|公 法 评 论
Judicial Discourse in the French Legal System
Mitchel de S.-O.-l'E. Lasser
This Article offers a new account of how the French civil judicial system actually functions. It demonstrates that the French legal system simultaneously maintains two conceptions, or "portraits," of the interpretive and creative role of its judges. The first, the official portrait, is produced by the public discourse of the French legal system, i.e., by legislative enactments and judicial decisions. This portrait, which has been the traditional focus of comparative analysis, presents the French civil judge as merely performing the passive and mechanical function of applying the provisions of an all-generating legal code. The Article reveals, however, that the French legal system also maintains a second, unofficial portrait of the role of the civil judge. This portrait, which surfaces in a hidden and heretofore unexplored discursive sphere internal to the French judicial system, presents the civil judge as performing an important role in the creation and development of legal norms. The Article demonstrates that the decision-making process of the French civil judge therefore occurs in the context of a complex dynamic between the official and unofficial portraits of the judicial role. It argues that this dynamic is best understood in interpretive terms. Officially, the French judge is engaged in a grammatical mode of reading, in which the legal code generates required judicial solutions to given fact situations. Unofficially, the French judge is engaged in a hermeneutic mode of reading, in which she seeks to produce, on the basis of policy analysis, socially meaningful solutions to contemporary legal controversies. The Article concludes by analyzing the relationship between the French legal system's two judicial portraits, and the dynamic between their two corresponding modes of reading.