Thursday, May 8, 2008

Legal transnationalization in French case involving crimes against humanity

Many thanks to IntLawGrrls for inviting this guest post on my article just published at 56 American Journal of Comparative Law 363 (2008), "Globalization, Legal Transnationalization and Crimes Against Humanity: The Lipietz Case." The article takes a look at how law is transnationalizing within national legal systems, in processes that are not officially recognized or acknowledged.
Particular attention is paid to a recent, highly controversial French case -- Lipietz v. the State and the SNCF, the French national railway, which in 1944 had deported civil mining engineer Georges Lipietz, 21, and others to Drancy, the French internment camp near Paris. Decided in June 2006, the case marked the unofficial entry into the French legal system of a tort action for complicity in crimes against humanity. (Judgment here; English translation here.) The article demonstrates that the 2006 decision -- subsequently overruled by a higher court with respect to 1 of the defendants -- was modeled on Anglo-American tort law concepts that do not fit within the French legal tradition.
Under French law, the plaintiffs normally would have brought their claim in a criminal court, because the underlying allegations concerned a crime against humanity; however, the plaintiffs in this case were precluded from doing so for technical reasons. When the Administrative Court of Toulouse held in plaintiffs' favor, an uproar ensued in France. (Prior IntLawGrrls post here.) Some of the reaction was due to unarticulated distress at the court’s departure from entrenched categories of French law, I suggest, and thus to the rupture of associations between those categories and equally entrenched national assumptions about justice.
The article also explores why national courts can be motivated to change law unofficially even when the effect may be likely to elicit widespread public displeasure and even when the national legal system may not be equipped to adapt to such changes. Finally, it posits current challenges of legal transnationalization:
► identifying when such transnationalization occurs;
► understanding the consequences of legal transnationalization; and
►developing adequate measures to adapt to such transnationalization.

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