26 March 2014
Chantal Kourilsky-Augeven. The Role of Legal Professionals in Franco-Soviet Relations in the 1970s and 1980s: A Research Itinerary in Intercultural Translation
A report at the International Conference "France, the USSR and the end of the Cold War, 1975-1991", January, 23-24, 2014
I. Working on Soviet Law with French and Soviet Jurists
My University training had been both in Law and Russian Language. Law was my father’s choice and designed by him as a counterweight to my own choice of Russian language out of sheer curiosity for the origins of my exclusively French speaking family. Given this double training, I started working, at the beginning of the sixties, as an assistant in Soviet Law at the French Center for Comparative Law. There, I was immediately in charge, together with a Russian-speaking French lawyer, of translating several key laws of the Russian Republic (Law on the Judiciary, Criminal Code and Criminal Procedure Code). I was also responsible for regularly describing the evolution of Soviet legislation (in civil, labor and family law) in a Yearbook of French and Foreign Legislation.
Studying various fields of Soviet law, struggling, when translating, for finding the terms understandable by French jurists and, last but not least, establishing contacts with my Russian fellow researchers, gave me some opportunity to feel at my modest level what the American anthropologist Clifford Geertz had in mind when writing that a comparative study should be an exercise in intercultural translation.
I learnt that specialists in comparative law face a dilemma: either they strictly compare legal rules and run the risk of formulating superficial conclusions about convergence or divergence of the national rules, or they follow the advice of the great German specialist Konrad Zweigert: comparing legal rules may appear as a superficial enterprise if one does not take into account the social and cultural context of their adoption and implementation. Without this context one cannot apprehend the specific meaning of these legal measures.
But if one follows this route, one is, sooner or later, led to acquire a completely different perception of law which becomes a specific entrance into a defined culture. For, if we are to believe anthropology, “law, here, there, or anywhere, is part of a distinctive manner of imagining the real” (Geertz, 1983). But this I was to learn only progressively.
A change in Franco-Soviet relations starting in the sixties
In the meantime, a drastic change in Franco-Soviet relations had occurred in the sixties. The double objective of General de Gaulle’s policy was to remain an ally of the US (in spite of the official retreat of France from the NATO integrated commandment) but to largely participate in the process of peaceful coexistence with USSR. One of the key concepts of the new policy was “cooperation” since “economic and commercial cooperation could serve as a lever for the political dialogue” (M.P. Rey, 1996).
During the travel of General de Gaulle to Moscow in 1966, a “Common Declaration”, adopted on June 30, underlined the convergence points between the two countries and delineated an official framework for the bilateral relations. An agreement on “scientific, economic and technical cooperation”, also signed on June 30, defined the forms to be those of bilateral cooperation (exchanges of scientific and technical delegations, organization of bilateral meetings, research works realized in common) and which sectors it will include (fundamental and applied research, common elaboration of some technological devices aiming at modernizing enterprises, common study of techniques of productivity and organization of enterprises). In order to ensure the implementation of the agreement, the two parties created a mixed Commission (the “Great Commission”) in charge with enhancing economic cooperation between France and USSR and with regularly examining practical problems raised by the implementation of commercial, economic and scientific agreements.
Some months later, a declaration of December 8, 1966 created the “Small Commission” in charge with the concrete problems arising in the cooperation through sectorial mixed groups including representatives of the private sector. This Commission was in charge with the concrete responsibility for the functioning of scientific and technical exchanges between France and USSR and was sponsoring the activity of mixed sectorial working groups for the main industrial sectors. In addition to the sectorial groups, three mixed working groups with a functional activity were created among which a Mixed Working Group on Patent and License Questions. In addition, the declaration of December 8 created a French-Soviet Chamber of Commerce. Its members on the French side were big companies and on the Soviet side, Soviet Buying centrals acting for the State.
Direct contacts with Soviet Jurists
My first direct contacts with Soviet jurists took place, at the end of the sixties, at two levels. French jurists had welcomed the interesting opportunities for cooperation offered by the changing political bilateral environment. On the one side, the French Center for Comparative Law, where I was working, started organizing what was called Franco-Soviet Encounters on Law. They were to take place at more or less regular intervals in order to facilitate exchanges between French and Soviet jurists about comparing national legislations in various fields. On the other side, the Franco-Soviet Chamber of Commerce was soon to organize an information meeting about the Soviet structures and rules in the field of patent law and the opportunity of contacts between French enterprises and Soviet partners.
As I was trained both in law and in Russian language, I started being “over employed” in these contacts. Besides, I was soon to discover the differences in the conception and the practice of translation in France and Russia.
In 1968-1969 I was sent to the main research institute on law of the USSR Academy of Sciences in order to develop contacts with the Russian jurists specialized in the theory and practice of patent law. This happened to be, on the one side, one of the central topic of discussion inside the Franco-Soviet Working Group on Patent and License Questions of which I was a member and, on the other side, one of the themes to be discussed at the Second Franco-Soviet Encounter of Jurists to take place in the same Institute in July 1969.
As far as the Franco-Soviet Working Group on Patent and License Questions was concerned, this research stage, as well as the discussions within the Working Group, gave me the opportunity to realize the impact of a core misunderstanding in the relationships between French and Russian practitioners. When concluding a license contract with a Russian enterprise, a French enterprise expected exclusivity. But, in fact, the patent frequently happened to be implemented in one or another Russian enterprise because of a total (more or less involuntary) misunderstanding: the Russian enterprise with whom the contract had been concluded was in fact a USSR Foreign Trade Central Organization the implicit task and duty of which were to make any patent available to all other Russian enterprises in the same field. The implementation of the patent in another enterprise was of course considered by the French enterprise as an infringement of an exclusive license contract and discussions of the topic as well as Soviet promises of effort for change were endless within the Working Group.
Besides, the Russian law professor, with whom I had had the opportunity to work during my research stage in Moscow, repeatedly insisted, during the sessions of the Group, for me to translate his legal arguments with all the necessary accuracy of words. But I was thus obliged to replace the official Russian translator who was far from being a specialist in the field. Hence some discussions and diplomatic problems with the Russian minister who was Head of the Soviet delegation and had some reticence to accept this practice.
The Second Franco-Soviet encounter of Jurists in Moscow in July 1969 brought for me additional contradictory experiences concerning the status of researcher having accepted the translation task.
Here, the difficulties were not to come from the Soviet side. The Russians were well aware of the difficulties of translation, since the rarity of their own mother tongue was forcing the majority of them to know at least one foreign language. But anxious to please the French side, they asked me to be kind enough to ensure the translation of the Russian director’s opening speech as well as the translation of the following discussions concerning patent law.
By contrast, I was all the most disappointed by the attitudes of the members of the French delegation with regard to the Russian translator, a high level researcher Head of the Law Department of the Great Encyclopedia. Probably because, at that time, the knowledge and practice of foreign languages were a rare phenomenon in France, they appeared to consider the Russian interpreter as a “translating machine” by never slowing down or simplifying their speech.
Difficulties in intercultural translation linked with ideological prejudices
At that time, difficulties linked to translation and to research concerning Soviet law were reinforced, from both Russian and French sides, by prejudices of an ideological nature. At that period of time, peaceful coexistence had not reached French academic circles and whatever you were saying or writing concerning Soviet Union was interpreted through the screen of ideological a priori. These a priori were reminding of the twenties when new Soviet family legislation had been received by French specialists of comparative law (with some exceptions such as Edouard Lambert) as a deliberate will to destroy family as an institution.
I may quote as a typical example the 1978 Franco-Soviet meeting on legal sociology at the Institute of State and Law. I had been invited, by the Head of the Institute’s Section of Legal Sociology, to present my own sociological analysis of the evolution in time of the Soviet family policy. The session had a strong atmosphere of conflict from the Russian side since my presentation was stressing the drastic change that had occurred in Soviet family policy in the thirties. I was making a distinction between two periods of time, 1917-1935 and 1936–1953. During the first period, the Soviet government had been searching for the most effective legal means of ensuring the equality of both sexes. With this objective in mind, the Soviet legislator had been studying existing family legislation (both in tsarist Russia and in Europe) in order to introduce the most effective legal measures answering this objective in the first family code. But a second and opposite tendency was to start in 1936, i.e. during the Stalinist period. In opposition to the first period during which women had had the choice of motherhood, abortion was made a crime. And in opposition to the search for real equality, Soviet Union was now proclaimed as the only country where equality was already realized. As if in counterpart, the responsibility toward society for the procreation and education of citizens was transferred on women’s shoulders. The father’s role was being stressed essentially for the economic support of the family.
Later on, in order to obtain the support of church and peasantry in these war times, the 1936 decree was followed, in 1943, by a law cancelling mixed education in schools and, in 1944, by a law cancelling any legal tie between the father and the child born out of wedlock. In addition, the divorce procedure was transferred from the local ZAGS to the regional court and thus rendered much more difficult and much more expensive.
Interestingly enough, in France, contrary to the condemnation of the two first Soviet Family codes (adopted in 1918 and 1926) in French law academic circles, the 1936-1944 series of texts on Soviet family was interpreted as expressing a stabilization of the Soviet society and therefore welcomed in the Western European countries in spite of the inequalities they were introducing in the family legislation.
Coming back to my presentation of the Soviet family policy at the Franco-Soviet meeting of 1978, the contradictions reached a peak from both sides, Russian and French, when came the time of publishing the meeting’s Acts.
From the French side, my published text, although in my own version, elicited a specific commentary from a French law academic in charge with a review of the book for a comparative law journal. Obviously unaware of differences between my conception of Soviet family policy and the official Soviet one, he asserted in a French comparative law journal, that my presentation, as resulting from an “invitation by the Soviets”, did not present any interest.
II. Turning to legal sociology to elucidate the content of images of law in French and Russian Cultures.
The 1978 experience marked a turning point in my research itinerary, away from the various national forms of a priori among jurists of both countries. In order to avoid misunderstandings, the first question was: when speaking about Law, French or Russian, what are we talking about?
I felt that Law and legal phenomena as well as Russian culture were to be confronted from another route. I had been working with French and European colleagues in political science or sociology as a scientific coordinator of international comparative research projects at the end of the seventies in a European interdisciplinary research Center (the Vienna Center). This experience convinced me that the misunderstandings could be solved, at least partly, by discovering the content of apparently identical concepts in different legal cultures. When coordinating international comparative projects, one of my first tasks had been to convince participants to make explicit the underlying scientific hypotheses on which were based their answers to the questions raised within the project.
What was at stake for me (as I had already tried to elucidate in a previous research study on Family’s normative regulation) was to shed some light on the potential reception of law by members of both French and Russian cultures. Without this, regulation of social relations by Law seemed an illusion. Since Law, in any culture, could not play this role alone I had to discover on which commonly agreed values Law was relying in both countries.
This led me to elaborate a specific method, originated in the praxis of psychoanalysis and already used in political science to study political socialization (Percheron, 1974), for the exploration of legal concepts in the mind of ordinary people. This method was based on a free association technique in order to reveal what the respondents interviewed in a survey were spontaneously associating with specific key-words. What was important, since I had not lost comparative law from sight, was to elucidate what images of law people had in various cultures such as French and Russian. What did words like Law (Loi or Zakon) or Right (Droit or Pravo) mean to them, which bell do these words ring in such an obvious fashion that they were what I have been calling an “implicit evidence”? It seemed that this meaning was shared by the members of the same culture in such obvious a fashion that it was leading them to use expressions like “Everybody knows that…” when answering questions. Nevertheless, what they were conceiving as obvious was far from being obvious for members of other cultures.
Two types of research were at stake: on the first hand, research on what was called “legal consciousness” of individuals in different cultures and, on the other hand, research, within these cultures, on the process of “legal socialization” of individuals, i.e. the process of development or evolution of legal consciousness in childhood and adolescence.
After a first survey based on the free association technique in France in 1985, the theoretical conception and the results of which were published in an international journal, three comparative projects were launched in the following years with sociologists of national Academies of Sciences, in France/Poland, France/Russia and France/Hungary.
According to the first American theory (Tapp & Levine, 1971), welcomed by the Russian law academics calling on the spirit of legal sociology, legal socialization was essentially, and almost exclusively, a learning process of compliance with the legal rules. This was not surprising since the American conception revealed a tendency already manifest in a previous research study entitled “Authority, Rules and Aggression: Socialization of Children into Compliance Systems” which was answering the political atmosphere at the Johnson and Reagan period. “Compliance with the Norms” and “Law and Order” were the key words in this period following the students’ protest movements both against war in Vietnam and for the Civic rights.
But there, I was rejoining legal sociologists like Jean Carbonnier in France and Lawrence Friedman in the US. Contrary to a traditional approach of Law as consisting of imperative norms (injunctions and prohibitions) backed by the State constraint, Carbonnier and Friedman were asserting that daily life is mainly regulated by facultative norms or by legal rights giving citizens possibilities for action they are free to use or not. Therefore, rather than talking about compliance to legal norms, one should rather say that citizens “use”, do “not use” or “misuse” them.
I decided to use an open method consisting of free associations to a series of key-words, both general and legal, chosen among words used in daily life discourse. This choice was answering the desire to observe which meaning the respondents spontaneously associated with them, according to variables such as age, gender, social milieu and local context.
My first comparative research studies on legal socialization, carried out in France (1985, 1987) and in Poland (1987) had produced interesting results as to how early in life was appearing the knowledge of the main legal concepts (e.g. law, right, contract, citizen or fault) or of the functions of the authority figures (judge, mayor, lawyer). This was, to a certain extent, contrary to theories according to which the technical character of legal language was making almost impossible its being understood by ordinary people. By contrast, my respondents seemed to “naturally” assimilate legal concepts and institutions (even if re-interpreting them in order to integrate them in their representations of the environing world) in the course of usual apprenticeship of daily life. In addition to the theory of compliance with imperative legal norms, this could explain how law was received and accepted within a determined national culture. Hence the phenomena designed by Carbonnier as a progressive “legalization” of the individual in society and for which I was using the terms of legal socialization and legal consciousness.
The Russian respondents were never associating “Law” with “Rights”. Law seemed to exclusively consist of injunctions and interdictions and, consequently, result in sanctions in case of transgressions. The stereotype associated with the Law was the expression “Don’t transgress the law” clearly indicating the imperative character of legal measures, close to the meaning of criminal law. As to “Rights”, far from a theory of natural rights preexisting the Law, they seemed to depend entirely, as during the tsarist or Stalin’s period, on Power’s will to protect or to deny them.
On the contrary, French answers could be considered as characteristic for classical values existing in a democratic regime and transmitted by socialization agents such as school or family. Consisting not only of injunctions and prohibitions but also granting rights, “Law” was conceived, more and more frequently with age, as guidelines to facilitate social interactions. The stereotype associated with the term Law was not the Russian expression “not to transgress the law” but simply “to follow the Law” and to consider Law as a kind of “rules of the game” more and more often with age.
Never forgetting the victim of their act, the Russian respondents had, in addition, a positive opinion of any type of sanction. For them, punishment was the only way to make the guilty person conscious of his or her act, desirous to repair it and, of course, of not committing such an act in the future. One was getting the impression that the Russian conception of Fault was a symbol of the disruption of order because it created a disruption in the community.
At the other end of the spectrum, French individualism was leading respondents to condemn both the terms Fault and Sanction as a kind of manipulation intentionally designed for creating feelings of guiltiness which they were considering as unhealthy.
Whereas, in Russia, harming one of the members of the community was perceived as endangering its cohesion, in France, every kind of feeling between members of the national community seemed to be mediated through the concepts of Law and State. If such concepts as Freedom and Equality were spontaneously associated to civil liberties and to equality before the law, it was because the feeling of proximity with one’s fellow citizen was encouraged and made secure by the protection by Law and by the State.
In contrast, feelings of trust for the Law in Russia were exclusively linked to its repressive power with regard to criminals. Hence the expression “a just judge is a severe judge”. For Russian respondents, if law was to be trusted, it was because of its repressive power against criminals. And who was considered as a criminal? If we remember the designation of dissidents by the expression “those who don’t think like us” (inakomysljashchie), criminals were not only those responsible for blood crimes but, to a certain extent, also those disrupting social order.
Differences between the French and Russian cultural models were also manifest in the answers concerning the word “Responsibility”. Here also they were revealed in language automatisms. In Russia, responsibility was almost exclusively conceived in Russian as “responsibility toward someone else” or “responsibility for something toward an authority”. In contrast, French individualism was also manifesting itself in a majority of answers such as “to be responsible for oneself”. In addition what French respondents were calling “responsibilities”, implicitely voluntarily chosen, were considered as valorizing the individuals whereas the word “obligation” was depreciating since it implicitely included an absence of choice.
As far as the translation was concerned, we as authors had only a few conflicts which exclusively concerned our search for the most exact terms in both languages. This was not so simple as it seemed in spite of our good will. The very term “legal socialization” or “pravovaya socializaciya” which we eventually selected because it was simpler was neither more exact nor more satisfying than the American expression “legal socialization” and its ambiguity as to the translation of “legal”. Was it meaning the imperative expression “conform to the law” or the neutral expression “with regard to the law”? In Russian we had also to choose between the two terms used to render the word “juridique”: “pravovoj” and “juridicheskij”. The expression “socialization with regard
to the Law” was much too long and, besides, what was the Law? This word, as we have seen, it is much more imperative in the Russian “Zakon” than the French word “Loi”.
It was even less problematic than our necessary choice between the two words used in Russian for Justice: “Spravedlivost’’’ meaning justice as a value and “Justicija” designating the judiciary system without even thinking about “Pravda” with its old meaning of justice as equivalent to the Truth. As to the French respondents they understood the word Justice as an equivalent to the Judiciary ten times more often than meaning the value of justice. In order to get the meaning of justice as a value from French respondents we had, a contrario, to include “Unjust” in the list of key-words proposed for free associations.
But no culture is ever static in time. And the content of information made available for younger subjects by socialization agents such as school and family is partly changing in time as the nature of the influence of a changing environing world on individuals.
The results of the new survey we realized with my Russian colleagues between 2000 and 2002 were of course slightly different from the content of the previous ones, essentially because new answers had a tendency to contain more “legal connotations”. But what almost did not change was the imperative content of the Law (in spite of a new tendency to associate Law with rights) and the traditional culpability feeling linked with the concept of Fault. What was nevertheless worth to be stressed was a neatly decreasing enthusiasm for punishment in women’s and teenagers’ answers with some new arguments about manipulation in traditional Russian education reminding French answers in the previous survey. Male answers were definitely more conservative.
But this is another story to be told about after our next survey…
Chantal Kourilsky-Augeven, former Research director at the CNRS, is now associated researcher at the CHAD (Center for Legal History and Anthropology of Law) at the University Paris-Ouest Nanterre-La Défense. With a double training in Law and Russian Language she initially specialized in Soviet Law. She turned to legal sociology at the beginning of the eighties and became a specialist in the field of legal socialization phenomena. Author of a new theoretical and methodological approach of these phenomena adopted in several European countries, she has published numerous articles and books in French, English and Russian. Among her publications may be cited : Socialisation juridique et modèle culturel. L’image du droit en Russie et en France, LGDJ, 1996 et Obrazy prava v Rossii i vo Francii, Moscou, 1996 (avec Arutiunyan & Zdravomyslova), Socialisation juridique et conscience du droit, LGDJ, 1997; Images and Uses of Law Among Ordinary People, D&C Special Issue 2004, SLC ; « Legal socialization : from compliance to familiarization through permeation », European Journal of Legal Science, 2007; “La justice alternative en Russie: de la valorisation de la répression à celle de la médiation », D&C, 2013.