L'Assistance judiciaire et l'étranger civil (1840-1851)

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L’Assistance judiciaire and the étranger civil (1840-1851) This article examines the mid-nineteenth century question of l’assistance judiciaire. Liberal commentators, jurists, and lawmakers raised questions of enduring significance about balancing the relationship between individual freedom and the social order through governmental action. Their conversations had major consequences for what this article calls poor civil outsiders (étrangers civils), that is, those who were both subject to civil law and excluded from or on the margins of the judicial domain. Civil outsiders thus became the object of new readings that changed the meanings attributed to these individuals estranged from the supposedly democratic realm of justice by their inability to pay court fees. After 1848, this project of rereading the civil outsider became increasingly important for liberal legislators. By simultaneously emphasizing and obscuring the operation of difference within civil equality, the legal regime of assistance judiciaire introduced by the law of 22 janvier 1851 transformed the familiar, dangerous poor into worrisome strangers of an unprecedented sort.

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In 1851, French legislators enacted a law organising the public provision of legal aid to the poor. This chapter examines the kinds of political ghosts that surfaced when the law on l’assistance judiciaire and the history in which it was grounded were proclaimed mid-century and then repeated and retold as part of quite different conceptual chains at the century’s end. Both the debates on the law organising l’assistance judiciaire in the early 1850s and the late-century commentary on its failings reveal how retrospective narratives of invention and inauguration can ground politically powerful new claims of genealogical authenticity, authority, and plenitude, even in a code law regime that does not rely, at least formally, on precedent in the making of law. This chapter argues that French jurists and lawmakers performed complex, unavoidable historical work as they sought to write—and later overwrite—the history of legal aid into political narratives linking past, present, and future. In the first moment, they aimed to repudiate the revolutionary demands of the poor. In the second, their successors aspired to retell the history of the law’s incomplete or primitive “origins” in a story that would anchor their claims of founding a moderate, just, and well-regulated republican democracy.
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