Access to French Highest Courts : the Case of Supreme Courts' Lawyers
Résumé
Recourse to the highest French courts has rarely been studied in research on legal mobilization. Studies on inequalities in access to justice have ignored the use of the highest courts by ordinary litigants, whether it be the Court of Cassation for the judicial system or the Council of State for the administrative system. All too often, it is assumed that the high courts are closed to simple petitioners because of their technical nature. On the contrary, as evidenced by the usual way of naming decisions with the name of the claimant (ex. Arrêt Perruche) one can also assume that people just bring their problem in front of the court to get it solved. In this perspective, French academic lawyers then tend to study the decisions of these high courts as precedents, without taking into account the social process by which cases have acquired this singular status. The traditional dogmatic approach in French legal studies is based on the search of analytical insights, built on the study of black letter law : doctrinal analysis is still at the basis of legal understanding in the academia. The decision is interpreted as a solution to a legal problem, “the” judge being an abstract entity through which justice is done (the formula in French is that judges are “the mouth of law”). In this context, how legal subjects access to law (and its various levels), and the role of legal auxiliaries such as lawyers – compulsory at this level – are barely, if ever, mentioned. The question is resumed to “procedure”, meaning the practical aspects of the judicial process, and deference to legal formalism is considered as the guarantee of fair trial. In order to shed light on access to these courts, we will bring to light a little-known but crucial actor: the “avocats aux conseils”, French supreme courts’ lawyers.