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Private Power and Centralization in France
The Notaires and the State
By Ezra N. Suleiman
PRINCETON UNIVERSITY PRESSCopyright © 1987 Princeton University Press
All rights reserved.
This chapter briefly outlines the general concerns of this study and explains the unusual nature of the case I have chosen to analyze. Chapter 2 will discuss in greater detail the theoretical underpinnings that guide this work.
Does the particular organizational form of a state determine, or significantly influence, that state's capacity to assert its independence from society? Ever since Tocqueville discovered the capacity of civil society in America to organize itself and to establish a democratic polity, there has been a strong tendency to use the kinds of structures that a state possesses as a guide to explaining the form or degree of democracy that characterizes a society. To be sure, the same state of affairs can explain contradictory phenomena. For Tocqueville, decentralized state structures were synonymous with a democratic society. For modern-day critics of American pluralism, decentralization is synonymous with the state's abdication of its autonomy and its authority. In either case, it is the state's structures that are thought to account for the politics of the society.
It was also Tocqueville who saw in the French tradition of centralized government the root cause of the incapacity of French citizens to organize themselves to establish a democratic polity. "Never since the fall of the Roman Empire had the world seen a government so highly centralized," wrote Tocqueville of his own country. How could so critical a phenomenon as centralization of the state not have determining consequences for the entire society? The citizen was seen as confronting a monolithic state which he was powerless to influence. Tocqueville's descriptions of centralization, of the role of the state, and of politics under centralized government find their echo in every text on France. One contemporary sociologist was even able to write that "the vehement pages written by Tocqueville describing this 'regulatory, constraining administration that would like to oversee and control everything ...' seem as apt today as when he wrote them." Could a society change so little in a century?
This is why we need to ask whether the questions raised at a particular moment in history have the same relevance a century later. Tocqueville was describing a society that existed under very different conditions; he could not possibly be describing a modern industrial society. An administration based on the sale of offices and patronage cannot be viewed in the same way as one that is responsible for providing the services of a modern welfare state.
The structure of a state and the politics of a particular society cannot have a link that is unvarying over time. Centralization in Tocqueville's time undoubtedly produced different results from those it has in an industrial society in which the capacity of groups to organize themselves has undergone a revolutionary change. The central theme of this study revolves around the permeability of a centralized state. But the other side of this coin is the strength and importance of the society. Tocquevillian analysis, from Tocqueville's time to the present day, has had the unfortunate effect of underestimating the impact of societal forces on the policymaking forces. Societal forces have been accorded importance in France in moments of crisis only. In day-to-day politics, it is the state that has been seen as the sole agency of change.
The popular view that change occurs in France only as the result of a crisis is one that downplays the maturity of a society. Nor is it possible to explain so rapid and such widespread change over a thirty-year period by the invocation of the so-called crisis theory. The fact remains, and this will become clear in the course of this work, that it is time now to recognize that French society can no longer be examined through uniquely Tocquevillian lenses. If anything, our view of the society (and the state, for that matter) needs reexamination. The development of a modern industrial society, the remarkable capacity for organization in French social and economic life, the greater maturity and the incremental approach of social groups, and the pluralistic nature of the political system have all but made it impossible to seek an understanding of the political system by invoking a highly perceptive analyst of a century earlier. Any society that experiences such enormous economic and social changes must be seen as dynamic. It is the dynamism, or the particular form that change has taken, that needs to be explained. Dwelling on why the society has remained "blocked" has practically no utility or relevance in today's world.
Different times clearly call for new analyses. Using outdated lenses only serves to produce distorted pictures. Nowhere has this been more evident than in the analysis of French society in the postwar period. The historians of the next century will likely come to see the postwar period in Western Europe in general, and in France in particular, as having brought in its train probably as profound changes as these societies experienced at any time in their earlier history. France during this time went from being an agricultural country to a modern industrial one. Its people became among the most prosperous in the world. And yet, long after these changes had taken root, many a contemporary observer persisted in seeing the country as having scarcely changed. It will be for the historian of a future generation to explain the paradox of why the monumental changes of the French society following the Second World War went unnoticed by many contemporary analysts. Much of the recent literature on French politics implicitly recognizes that an interaction between the state and civil society is occurring that is so complex that it cannot be merely encapsulated within the old framework and the usual references to the centralized state. If "the old structures are fading away," as Hoffmann rightly observes, the state and the society necessarily begin to have a different relationship. The fact that it is no longer clear just how to characterize the relationship between the state and private groups is a felicitous state of affairs, indicating as it does that France is not unlike other democratic industrial societies in that it shares patterns with such societies while retaining a degree of specificity born of its cultural traditions. The problem is to isolate the universal and the unique. This can only be done by using as a point of departure theoretical precepts of some importance that have been, or that can be, applied to other contexts. Indeed, as we shall see, the very distinction between what is public and what is private may require modification, for often there is no strict line of demarcation. A private institution may be so heavily dependent on public support that one may question its categorization as a private institution. A private firm that depends exclusively on public orders is private only in a limited legal sense.
Similarly, a profession that is publicly licensed and that is subject to some state control while being allowed to operate within a private, commercial context is also in an ambiguous position. In the case of the notarial profession (as of other professions) we are dealing with a publicly licensed and controlled profession that operates within a private, commercial context. It is, in fact, possible to place the notarial profession in both the public and the private camp. Its status is, at any rate, ambiguous.
In attempting to examine politics and the policy process in a centralized state we shall throughout base our work on theories of the state that are applicable to modern industrial societies. We shall deal with, and often revise, the accepted conventional wisdom about the French state: the coherence of the policymaking process, the strength of regulatory agencies, the weakness or absence of clientelistic relationship between the state and private groups, the significance of the state's tutelle over specific sectors, and the authority of party government to establish clearly delineated policies. In looking with different lenses at the French state and the French policymaking process we shall find ourselves taking France as another democratic and modern industrial society. We shall give less emphasis to the purely cultural explanations that have dominated the study of this society while remaining sensitive to the historical and cultural basis of contemporary institutions and processes. The adoption of this approach will lead us to modify, in many cases simply abandon, the received wisdom about the strength of the state, the immaturity of social groups, and the incapacity of the society to accept change that is not born of crises.
Although this work reposes on a case study within a single nation, the method of analysis and the approach adopted derive from theoretical considerations that transcend a specific national context. The issues that I have chosen to treat — institutional change, state power, and the policy process — are grounded in theories and intellectual concerns developed outside a single national context. I have tried to deal with what I consider to be critical issues in contemporary politics within a particular context. I have also tried to tie theoretical issues to empirical material. My own view is that the most fruitful course that a discipline can take is the linking of theory and empirical work. This bias is reflected in this study. To be sure, I am referring to theories and concepts that lend themselves to testable hypotheses — middle-range theories — and not to grand theories that either do not allow themselves to be tested or can be confirmed or disconfirmed without empirical work. The utility of a case study based on theoretical propositions is greatly increased both for theory and for comparisons.
The relationship between the state and private groups is studied in this work through a detailed examination of the relationship between the state and the notarial profession. This is a key legal profession, even if there is a general lack of knowledge about its specific functions and utility.
The law grants the notaire a monopoly over the drawing up of contracts that the party or parties wish to have legalized. Rather than the state taking it upon itself to legalize contracts, it delegates this authority to officials that it names, but who purchase their practice in the open market. The notaire is an official who exercises his public monopoly in a private context. Unlike the lawyer, he does not plead a case for a client in a court of law. He brings clients with conflicting interests together. He may represent one party, or he may represent both parties. Anglo-Saxon jurisprudence recognizes the need for individual representation of conflicting interests. The tradition of jurisprudence upon which is based the notarial profession takes the view that above the selfish interests of each party there exists a higher interest or (the) "just solution." The notaire is neither a lawyer nor an arbitrator. Yet he may be both at the same time, save that he will not argue his case before a judge.
Once the aspiring notaire has fulfilled a number of specified conditions, his candidacy for purchasing an office is presented to the minister of justice. He can purchase an established practice, or may be granted by the state a newly created one. Each individual practice belongs to a specified territorial entity and cannot be moved to another part of the country. Hence, the presence of notarial offices is widespread across the country, but competition among notaires within a specified territorial unit is limited because the numerus clausus limits the number of those allowed to exercise the profession at any given time and because the state fixes the fees that can be charged for the services it requires the profession to perform. The notaire thus enjoys a functional as well as a territorial monopoly. In addition to exercising the state-granted monopoly, the notaire is free to pursue other activities — act as a tax consultant, a management consultant, an accountant — for which the state does not fix a level of remuneration. Since the notaire is then carrying out activities that fall beyond the competence of the notarial monopoly, he is free to charge what he pleases. Notaires are, as we shall see, encouraged both by the profession and by the state not to confine themselves to the monopoly. Indeed, they are urged to go in search of new markets that both place them in competition with other professions and are more remunerative.
What does the functional monopoly consist of? To understand what a notaire actually does, one merely has to know that a call for his services cannot be avoided where the sale or purchase of a property is involved (whether it be an apartment, a house, a factory, or a parcel of land), where a marriage contract is desired by a couple, where a mortgage is obtained from a bank, where an inheritance has to be allocated among friendly or vying members of a family, where a business is bought or sold, where a merger between individual fortunes or companies is desired. In all such cases, an agreement is considered legal only when a notarial contract has been drawn up. The notaire is responsible for the verification of the contents of the document as well as for its legalization. Just as only a doctor can perform an operation, so only a notaire can legalize a contract. The notaire is also responsible for the conservation of documents, which is why notarial archives represent such a rich fund of materials for historical research.
In some societies, the functions which the notaire in France performs are carried out on an optional basis, by a lawyer. Such is the case in the United States. In other societies, a legal profession has been able to maintain a monopoly over specific legal functions, such as the purchase of property. Such is the case of solicitors in Britain. In still other societies where the notarial profession exists (Belgium, Latin America, Italy, Spain) the principal responsibilities are much the same as the French notaires' but the mode of operation may differ; essentially, the public function in certain societies receives greater emphasis in that notaires are (as in Spain and Italy, for example) admitted to the profession through a state-sponsored examination and not through the purchase of a practice. Even in Alsace and Lorraine, where the impact of German law continued to dominate after the reintegration of this area into French territory following World War I, notaires do not buy and sell the (public) office. They are thus more akin to civil servants than to the free professions. The French notaire (excluding those who practice the profession in Alsace and Lorraine) enjoys the purest form of a state-granted monopoly (both territorial and functional), the greatest degree of state protection, and the widest latitude for operating as a commercial enterprise.
Though the case of the notaires may be unusual, and may lack the grand aura or significance of business or labor, for example, the preservation of such an unusual status indicates that a complex relationship with the state is at work. Whether the state grants a tax concession to business or a wage increase to labor does not by itself reveal a great deal about the interaction of these groups with the state. The attempt and subsequent failure by a long series of governments to break with patterns of notaire-state relations give us considerable insight into the workings and mechanism of a centralized state. Apparendy unusual cases may reveal more than more obvious cases about the politics and the policy process of what are regarded as "strong" states.
Excerpted from Private Power and Centralization in France by Ezra N. Suleiman. Copyright © 1987 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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