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French legal origins: A Tocquevilian view

Crettez, Bertrand and Deffains, Bruno and Musy, Olivier (2016): French legal origins: A Tocquevilian view.

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Abstract

We provide an alternative explanation of French legal centralization. To do this we develop a rational choice model of the legal architecture around 1789 and the French Revolution. Following Tocqueville we propose to analyze the French movement towards legal centralization as the result of an increase in the aversion to inequality before the law. We show that legal centralization can be preferred to the "Ancien Régime" situation or intermediate legal decentralization if the aversion to legal differences is sufficiently strong. In addition, we show that when the legal system is centralized it is always optimal to allow some degree of judicial discretion. This result is consistent with the historical evidence that the Napoleonic codification, i.e., the culmination of French legal centralization, was associated with a higher degree of judicial discretion than at the beginning of the Revolution. This view contrasts with the interpretation of the Napoleonic codification as a means of transforming judges into automata.

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