Demand for Justice before the French Supreme Courts. Judicial Aid, 1850-2000

This two-year project is funded by Sciences Po's Scientific Advisory Board (SAB). It is managed by Claire Lemercier.

In September 1979, Mrs. L., a widow whose recognized disabilities did not allow her to earn a salary, lived in a small town in Normandy. She asked for judicial aid, after having lost a first-instance trial against her mother- in-law. Some time before, the mother-in-law had given, or lent, 2,000 FF (the equivalent of 1,000 € today) to his son so that he could buy a car; there was no written proof of either a gift or a loan. The son died; Mrs. L. refused to pay back, her mother-in-law went to the first-instance court, and Mrs. L. lost. A local lawyer mentioned the possibility of going to the Supreme Court; Mrs. initially filled in the wrong forms, but finally managed to explain her case, on pages from an exercise book. She also contacted one of the 60 avocats aux conseils, special lawyers with a monopoly before the French Supreme Courts. The Judicial Aid Committee (BAJ, for Bureau d’aide judiciaire) of the French Supreme Court for civil and criminal cases (Cour de cassation) granted her full support in March, 1980, stating that it seemed likely that the initial decision would be voided. Mrs. L. indeed won her cassation case (which, in effect, sent her and her mother-in-law back to a different first-instance court), and the decision was published. Mrs. R’s sent one week after Mrs. L.’s, was rejected on the same day. Hers was a divorce case that had already been tried in the first instance and in appeal. The Polish former wife of a French man, she had moved to Poland with her son. She typed her letter, in perfect French, explaining that the solicitor (avoué) who had assisted her in the previous trials had mentioned that she would need an avocat aux conseils, and that judicial aid could pay his fees. Her lack of financial resources made her eligible for aid, yet the BAJ decided that she had “no serious legal ground” (aucun moyen sérieux, a standard phrase) that might have given her a chance before the Supreme Court. She tried to appeal the decision on judicial aid, to no avail; her case never reached the Cour de cassation. 1 The aim of this research is to understand why Mrs. L.’s application was granted, and not Mrs. R.’s; and, perhaps more importantly, which processes led them to try to get access to the French Supreme Court. The question is not anecdotal: thousands and thousands of similar applications were sent to the French Supreme Courts over the years. In 1980 alone, the BAJ at Cour de cassation received 2,171 demands for judicial aid. The other Supreme Court, Conseil d’État (for public law), has its own BAJ, which received 949 demands in 1980. Committees of judicial help, established in 1851, have discretion to consider not only the financial resources of the applicants, but also the plausibility that their claims will lead to their victory in court. They are among the key gatekeepers for French Supreme Courts. Those courts, contrary to their US counterpart, have little discretion to decide which cases to hear.

Beyond the few cases that make the headlines in the press, and the dozens that are commented on in legal journals, thousands of decisions are made each year (e.g. in 1980, ca. 10,000 in Cour de cassation, ca. 3,500 in Conseil d’État) in cases that are only deemed important for their protagonists. The Ministry of Justice regularly complains about these allegedly too numerous, perhaps frivolous cases, impeding the efficiency of courts. In this context, each avocat aux conseils acts as a gatekeeper when he or she accepts or refuses a client – a process that is very difficult to investigate empirically. On the contrary, the BAJs of the French Supreme Courts have left an incredibly interesting paper trail that has never attracted the attention of researchers. We discovered this archival treasure trove while investigating avocats aux conseils, and we decided that it was well worth launching a distinct, pathbreaking research project.