Comparative Contraventions
Pierre Legrand*
When the comparatist-at-law offers a critique of a
particular legal culture, individuals committed to that
culture may seek to repress dissemination of this
alternative opinion. The author thus provides a personal
narrative of his failed attempts to publish texts critical
of the Civil Code of Quebec in various Canadian law
journals while meeting with repeated success abroad.
He shows how Quebec academics used the peer-review
process to stifle an argument seen as liable to undermine
a local intellectual endeavour. The peer-reviewer is
exposed as a censor seeking to silence the expression
of comparative, critical thought.
vouloir
rprimer
pourront
Lorsque le comparatiste se livre la critique d’une
culture juridique, les juristes stant investis dans cette
culture mme
la
dissmination de largumentaire dissident. Lauteur
relate ici comment ses tentatives rptes de publier
une critique du Code civil du Qubec dans diffrentes
revues de droit canadiennes se sont ainsi rvles
infructueuses alors qu’elles taient couronnes de
succs ltranger. Il dmontre de quelle manire des
universitaires qubcois sont intervenus auprs des
comits de rdaction pour exclure une perspective
envisage comme susceptible de porter atteinte une
oeuvre intellectuelle faonne localement. Luniversitaire
est ds lors rvl en tant que censeur souhaitant entraver
lexpression dune pense comparative critique.
* Professor of Law and Director of Postgraduate Comparative Legal Studies, Universit Panthon-
Sorbonne; Visiting Professor, University of San Diego Law School; Senior Fellow, University of
Melbourne School of Law; Distinguished Visitor, Faculty of Law, University of Toronto; B.C.L.,
McGill; LL.B., McGill; D.E.A., Panthon-Sorbonne; M.Litt., Oxford; Ph.D., Lancaster; Docteur en
droit, Panthon-Sorbonne. I have on file all the correspondence discussed or quoted in the text. Three
colleagues generously commented on this paper. They know how grateful I am to them. I dedicate
this argument to Casimir and Imogene, who must also address obfuscation.
Pierre Legrand 2005
To be cited as: (2005) 50 McGill L.J. 669
Mode de rfrence : (2005) 50 R.D. McGill 669
670
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 50
ctait bon pour lessai
ctait philosophique
ctait du journalisme
il ny manquait que les noms1
Nearly fifty speakers from approximately fifteen countries gathered in Quebec
City on 19, 20, and 21 September 2004 to celebrate the tenth anniversary of the Civil
Code of Quebec. I find it necessary to supplement the encomium that was produced
on that occasion by recalling in what circumstances over the years comparative
interventions taking the new Code as their object of critical study have been
apprehended as comparative contraventions and suppressed as such. These repeated
acts of censorship are an important part of the story. They hardly, however, call for
celebration.
*
Notwithstanding a theoretical commitment to enculturation and interdisciplinarity
and the assumption of a critical perspective such as might be expected to recommend
them as strategic hermeneuts of legal experience, comparatists-at-law would be ill-
advised to assume that legal cultures will readily accredit their observations as valid
knowledge. Rather than question its own understanding of itself, a legal culture may
seek to marginalize the comparatists account in various ways: for example, by
admitting it only in reduced and distorted versions or by depriving it of a forum. Thus,
censorship offers another instantiation of the presence of power within the field of
comparative legal studies. The story I wish to tell is intended to show how
challenging it can be for the comparatist-at-law to find an audience within the
observed legal culture when the views being circulated about that legal culture within
that legal culture itself fall foul of received and interested orthodoxies stubbornly
seeking, especially against the most compelling evidence, to preserve a certain image
of themselves. Specifically, my narrative illustrates the abuse of the academic peer-
review process to obviate the menace represented by the comparatists singular
perspective.2
The reviewer-as-censor is not simply concerned with the good working order of
the community, but with the preservation of what he regards to be its foundational
and constitutive fabric. He is entrusted with the constant reassertion of power and
must accordingly remind the author at all times of what the author must not think and
1 Grald Godin, Ils ne demandaient qu brler, ed. by Andr Gervais (Montral: ditions de
lHexagone, 2001) at 295.
2 Recent statements arguing for the merits of narrativization include Jane Gallop, Anecdotal Theory
(Durham: Duke University Press, 2002) and Homi Bhabha, Writing Rights in Matthew J. Gibney,
ed., Globalizing Rights (Oxford: Oxford University Press, 2003) 162 at 180.
671
P. LEGRAND COMPARATIVE CONTRAVENTIONS
2005]
of what the author must not not think. In exercising authority over the author, as he
prescribes what he proscribes, the censor ensures that the dissentient is aware of the
inevitable presence of the prior law, which cannot be undermined because it
grounds the whole community order; the censor must, therefore, delineate a space of
inhibition and repress any statement that might unsettle the collectivity and its shared
achievements (whether illusory or not). Consequently, the heterodoxy of the
comparatist-at-law finds itself suppressed by jurists occupying positions of power
(deemed legitimate) from which they derive ascendance to do violence to others and
to their ideas. The comparatist becomes malum nomen and must bear an ignominia. It
soon appears to him that individuals, for whom censorship mediates a sentiment that
they themselves and their community are beleaguered, simply cannot apprehend the
restorative implications flowing from the act of critique, such as the way in which
tension between conformance and dissent might be creative and confer meaning to the
academic endeavour. In short, it is the predicament of the comparatist-at-lawwhose
critical vocation impels him to privilege a heterodox discourseto encounter
opposition from the academic-as-censor, who has failed to grasp how the
[dissolution of] antagonism and the [emasculation of] hostility effectively
intervene to render the university culturally irrelevant,3 and who is unable to
appreciate that the basis for critique need not arise from detachment or enmity, but can
find its source in idealism.
So, to my talebearing in mind, all along, Edward Saids reminder that the
intellectual must be involved in a lifelong dispute with all the guardians of sacred
vision or text, whose depredations are legion and whose heavy hand brooks no
disagreement and certainly no diversity.4
On the occasion of a teaching engagement I undertook in Germany a little over
ten years ago, Reiner Schulze, the executive editor of the then soon-to-be-established
Zeitschrift fr Europisches Privatrecht and current director of the Institut fr
Deutsche und Europische Rechtsgeschichte of
the Westflische Wilhelms-
Universitt, in Mnster, invited me to contribute a brief text in English on the new
Quebec Civil Code (which was just about to come into force on 1 January 1994). The
fact that I had studied and taught law in Quebec was, of course, what chiefly
recommended me to my German colleague, although it so happens that I had spoken
and written about an early rendition of the Civil Code in the making.5 By the time I
was asked to contribute to the German journal, however, I had been living in England
for three years and had somewhat lost touch with the often perplexing political events
that preceded the implementation of the new Code. Yet, I decided to accept the
3 Alasdair MacIntyre, Three Rival Versions of Moral Enquiry: Encyclopaedia, Genealogy, and
Tradition (Notre Dame: University of Notre Dame Press, 1990) at 219.
4 Edward W. Said, Representations of the Intellectual (London: Vintage, 1994) at 65.
5 See Pierre Legrand, Consolidation et rupture: les ambiguts de la rforme des contrats nomms
(1989) 30 C. de D. 867 (being the revised version of a conference given at Universit de Montral on
7 April 1989).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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invitation extended to me because it offered a salutary occasion to write about Quebec
law not as an insider, but from a decidedly more external perspective, away from
the pressures and anxieties that inevitably ensnare critique from within (which is not
to say that I was able to ignore my own goals in formulating my theoretical ideas).
[Vol. 50
One obvious problem involved getting reacquainted with the situation.
Fortunately, I had ready access to the Bodleian Law Library, in Oxford, where a wide
range of Canadian law periodicals can be found. I also received material assistance
from friends based in Quebec. And, in the course of a few timely weeks spent in
Montreal, I was able to raise various matters with a number of academic colleagues
and practicing lawyers. On the basis of this information, I began to work in earnest on
my paper, which I completed during a prolonged teaching visit at Uppsala University
in the spring of 1993. The article was duly forwarded to Germany, peer-reviewed,
accepted for publication with minor emendations, and published in December of that
year.6
In the short space at my disposal in this paper, I focused on what I regarded as
three salient features of the Quebec codification. First, I felt compelled to underline
that the writing and intellectual organization of the Code were so poor as to be
unworthy of a primordial legal text.7 Second, it seemed necessary to document the
fact that the Code in various significant ways marginalized the minority anglophone
community established in Quebec since the eighteenth century. In this respect, the
Quebec codification broke with the civil law tradition in which civil codes have been
used by the state to promote harmony within a society, either through the consecration
of a political unity (as in Germany) or through the institution of a legal unity (as in
France). Third, I wanted to highlight how the codifiers and the Quebec government
sought to deny having derived any meaningful inspiration from outside of Quebec
law even though the available data clearly demonstrated otherwise. This unwilling-
ness to acknowledge the Codes sources also contrasted with the civilian practice of
making available lengthy travaux prparatoires detailing the provenance of the
various provisions.8 The wish to efface the anglophone presence, on the one hand, and
to obliterate external influences, on the other, illustrates a narrow, language-based,
nationalistic agenda, which, although spawned by the subordination of Quebec
francophones by the British conqueror and the ensuing struggle of the francophone
community to proclaim the legitimacy of its cultural identity, is arguably obsolete in
6 See Pierre Legrand, Civil Law Codification in Quebec: A Case of Decivilianization (1993) 1
Zeitschrift fr Europisches Privatrecht 574.
7 For a similar argument, see Maurice Tancelin, Les faiblesses logiques du Code civil du Qubec
in Scintillae iuris: studi in memoria di Gino Gorla, t. 2 (Milan: Giuffr, 1994), who notes that the new
Civil Code of Quebec was enacted in its draft form ( ltat de brouillon) (ibid. at 960).
8 For a recent application of this practice, see the publication, in seventeen volumes numbering
more than eleven thousand pages, of the travaux prparatoires to the new Dutch Civil Code, which
progressively replaced the 1838 codification as of 1970: C.J. van Zeben et al., Parlementaire
Geschiedenis van het nieuwe Burgerlijk Wetboek (Deventer: Kluwer, 1961-93).
P. LEGRAND COMPARATIVE CONTRAVENTIONS
2005]
its stridency.9 In the way they purported to reflect a societys intellectual and moral
allegiancesand sought to institutionalize societal forms for generations to comeI
regarded these crucial features of the new Code, all partaking in the sphere of tacit
knowledge, as infinitely more important than any amendment that might have been
effected to the posited law.10 In fact, given the significance of the information that had
become available to me, I soon resolved that the matter ought to be addressed more
extensively than what had been possible to achieve within the confines set by the
German law review.
673
In the early spring of 1994, having submitted to a funding body a detailed
research project endorsed by two renowned academics, I was fortunate to obtain a
scholarship to finance an extended stay in Canada for the purpose of collecting further
materials. Toward the end of June 1994, I was ready to submit a revised and amplified
version of my argument for publication. It seemed clear, however, that the paper
might not be publishable in Quebec itself. My experience as an academic in Quebec
(albeit brief) had familiarized me with the existence of a tradition of reflexive loyalty
to codification, which, while no doubt common to most civil law jurisdictions, is
perhaps compounded in Quebec by a permanent trait of intellectual life: that any
position marking its distance from an indigenous noetic enterprise, such as a civil
code, is immediately rejected as contemptuous.11 This brand of academic
parochialism (a phenomenon that requires further analysis) has been said to reveal an
alienation syndrome characterized in part by low aspirations and a tendency to
avoid intellectual engagement and competition12hence the apposite designation of
Quebec scholars as apparatus intellectuals,13 an epithet having rather little to do
with the intellectual-as-veilleur. A documented example of this defensive reactivity
9 See e.g. the view expressed in apodictic fashionthus making its heuristic function evidentby
Quebec Minister of Justice Gil Rmillard to the effect that the Quebec Civil Code follows no other
legislative model (Commentaires du ministre de la Justice, t. 1 (Qubec: Publications du Qubec,
1993) at viii: Le Code civil du Qubec ne suit aucun autre modle lgislatif). One illustration of the
substantial role that foreign influences have effectively played in the making of the new Code is
offered in H.P. Glenn, Le droit compar et linterprtation du Code civil du Qubec in Le nouveau
Code civil: interprtation et application (Montreal: Thmis, 1993) 175 at 188-90, 197-222.
10 Taking the view that the achievement of a critical rationality is an epistemological task, I have
argued that comparative legal studies should move away from its habitual (and deleterious) insistence
on posited law. For a programmatic statement, see Pierre Legrand, Le droit compar (Paris: Presses
Universitaires de France, 1999).
11 See e.g. Marc-Henry Soulet, Le silence des intellectuels: radioscopie des intellectuels qubcois
(Montreal: ditions St-Martin, 1987): for the intellectual … there is no salvation … outside of his
attachment to the Quebec oeuvre (pour lintellectuel, … il nest point de salut … en dehors de son
attachement loeuvre du Qubec) (ibid. at 63). Thus, a leading Quebec sociologist enjoins the
Quebec intellectual not to rupture the solidarity with the people to whom he belongs (Fernand
Dumont, Raisons communes (Montreal: ditions du Boral, 1995) at 247: ne point rompre la
solidarit envers le peuple auquel nous appartenons).
12 Catherine Valcke, Legal Education in a Mixed Jurisdiction: The Quebec Experience (1995)
10 Tul. Eur. & Civ. L.F. 61 at 115 (referring to anthropological and psychological research).
13 Soulet, supra note 11 at 61 (intellectuel dappareil).
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is offered by a Quebec judge, who tried to ensure that the new Civil Code would not
have to face criticism either from without or from within the Quebec legal
community.14
I determined, therefore, that the best course of action so as to circumvent
summary opposition to my paper was to send it to a bilingual law review located
outside of Quebec, but having a large readership within Quebec itself. (I shall refer to
this journal as ABC.) This periodical regularly publishes articles concerning Quebec
law, and, accordingly, I expected that there might be editorial interest in my text. In
any event, it had been suggested to me by a distinguished Canadian academican
acknowledged expert on the history of codification in Quebecthat I should seek to
make the argument available to a broader Canadian audience. Moreover, I was aware
of only one relatively short paper having been published in ABC bearing on the new
Code. The article in question had been written by a member of the small group of
individuals entrusted with the drafting of the Code and, thus, presented the
institutional view of the codification process. I regarded my contribution as a
counterpoint, offering a critical reflection on that process and on its outcome.
The editor of ABC acknowledged receipt of my manuscript in July 1994. In his
note, he indicated that he had sent the paper for assessment to a (francophone) law
teacher in Quebec. This development was not good news. Indeed, barely two weeks
later, the editor informed me that he was rejecting the paper on three grounds. First, it
was too long. Second, he envisage[d] publishing occasional essays on the Civil Code
in French by Quebc [sic] scholars so that the field will be covered in full. Third, he
had sent the manuscript to an expert reviewer and [t]he reviewers opinion [had]
not [been] positive.
It was readily apparent to me that the issue of format was a distraction as the
essay was of average length for a law review article and not in the least out of line
with the practice prevailing at ABC. The second observation struck me as more
cryptic. I was not prepared to believe that the fact that my paper had been written in
English and had been submitted from outside of Quebec had intervened in the
decision not to publish. It simply seemed too implausible that this sort of linguistic
and geographical discrimination could have played a significant role in the editorial
determination. The key had to lie in the expert reviewers negative report. It was then
common for Canadian law journals to forward to authors the assessors evaluations of
their work under cover of anonymity with a view, I assume, to ensure that rejections
are seen to have been motivated. Strangely, no copy of the assessment was made
available to me by ABC. I therefore asked that the manuscript be returned to me along
14 See Jean-Louis Baudouin, Reflections on the Process of Recodification of the Quebec Civil
Code (1991-92) 6/7 Tul. Eur. & Civ. L.F. 283, who, making reference to the new Quebec Civil Code,
claimed that critics had forfeited the right to cast doubt on the recodification of our law, apparently
on account of the fact that the reform was well underway and … entering into its final stage (ibid.
at 290).
P. LEGRAND COMPARATIVE CONTRAVENTIONS
2005]
with the negative recommendation in the customary way. On the specific question of
the referees evaluation, I wrote in these terms:
675
I trust you will feel able to append the negative report presented to you by the
anonymous reviewer. I would hope that the reviewers comments would afford
me the opportunity to improve the paper.
My request was never acknowledged, and no assessment ever followed.
Undaunted, I submitted the paper to one of the established academic law reviews
in Canada, once again a periodical based outside of Quebec. (I shall style this journal
DEF). Though this review cannot claim to have an extensive readership in Quebec, it
enjoys enough visibility so that if an article were to be accepted for publication, the
paper would reach a fair number of Quebec academics. My experience with ABC
having confirmed my suspicion that if invited to comment on the piece Quebec
academics would try to suppress it, I included this captatio benevolentiae in my cover
letter to the editor:
As you will note, my paper adopts a critical stance vis–vis the new code. I
would hope that this would not disqualify it from consideration for publication
in your [journal]. Although I am aware that some of my colleagues from
Quebec are sensitive to criticism of the code, I am firmly of the view that new
codes ought to spark a free and lively discussion. I should like to think of my
paper simply as a scholarly contribution to a debate of that kind. A large
number of articles set out the case for the new code. It should not surprise or
upset anyone that my paper sets out a case against it. I regard a continuing
dialogue and interchange between the two sides of the argument as crucial
given the codes importance. Clearly, a meaningful debate can only arise if
there exists a range of opinions in print.
Upon reception by DEF, the paper was sent to a first reviewer, apparently
someone associated with the law school under whose auspices the journal was being
published. The written recommendation of
the assessor was subsequently
communicated to me. It advised the editor to accept the article with minor
revisions. The following comments were handwritten by the reviewer on the
manuscript itself:
I fear the author is exactly right. I think we should publishhe/she may not get
a hearing in Quebec.
Despite this intimation, the editor obviously failed to appreciate how readily the
Quebec legal community would rise in the defense of its Civil Code and seek to
marginalize dissent. The paper was, therefore, submitted to a second reviewer whose
anonymity, under the circumstances, could not realistically be sustained and whom I
could identify as a member of a law faculty at a Quebec university, although not the
same individual as mentioned previously. Unsurprisingly, this referees report
concluded that the paper should not be published. The assessment was later mailed to
me. It included these passages:
This article contains numerous assertions which are completely unsub-
stantiated.
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The research is not thorough enough to make … a scholarly argument …
Parts of [his condemnation of the new Civil Code] could also be construed as
culturally intolerant.
[H]is argument is polemical rather than scholarly.
Apart from the polemical nature of the piece, there is little that could be
considered an original or useful contribution to knowledge in the area.
Reference was also made to the fact that the text had been submitted in the guise of
a scholarly article, that it was insulting, that it sought to condem[n] an entire
culture, that it [was] short on fact and long on conjecture, that it was completely
undocumented, that it provided analysis that was skimpy at best, and that it was
disjointe[d]. In sum, and at the risk of some repetition, the assessor concluded that
[t]he article thus contributes little or nothing new or interesting to an understanding
of the new Civil Code and the process of reform. The verdict ensued: I would
strongly recommend that this article be rejected.
For reasons that were not explained, but that suggest a hierarchy amongst
reviewers, the opinion of the Quebec academic carried over that of the first assessor. A
letter from the editor duly followed, informing me that the article would not be
published and inviting me to raise any questions or concerns I might have. I availed
myself of this opportunity. Having referred to the observation from the internal
reviewer that I [might] not get a hearing in Quebec, I wrote as follows:
In the light of this percipient remark, it is, to say the least, unfortunate that you
… chose to send the piece to a Quebec reviewer. In feminist circles, the strategy
used by the Quebec reviewer is known as silencing. I am surprised and
disappointed that your [journal] was prepared to condone it.
Having shared my concerns with the editor, I never heard from DEF again.
These two rejections confirmed that it was unlikely that I could get my paper
published in a Canadian law journal as long as editors continued to rely on Quebec
academics for approbation. Having anticipated that I would soon be forced to reach
that very conclusion, I had elected some weeks earlier to submit the manuscript to the
British Journal of Canadian Studies, based at the University of Edinburgh. The ready
advantages of publication in that review were two-fold: not only would I avoid
suppression of the argument by Quebec academics, but I would in all likelihood reach
a wider constituency of readers than could have been expected on the basis of a
contribution to a law journal. Unfortunately, however, to publish with the British
Journal of Canadian Studies would mean, once again, that the text would not appear
in Canada. Upon reception of my paper, the editor of the British Journal of Canadian
Studies, not feeling himself adequately conversant with law, apprised me that he
wanted to submit the piece to colleagues from the Faculty of Law at the University of
Edinburgh. The recommendations were positive, and the paper was duly accepted for
P. LEGRAND COMPARATIVE CONTRAVENTIONS
2005]
publication in the fall of 1994. Having benefited from minor stylistic revisions, the
article appeared a few months later.15
677
As the 1994 Christmas season approached, I was thus in a position to point to
published or forthcoming contributions on the Quebec Civil Code in Germany and in
the United Kingdom, not to mention a third piece that would be released in New York
in the spring of 1995 as part of a collection of essays devoted to the semiotics of law.16
Ironically, I could also boast two rebuffs in Canada. On the basis of these statistics, it
seemed that the time had come to close the file I had been prompted to open on
Quebecs codification and to turn to other research endeavours.
In late December 1994, however, I had lunch in Montreal with a leading
Canadian public figure, who, as a former politician, a concerned citizen, and a lawyer,
revealed genuine interest in my argument and in the fact that I could not get my views
published in Canada despite consistently meeting with positive responses abroad. By
then an acquaintance of mine, this individual had been the driving force behind the
founding of Cit libre, a famous public affairs, Montreal-based review that, as of June
1950, had sought to challenge the stultifying orthodoxiespolitical, religious, and
otherwisethat had frozen Quebec in a time warp on the road toward modernization
and democratization. The journal remains credited with a major contribution to the
extensive renewal of Quebec society that began in the early 1960s. My acquaintance
informed me that, after a prolonged hiatus, the review had been resurrected a few
years earlier. While he no longer played a leading role, he remained actively involved
with the publication. Recalling the way the editorial team of the 1950s would publish,
under the banner Textes refuss, submissions that other journals would not entertain
on account of their perceived radicalism, he graciously suggested that my critique of
the new Code needed to appear in Quebec and deserved to be printed in the pages of
Cit libre. If I could compress the argument, write it in French (Cit libre had always
been first and foremost a francophone periodical), and adapt the paper for dis-
semination across a general readership, he would be prepared to recommend
publication to the editor of Cit libre rediviva. I was honoured by the enthusiasm
shown for my work by a man whose intellect, cosmopolitanism, and engagement I
had long admired. I proceeded to do precisely what my acquaintance had advised. I
eventually forwarded the text to him in February 1995. A few weeks later, my
acquaintance kindly wrote to say that he had found the paper interesting, clear,
erudite, and energetic (intressant, clair, rudit et vigoureux). He also confirmed
that he had transmitted it to the review.
15 See Pierre Legrand, Bureaucrats at Play: The New Quebec Civil Code (1995) 10 Brit. J. of
Can. Stud. 52.
16 See Pierre Legrand, Civil Codes and the Case of Quebec: Semiotic Musings around an accent
aigu in Roberta Kevelson, ed., Conscience, Consensus, and Crossroads in Law: Eighth Round Table
on Law and Semiotics (New York: Peter Lang, 1995) 195.
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The editor, as fate would have it, succumbed to the temptation to send the text for
assessment to a Quebec academic. (The name of this referee would later be
communicated to me; he, too, was a law teacher at a Quebec university, although not
one of the two individuals implicated previously.) The firm recommendation was, of
course, that the article should not be published, which it was not. Although the
evaluation had taken place orally in the course of a telephone conversation, I was later
provided with the notes scribbled by the editor on that occasion. Excerpts follow (in
translation from the French):
I find that the tone of this article is unhealthy and excessive (malsain et ou-
trancier), that it must not be published (il ne doit pas tre publi).
He studied at Oxford … where he was unable to complete his degree because
he could not agree with his thesis supervisor.
He was hired by the University of Ottawa, from which he resigned to work at
McGill, where he stayed for one year before leaving to teach in England in two
places.
He does not know who he is fighting. This whole recodification was done by
people who did not even know what they were doing.
My acquaintance was as surprised as he was irritated by what was obviously a
more cautious editorial line than that which he had followed in former times.
Indeed, he declared himself outraged (indign). We agreed that it was pointless to
take the matter further. In October 1995, I submitted the piece to the distinguished
legal philosopher, Franois Ost, of the Facults universitaires Saint-Louis, in Brussels,
for publication in his noted Revue interdisciplinaire dtudes juridiques. A month
later, the paper was duly accepted for publication with minor stylistic emendations
having been performed by the reviewers. It has since appeared in print.17
It is curious that my thesis, although no doubt disputable and perfectible, was
found to meet the exacting standards of the Zeitschrift fr Europisches Privatrecht,
the British Journal of Canadian Studies, and the Revue interdisciplinaire dtudes
juridiques, but to fall abysmally short of the editorial thresholds set by the three
Quebec academics having acted as evaluators for ABC, DEF, and Cit libre.
Possibly, the internal reviewer at DEF and all reviewers for the three European
journals (not to mention my acquaintance!), who all found the argument worthy of
publication, were all systematically deluded by a major case of academic imposture.
Perhaps they all neglected to see that my papers were but frauds and that, because
they disclosed a commitment to some particular standpoint, the essays could make no
justifiable claim whatsoever to being serious academic undertakings. It remains,
though, that ABC never offered any substantive reasons upon which to found its
rejection although it remarked that it was only prepared to publish pieces on the new
17 See Pierre Legrand, De la profonde incivilit du Code civil du Qubec (1996/36) Revue
interdisciplinaire dtudes juridiques 1.
679
P. LEGRAND COMPARATIVE CONTRAVENTIONS
2005]
Code that were in French and that came from within Quebec or, in other words,
contributions that could presumably be considered safe. As I mentioned previously,
no fundamental critique is to be expected of the Code from within the civilian
community, if only because civilians derive an important measure of legitimacy from
the very existence of the Code itself.18 For its part, the rhetoric of invective pursued by
the external assessor for DEF discloses that the reviewer was guided by concerns
extraneous to the soundness of the argument submitted for evaluation. It seems
surprising that this assessor should not have found himself in a position to identify a
single redeeming feature about the paper, considering that an early version of it had
already been published by a group of leading German academics and that the
selfsame text was soon to be accepted for publication by the British Journal of
Canadian Studies on the strength of the recommendations of law teachers at the
University of Edinburgh, one of the United Kingdoms principal law faculties. If any
doubt subsisted as to the unduly biased character of the review assessments, such
misgivings can hardly survive a reading of the loose vituperation emanating from the
evaluator acting for Cit libre, who engages in a selective restatement of my academic
career labouring under the apparent conviction that these facts (largely erroneous,
as it happens) have a bearing on the quality of the article being submitted for
publication. In any event, even this reviewer seemed prepared to concede that the
codification process that had taken place in Quebec had been problematic (indeed, the
codifiers did not even know what they were doing). Yet, it remained that my paper
must not be published.
What was perceived as a rival and antagonistic view would simply not be allowed
openly to conduct its own intellectual inquiry; the articulation of deviant
representation would be contained and the occupation of public space, controlled. By
thus being deflected so that it would not enter Canadian territory, my argument would
not contaminate the marketplace of ideas in Quebec. My thought would not be made
available to the Quebec readership, which would thereby be protected from a brand of
ignorant and irrational ruminations of the flat-earth persuasion. Other disciplines
might countenance critique (even if written in an unfamiliar mode), but lawyers
would not license such eccentric importations.19 Dissent (especially dissent from
outside, a fortiori dissent from an outsider who used to be inside) would not be
permitted to infiltrate order. Acting as secular theodiceans, having arrogated to
themselves the authority to speak on behalf of others, the self-appointed custodians of
tradition and of the correct interpretation of the Civil Code would guarantee that the
prevailing dogma would not be confused by the intrusion of an alternative view, of
another text that would claim to be another law, that would purport to constitute a law
18 For an exploration of this theme, see Pierre Legrand, Antiqui juris civilis fabulas (1995) 45
U.T.L.J. 311.
19 I draw on Peter Goodrich, Translating Legendre or, the Poetical Sermon of a Contemporary
Jurist (1998) 16 Cardozo L. Rev. 963 at 965.
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unto itself.20 Heresy would be excluded beyond the bounds of the community and
what was believed semper, ubique et ab omnibus, that is, that the new Code signaled
in brilliant fashion the political adulthood of Quebec, would be allowed to govern
without more ado and, certainly, without any introspection disclosing experiences
incompatible with its righteous image.21 I would, in effect, be terrorized.22
[Vol. 50
Although the censor sits in judgment of the authors work (and of the author), he
is seen to be acting differently from a judge. For example, the censors interposition is
essentially revealed as arbitrary (recall ABCs silence on the reasons for the negative
assessment registered by the reviewer). In other words, the censors mandate is such
that he need not explain himself as he performs his task. He wishes to certify that cer-
tain forms are respected (although no one knows for sure what they effectively are)
and, to that end, readily engages in condemnatory utterances. In other words, while
the judge builds an order, the censor more accurately deconstructs a disorder: that
produced (in his eyes) by the victim of censorship himself. The censor seeks to define
the text he examines, to elucidate what he regards as the truth of that text. The
censors task is to make the author of the text see what his text is missing, what to be
an author presupposes, what is implied by the fact of giving ones name to a work and
making it public. The censor intervenes to ensure submission, to enlist necessary
deference (recall the insistence by Cit libres reviewer on my disagreement with
the instruction that was given to me in Oxford, not to mention my seemingly
inappropriate peripatetic inclinationsstrange indeed that a comparatist-at-law
should want to experience different law-worlds). Thus, the censor aims to avoid the
discrediting event, that is, the event discrediting the established order. Indeed,
censorship intrudes before publication; while a judgment also recalls the priority of
the law, it does so ex post facto as the occasion arises to exercise control over the
abuse that has happened. The censor, in the final analysis, incarnates what no one can
understand and what no one can gloss except to say that it exists and that an
individual is responsible for warranting that it occurs (recall the omission by the
20 For insightful considerations on the role of gatekeepers directing the flow of scholarly
knowledge from producers to ultimate consumers so as to facilitate conformist tendencies within a
given interpretive community, see Richard F. Hamilton, The Social Misconstruction of Reality (New
Haven: Yale University Press, 1996) at 197-216.
21 Mary Douglas, How Institutions Think (Syracuse: Syracuse University Press, 1986) at 112, who
also observes that [a]ny institution that is going to keep its shape needs to control the memory of its
members (ibid.). Meanwhile, though, the capacity for democratic government is linked to the
capacity for critical thinking in Octavio Paz, The Labyrinth of Solitude, trans. by Lysander Kemp,
Yara Milos & Rachel P. Belash (London: Penguin, 1990) at 219-20 (originally published in Spanish
in 1950).
22 See Jean-Franois Lyotard, La condition postmoderne (Paris: ditions de Minuit, 1979): Terror
means the efficiency derived from the elimination of a partner out of the game of language we were
playing with him. He will be silent or assent not because he has been disproved, but because he has
been threatened not to be allowed to play. (On entend par terreur lefficience tire de llimination
dun partenaire hors du jeu de langage auquel on jouait avec lui. Il se taira ou donnera son
assentiment non parce quil est rfut, mais menac dtre priv de jouer) (ibid. at 103).
681
P. LEGRAND COMPARATIVE CONTRAVENTIONS
2005]
external reviewer acting at the behest of DEF of any purported specification of the
parameters of scholarship, thus stultifying any possible opposition to the grounds
allegedly founding his decision; it was enough for that assessor to conclude
peremptorily that what was being examined was not scholarshipthe strength of the
language used to disqualify the text possibly reflecting the strength of the threat
believed to be represented by the author and his argument). There is, therefore, a
certain dimension of vertiginous infinity to prohibition. In this sense, censorship
recalls the sacred character of power.23 The censor does what is expected of him by
people around him (which is something infinitely more complex than doing what he
is told or doing what he is meant to be doing). The censors strength … lies in not
doubting [him]self; [his] weakness lies in not being able to afford to doubt
[him]self.24
It will not have escaped attention that, in all three instances recounted here, the
ars censoria was practiced by an academic reviewer (ah! ces chers collgues…).
Pierre Legendre does well to remind us that the University remains fundamentally an
efficient censorship apparatus.25 He is also right to encourage comparative legal stud-
ies, as it seeks to move beyond the traditional expository practices and cease to be
simple technology, to uncover the censored elements within the legal cultures under
scrutiny and to mark for them a space of visibility.26 He might also have mentioned
the need for comparatists-at-law to alert the scholarly community to the censorship of
their own work as they purport to illuminate the repressed aspects of the legal cultures
they choose to examine.
The moral of the story must be that responses to comparative legal studies will be
determined in part by affective reactions to the comparatists analysis (or to the
comparatist himself); it is this measure of irrationality that will, in fact, largely police
the dissemination of the comparative argument being propounded. Only by mustering
forbearance and steadfastness will the comparatist-at-law usefully contend with such
vehement expressions of scholarly frilositwhich, along the way, will test even his
staunchest commitment to charitable collegiality.
*
There is a final episode to the anecdote. A journalist reporting for a leading daily
francophone newspaper in Quebec chanced to find my article in the British Journal of
Canadian Studies. Having been attracted to the theme of the paper, he approached me
23 Within the civil law tradition, sacrality and power have been linked at least ever since the
Justinianic era. For an examination of this question, see Legrand, Antiqui juris civilis fabulas, supra
note 18.
24 J.M. Coetzee, Giving Offense: Essays on Censorship (Chicago: University of Chicago Press,
1996) at ix.
25 Pierre Legendre, Jouir du pouvoir: trait de la bureaucratie patriote (Paris: ditions de Minuit,
1976) at 90 (lUniversit demeure fondamentalement une efficace machine censurer).
26 Ibid. at 180, n. 4.
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for further discussion. Telephone interviews and correspondence ensued. Although he
made it clear that he did not necessarily concur with my views, the journalist firmly
believed that my contentions deserved to be aired in Quebec. Accordingly, he wrote a
short article devoted to my critique of the Civil Code of Quebec, which appeared in
March 1996. In the text, the journalist also briefly referred to the censorship issue. He
indicated that he had contacted various Quebec jurists to persuade them to reply to my
observations. It is apparent that the journalist was unable to elicit any substantive
reaction to my substantive argumenta failure that exposed an evasive technique
typical of the siege mentalit prevailing in Quebec.27 What responses were offered
intervened at the personal level to dismiss me as arrogant and insufferable
(arrogan(t); insupportable). Evidently, character traits can suffice to disqualify a
discordant stance on the new Civil Code. Moreover, it was claimed that my views
were shared by a very small minority (toute petite minorit) of people (which, so
the subtext goes, is enough for them to become an ineffective contender for the
communitys loyalties). It may have been this resounding silence in response to the
substantive issues raised in the article that prompted one of Quebecs leading radio
presenters to arrange a live telephone interview with me in Paris, where I was then
teaching as visiting professor at the Sorbonne, the day after the appearance of the
newspaper article.
While I failed to overcome the protective devices erected by Quebecs legal
culture against the dangers of subversive discourse, I eventually gained a very public
hearing within the society that had been my object of study. As they face compulsive
denigration for remaining loyal to their critical vocation by imperturbable members of
a professoriate engaging in unacknowledged repression and suppression in order to
control the external image of the legal culture to which they belong, not all
comparatists-at-law shall be so lucky.
*
Why this pousse en scne (as Mallarm would perhaps have it)? Why commit
this narrative to print? Why is this knowledge worth disseminating? These questions
will be asked, and it seems appropriate for me to seize this opportunity and to offer a
cluster of answers by anticipation.
First, I argue that any contribution to comparative legal studies that, on account of
its counterintuitivity or anti-mimetism, helps to rescue the possibility of an
elucidatory, theoreticized, and, ultimately, emancipatory practice of comparison-at-
law is inherently valuable.
Second, I take the view that my narrative illustrates at least two theoretical
assertions that are relevant for comparatists-at-law: that legal cultures can prove
unwilling to accommodate comparative observations issuing from without; and that
27 Pierre Elliott Trudeau, Le fdralisme et la socit canadienne-franaise (Montreal: ditions
HMH, 1967) at 39 (mentalit dassigs).
P. LEGRAND COMPARATIVE CONTRAVENTIONS
2005]
legal cultures can consider certain achievements, especially those envisaged as
autochthonous, to be beyond critique.
683
Third, I hopealthough I must say that I do not express this point with any
confidence (recall the first paragraph of this paper)that Quebec legal culture (or,
more accurately, key agents within that legal culture) can learn from such an incident
and, specifically, can learn to withstand with greater fortitude the kind of critique that
is apprehended locally as unsavoury and, perhaps, can even learn to validate a brand
of knowledge that appears in unfamiliar form.
Fourth, I find that there is something like an ethical call prompting me to
overcome quietism and tell the story publicly. The rejections that I recount happened.
The words that I quote were written. These rejections and these words are fact to
the extent that anything can be fact. As such, I cannot see why the incident should
remain forever obliterated. Who would be servedand what values would be
honouredif I agreed to be beaten into muted submission? What would resignation
on my partrestless or otherwiseachieve? On the contrary, circumspect resistance
to the act of repression and suppression that was repeatedly performed at my expense
and at the expense of the ideas I was promoting seems defensible in the name of
integrity or authenticity.
Fifth, I am prepared to accept, of course, that the publication of this narrative may
also wish to have a cathartic effect, that it may even owe its raison dtre to a
necessity that escapes it. I like to think, however, that any therapeutic desire having
impacted on my decision to go to press has been less influential than my conscious
commitment to strategic criticality.