How to Be French: Nationality in the Making since 1789

How to Be French: Nationality in the Making since 1789

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Overview

How to Be French is a magisterial history of French nationality law from 1789 to the present, written by Patrick Weil, one of France’s foremost historians. First published in France in 2002, it is filled with captivating human dramas, with legal professionals, and with statesmen including La Fayette, Napoleon, Clemenceau, de Gaulle, and Chirac. France has long pioneered nationality policies. It was France that first made the parent’s nationality the child’s birthright, regardless of whether the child is born on national soil, and France has changed its nationality laws more often and more significantly than any other modern democratic nation. Focusing on the political and legal confrontations that policies governing French nationality have continually evoked and the laws that have resulted, Weil teases out the rationales of lawmakers and jurists. In so doing, he definitively separates nationality from national identity. He demonstrates that nationality laws are written not to realize lofty conceptions of the nation but to address specific issues such as the autonomy of the individual in relation to the state or a sudden decline in population.

Throughout How to Be French, Weil compares French laws to those of other countries, including the United States, Great Britain, and Germany, showing how France both borrowed from and influenced other nations’ legislation. Examining moments when a racist approach to nationality policy held sway, Weil brings to light the Vichy regime’s denaturalization of thousands of citizens, primarily Jews and anti-fascist exiles, and late-twentieth-century efforts to deny North African immigrants and their children access to French nationality. He also reveals stark gender inequities in nationality policy, including the fact that until 1927 French women lost their citizenship by marrying foreign men. More than the first complete, systematic study of the evolution of French nationality policy, How to be French is a major contribution to the broader study of nationality.

Product Details

ISBN-13: 9780822343318
Publisher: Duke University Press Books
Publication date: 12/15/2008
Edition description: New Edition
Pages: 456
Product dimensions: 6.10(w) x 9.00(h) x 1.20(d)

About the Author

Patrick Weil is Senior Research Fellow at the National Center for Scientific Research (University of Paris, Sorbonne) and a professor at the Paris School of Economics. The author of many books, he was a member of France’s Governmental Advisory Council on Integration from 1996 to 2002, and a member of the Presidential Commission created by President Jacques Chirac on the “implementation of the principle of secularism within the French Republic” in 2003. In 1997, following a request from Prime Minister Lionel Jospin, he produced two influential reports on nationality and immigration legislation. Under its original title, Qu’est-ce qu-un Français, How to Be French won the François Furet prize.

Catherine Porter, Professor Emeritus in the Foreign Languages Department at the State University of New York, Cortland, won the Chevalier d’Or des Palmes Académiques for advancing Franco-American relations through translation and teaching.

Read an Excerpt

How to Be French

Nationality in the Making since 1789
By PATRICK WEIL

DUKE UNIVERSITY PRESS

Copyright © 2008 Duke University Press
All right reserved.

ISBN: 978-0-8223-4348-6


Chapter One

From the Old Regime to the Civil Code: The Two Revolutions in French Nationality

When the Revolution began, no explicit definition of a French person existed. Under the Old Regime the boundary between the French and foreigners, or rather-to use the terminology of the period-French people and aliens (aubains), was defined almost accidentally, in legal contests that arose over problems of inheritance and succession. On the one hand, the royal right of escheat (droit d'aubaine) allowed the king to appropriate the possessions of any foreigner who died without a French heir. On the other hand, children of a Frenchman could not inherit from their parents if they were deemed aubains, that is, if they had been born abroad. The parlements-the courts, under the monarchy-heard plaintiffs who contested their alien status; as judgments were issued in such cases, the definition of a French person began to evolve.

At the beginning of the sixteenth century three conditions were still necessary for someone to be recognized as French: one had to have been born in France, to have been born to French parents, and to have one's permanent residence in the kingdom. But by a decision dated 23 February 1515, the Paris Parlement introduced jus soli into French law: whatever the origin of a person's parents (who could both be foreigners), birth in France bestowed the capacity to inherit property and thus French nationality, as long as the person in question resided within the kingdom.

At the end of the sixteenth century the bond of parentage came in turn to transmit the quality of being French (qualité de français): birthplace was no longer a factor. On 7 September 1576, the Paris Parlement issued the Mabile decision, a formal judgment recognizing as French a woman who was born in England to French parents; the court thus granted her the right to inherit her parents' property. That the claimant had settled in France, even though both parents had died, showed that she had kept "the spirit of return"; moreover, she agreed to give up all the possessions she had inherited from her forebears should she ever leave the kingdom. Over time this decision became a legal precedent, and the requirement of a bond of parentage was even relaxed. But just as much as birth within the kingdom or filiation, residence in the kingdom-not only at the time of the decision but also thereafter-was an explicitly mandated condition for acquiring the quality of being French, for it was the tangible sign of allegiance to the king.

Finally, the king had the power (the exclusive power, starting with François I) to grant letters of naturalization (lettres de naturalité) to those who were not defined by jurisprudence as French-in other words, to foreigners. Naturalization transformed foreigners into French nationals and relieved them of all their legal incapacities, granting them in particular the capacity to inherit and to bequeath; the formula used in these letters allowed naturalized persons to enjoy the same "dignities, exemptions, privileges, liberties, immunities, and rights as the true and original subjects." According to Peter Sahlins's study, the king granted forty-five of these letters a year, on average; about six thousand were awarded between 1660 and 1789.

Thus on the eve of the Revolution birth within the kingdom and the bond of parentage made it possible to establish the quality of being French, provided that a person's current and (above all) future residence was in the kingdom. To put it differently, under the Old Regime anyone who resided in France was French, provided that he or she had been born in France, or had been born to French parents, or else had been naturalized. Birth on French soil, jus soli, remained the dominant criterion, however. Thus when a child born to French parents abroad came to reside within the kingdom, he or she often asked the king for a lettre de naturalité to guarantee the capacity to inherit and thus to confirm the quality of being French; a child born in the kingdom of France to a foreign parent did not have to take this step.

Between 1789 and 1803 the very definition of a French person and the way a foreigner could acquire the quality of being French were modified by two contradictory upheavals. In 1790 the first revolutionaries broke with what had been two symbolic representations of royal power with respect to foreigners under the laws of the Old Regime: the right of escheat and the power to naturalize. For the first time nationality was defined by a constitution. However, in 1803 the Civil Code took the opposite tack. It reestablished the state's power over foreigners with regard to the right of escheat and admission to legal residency, and nationality disappeared from the Constitution. Most significantly for defining who was French by origin, the jus soli that had remained dominant through the end of the Old Regime and had been reinforced during the Revolution was replaced by jus sanguinis.

1790-1791: The Definition of a French Person Enters the Constitution

In 1789 the revolutionaries were more concerned about the divisions within French society than about the boundary separating foreigners from the French. Privileges were abolished, professional bodies and corporations were suppressed, and under the principle of equality, the individual was placed at the heart of the new system for attributing rights. First, serfdom was eliminated; next, Protestants were reintegrated, and Jews obtained equal rights; finally, slavery was abolished. A new dividing line emerged among the French, who were henceforth equal under the law, with active citizens on one side-men who had reached the age of majority, and possessed certain resources, had the right to vote and to participate in the exercise of national sovereignty-and passive citizens on the other-women, minors, and the poor.

In a decree dated 30 April-2 May 1790, the National Assembly nevertheless determined that foreign men who had established residency in France would be "known as French and allowed, upon taking the civic oath, to exercise the rights of active citizens after five years of continuous residence in the kingdom, if they [had], in addition, either acquired real estate or married a French woman or set up a commercial establishment or received letters of municipal affiliation [lettres de bourgeoisie] in some city." Initially, the focus was on "border departments and coastal cities ... filled with men born in foreign countries who are married and are long-standing owners of real property or have established businesses; they have held civic positions; some were officers in the former municipalities; others are officers of the National Guard; all have sworn the civic oath; in many cities they make up an eighth, a seventh, a sixth of the population: these are more friends you are acquiring for a constitution that seeks to make all men happy." With this decree, however, the right to naturalize was no longer a royal prerogative: without the need for any further intervention by the government or for their own consent, foreigners became French if they met the conditions-for example, that of residency-prescribed by the law.

Next, with the decree of 6 August 1790 the National Assembly abolished the rights of escheat and detraction, without any conditions of reciprocity. Here too the point was to break with royal power. However, this particular break was more symbolic than practical. For several years many foreigners had already been exempted from the right of escheat either by virtue of particular privileges or, more often, because they belonged to an exempt nation; between 1766 and 1788 France had signed seventy-five agreements with other states providing for total or partial exemption from the royal right of escheat.

Finally, the law of 9-15 December 1790 restored the right to be French to descendants of the exiled Protestants. This provision signaled yet another break with the discretionary power of the monarchy: "All persons who were born in foreign countries and descend in any degree from a French man or woman who was expatriated for religious reasons are declared natural French persons and will enjoy the rights attached to that quality, if they return to France, establish their homes there, and swear the civic oath."

A few months later the definition of a French person, inspired by the old jurisprudence, was included in the first constitution, dated 3 September 1791: the quality of being French was granted to "those who were born in France to a French father; those who, born in France to a foreign father, have established their domicile in the kingdom; those who, born in a foreign country to a French father, have returned to establish residency in France and have sworn the civic oath." In fact, the entire set of provisions dealing with nationality was inscribed in the constitution, for that document incorporated the law of 9-15 December 1790 pertaining to Protestants and that of 30 April-2 May 1790 pertaining to the naturalization of foreigners. For the first time in French history, legislation governing nationality had become explicit and applicable in a consistent way to the national territory as a whole. From the legal and practical standpoints, the chief innovation lay in the way a foreigner could become French: either by exceptional naturalization or-most often-automatically.

1790-1795: Two Ways to Acquire the "Quality of Being French": Honorary Citizenship ...

Article 4 of title II of the constitution of 3 September 1790 gave the legislature power to grant exceptional naturalizations: under special circumstances it could "give a foreigner an Act of Naturalization, without any condition other than establishing legal residence in France and swearing the civic oath."

Less than a year later, on 24 August 1792, Marie-Joseph Chénier stood before the National Assembly, speaking for several citizens of Paris, to propose "the adoption of those who in the various countries of the world have ripened human reason and prepared the paths of liberty." France was at war with Austria and Prussia. The fatherland had been declared in danger as of 11 July. On 1 August Parisians found out about the Brunswick manifesto threatening the capital's inhabitants with reprisals if "the least violence, the least offense" were committed against the royal family. On 10 August the Assembly decided to suspend the rule of Louis XVI and put a provisional executive committee in the king's place while waiting for a Convention to be elected. On 19 August the Prussians entered France; the next day they were at the gates of the city of Longwy, whose inhabitants, under bombardment, forced the garrison to capitulate on 23 August.

On 26 August 1792 the following decree was adopted: "considering ... that at the moment when a national Convention is about to establish the destiny of France, and perhaps prepare that of the human race, it behooves a generous and free people to call upon all sources of enlightenment and to bestow the right to join in this great act of reason on men who, through their sentiments, their writings, and their courage, have shown themselves eminently worthy; ... the title of French citizen [is hereby bestowed on] Dr. Joseph Priestly, Thomas Payne, Jeremy Bentham, William Wilberforce, Thomas Clarkson, Jacques Mackintosh, David Williams, N. Gorani, Anacharsis Cloots, Corneille Pauw, Joachim-Henry Campe, N. Pestalozzi, George Washington, Alexander Hamilton, James Madison, H. Klopstock, and Thaddeus Kosciuszko."

At the request of a member of the Assembly, the German publicist Giller was added to the list.

The intent was not to apply article 4 of the constitution literally. According to the provisions of that article, the act of naturalization could take effect only on condition that the recipient establish legal residence in France and swear the civic oath. Neither Bentham nor Washington nor Hamilton, for example, resided in France, or swore the civic oath (nor would they). They were granted honorary citizenship, comparable in legal terms to what was bestowed on Lafayette by the United States. As the U.S. Supreme Court ruled in Lafayette's case, the act of naturalization would take effect only if the beneficiary established actual residence in the country that had made him or her a citizen. In France this was the case for two of those named, Thomas Payne and Anacharsis Cloots; moreover, both men were elected to membership in the Convention.

Given the context (the fatherland was in danger and the king had been arrested), the invitation to foreign intellectuals or legislators to participate in the founding of the French Republic marked the Republic's universal dimension. It was also a way of following Rousseau's advice: in The Social Contract, Rousseau mentioned that it was the custom in most Greek cities, in many modern Italian republics, and even more recently in the Republic of Geneva to confer upon foreigners the extraordinary task of establishing laws; they were acquainted with human passions, but as outsiders in the society that they were charged with organizing, they had no stake in its political conflicts.

Finally, the attribution of honorary citizenship was the symbolic counterpart of the withdrawal of nationality inflicted on the French who were fighting their own country from abroad, the émigrés against whom measures had already been taken by decree: confiscation (27 July 1792) and sale of property (14 August 1792); further measures were to follow. Moreover, when Claude-Bernard Navier, reporting a few weeks earlier on behalf of the committee on legislation, spoke in favor of three requests for exceptional naturalization that conformed to title I, article 3, of the constitution of 1791, support from the worthiest foreigners was the chief consideration that he invoked: "In our political situation of the moment ... everyone will recognize how advantageous it is for the French nation to be in the position of countering the detractors of the Constitution and the Laws with the eagerness to subject themselves to them on the part of three men whose Enlightenment is beyond question and who value this constitution and these laws at a price that can be calculated in terms of the advantages they are renouncing in their birthplaces."

These few exceptional naturalizations still have powerful symbolic value today; they signify openness to foreigners and a universalist outlook. A few months later, when war was declared, the foreigner, an ambiguous political figure in the landscape of the Revolution, took on the mask of enemy, traitor, or spy. Decrees issued on 26 February and 21 March 1793 required foreigners to declare their presence. On 16 October 1793 the Convention decreed that "foreigners born subject to governments with which the Republic is at war will be detained until peace [is achieved]." On 25 December 1793 foreigners lost the right to represent the French people, and Cloots and Payne were excluded from the Convention. By a decree issued on 26 December 1793, this interdiction was extended to French people born abroad. Only Frenchmen born within the national territory were authorized to participate in public life. On 15 April 1794, under the influence of Saint-Just, decrees were adopted forbidding foreigners born in countries with which France was at war to live in certain cities, and denying to all foreigners and nobles the right to join popular societies and surveillance committees, in communal or sectional assemblies.

... and Automatic Naturalization

However, during the entire first phase of the Revolution, from the law of 30 April-2 May 1790 to 22 September 1795, the date when the constitution of Year III went into effect, a relatively stable common law governing naturalization remained in force. Neglected, badly interpreted, and yet radically innovative, it conferred French nationality on hundreds or even thousands of foreigners living in France. It did so automatically, with important practical consequences for men who were requisitioned and obliged to serve in the army or who were subjected, if married to a Frenchwoman, to the new legislation governing divorce.

(Continues...)



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Table of Contents

Acronyms and Abbreviations vii

Acknowledgments xi

Introduction 1

Part One. The Construction of Modern Nationality Law in France

1. From the Old Regime to the Civil Code: The Two Revolutions in French Nationality 11

2. The Triumph of Jus Soli (1803-1889) 30

3. Naturalization Comes to the Aid of the Nation (1889-1940) 54

Part Two. Ethnic Crises in French Nationality

4. Vichy: A Racist and Anti-Semitic Nationality Policy 87

5. The Difficult Reestablishment of Republican Legislation 125

6. The Algerian Crisis in French Nationality 152

Conclusion to Parts One and Two 168

Part Three. Nationality in Comparison and In Practice

7. Jus Soli versus Jus Sanguinis: The False Opposition between French and German Law 173

8. Discrimination within Nationality Law 194

9. How Does One Become or Remain French? French Nationality in Practice 228

Conclusion 250

Glossary 255

Notes 263

Maps and Documents 375

Bibliography 409

Index 427

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