ................................................................................................. 28 Chapter 4. Modernity and Le droit à la mode ........................................................................................... 53 Chapter 5. World Peace and the Pacification of the World .................................................................. 70 Conclusion ............................................................................................................................................................ 90 Bibliography ........................................................................................................................................................ 95 iv Acknowledgement Acknowledgement I would like to acknowledge Dr. Rebecca Johnson, Dr. Thomas Saunders and Dean Jeremy Webber for their assistance and support in completing this project. I would also like to thank my colleagues Rachel Flowers and Mary Anne Vallianatos for their helpful comments and suggestions on what became Chapter 5. I further acknowledge the Songhees, Esquimalt and Wsáneć peoples on whose unceeded lands and waters I had the priviledge of writing this piece. v Comparative Law Gets Entitled: The 1900 Paris Congress in Contexts Introduction July 31st, 1900 was the opening date of the first international congress of comparative law, organized by the Société de législation comparée at the occasion of the 1900 Paris World Fair. It was understood at the time, and is still understood, to be a foundational moment of the discipline of comparative law and an important moment in defining some of its projects.1 Scholars have produced very complete accounts of the origins of the discipline of comparative law over the years. These include an exhaustive study of this Congress and how it shaped and was shaped by Raymond Saleilles' intellectual trajectory,2 as well as an account of Edouard Lambert and Raymond Saleilles' intention to renovate the legal discipline in France, and the role this Congress played in this project.3 There is a detailed account of initial methodological debates in comparative law leading to and arising from this Congress.4 Exhaustive critiques of the discipline of comparative law have also been articulated, whether of its ideal of purity in legal science, 5 its eurocentrism6 or, more recently, its orientalism.7 There are also notable general critiques of scientism 8 or internationalism 9 in the legal discipline. Tackling the topic of this Congress and how it can be critiqued therefore deserves some explanation. 1 See e.g. R. David, Les grands systèmes de droit contemporains (Paris: Dalloz, 1964), p. 6; B. Fauvarque- Cosson, "Comparative Law in France" in Reimann and Zimmermann (Eds.) The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2015), p. 35; R. Sacco, "One Hundred Years of Comparative Law," 75 Tulane Law Review, p. 1164; K. Zwiegert and H. Kötz, Introduction to Comparative Law (Oxford: Clarendon Press, 1977), p. 3. 2 A. Aragoneses, Un jurista del modernismo: Raymond Saleilles y los orígenes del derecho comparado. (Madrid: Universidad Carlos III, 2008). 3 C. Jamin. "Le vieux rêve de Saleilles et de Lambert revisité: À propos du centenaire du congrès international de droit comparé de Paris" (2000) 52 Revue internationale de droit comparé 4, pp. 733-751. 4 G. Resta, "Luttes de clochers en droit comparé" (2017) 62 McGill Law Journal 4, pp. 1153 - 1198. 5 G. Frankenberg, Comparative Law as Critique (Cheltenham: Edward Elgar, 2016), p. 45-46. 6 D. López-Medina, "El nacimiento del derecho comparado moderno como espacio geográfico y como disciplina: instrucciones básicas para su comprensión y uso desde América Latina" (2015) 26 International Law: Revista Colombiana de Derecho Internacional, pp. 117-159. 7 H. Dedek "Kindred Not By Choice: ‘Legal Families’ and the History of Comparative Law," (2018) Draft on file with the author. 8 See R. Berkowitz, The Gift of Science: Liebniz and the Modern Legal Tradition (Cambridge: Harvard University Press, 2005). 9 M. Koskenniemi, The gentle Civilizer of Nations: The Rise and Fall of International Law (1870-1960), (Cambridge: Cambridge University Press, 2002). 1 I chose to write about this Congress in order to highlight key contextual elements at play in the constitution of comparative law as a discipline, an enterprise that warrants wider questions about the constitution of law as an academic discipline in the second half of the 19th century. Conceptions of legal knowledge, and corresponding conceptions of the legal discipline and of the role of jurists in society, are at the center of my reading of this Congress in its historical context. In articulating them here, I focused not (only) on the conceptions advocated by the authors of the papers and speeches, but also on the preconceptions evidenced by their practices, choices in vocabulary, and turns of phrase, hence my interest in putting these words and phrases in context. Rather than interpret Saleilles' or Lambert's words in light of their previous or following works, as some legal historians would do, I have adopted the following methodology. I have first interpreted the practices and texts of the Congress hermeneutically, as practices and literary pieces worthy of analysis on their own.10 I have further paid attention to the ways in which various papers and speeches echoed, responded to or interacted with each other, creating a conversation itself worthy of hermeneutical analysis.11 Finally, I have relied on a form of "heuristic contextualism" in seeking to illustrate how certain words and phrases were used at the time in public or scientific discourse. The aim I have pursued is not to positively know what a phrase means or what an author meant, but rather to learn something from how words and phrases were used in different contexts at the same time, an approach that Quentin Skinner has explained as asking after "what it does" to use a word or phrase.12 I think this method reveals how a specific context is shaped by and shapes thought. One of the main consequences of using this method is that one cannot presume that phenomena, conversations and discourses are merely self-referential. Scholarly conversations such as the Congress I am about to tackle do not happen in a vacuum. They 10 Among the more recently embraced ways of historiography, Hayden White names "discourse analysis" and "deconstruction." H. White, "The Context in the Text: Method and Ideology in Intellectual