Fluent Essays

Article Critique Assignment Instructions Overview In the Article Critique Assignments, you will systematically and objectively critique criminal justice-related research articles to understand published research. You will critique the strengths and weaknesses of peer-reviewed journal articles and carefully analyze arguments and points in the article. You will develop the technical writing skill of critiquing while furthering critical thinking application and knowledge of the topics investigated. You will incorporate and apply a Christian worldview perspective to each topic and Article Critique Assignment. Instructions · 7 pages excluding the title page, abstract, and reference pages. · Current APA format. · Minimum of two (2) peer-reviewed journal articles from Liberty University library.  · Acceptable sources (peer-reviewed articles published within the last 5-10 years only). · Include a critique of least two (2) strengths and two (2) weaknesses from each article. · Include a Christian and Biblical Worldview perspective.  This Article Critique Assignment requires that you follow a template. Please review and follow the template carefully. Include a running header, title page, abstract (between 120-250 words), proper APA headings/subheadings, and a reference page. Please note that you are asked not to change or omit any of the bold headings that are already in the template. You are only asked to insert your written content into the appropriate sections of the template.     Article Critique: Dual-Court System and Roles of Courtroom Workgroup Assignment Locate two (2) peer-reviewed articles no older than 5-10 years that discuss 2 historical Supreme Court cases and review the video titled: “Dual-Court System and Roles of Courtroom Workgroup” found in the module’s Learn section. This historical case law choice is limited to search and seizure, stop and frisk, searches for evidence, or police interrogation and confessions. Chosen articles do not have to be on the same topic although they may be. Find articles related to case law on the aforementioned topics but do not consider articles merely discussing the case law itself. Provide an in-depth discussion of the findings of each article. With respect to the specific case law you have analyzed, defend constitutional democracy and the issues raised in case law from a Christian and Biblical worldview. Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalInformation?journalCode=rjlp20 The Journal of Legal Pluralism and Unofficial Law ISSN: 0732-9113 (Print) 2305-9931 (Online) Journal homepage: https://www.tandfonline.com/loi/rjlp20 Popular Development of Procedure in a Dual Legal System ‘Protective Litigation’ in Russia’s Peasant Courts, 1889–1912 Gareth Popkins To cite this article: Gareth Popkins (1999) Popular Development of Procedure in a Dual Legal System, The Journal of Legal Pluralism and Unofficial Law, 31:43, 57-87, DOI: 10.1080/07329113.1999.10756529 To link to this article: https://doi.org/10.1080/07329113.1999.10756529 Published online: 02 Dec 2013. Submit your article to this journal Article views: 18 View related articles Citing articles: 1 View citing articles https://www.tandfonline.com/action/journalInformation?journalCode=rjlp20 https://www.tandfonline.com/loi/rjlp20 https://www.tandfonline.com/action/showCitFormats?doi=10.1080/07329113.1999.10756529 https://doi.org/10.1080/07329113.1999.10756529 https://www.tandfonline.com/action/authorSubmission?journalCode=rjlp20&show=instructions https://www.tandfonline.com/action/authorSubmission?journalCode=rjlp20&show=instructions https://www.tandfonline.com/doi/mlt/10.1080/07329113.1999.10756529 https://www.tandfonline.com/doi/mlt/10.1080/07329113.1999.10756529 https://www.tandfonline.com/doi/citedby/10.1080/07329113.1999.10756529#tabModule https://www.tandfonline.com/doi/citedby/10.1080/07329113.1999.10756529#tabModule © Copyright 1999 – Gareth Popkins - 57 - POPULAR DEVELOPMENT OF PROCEDURE IN A DUAL LEGAL SYSTEM ‘PROTECTIVE LITIGATION’ IN RUSSIA’S PEASANT COURTS, 1889-1912 Gareth Popkins This article presents the results of research into the process of the confirmation of inheritance claims in Russia’s courts of the volost’ (or ‘rural administration’) between 1889 and 1917.1 The rural population, unbidden by the state, transferred a procedure from the general courts across the barrier created by the country’s dual court system and into the peasant-run volost’ court. By the end of the period there were about ten thousand volost’ courts in European Russia. They were the most accessible forum of state-backed justice for the vast majority of Russians and estimates suggest that members of as many as one third of households a year appeared before them, as either parties or witnesses. The study begins with a brief description of the institution, its place in the wider late-tsarist legal order, and confirmation procedure. Hitherto unpublished statistics then help to establish the scale of the court’s confirmation of inheritance rights. Illustrative case-studies drawn from the court records of several provinces, especially St. Petersburg (north west) and Tambov (central agricultural region) form the core of the investigation. They 1 The author is grateful to the British Academy/Humanities Research Board, the British Council, the Finnish Ministry of Education (C.I.M.O.), the Nuffield Foundation and the Learned Societies Research Fund, University of Wales, Aberystwyth for their support of the research on which this article is based. Thanks for help using the Russian archives are due to Academician Boris Anan’ich, N.A. Chekmareva, G.A. Ipolitova, Professor P.S. Kabytov, Professor Aleksandr Kamkin, Dr Vladimir Lapin, Professor Boris Mironov, Professor Lev Protasov, Professor Boris Starkhov, A.D. Ukhova, S.I. Varekhova and others. ‘PROTECTIVE LITIGATION’ IN RUSSIA’S PEASANT COURTS Gareth Popkins - 58 - provide insights into the types of situation and litigant that drove on the procedural transfer. Court Jurisdiction and the Bases of Law Until 1917, Russia remained a society organised on the basis of legal estates. The emancipation legislation of 1861 created a two-tier system of self-government for the former private serfs, who were declared members of the new estate of ‘rural residents’ (sel’skie obyvatel’i). Acts of 1863 and 1866 brought tillers who lived on appanage lands (udelnye krest’iane) and on state property (gosudarstvennye krest’iane) respectively under the new system alongside the former private serfs (all three groups together comprised a little over eighty per cent of the population). The lower of two layers of the rural self-government was the village (sel’skoe obshchestvo), with its assembly and elected officials. The volost’ was the upper tier and had an assembly, a small permanent administration and court of law. Together the village society and the volost’ had a wide range of responsibilities in matters of importance to the state and local interests such as taxation, fulfilling the annual conscription quota, and maintaining emergency grain stores and roads. For almost the first thirty years of their operation, the new institutions had little effective supervision from above. In 1889, however, the office of land captain (zemskii nachal’nik) was created. The captain was usually of gentry stock and exercised wide supervisory and disciplinary powers over the rural inhabitants and their organs of self-government. Like the rest of peasant self-government, the court was initially financed by the villagers alone. It was staffed by untrained and often illiterate judges who were elected from among their midst. A volost’ scribe assisted the judges. The law stipulated that sittings take place at least once a fortnight. After the 1889 reforms the villages lost the right themselves to elect the judges. Under the new rules each village elected at least one man to a list of candidate judges, and the local land captain selected and confirmed the appointment of four judges from that list. The 1889 reform raised the age threshold for volost’ judges by ten years to thirty-five years and required them to serve for terms of three years (instead of one). They henceforth received compulsory (rather than the previous discretionary) remuneration from volost’ funds (OPK arts 93, 114; Vr. Pr. (1889) arts 2, 3, 7). The judges were first to attempt to reconcile the parties, and, failing that, to resolve cases according to an ill-defined mixture of statute, unwritten local customs, any agreements recorded in the records of the volost’ administration and judicial ‘conscience’ (sovest) (OPK art. 107; Vr. Pr. (1889) art. 25). The 1861 law had limited the court’s compulsory jurisdiction in civil cases to suits JOURNAL OF LEGAL PLURALISM 1999 - nr. 43 - 59 - between ‘rural residents’ valued at up to one-hundred roubles. The court also tried ‘minor’ crimes and could sentence persons found guilty to communal labour for up to six days, arrest for up to seven days, or, most controversially, up to twenty blows of the birch (women were exempt after 17 April 1863, but the court retained the power to birch men until 1904). It could also impose fines of up to thirty roubles (OPK arts 93-100).2 The 1889 reform substantially widened the institution’s sphere of authority in thirty- six ‘inner provinces’ of European Russia to encompass not just members of the peasant estate, but all non-privileged permanent residents of the countryside. The main group that fell within the court’s purview as a result were members of the estate of small-traders (meshchane) who lived outside the towns. Henceforth, the court heard all civil cases without limit of value concerning property that had been acquired as part of the emancipation settlement. A very substantial change was the compulsory jurisdiction that the court gained over other property worth up to three hundred roubles (five hundred roubles in the case of inheritance and family property disputes) (Vr. Pr. (1889) arts 14-21). The reform of 1889 also created two appeal instances above the volost’ court (appeals to the district level administration of the peasantry had been permitted on points of law since 1866).3 The first was the district congress of land captains (uezdnyi s”ezd zemskikh nachal’nikov), which dealt with points of fact and law. The second was the provincial board (gubernskoe prisutstvie), which considered points of law only (kassatsiia) (PoZN; PPSD). A final volost’ court reform, in 1912, made provision for various changes in the body’s organisation and procedure, including reducing its jurisdiction once again and creating an new upper rural (appeal) court (verkhnii sel’skii sud) under the chairmanship of the revived justice of the peace (Vr. Pr. (1912)). The 1912 reform was introduced in ten provinces on 1 January 1914. However, the First World War delayed its introduction in another seven until the beginning of 1917. The Provisional Government abolished the court on 4 May that year. For many years Peter Czap’s pioneering work held the field as the only detailed study (in any language) of the volost’ court (Czap, 1959, 1967). The subject attracted little interest among Soviet researchers (but see Aleksandrov 1984; Zyrianov 1976 on peasant customary law). Czap concentrated on the period 1861- 2 The 1889 act defined the court’s jurisdiction in criminal matters more precisely, see Vr. Pr. (1889) art. 17. 3 The district (uezd) was lowest level of all-estate administration. Several districts made up a province (guberniia). ‘PROTECTIVE LITIGATION’ IN RUSSIA’S PEASANT COURTS Gareth Popkins - 60 - 1889 and one of his main sources was the published volumes of the official commission under Senator Liuboshchinskii that investigated the operation of the volost’ courts in the early 1870s (Trudy 1873-4). Tarabanova has worked with this source in a recent thesis that is part of a broader renewal of interest in the pre- revolutionary legal heritage in post-Soviet Russia (Tarabanova 1993, 1998). The effects of the reform of 1889 on court practice and the development of the institution in subsequent decades are now becoming evident thanks to recent research by a new generation of Western historians who have worked in the newly accessible Russian archives, especially the provincial collections. Villagers, it is becoming clear, made much wider and more willing use of the court than might be concluded from the relentless criticism that was levelled against it by ideologically hostile liberal publicists at the time. The post-1889 court was still recognisably of the Russian countryside, but thanks to a more detailed legislative basis and greater external supervision, and to the aspirations of officials and litigants, the institution increasingly came to resemble the modernist ideal of a court of law (Burbank 1995, 1997; Gaudin 1997; Frank 1999; Frierson 1997; Popkins 1995). Research attention has focused mainly on court procedure and ceremonial. The substantive legal bases of decisions remain little considered. The latest work draws to some extent on insights from legal anthropology. We historians are becoming aware of the pluralist critique of the claims about the social role of law made by the ideology of legal centralism; the Russian case deserves to be better known among legal anthropologists so that the cross-fertilisation may strengthen. Protective Civil Procedure in Imperial Law and the Volost’ Court Regulations Under Imperial Russian law ‘protective procedure’ (okhranitel’noe sudoproizvodstvo, cf. L., jurisdictio voluntaria, Germ. freiwillige Gerichtsbarkeit) was defined by one specialist as “a system of legal defence consisting of certification, consolidation and the preservation of the civil law rights of a person with a view to the prevention of a dispute” (Verblovskii 1897: 511). Much protective procedure related to various aspects of inheritance law, including the process of renouncing an inheritance (otrechenie ot nasledstva), the confirmation by the courts of the form of testaments (utverzhdenie zaveshchanii) and, of central concern in the present context, the confirmation of inheritance rights (utverzhdenie v pravakh nasledstva). The details were set out in the new Statute of Civil Procedure of 1864 that was introduced for the new justices of the peace (mirovie sud’i), circuit courts (orkyzhnye suda) and their respective appeal instances (SZ 10, pt. 2, arts 1060-6, 1222-68; UGS arts 1401-60). JOURNAL OF LEGAL PLURALISM 1999 - nr. 43 - 61 - Before 1889, people in the villages could turn to the justice of the peace to take the prescribed steps to protect their inheritance. However, the office of justice was abolished in the countryside in 1889 to make way for the land captains. Responsibility for carrying out the procedure (described below) was then divided between the land captain and another new official, the district member of the circuit court (uezdnyi chlen okruzhnogo suda) (UGS po prodolzheniiu 1870 art. 29, primechanie; USU arts 29-30). In inheritance cases the land captain (through the local police) took the initial measures to secure the property (making an inventory, sealing any building, securing the property). He informed the district member of the circuit court of his actions. It was then up to the district member to complete the protective inheritance procedure by following the prescribed procedures for informing any absent heirs. According to written procedure the actual confirmation of inheritance rights by the court (i.e., the district member of the circuit court or that court itself, according to the property involved) was optional. This was the final step in the whole procedure and is of central concern below. Only if the heirs “considered it essential” did the law foresee their turning to a court to obtain a formal decision (opredelenie) confirming their rights. The post-1864 confirmation procedure was very different from the rules that it replaced. The pre-1864 courts had automatically taken over the management of an inheritance following a death. The heirs were obliged to apply to the court with a request of confirmation, providing proof of their identity. The courts used only to approve their application if nobody else challenged it (PPSD art.161; PUSCh art. 24; SZ vol. X part 1, arts 1222-1253, UGS 1401-1408, quotation at art. 1408; Pobedonotsev 1896: 379-380). Such was the situation in the general courts. Before 1912 there was no firm and general legal grounding for the role of protective procedure in the volost’ court. Neither in the 1861 nor the 1889 legislation was there any reference to protective procedure of any type. In civil matters, the 1861 legislation conceived of the court as a forum for “sbory i tiazhby” (disputes and lawsuits) (OPK arts 95, 96, 98, 103, 107). There was a rather obscure reference in a decree (ukaz) dated 16 March 1882 (no. 2, 331) issued by the Second (Peasant) Department of the Ruling Senate (Russia’s high court) that “the confirmation of inheritance rights on the basis of local customs, the fixing of the shares of co-heirs and the division of the inheritance between them falls within the purview of a court” (quoted by Abramovich n.d.: 165). Yet this decision, as quoted by Abramovich, made no direct reference to the volost’ court. The words “disputes and lawsuits” appeared again in the 1889 act (Vr. Pr. (1889) arts 14, 15 (1-3)). The sub-article of the 1889 act that defined the court’s jurisdiction in inheritance and family property actions referred to “cases (dela) between the heirs to peasant property” (Vr. Pr. (1889) art. 15 (4), emphasis added). This phrasing suggests that the legislation envisaged a legal contest. ‘PROTECTIVE LITIGATION’ IN RUSSIA’S PEASANT COURTS Gareth Popkins - 62 - In 1905 the General Assembly of the First, Second and Civil Cassation Departments of the Senate did state in a ruling that peasants should seek confirmation of inheritance rights to deposits held in the State Bank either in the general courts, or the volost’ courts (Decision no. 10, quoted by Tiutriumov at 520). In a submission on file in the Ministry of Justice from the time of the preparation of the final reforms to the volost’ court of 1912 an official of the State Savings Bank (Gosudarstvennye Sberegatel’nye Kassy) confirms that this is what happened in practice. The heirs were usually in possession of the deceased’s bank book and needed official confirmation of their status to withdraw the money. The Bank strove to accommodate itself to the reality that the volost’ court represented, due to its proximity and relative informality, by far the cheapest and quickest way for villagers to seek their rights. The Bank’s practice was to recognise the court’s decisions in this field, despite their lack of a firm legislative basis (RGIA f. 1405, op. 543, d. 955, ll. 419-421).4 The Senate and officials attempted, then, to recognise the situation that had developed on the ground. There was, neverthless, no grounding in legislation for the confirmation of inheritance in general by the volost’ courts. The Scale of Volost’ Court Confirmation Activity The uncertainty surrounding the volost’ court’s authority in law to confirm claims to inheritance was no barrier to the institution’s adoption of the procedure in practice. This development comes to light from the records of volost’ courts themselves, statistical material and the observations of a small number of outsiders. An inspection of Fetin’inskii5 volost’ court in Volodga province and district in 1897, for example, found that the court refused to accept applications for the confirmation of inheritance as not under the jurisdiction of the volost’ court (RGIA f 1291, op. 54 (1904) d 4, l. 59). The inspector, from the provincial board, noted this as a criticism. A file surviving from the records of the notary archive of Vologda Circuit Court contains numerous copies of local volost’ court judgments that show that the 4 This article follows the archival citation conventions of Russian historiography: f for fond (collection), op. for opis’ (inventory), d. for delo (file), l. for list (sheet). Verso is indicated by ob. (obratnaia storona). 5 Place names usually appear in the sources with an adjectival ending which, in Russian, cannot always be simply stripped away to leave the name of the village. Where it was not possible to find the place on a map, the masculine adjectival ending is retained as a marker (femine before the word volost’). JOURNAL OF LEGAL PLURALISM 1999 - nr. 43 - 63 - courts in northern Russia also confirmed wills both before and during the period of the Stolypin land reforms. Vas’ianovskii volost’ court, for example, dealt with cases in 1903, Troitko-Elameskii volost’ court heard at least one case in 1909, as did Vasokovskii court in 1911. (GAVO f. 179, op. 7, d. 26, ll. 43-44ob, 57-58ob). The details of appeals against volost’ court verdicts also brought confirmation by the volost’ courts to the attention of the authorities outside the village. Dmitrii Maksimov Kochetov turned to Kalikina volost’ court with an inheritance claim to a plot of land left by his cousin Roman Timofeev Kochetov. The court refused to confirm him as heir and so he appealed to Lebedian District Congress. The congress upheld the volost’ court decision on the grounds that Kochetov had been incorrect to bring the case under the rules of protective procedure (v okhranitel’nom poriadke sudoproizvodstva) because, according to the witness Obchinnikov, the plot was currently in the possession of Kochetov’s sister. He should have initiated a civil contest (isk). In May 1912 Tambov Provincial Board overturned this decision, however. Since nobody had disputed Kochetov’s claim, he had been right to apply for confirmation; the congress should have limited itself to checking that Kochetov’s family relationship to his cousin made him the heir (GATO f . 26, op. 4, d. 1253, ll. 52-53).6 Although the congress ruled that Kochetov’s case should be heard as a contest, it did not appear to object to confirmation by the volost’ court in principle. With its decision, Tambov Provincial Board positively encouraged it. Despite the legislative silence on the authority of the volost’ court to confirm inheritance, some officials based at provincial level and below obviously observed the development on the ground and regarded it as acceptable. The records of the Ministry of Justice include data that reveal the scale of confirmation activity at the volost’ courts between 1910 and 1915. The central government did not, unfortunately, regularly and consistently collect, let alone publish, statistics on volost’ court activity. Table 1 (at end of text) shows the number of cases that reached the volost’ courts of six administrative districts (uezdy) during these years. The districts lay in three provinces: Orel (central agricultural region), Khar’kov (southern black earth/left bank Ukraine) and Saratov (lower mid Volga). District population figures (see left hand column) provide a sense of the scale of the total number of cases that were brought to the courts. In all districts well over half of the cases that came to the volost’ courts concerned civil litigation. A small but 6 Other example of cases on appeal in which confirmation played a role are GATO f. 26, op. 4, d. 2470, ll. 4-5; TsGIA St. P. f. 258, op. 29, d 290 and op. 53, d. 98. ‘PROTECTIVE LITIGATION’ IN RUSSIA’S PEASANT COURTS Gareth Popkins - 64 - stable and significant number of protective cases were among them. During the last full years of peacetime the range is from three hundred and thirty-nine cases in Tsaristyn district (Saratov) in 1913 to one thousand three hundred and five in Atkarsk district in the same province, also in 1913. When expressed as a percentage of the total number of civil cases, the level of litigation under protective procedure in these districts was highest in Orel district, where it reached 9.8 per cent in 1911. In Briansk, Starobel’sk, Khar’kov districts, on average, a little over seven per cent of civil cases fell into this category. Tsaritsyn district stands out as having a noticeably lower percentage of cases, and the greatest variation over four years (between 1.7 and 3.7 per cent). Hidden beneath these district-wide figures, however, is great variation from volost’ to volost’. Table 2 provides a glimpse of the activity in four individual volosts in Tsaritsyn district and four in Starobel’sk. Sareptskii volost’ court (Tsaritsyn district) is the only one in the sample that heard no cases classified under the protective procedure rubric between 1912 and 1915. None of the four Starobel’sk volosts failed to hear cases during 1910-1911 (this is also true of the remaining thirty-seven volosts in the district for which data are available).7 The number of cases arriving at each court could fluctuate quite widely from year to year. In Belovodsk volost’ confirmation cases comprised almost twenty per cent of the civil cases at the court in 1910, but this dropped to less than seven per cent the following year. At Novo- Aidarskaii court there was a higher underlying proportion of confirmation cases. Lipovka was another court where there was a large percentage of cases in the last two full years of peace, followed by a sudden drop in 1914 and 1915. The Source of Legal Transfer: Popular Experience of the General Legal System An examination of some individual cases will provide a qualitative context within which to view the confirmation activity of the courts. First the question arises of how volost’ judges and villagers in general came to know about confirmation procedure. Unless it was for them a spontaneous innovation, some volost’ courts must have begun to confirm heirs in imitation of the action of the general legal system. The practice could then have spread horizontally from volost’ to volost’ (cf. Galanter 1989: 16). 7 RGIA f. 1405, op. 543, d. 959, ll. 191-200. The records for the forty-second court, Alekseevskaia for 1910 were destroyed by fire. That court too confirmed inheritance cases in 1911. JOURNAL OF LEGAL PLURALISM 1999 - nr. 43 - 65 - Even in the period before the emancipation, to say nothing of subsequent decades, villagers were quite capable of finding out about laws when they needed to, despite the widespread image of them among outsiders as childlike and ignorant (Frierson 1992; Moon 1992). In comparison with the private serfs, state peasants had a relatively wide pre-emancipation experience of state courts. Legislation of 1838 had set up separate courts for the state peasants on which the later volost’ courts were to some extent based. The legislation on the state-peasants’ courts did not, however, provide for them to apply confirmation procedure. Their day-to-day operation remains largely unstudied. However, pre-emancipation state peasants had quite extensive experience of the general legal system (Kamkin 1987, provides a way into the literature). The pre-1864 Imperial laws on civil procedure, as mentioned above, had placed much more emphasis on the confirmation of inheritance rights in court than was the case in the new Statute on Civil Procedure after 1864. It could be that memories (among the state peasants in particular) of the activity of the pre-reform all-estate Imperial courts provide a model for the development in volost’ court practice. If a retrospective imitation of previously common Imperial court practices was the model for the volost’ courts, they could already have been confirming heirs in the earliest post-emancipation years. Indeed the courts of the state peasants might have done so before they were merged with the new volost’ courts in 1866. As yet, though, there are no indications that confirmation was a common practice either among state peasants before 1866 or in the post-emancipation volost’ court in the first decades after its creation. There is, however, a little evidence to the contrary. Piterskoe volost’ (Morshansk district, Tambov) was made up only of ex- state peasants villages. The Liuboshchinskii committee that investigated the work of the volost’ courts in 1872-3 included in its report the records of thirty-two cases heard at the court during the year 1871. It is not clear whether these were all the cases heard in that year but they do appear to constitute a sizeable representative sample. There is no record of any case of the confirmation of inheritance (Trudy 1873-4 vol. 1: 86). Piterskoe is, however, one of the volosts for which the most evidence has survived in the Tambov archive of confirmation activity at the beginning of the second decade of the new century. Such evidence from one volost’ is clearly insufficient to rule out the presence of confirmation in the volost’ courts in general until the middle of the 1870s, but it does suggest that if the imitation of the practices of the pre-reform Imperial legal system was the major source of the confirmation model, popular memory only became relevant in later decades as the reputation of the volost’ courts grew, changing circumstances created a need for legal protection, or both developments occurred. It could be that the village assembly confirmed heirs in the early years and that the volost’ court gradually took over the role at the assembly’s expense (cf. Galanter 1989: 20-1, 26, 50; Prince ‘PROTECTIVE LITIGATION’ IN RUSSIA’S PEASANT COURTS Gareth Popkins - 66 - 1992). The other potential source of popular knowledge about the practice of confirmation of inheritance rights by a court was direct experience of practice in the reformed general court system. During the first twenty years of the post-emancipation period, access to the justice of the peace must have had some educative effect, even if villagers did not always appreciate adherence to formal procedures and substantive, written law (Pearson 1984). Even after the reform of 1889 set up higher barriers to access, peasants were still extensively involved in civil litigation in the circuit courts. Their participation in the circuit courts remains little researched (but see Afanas’ev 1884, Baht 1997). There are, however, indirect signs that it included turning to the circuit court to confirm inheritance rights and, probably more frequently, to confirm wills. … DATE DOWNLOADED: Tue Sep 14 23:25:32 2021 SOURCE: Content Downloaded from HeinOnline Citations: Bluebook 21st ed. Farhad Ghaussy, Who Protects the Stranger - The French Dual Court System Confronts the Politics of Immigration: A Critique of the Tribunal Des Conflits' Decision of May 12, 1997, 7 UCLA J. INT'l L. & FOREIGN AFF. 1 (2002). ALWD 6th ed. Ghaussy, F. ., Who protects the stranger - the french dual court system confronts the politics of immigration: A critique of the tribunal des conflits' decision of may 12, 1997, 7(1) UCLA J. Int'l L. & Foreign Aff. 1 (2002). APA 7th ed. Ghaussy, F. (2002). Who protects the stranger the french dual court system confronts the politics of immigration: critique of the tribunal des conflits' decision of may 12, 1997. UCLA Journal of International Law and Foreign Affairs, 7(1), 1-30. Chicago 17th ed. Farhad Ghaussy, "Who Protects the Stranger - The French Dual Court System Confronts the Politics of Immigration: A Critique of the Tribunal Des Conflits' Decision of May 12, 1997," UCLA Journal of International Law and Foreign Affairs 7, no. 1 (Spring/Summer 2002): 1-30 McGill Guide 9th ed. Farhad Ghaussy, "Who Protects the Stranger - The French Dual Court System Confronts the Politics of Immigration: A Critique of the Tribunal Des Conflits' Decision of May 12, 1997" (2002) 7:1 UCLA J Int'l L & Foreign Aff 1. AGLC 4th ed. Farhad Ghaussy, 'Who Protects the Stranger - The French Dual Court System Confronts the Politics of Immigration: A Critique of the Tribunal Des Conflits' Decision of May 12, 1997' (2002) 7(1) UCLA Journal of International Law and Foreign Affairs 1. MLA 8th ed. Ghaussy, Farhad. "Who Protects the Stranger - The French Dual Court System Confronts the Politics of Immigration: A Critique of the Tribunal Des Conflits' Decision of May 12, 1997." UCLA Journal of International Law and Foreign Affairs, vol. 7, no. 1, Spring/Summer 2002, p. 1-30. HeinOnline. OSCOLA 4th ed. Farhad Ghaussy, 'Who Protects the Stranger - The French Dual Court System Confronts the Politics of Immigration: A Critique of the Tribunal Des Conflits' Decision of May 12, 1997' (2002) 7 UCLA J Int'l L & Foreign Aff 1 Provided by: Liberty University School of Law -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your license, please use: Copyright Information https://heinonline.org/HOL/Page?handle=hein.journals/jilfa7&collection=journals&id=9&startid=&endid=38 https://heinonline.org/HOL/License https://www.copyright.com/ccc/basicSearch.do?operation=go&searchType=0&lastSearch=simple&all=on&titleOrStdNo=1089-2605 WHO PROTECTS THE STRANGER? THE FRENCH DUAL COURT SYSTEM CONFRONTS THE POLITICS OF IMMIGRATION: A CRITIQUE OF THE TRIBUNAL DES CONFLITS' DECISION OF MAY 12, 1997 Farhad Ghaussy* On May 12, 1997 the French Tribunal des Conflits rendered a controversial decision limiting exclusive judicial power to protect civil liberties. The Court freed administrative hands of matters re- garding illegal entry into France, limiting judicial intervention to cases that involve a flagrant irregularity. Even more controversially, the court rendered its decision through an uncommon procedure in which the Minister of Justice intervened to break the deadlocked process. The Tribunal's decision coincides with the increased politiciza- tion of immigration issues in France. Since the 1980s, growing hos- tility to immigrants has shaped an important part of French political debate. In recent years, government efforts to control immigration have provoked increasing criticism from both the legal community and the general public, who see government reforms as an infringe- ment of fundamental civil liberties. This Article explores both the civil rights and judicial independence issues raised by the case. Ultimately, this Article raises larger issues of particular signifi- cance to understanding how international pressures affect ostensibly domestic legal issues. Viewed from this comparative perspective, the curtailment of individual liberties and the weakening of legal protec- * B.A., University of California at Berkeley, 1991; Dipl6me, Institut d'Etudes Politiques de Paris, 1994; D.E.A., Institut d'Etudes Politiques d'Aix-en-Provence, 1995; J.D., Georgetown Uni- versity Law Center, 1999. The author wishes to thank Professor James Feinerman for his time and helpful critique, as well as Stephanie Goeller and Etienne Boursican for their careful editing. Trans- lations of the May 12, 1997 Tribunal decision, as well as French newspaper articles and legal commentary, were completed by the author. 2 7 UCLA J. INT'L L. & FOR. AFF. 1 (2002) tions of such rights derive, in part, from a domestic political reaction to increased globalization and the perceived threats associated with such globalization. Confronted with this changing world landscape, democracies must strive to reinforce institutions designed to protect individual liberties, rather than succumbing to the facility of political acquiescence. INTRODUCTION ....................................................... 2 I. AN OVERVIEW OF THE DUAL COURT SYSTEM ............... 4 A . Adm inistrative Law ................................... 5 B. Tribunal des Conflits .................................. 9 II. IMMIGRATION: POLITICAL QUESTIONS, LEGAL ISSUES ........ .11 A. Immigration in French Society and Politics ............. 12 B. Recent Reform Efforts ................................. 15 1II. IN RE BEN SALEM & TAZNARET .............................. 18 IV. CRITIQUE OF THE TRIBUNAL'S DECISION .................... 21 A. Administrative Action Constituted a voie de fait ........ 22 B. Judicial Authority Should Hold Competence ............ 25 C. Question of Judicial Independence ..................... 27 CONCLUSION .......................................................... 29 INTRODUCTION On May 12, 1997 the French Tribunal des Conflits' rendered a contro- versial decision concerning administrative power to prevent illegal aliens from entering French territory. 2 The essential issue in the case lies at the heart of the French legal system: Whether the administration possesses the jurisdictional competence to prevent judicial judges from presiding over cases which involve fundamental liberties-here, the right to move freely, habeas corpus and due process of the law. In its decision, the French high court limited exclusive judicial power to protect civil liberties. The Court freed administrative hands of matters re- garding illegal entry into France, limiting judicial intervention to cases that involve a voie de fait (flagrant irregularity). 3 More controversial than the I See L. NEVILLE BROWN & JOHN S. BELL, FRENCH ADMINISTRATIVE LAW 144-45 (4th ed. 1993) (defining Tribunal des Conflits as the arbiter of jurisdictional conflicts between administrative law and civil law). 2 See Trib. conflits, May 12, 1997, JCP 1997, 11 22861, note Pierre Sargos. 3 See BROWN & BELL, supra note 1, at 135. In the context of French administrative jurispru- dence, a voie defait consists of a manifest violation of a property right or a civil liberty committed by the government. See ANDRt DE LAUBADPRE ET AL., TRAIT DE DROIT ADMINISTRATIF, Vol. I § 563 (12th ed. 1992) (specifying an occurrence of voie defait where an (1) administration commits Critique of Tribunal 5/12/97 Decision 3 substantive issue at hand, the manner in which the court rendered its decision sparked widespread criticism from French magistrates. 4 In an uncommon procedure, 5 the Garde des Sceaux (the Minister of Justice) 6 intervened 7 to break the deadlocked process. 8 The Tribunal's decision coincides with the increased politicization of immigration issues in France. 9 Since the 1980s, growing hostility to immi- grants has shaped an important part of French political debate.' 0 In recent years, government efforts to control immigration have provoked increasing criticism from both the legal community"I and the general public,' 2 who see government reforms as an infringement of fundamental civil liberties.' 3 "gross irregularity;" (2) in carrying out "material activity of execution;" or (3) that aggreviates "property law" or "public liberty"). See also GtRARD CONRU, VOCABULAIRE JURIDIQUE 846 (2d ed. 1990) (defining term also as "assault and battery" in a general context). 4 See Bernard Philippe, Un arret du Tribunal des conflits suscite une vive controverse, LE MONDE, May 16, 1997, available at LEXIS, News, France file. 5 See FRAN(cOIS CHOUVEL ET AL., LES CAS DE PARTAGE AU TRIBUNAL DES CONFLITS ix (1984). See also BROWN & BELL, supra note 1, at 145 (interpreting the rareness of the tie-breaking proce- dure as indicative of a close understanding and mutual respect between administrative and civil legal systems). 6 See ROGER PERROT, INSTITUTIONS JUDICIAIRES § 55 (7th ed. 1995). In France, common usage often refers to the Minister of Justice as the Chancellerie and the Garde des Sceaux. Both terms date back to the Monarchy. The latter term refers to an ancient officer of the Crown whose duty consisted of "guarding the seals of the King" that were employed to authenticate official documents. Id. 7 The intervention of a government minister in a judicial decision appears starkly. foreign to the practice of judicial review in the United States. French legal scholars are traditionally hostile to the notion of judicial review, which they perceive of as undemocratic. See Dallis Radamaker, The Courts in France, in THE POLITICAL ROLE OF LAW COURTS IN MODERN DEMOCRACIES 129, 139 (Jerold L. Waltmand et. al. eds., 1988). 8 See PERROT, supra note 6, at § 38 (stipulating that the Minister of Justice only intervenes in tie votes of the Tribunal des Conflits). 9 See ALEC G. HARGREAVES, IMMIGRATION, 'RACE' AND ETHNICITY IN CONTEMPORARY FRANCE 177 (1995). 10 See HARVEY G. SIMMONS, THE FRENCH NATIONAL FRONT: THE EXTREMIST CHALLENGE TO DEMOCRACY 156-57 (1996). Public antipathy towards immigrants corresponds with pressures from the extreme right as well as increased media attention on the "problems" immigrants pose to French society. Id. at 144. 1 See Susan Soltesz, Note, Implications of the Conseil Constitutionnnel's Immigration and Asy- lum Decision of August 1993, 18 B.C. INT'L & COMP. L. REV. 265, 275-76 (1995). 12 See, e.g., Andrew Gumbel, Pasqua Plays Race Card, NEW STATESMAN & Soc., June 18, 1993, at 10 (indicating that a massive demonstration would take place in Pais against the government's anti-immigration measures). 13 See generally JOHN BELL, FRENCH CONSTITUTIONAL LAW 138-98 (1992) (outlining basic funda- mental freedoms guaranteed by French legal tradition). 4 7 UCLA J. INT'L L. & FOR. AFF. 1 (2002) This Article explores both the civil rights and judicial independence is- sues raised by the case. Part I explicates the French legal system for the common-law practitioner. Particular attention is devoted to the distinctions between public and private law, and the specific role of the Tribunal des Conflits. Part II examines the social and political context in which immigra- tion law operates. Since the 1980s, immigration has become a divisive polit- ical issue 14 subject to several major legal reforms. 15 Part III explores the specific facts of the case, the procedure leading to the Tribunal des Conflits, and introduces the actual decision of the high court of jurisdiction. Part IV argues the Tribunal mistakenly denied judicial authority and glossed over the existence of a flagrant irregularity. Further analysis considers implications of the decision on the independence of the judiciary in France. Ultimately, this Article raises larger issues of particular significance to understanding how international pressures affect ostensibly domestic legal issues. Viewed from this comparative perspective, the curtailment of indi- vidual liberties and the weakening of legal protections of such rights derive, in part, from a domestic political reaction to increased globalization and the perceived threats associated with such globalization. Confronted with this changing world landscape, democracies must strive to reinforce institutions designed to protect individual liberties, rather than succumbing to the facility of political acquiescence. I. AN OVERVIEW OF THE DUAL COURT SYSTEM The French legal system' 6 provides insight into comparative law. 17 Foremost, France is a civil law' 8 jurisdiction. The French judiciary 14 The French experience corresponds with changing attitudes towards immigration throughout Western Europe. See DEMETRIOS G. PAPADEMETRIOU, CONVERGING PATHS TO RESTRICTION: FRENCH, ITALIAN, AND BRITISH RESPONSES TO IMMIGRATION (1996). 1- See infra Part lI.B. 16 For a general overview of French law, see BRICE DICKSON, INTRODUCTION To FRENCH LAW (1994); NICOLE GUIMEZANES, INTRODUCTION AU DROIT FRANCAIS (1995); SIR OTTO KAHN-FREUND ET AL., A SOURCE-BOOK ON FRENCH LAW (Bernard Rudden ed., 3d ed. 1991); ARTHUR TAYLOR VON MEHREN ET AL., THE CIVIL LAW SYSTEM (2d ed. 1977); BARRY NICHOLAS, FRENCH LAW OF CONTRACT (2d ed. 1992); DAVID POLLARD, SOURCE BOOK ON FRENCH LAW (1996); FRANCOIS TERRE, INTRODUCTION GtNtRALE AU DROIT (2d ed. 1994); ANDREW WEST ET AL., THE FRENCH LEGAL SYSTEM: AN INTRODUCTION (1992); MARTIN WESTON, AN ENGLISH READER'S GUIDE TO THE FRENCH LEGAL SYSTEM (2d ed. 1994). 17 See generally JOHN H. BARTON ET AL., LAW IN RADICALLY DIFFERENT CULTURES (1983); MARY ANN GLENDON ET AL., COMPARATIVE LEGAL TRADITIONS (2d ed. 1994); ARTHUR TAYLOR VON MEHREN & JAMES RUSSELL GORDLEY, THE CIVIL LAW SYSTEM: AN INTRODUCTION TO THE COMPARATIVE STUDY OF LAW (2d ed. 1977); RUDOLF B. SCHLESINGER ET AL., COMPARATIVE LAW (5th ed. 1988). Critique of Tribunal 5/12/97 Decision maintains a dual court system,' 9 differentiating between public 20 and pri- vate 2 1 law. This duality remains deeply rooted in French legal history. 2 2 A Cartesian perspective, however, differs from the philosophical outlook famil- iar to most common-law practitioners. 23 The originality of the French system lies in the specificity of its administrative law. A. Administrative Law France practices a system of dual jurisdictions and dual court hierar- chies, clearly distinguishing between private and public law. 24 One system covers civil and penal justice, the other administrative justice. The former is 18 See generally JEAN-Luc AUBERT, INTRODUCTION AU DROIT ET THPMES FONDAMENTAUX DU DROIT CIVIL (1992); WALTER CAIRNS & ROBERT McKEON, INTRODUCTION TO FRENCH LAW (1995); F.H. LAWSON ET AL., AMOS AND WALTON'S INTRODUCTION TO FRENCH LAW (3d ed. 1967). The major differences between civil law and common law stem from their underlying ideology. Whereas civil law takes meaning from an ideology of revolution, "the conservative tendencies of the common law tradition stand in marked contrast." John Henry Merryman, On the Convergence (and Divergence) of the Civil Law and the Common Law, 17 STAN. J. INT'L L. 357, 359-73, 387-88 (1981), reprinted in JOHN HENRY MERRYMAN ET AL., THE CIVIL LAW TRADITION: AN INTRODUC- TION TO THE LEGAL SYSTEM OF WESTERN EUROPE AND LATIN AMERICA 32 (2d ed. 1985). 19 See Jacques Chevallier, Du principe de siparation au principe de dualiti, in LA DUALITt DES JURISDICTIONS EN FRANCE ET A L'tTRANGER XX (Marceau Long et al. eds., 1990) (indicating that the Law of Aug. 16-24, 1790 constitutes the foundation of modern administrative law and source of contemporary duality of jurisdictions). 20 See CHRISTIAN DADOMO & SUSAN FARRAN, THE FRENCH LEGAL SYSTEM 16 (2d ed. 1996) (defining public law as pertaining to relationships between government and governed). 21 See KAHN-FREUND, supra note 16, at 10 (defining private law as dealing with private persons: "it defines who, or what is to count as a subject of its legal system with a capacity for legal rights and duties ... and it deals with the legal relations between them"). 22 See, e.g., A. ESMEIN, COURS tLtMENTAIRE D'HISTOIRE DU DROIT FRANAIS (1892); A. FOUILLtE ET AL., MODERN FRENCH LEGAL PHILOSOPHY (Mrs. Franklin Scott trans., 1968) (1916). 23 American law, for example, strictly interprets the notion of one law equal for all. See, e.g., Clinton v. Jones, 520 U.S. 681 (1997) (holding unanimously that neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, can sustain absolute, unqualified Presidential privilege of immunity from judicial process). The French system erects a separate and distinct jurisdiction-with its own courts, procedures and jurisprudence-specifically applicable to the administration. See DE LAUBADIRE, supra note 3, at § 429 (explaining the exis- tence in France of administrative jurisdiction distinct from judicial jurisdiction as the product of history, originating in the Monarchy, systemized by the Revolution, and completed by jurisprudence of Nineteenth Century). Another contrast with the common-law system is the preeminence of the legal scholar in the civil law tradition. See, e.g., MERRYMAN, supra note 18, at 57-60 ("[T]he legal scholar is the great man of the civil law."). 24 See Nicolas Marie Kublicki, An Overview of the French Legal System from an American Per- spective, 12 B.U. INT'L L.J. 57, 60 (1994). 6 7 UCLA J. INT'L L. & FOR. AFF. 1 (2002) crowned by the Cour de Cassation,2 5 the latter by the Conseil d'Etat.26 These two jurisdictions are both independent and sovereign,2 7 notably in de- fining their own competence. 28 Administrative acts are neither reviewable by the judiciary, nor the leg- islature. 29 The autonomy of administrative law stems in part from the impor- tance of the administration30 in French society.3 1 The French administration constitutes more than an adjunct of the executive branch. It encompasses different forms of "public service" including the executive, the civil service, and different forms of government bureaucracy. 32 Likewise, le droit adminis- tratif covers a much wider array of legal issues than encountered in a com- mon-law context, 33 presenting a "fully developed system of administrative 25 The Cour de Cassation is the highest court of the judicial order. See DADOMO & FARRAN, supra note 20, at 85. See also KAHN-FREUND, supra note 16 at 269-88 (describing in detail func- tions, organization, goals, and styles of court). 26 Created by Napoleon in 1799, the Conseil d'Etat (the Council of the State) is the supreme court of the administrative order. See generally KAHN-FREUND, supra note 16, at 160-65 (defining the triple role of the Conseil d'Etat as legal consultative body for government, regulatory body of executive, and highest court of administrative order). 27 Although each jurisdiction remains distinct from the other, with no overarching court unifying the system, a separate high court comprised equally of judges from the judicial and administrative systems oversees attribution of competence should a conflict arise. See infra § I.B text and notes. 28 In this system, different judges preside over individuals and the administration, and different principles and constructions govern accordingly. See CHOUVEL, supra note 5, at ix (1984) (noting the difficulty for "Anglo-Saxon" jurists to understand how, in a democracy, such distinction remains). 29 See BROWN & BELL, supra note I, at 23 (explaining that civil courts were excluded from adjudicating in matters involving administration, central government, or local authorities). 30 The term "administration" in France refers to the permanent bureaucracy carrying out govern- mental activity despite political changes. See HENRY P. DE VRIES, CIVIL LAW AND THE ANGLO- AMERICAN LAWYER 71 (Oceana Publications, 1976) (1969). 31 The administration has held a historically significant role for many centuries. See generally JEAN-LouIs MESTRE, INTRODUCTION HISTORIQUE AU DROIT ADMINISTRATIF FRANQAIS (1985) (trac- ing the origins of administrative law from the Middle Ages to the French Revolution). 32 See MARTIN WESTON, AN ENGLISH READER'S GUIDE TO THE FRENCH LEGAL SYSTEM 86 n.32 (2d ed. 1993) (indicating the appropriate translation for the French term may be "public service," "civil service," "executive," "the authorities" or "bureaucracy" depending on its use). 33 See KAHN-FREUND, supra note 16, at 119 (including the following topics within the scope of administrative law: structure of central and local administration, general theory of administrative acts and functions, public property and public works). In fact, French administrative law encom- passes not only a separate system of jurisdiction, but also a separate legal scholarship. For example, Dalloz, the largest publisher on French legal practice, recently published: MARIE AUBY, DROIT PUBLIC: DROIT CONSTITUTIONNEL, LIBERTS PUBLIQUES, DROIT ADMINISTRATIF (12th ed. 1996); THIERRY DAL FARRA ET AL., LES GRANDS AVIS DU CONSEIL D'ETAT (1997); CHARLES DEBBASCH & JEAN-CLAUDE RICCI, CONTENTIEUX ADMINISTRATIF (6th ed. 1994); PHILIPPE GEORGES, DROIT PUB- Critique of Tribunal 5/12/97 Decision 7 law." 3 4 Although absent from the Constitution 35 and limited to a few significant legislative sources, 36 a distinct administrative system evolved largely through the jurisprudence of administrative courts during the Third French Repub- lic. 37 Historically, two principles shaped administrative law: the concepts of "public power"38 and "public service."' 39 In very many ways, the evolution of these concepts follows the changes in the role between the State and individuals. 40 LIC (10th ed. 1996); MARCEAU LONG ET AL., LES GRANDS ARRPTS DE LA JURISPRUDENCE ADMINIS- TRATIVE (1 th ed. 1996); JEAN RIVERO & JEAN WALINE, DROIT ADMINISTRATIF (16th ed. 1996). 34 BROWN & BELL, supra note 1, at 3 (pointing out that this "developed system" of administrative law not only forms the basis of many other systems in the world, but also the basis of such interna- tional institutions as the Administrative Tribunals of the United Nations and the Court of Justice of the European Union). 35 See DE LAUBADPRE, supra note 3, at § 433 (indicating that neither the Constitution of October 27, 1946 nor the Constitution of October 4, 1958 mention the existence of administrative jurisdic- tion). But see Cons. const. Jan. 23, 1987, D. 1988, 86-225 DC (basing dual jurisdiction system upon fundamental constitutional principles). The Constitution of the Fifth Republic established the current political system during the Algerian crisis. See CONST. (1958) (Fr.), reprinted in 7 CONsTi- TUTIONS OF THE COUNTRIES OF THE WORLD (Gisbert H. Flanz ed., Oceana Publications 2000). The 1958 Constitution adopted, by direct reference, the basic constitutional norms and values of the key constitutional text of 1946 (by adopting the preamble) and 1789 (although the Declaration of the Rights of Man is not formally a Constitution). See generally KAHN-FREUND, supra note 16, at 25 (explaining that the key constitutional texts of 1958, 1946, and 1789 form a single "constitutional bloc," and therefore form primary sources of constitutional law). 36 See, e.g., Law of August 10, 1871 (organizing the departments); Law of April 5, 1884 (organiz- ing the communes); Ordinance of October 23, 1958, J.O., Oct. 24, 1958 (expropriation for the public good); Law of July 11, 1979, J.O., Jul. 12, 1979 (motivation of administrative acts). 37 In the Blanco decision, the Tribunal de Conflits declared "the responsibility that the State may be endowed with for the damages caused to individuals by the people it hires in the public sector cannot be resolved by the principles established by the Civil Code for individual to individual relationships .... this responsibility falls under special rules. See Trib. conflits, Feb. 8, 1873, S. Jur. 111, 153, concl. David. 38 See DE LAUBADPRE, supra note 3, at § 510 (explaining puissance publique as matters concern- ing acts of authority, acts of State management and acts specifically defined by law). 39 See DE LAUBADiRE, supra note 3, at § 511 (noting service public encompasses all that concerns organization and function of administration either by contract or other authority). 40 See CHOUVEL supra note 5, at 113-14. For example, the Conseil Constitutionnel has attributed to the duality of the system the value of "a constitutional principle." Cons. const. Jan. 23, 1987, D. 1988, 86-225 DC (basing affirmation upon art. 62 of Constitution). This decision corresponds to the Court's expanding jurisprudence. 8 7 UCLA J. INT'L L. & FOR. AFF. 1 (2002) The administrative system encompasses three levels of courts. 4' First, the tribunaux administratifs42 are the trial courts of administrative justice. Second, the cours administratives d'appel,43 recently created to lighten the heavy case load on the other courts, forms an intermediate level of review. Finally, the Conseil d'Etat44 forms the highest administrative court. It serves a dual function of providing general counsel for the government 45 and acting as the court of last resort in administrative matters. 46 The boundaries between public and private law are often ambiguous. 47 Generally, the judicial system encompasses litigation involving private par- ties.4 8 The administrative order's jurisdiction covers litigation involving ac- tivities of the administration. 49 Within this arena, administrative jurisdiction applies to the framework of public service activities. 50 Nonetheless, the judi- ciary maintains jurisdiction in certain specific areas which, by statute 5' or tradition, 52 exclude the administrative courts. Where there is a question of 41 In addition to these three levels, there are tribunaux ei compdtence spiciale, including: cour des comptes, conseils universitaires, conseils de I'aide sociale, and tribunaux des pensions militaires. 42 The Decree of September 30, 1953 established the present form of the tribunaux administratifs. Each tribunal constitutes a trial court with limited territorial jurisdiction. 43 See Law No. 87-1127 of Dec. 31, 1987, J.O., Jan. 1, 1988 (initiating major reform in adminis- trative law by creating intermediate courts of appeal). In 1989, courts in Bordeaux, Lyon, Nancy, Nantes and Paris began to hear cases on appeal from the lower courts. See Decree No. 89-641 of Sept. 7, 1989, J.O. Sept. 10, 1989. 44 See Ordinance of July 31, 1945, J.O., Aug. 1, 10, Sept. 6, 1945 (providing foundation for Council). 45 The Conseil d'Etat advises the government on future legislation as well as on perspective regu- lations. See BROWN & BELL, supra note 1, at 59 ("[T]he Conseil d'Etat... [is] both advisor and judge of the administration."). 46 The Council maintains an important judicial role either as the highest court of appeal or as the court of first and last jurisdiction in certain defined areas. See KAHN-FREUND, supra note 16, at xx. 47 See AGATHE VAN LANG, JUGE JUDICIAIRE ET DROIT ADMINISTRATIF 333 (1996) (concluding that the judicial judge has the power to tightly regulate administrative action encroaching upon individual liberties). 48 Id. at 10. 49 This involves the executive branch only; administrative courts have jurisdiction neither over the legislature nor the judiciary. See DE LAUBADPRE, supra note 3, at 327-29. 50 Id. at 337. 51 See e.g. Law No. 57-1424 of Dec. 31, 1957, J.O., Jan. 5, 1958, p. 196; JCP 1958, I1 22839 (attributing judicial competence in actions involving damages caused by traffic accidents). The judicial courts have statutory jurisdiction in cases involving indirect taxation, postal transportation, social security, and damages from traffic accidents. See DE LAUBADtRE, supra note 3, at 351-52. 52 The judicial courts traditionally protect individual civil liberties; either cases involving the "sta- tus" of a person-nationality and voter registration-or cases involving an infringement on freedom or private property. See DE LAUBADPRE, supra note 3, at 354-55. Critique of Tribunal 5/12/97 Decision 9 jurisdiction between the two systems, the Tribunal des Conflits decides competence. 53 B. Tribunal des Conflits 1 PUT A RUNNING HEAD HERE 1 PUT A RUNNING HEAD HERE Article Critique Name Liberty University Class # Professor Name Date Abstract Start text here… This paragraph will not be indented and will be double spaced. You will need to include at least 120-250 words in the abstract. Keywords are optional. Article Critique Start here …. You need an introductory paragraph and thesis statement here. Article 1-Background Start text here… include parenthetical citations Article 1 - Critique of Strengths and Weaknesses of the Article Strengths Start text here… include parenthetical citations; Include at least 2 strengths. Weaknesses Start text here… include parenthetical citations; include at least 2 weaknesses Article 2-Background Start text here… include parenthetical citations Article 2 - Critique of Strengths and Weaknesses of the Article Strengths Start text here… include parenthetical citations; Include at least 2 strengths. Weaknesses Start text here… include parenthetical citations; include at least 2 weaknesses Summary of Articles Start text here… include parenthetical citations Conclusion: Personal Reflection, Position, and Christian Worldview Start text here… include parenthetical citations References