Jean Carbonnier (1908–2003) was one of the most important French jurists of the 20th century. He was a
civil law specialist and a
private law
Private law is that part of a civil law legal system which is part of the ''jus commune'' that involves relationships between individuals, such as the law of contracts and torts (as it is called in the common law), and the law of obligations ( ...
professor.
Life and career
Jean Carbonnier was the son of Fernand Carbonnier and Dany Daniel. He married Madeleine Hugues.
His Protestant beliefs influenced his way of thinking and his work. Although Jean Carbonnier published theological and historical articles about
Protestantism
Protestantism is a branch of Christianity that follows the theological tenets of the Protestant Reformation, a movement that began seeking to reform the Catholic Church from within in the 16th century against what its followers perceived to b ...
, he still supported secularity.
Jean Cabonnier studied at the Faculty of Law at the
University of Bordeaux
The University of Bordeaux (French: ''Université de Bordeaux'') is a public university based in Nouvelle-Aquitaine in southwestern France.
It has several campuses in the cities and towns of Bordeaux, Dax, Gradignan, Périgueux, Pessac, and Ta ...
where he obtained his
doctorate
A doctorate (from Latin ''docere'', "to teach"), doctor's degree (from Latin ''doctor'', "teacher"), or doctoral degree is an academic degree awarded by universities and some other educational institutions, derived from the ancient formalism ''l ...
in 1932 and private law ''
agrégation
In France, the ''agrégation'' () is a competitive examination for civil service in the French public education system. Candidates for the examination, or ''agrégatifs'', become ''agrégés'' once they are admitted to the position of ''professe ...
'' in 1937.
He was a professor at the Faculty of Law at the
University of Poitiers
The University of Poitiers (UP; french: Université de Poitiers) is a public university located in Poitiers, France. It is a member of the Coimbra Group. It is multidisciplinary and contributes to making Poitiers the city with the highest studen ...
from 1937 to 1955, teaching French civil law. He became dean in 1950. At this time, he published his ''Treatise on Civil Law'' (''Droit civil'') in 1955, which has been republished several times since then. Afterwards, Jean Carbonnier taught at the
Paris Law Faculty
The Faculty of Law of Paris (french: Faculté de droit de Paris), called from the late 1950s to 1970 the Faculty of Law and Economics of Paris, is the second-oldest faculty of law in the world and one of the four and eventually five faculties ...
(replaced with
Panthéon-Assas University in 1970) until 1976.
Jean Carbonnier became President of ''
L'Année Sociologique'' in 1964, and worked for the sociology journal during fifteen years. He also created and started heading the Laboratory for Legal Sociology (''Laboratoire de sociologie juridique'') at
Panthéon-Assas University in 1968 - in order to produce data that would help law making.
On the international level, Jean Carbonnier supported the creation of the
Research Committee on Sociology of Law Research Committee on Sociology of Law (RCSL) was established in 1962 by William M. Evan (University of Pennsylvania) and Adam Podgórecki (University of Warsaw), with the support of Renato Treves (University of Milan) during the congress of the In ...
and participated in the inauguration of the
International Institute for the Sociology of Law The International Institute for the Sociology of Law (IISL) in Oñati is the only international establishment which is entirely devoted to teaching and promoting the sociology of law, Sociology of law, socio-legal studies, and Sociology of law, law ...
in Oñati, with Renato Treves. Jean Carbonnier was particularly well known in Canada and Italy. As a professor, he also often referenced to foreign legal systems, such as Germany or Italy.
Apart from his academic career, Jean Carbonnier was also a writer: his book ''Les incertitudes du jeune Saxon. Une autofiction de Jean Carbonnier'' was published posthumously, in 2011. This fiction shows that Jean Carbonnier was not only a theorist, but also an author of literature. This element can be perceived while reading his theoretical works about law, since he always explained his thoughts with an elegant and precise way of writing. ''Les incertitudes du jeune Saxon'' represents at the same time a fiction (sort of ''
Bildungsroman
In literary criticism, a ''Bildungsroman'' (, plural ''Bildungsromane'', ) is a literary genre that focuses on the psychological and moral growth of the protagonist from childhood to adulthood ( coming of age), in which character change is impo ...
'') and a reflection about law and history. This work is also linked with the story of his own family and tastes.
Carbonnier's thought
Jean Carbonnier's vision of law was based on his own philosophy, which includes
Protestantism
Protestantism is a branch of Christianity that follows the theological tenets of the Protestant Reformation, a movement that began seeking to reform the Catholic Church from within in the 16th century against what its followers perceived to b ...
,
realism
Realism, Realistic, or Realists may refer to:
In the arts
*Realism (arts), the general attempt to depict subjects truthfully in different forms of the arts
Arts movements related to realism include:
*Classical Realism
*Literary realism, a move ...
,
skepticism
Skepticism, also spelled scepticism, is a questioning attitude or doubt toward knowledge claims that are seen as mere belief or dogma. For example, if a person is skeptical about claims made by their government about an ongoing war then the pe ...
, and
empiricism
In philosophy, empiricism is an epistemological theory that holds that knowledge or justification comes only or primarily from sensory experience. It is one of several views within epistemology, along with rationalism and skepticism. Empir ...
– always with open-mindedness. He was at the same time a theorist, an author, and a lawmaker. That is why he was – and still is – often called "''jurislateur''," which can be translated as "''jurislator''" in English.
His works are open to the
sociology of law
The sociology of law (legal sociology, or law and society) is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies. Some see sociology of law as belonging "necessarily" to the field of sociology, ...
and the
philosophy of law
Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal vali ...
, cleverly linking legal, political, and social sciences. The author observed society in order to understand it. He also considered legal phenomena as social facts. At the same time a jurist and a sociologist, Jean Carbonnier played an important role in adapting law to society's traditions and customs. He considered law as an ''artifact'', and was interested in every system of norms. In ''Flexible droit'', he explains how law is changeable, uncertain – and "flexible."
Law and Sociology
Jean Carbonnier inspired, constituted, and conceptualized the combination of the study of law with that of sociology (
legal sociology
The sociology of law (legal sociology, or law and society) is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies. Some see sociology of law as belonging "necessarily" to the field of sociology, ...
) – at a time when it was not popular among French jurists. He practiced "''sociology without rigor''," as the subtitle of his work ''Flexible droit'' shows. Indeed, Jean Carbonnier did not like "rigid" law.
Since our society is multicultural, law must adapt to its transformations – for instance, concerning family. In ''Sociologie juridique'' (1968), Jean Carbonnier explained his theories about the links between law and society. This work represents his most famous one on the international level, especially thanks to the concepts he developed, as well as his account of the relationship between jurisprudence and social sciences.
In ''Flexible droit'' (1969), the core study was "''non-law''" ("''non-droit''"), considered as the essence of social life. For Jean Carbonnier, when there is no law, other systems of social regulations will work instead – for instance, religion, morality, customs, friendships, or habits. This part of the book also made Jean Carbonnier an internationally recognized jurist.
His last work, ''Droit et passion du droit sous la Vème République'' (1996), also is a legal and sociological work. His study of labor law and contract law represents a good example of legal sociology.
In sum, Jean Carbonnier established at the same time a clear and understandable sociological theory for jurists, as well as a legal theory within the reach of sociologists. This synthesis between law and sociology allowed the usage of sociological methods of investigation, thereby breaking with the "rational" tradition in French legislation. These methods include the
opinion poll
An opinion poll, often simply referred to as a survey or a poll (although strictly a poll is an actual election) is a human research survey of public opinion from a particular sample. Opinion polls are usually designed to represent the opinions ...
(
IFOP, then
INED) and
field research
Field research, field studies, or fieldwork is the collection of raw data outside a laboratory, library, or workplace setting. The approaches and methods used in field research vary across disciplines. For example, biologists who conduct fie ...
in order to measure the "demand for law" expressed by citizens. This allowed notably the establishment of divorce by mutual consent (1975), at a time when divorce by fault was the only form offered to divorcing couples.
Civil Code and Family law
Jean Carbonnier renewed the
French Civil Code, especially in the domain of
Family Law
Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations.
Overview
Subjects that commonly fall under a nation's body of family law include:
* Marriage, ...
. He wrote a major ''Treatise on Civil Law'' (''Droit civil''), which is not only a theoretical work, but also shows links with history, sociology, anthropology, and philosophy. The author defined the French Civil Code as the "Civil Constitution of French people," i.e. as part of the national, legal, and political culture in France.
Jean Carbonnier was regarded as an authority on family law and considered family as a legal area. He was the inspiration and wrote the pre-projects (''avant-projets'') for ambitious reforms, from 1964 to 1977. These reforms include fields such as incapacity law (1964 and 1968), parental authority (1970),
filiation
Filiation is the legal term for the recognized legal status of the relationship between family members, or more specifically the legal relationship between parent and child. As described by the Government of Quebec:
Filiation is the relationship ...
(1972), and
divorce
Divorce (also known as dissolution of marriage) is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the ...
(1975). They were exposed and explained in ''Essais sur les lois'' (1979).
With Pierre Catala, a French law professor, Jean Carbonnier authored a proposition for the reform of
inheritance law
Inheritance is the practice of receiving private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time. Officially ...
. It was taken up by the legislature in its law of 3 December 2001. French inheritance law was thereby adapted to the aspirations of the modern family.
Passion and Inflation of the Law
Through his critical mind and his convincing rhetoric, Jean Carbonnier used the term "passion" in the title of his book ''Droit et passion du droit sous la Vème République'' (1996). The idea behind it would be that producing too many laws tend to be harmful and dangerous. This refers to the tendency, in France, to legislate too much, leading to an "inflation" of the law. This excess is meant to limit arbitrary powers. Moreover, it is a consequence of decentralization and the importance of community law. Sociologically, with the growing power of the media, lawmakers must react constantly, which result in an increasing production of laws. For instance, some are used as tools for political and electoral communication. Law therefore becomes "educational" (''pédagogique'').
This passion is dangerous, or even destructive. Indeed, the more laws there are, the less likely it is possible to apply them effectively. In particular, inflation leads to misunderstanding or ignorance from citizens – and sometimes even from judges. This results in a lack of substance and credibility. The inflation therefore implies uncertainty (or insecurity). Jean Carbonnier's theories are still topical: for instance, in 2006, the
French Council of State
French (french: français(e), link=no) may refer to:
* Something of, from, or related to France
** French language, which originated in France, and its various dialects and accents
** French people, a nation and ethnic group identified with France ...
(''Conseil d'Etat'') criticized the excesses that could threaten social cohesion in its annual report
about
legal certainty Legal certainty is a principle in national and international law which holds that the law must provide those subject to it with the ability to regulate their conduct.
The legal system needs to permit those subject to the law to regulate their condu ...
(''Sécurité juridique et complexité du droit'').
Subjectivisation of the Law
Another evolution described by Jean Carbonnier is the subjectivisation of the law. This refers to the fact that the "rights to..." (''droits à...'') become more and more important. The author speaks in terms of a "pulverisation in subjective rights" (''pulvérisation en droits subjectifs''). Subjective rights (or
entitlements
An entitlement is a provision (accounting), provision made in accordance with a law, legal framework of a society. Typically, entitlements are based on concepts of principle ("rights") which are themselves based in concepts of social equality or en ...
) are replacing legal principles. This subjectivisation of the legal system reconstructs it, focusing on
fundamental rights
Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustai ...
(substantial notion), instead of the law itself (institutional notion).
Therefore, law considers each individual (fundamental rights), rather than society as a whole. The legislation becomes more particular and precise. As a consequence, there is an inversion of the role and status of lawmakers in France: they are more and more concrete, whereas judges become more abstract. This results in individualization, which is a source of the inflation.
Selected works
* Carbonnier, Jean (2002). ''Droit civil: Introduction'' (27th edition). Paris: Presses Universitaires de France, Collection Themis droit privé.
* Carbonnier, Jean (2004). ''Droit civil. Volume I (Introduction. Les personnes. La famille, l'enfant, le couple)''. Paris: Presses Universitaires de France, Collection Quadrige.
* Carbonnier, Jean (2004). ''Droit civil. Volume II (Les biens. Les obligations)''. Paris: Presses Universitaires de France, Collection Quadrige.
* Carbonnier, Jean (2006). ''Droit et passion du droit sous la Ve République'' (2nd edition). Paris: Flammarion, Collection Champs Essais.
* Carbonnier, Jean (2008). ''Écrits''. Paris: Presses Universitaires de France.
* Carbonnier, Jean (1995). ''Essais sur les lois'' (2nd edition). Paris: Defrenois Ouvrages.
* Carbonnier, Jean (2001). ''Flexible droit – Pour une sociologie du droit sans rigueur'' (10th edition). Paris: L.G.D.J.
* Carbonnier, Jean (2011). ''Les incertitudes du jeune Saxon. Une autofiction de Jean Carbonnier''. Paris: Lexis Nexis.
* Carbonnier, Jean (1978). ''Sociologie juridique'' (2nd edition). Paris: Presses Universitaires de France, Collection Quadrige.
On Jean Carbonnier
* Arnaud, André-Jean; Andrini, Simona (1995). ''Jean Carbonnier, Renato Treves et la sociologie du droit''. Paris: L.G.D.J.
* Beauchard, Jean; Bénabent, Alain; Catala, Pierre (2007). ''Hommage à Jean Carbonnier''. Paris: Dalloz-Sirey.
* Frison-Roche, Marie-Anne (2003)
"Jean Carbonnier (1908-2003)" ''L'Année sociologique'', Volume 53.
* Nisio, Francesco Saverio, ''Jean Carbonnier : regards sur le droit et le non-droit'', Paris, Dalloz, 2005, XII-201 p. ()
* Verdier, Raymond (2008)
"À l'occasion du centenaire de la naissance de Jean Carbonnier" ''Droit et cultures'', Volume 56.
* Verdier, Raymond (2012). ''Jean Carbonnier : L'homme et l'œuvre''. Paris: Presses Universitaires de Paris Ouest.
See also
*
Sociology of Law
The sociology of law (legal sociology, or law and society) is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies. Some see sociology of law as belonging "necessarily" to the field of sociology, ...
References
{{DEFAULTSORT:Carbonnier, Jean
Academic staff of Paris 2 Panthéon-Assas University
Sociology of law
French legal scholars
French legal writers
French sociologists
1908 births
2003 deaths
People from Libourne
Academic staff of the University of Paris
Academic staff of the University of Poitiers
French male non-fiction writers
20th-century French male writers