Private Power and Centralization in France: The Notaires and the State [Course Book ed.] 9781400859016

Table of contents :
Contents
List of Tables
Preface
Abbreviations
PART ONE. The Problem of the State
1. Introduction
2. State Structures and State Power
PART TWO. The Legacy of History
3. The Eternal Dilemma
4. The Eternal Crisis
PART THREE. Marshaling Forces
5. The Need for Change
6. The Modernization of the Profession: Changing a Mentality
7. The Modernization of the Profession: Information and the Computer
8. Organization
PART FOUR. Policymaking under Centralization
9. Socialism and the Profession
10. Socialism and the Reform of the Profession
11. The Profession and the State
12. The Profession's Bankers
13. Planning the Future: The Notaires and the Cause des Depots
PART FIVE. Conclusion
14. Centralization and the Failure of a Reform
Glossary
Index

Citation preview

Private Power and Centralization in France

Wntten under the auspices of the CENTER OF INTERNATIONAL STUDIES,

Princeton University

EZRA N . SULEIMAN

Private Power and Centralization in France: The Notaires and the State

Princeton University Press

PRINCETON, NEW JERSEY

Copyright © 1987 by Princeton University Press Published by Princeton University Press, 41 William Street, Princeton, New Jersey 08540 In the United Kingdom: Princeton University Press, Guildford, Surrey AU Rights Reserved Library of Congress Cataloging in Publication Data will be found on the last printed page of this book. ISBN 0-691-07753-3 Publication of this book has been aided by a grant from the Paul Mellon Fund of Princeton University Press. This book has been composed in ITC Galliard. Clothbound editions of Princeton University Press books are printed on acid-free paper, and binding materials are chosen for strength and durability. Paperbacks, although satisfactory for personal collections, are not usually suitable for library rebinding Printed in the United States of America by Princeton University Press, Princeton, New Jersey.

FOR Michael AND Daniel

Contents List ofTables xi Preface xiii Abbreviations xxi PART ONE

The Problem of the State

1

1 Introduction 3 The Issue 3 The Case 8 2 State Structures and State Power 13 The State as an Actor 14 Centralization and State Power 16 Centralization, Corporatkme, and Change 19 Theory and Practice 25 PART TWO

The Legacy of History

31

3 The Eternal Dilemma 33 Origins of Venality of Offices 35 Legacy of Venality: The Notaires 38 The Advantages of Ambiguity 41 Public Service or Liberal Profession? 47 Preservation of the Dilemma 54 4 The Eternal Crisis 60 Crises in Perspective 63 Transcendence of the Monopoly 75 The Right to Choose a Successor 80 Attempts at Reform 83 vii

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CONTENTS

PART THREE

Marshaling Forces 89

5 The Needfor Change 91 Evidence of Failure 92 Recognition of Dangers 98 6 The Modernization of the Profession: Changing a Mentality 107 The Conference du Plan 109 Cooperation 112 Seminars and Ateliers 116 Solidarity and the Future 121 Conclusion 130 7 The Modernization of the Profession: Information and the Computer 132 T h e CRIDON

133

The Computer Revolution

143

8 Organization 148 The Conseil Supdrieur 149 Unofficial Organizations 156 Hierarchy and Independence 157 Transformation into a Profession 165 Organizational Ethics 167 PART FOUR

Policymaking under Centralization

9 Socialism and the Profession 173 Between Right and Left 173 Political Critiques 181 Economic Considerations 186 The Politics of Paradox 193 10 Socialism and the Reform of the Profession 196 Inflation and Institutional Reform 196 Droit de prasentation 199

171

Contents ix Humerus Clausus 209 The Tarif 218 Conclusion 228 Epilogue 231 11 The Profession and the State 234 Notaires and Politics 236 Multiple State Relations 238 The Fiction of Tutelle 241 The Reality of Protection 247 Tutelle and Clientism 251 12 The Profession's Bankers 256 The Caisse des Depots as Banker 257 Mutual Cooperation and Cooptation 262 Banking Competition: The CDC and the Credit Agricole 265 Serving a Special Client 270 13 Planning the Future: The Notaires and the Cause des Depots 275 The Search for Markets 276 The CDC: A State Apart? 286 The State Undermining the State 290 Conclusion 294 PART FIVE

Conclusion

297

14 Centralization and the Failure ofa Reform 299 State and Society: A Triangular Relationship 299 Governmental Strength 303 Priorities 307 Contextual Constraints 311 Mastery of the Bureaucracy 313 Limiting Publicity on Reform 318

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CONTENTS

Policymaking and Centralization 322 The State and Private Power 325 Glossary 331 Index 333

List of Tables TABLE 4 . 1 . TABLE 4.2. TABLE 4 . 3 . TABLE 4.4. TABLE 4 . 5 . TABLE 4.6. TABLE 4.7. TABLE 5 . 1 . TABLE 7 . 1 . TABLE 1 2 . 1 . FIGURE 1 2 . 1 .

Number of Notaires Revoked in the 1880s 65 Number of Notaires Revoked in the 1890s 65 Number of Notaires Involved in Fraud (1971-1980) 67 Age Structure and Fraud by Notaires 68 Number of Years of Practice and Fraud by Notaires 68 Amounts Lost through Notarial Fraud 69 Socioprofessional Origins of Notaires, 1984 79 What Are the Most Important Roles of a Notaire? 95 Questions Posed to the Lyon CRIDON, According to Legal Areas 137 Loans Made by the Caisse des Ddpots 272 Notarial Deposits (in billions of francs) 260

xi

Preface

This is a work that grows out of larger concerns dealing with transformations in the relationships between state and society in advanced industrial nations. The state as such has returned to the center stage of political studies and constitutes something of a paradigmatic guide in the analysis of polities. Working within the parameters of a state-centered approach to the study of politics, though questioning many of the precepts that underlie this approach, I have gone in search of a state whose existence has never been in doubt. My search is conducted through a detailed analysis of the policy process in the French state. In addition to my concerns about the role of the modern state, I have for many years had an interest in the process of social change, in why certain groups in a particular society adapt to their environment whereas others persist in attempting to recapture the past and so end up being left by the wayside. With this problem in mind I undertook some years ago a work, still (much to my regret) in progress, on the economic and social changes that French society has experienced in the postwar period. In the course of my research I came across a number of groups and institutions—education, the military, the civil administration, business, the liberal professions—that had retained their traditional structures, acquired either under the ancien ragime or, more often than not, in Napoleonic times, but whose mode of operations had been transformed, and in some cases revolutionized, within a short period. As often happens, research sometimes takes you in directions that you either had no intention of taking or whose existence you were totally ignorant of. In the course of one of my many detours, I happened upon one of the oldest and, for many observers in the past two centuries, most archaic legal professions—the notaires. This xiii

XtV

PREFACE

profession has long been considered one of the relics of the ancien regime and, perhaps not surprisingly, it has not fared well in French literature.1 Indeed, Balzac has done to notaires what Dickens did to lawyers in nineteenth-century England.2 And yet it seemed to me that the profession typified the coexistence and duality of traditionalism and modernization, a phenomenon that I studied, with the help of Schumpeter, Mosca, and Pareto, in an earlier work though in a different context.3 Picking up on this theme, I decided to set aside my larger work to write this book, which centers on this one group. Since the notarial profession could neither have survived nor modernized so rapidly without the crucial role played by the state, this work centers on the twin themes of the structure and power of a centralized state functioning within a pluralistic context and the adaptive capacities of societal groups. The two themes are closely linked in this work, for the renewal and transformation of groups often occur as a result of the state's encouragement and prodding. Ultimately, however, the state unwittingly imposes constraints on its capacity to demand further changes. This is, therefore, as much a work about the resilience of the society as it is about the state. Conducting research in France is not nearly so difficult a task as myth would have one believe. There are centuries of records available, even if getting to them sometimes requires convincing a librarian that the records are for public use. Officials give quite generously of their time, even if getting past their 1

Only slight familiarity with French literature of the eighteenth and nineteenth centuries (Moliere, Labiche, Balzac) and even the twentieth century (Anatole France, Le Crime de Sylvestre Bonnard; Georges Duhamel, Le Notaire du Havre) is sufficient to indicate that the notaire is a figure of some importance, rarely a major character, and often one of ridicule, appearing as he does at deathbeds or helping to work out and share in questionable schemes. 2 The notaire figures prominently in a number of Balzac's novels, and works particularly in Le Peau de chagrin, Eugtnie Grandet, Cesar Birotteau, Contrat de Manage, Maitre GuMn. 3 See Ezra N. Suleiman, Elites in French Society: The Politics of Survival (Princeton: Princeton University Press, 1979).

Preface χρ overly protective secretaries is sometimes a problem. On the whole, small irritations aside—and every person who has ever worked at the Bibliotheque Nationale has his or her story to tell—France is not a difficult country to do research in. Indeed, for most subjects it is relatively easy and pleasant, and for this it is Napoleon who needs to be thanked, since all major research institutions and documents are centralized in Paris. The scholar, at least, if not the citizen, can be grateful for centralization. The difficulty one may encounter has to do not so much with the country. It is, rather, the same as one might encounter anywhere when working on a subject that for one reason or an­ other has not attracted the attention of scholars. I refer here not to work on the French state, though much of this work has been of a juridical nature, but to the category of professions known as offices ministeriels, which includes the notarial profession. One who wants to conduct research on such an important legacy of the tmcien Hgime has little to go on, especially if the aim is to examine the relationship with the public authorities. It is un­ derstandable that any group that has managed to keep so much of what it had prior to the Revolution of 1789 would not be overly anxious to have this examined with the lenses of the twentieth century. There are almost no contemporary works on the notarial profession that try to analyze objectively its role in the society. For the most part, the few available works are carried out by the notaires themselves (some of whom are highly erudite), or at the request of the profession, or with the benediction of the 4 profession. Perhaps the most erudite work is that published by Jean-Paul Poisson, which brings together some sixty historical, 5 and very detailed, articles about the notarial profession. JeanLouis Magnan's LeNotariat et Ie month moderne is a useful work written by a notaire and blessed with an introduction by the 4

Even in the rare instance where this is not the case, our knowledge of the profession is not advanced very much. See Paul Leftvre, LesNotmres (Paris: Edi­ tions et Publications Premieres, 1969). 5 Jean-Paul Poisson, Notaires et societe (Paris: Economica, 1985). Poisson is a notaire who also edits the publication .Z^ Gnomon.

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PREFACE

president of the Conseil Superieur du Notariat. 6 Another work written for a respectable series and intended to introduce the profession to a large audience attempts to justify practices of the profession in a manner that even some notaires might find embarrassing. It comes close to being a purely propagandists work and is also prefaced by words from the president of the Conseil Superieur du Notariat. 7 The third example is a work of some sophistication carried out by four highly respected scholars.8 It was written at the request of and for the profession. It is published by and at the expense of the Conseil Superieur du Notariat (though the CSN does not list itself as the publisher). The information this volume contains is not without utility, but it is a work commissioned to support the notarial profession in a difficult moment and can be considered a semiofficial publication of the profession. In view of the paucity of readily available documentation on the notaires, on the project for reform prepared by the socialist government, and on the policy process in general, I relied more heavily than would normally be the case on the help of others in carrying out this study. The need for interviews, informants, and information not easily accessible becomes a delicate and trying undertaking that can be accomplished only by relying on the good will and generosity of others. To com6

Jean-Louis Magnan, Le Notariat et Ie monde modeme (Paris: Librarie Generale de Droit et de Jurisprudence, 1979). This is nonetheless a fairly comprehensive work that serves as a good introduction to the subject. 7 Even as a propagandists work it cannot rate very high since it does not rise above claims like "for the notarial profession, the public's interest—being the raison d'etre of the profession—comes before that of the profession" (p. 59). See Jean Rioufol and Fra^oise Rico, Le Notanat francais (Paris: Presses Universitaires de France, 1979). This book appears in the famous Que sais-je? series, which is intended to introduce students and others to a wide range of subjects. It does no honor to the series and is a travesty of the concept of objectivity. 8 Jacques Lesourne, Henri Mendras, Pierre Raynaud, and Jean Rivero, Le Notariat frangais: analyse et perspectives (1983). No publisher is indicated for this work, since the CSN had it printed at its own expense. However, it is a publication with a legal deposit number at the Bibliotheque Nationale.

Preface xvii pound the obvious difficulties I have mentioned, the case chosen for study is a particularly sensitive one. The notaires, like most other groups, are not, quite understandably, anxious to draw attention to themselves or let the world in on their secrets. The administration, which has long held an umbrella over the profession, is not, equally understandably, eager to have its protection of the profession exposed. Hence, a natural reticence develops toward anything that approaches transparence in the workings of the profession or in its relationship to the state. The impediments to this form of policy analysis are structural and have little to do with the persons involved at any particular moment. Given the lacunae, the pitfalls, and the impediments of various kinds that confront the outside investigator, it becomes obvious why I accumulated so many debts of gratitude in the course of conducting my research. The largest number of people I have to thank must unfortunately remain anonymous. Many officials within the state administration, in politics, and particularly in the notarial profession were very generous with their time. A few of them provided me with material that is not readily available, which is all the more reason why their anonymity has to be respected. I have avoided citing public officials or members of the notarial profession by name. There are rare instances when a viewpoint is attributed to a particular individual; this I judged to be permissible on the ground that this individual's opinions are already a matter of public record. Because this work grows out of larger concerns that I have been examining for some time, I must acknowledge the help of a number of institutions that have supported my research over the past several years. In particular, I want to thank the John Simon Guggenheim Memorial Foundation and the German Marshall Fund of the United States for grants that released me from teaching duties and that gave me the freedom to pursue my research on the role of the state in industrial societies. This study represents one of the fruits of this ongoing research, which is currently being undertaken within a comparative context. At my own institution, I have been fortunate to have strong sup-

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PREFACE

port for my work. I want to thank the Woodrow Wilson School of Public and International Affairs and its Dean, Don Stokes, for supporting my research and for allowing the School's students to be used as the first guinea pigs in my attempts to develop and refine research and ideas. I have been associated with the Center of International Studies since I joined the Princeton faculty. I value very highly the support I have received from the Center and from the Center's former Director, Cyril E. Black, and its current Director, Henry Bienen. The institutional and material support I received on the other side of the Atiantic was equally important, for it allowed me to conduct my research under excellent conditions. My informal association with the Fondation Nationale des Sciences Politiques has been a source of intellectual stimulation over many years. My more formal association for a brief period in 1984—as holder of the Elie Halevy chair—with the Institut d'Etudes Politiques in Paris made no demands on my time and required only that I conduct my research. For absolving me of any duties and making it possible for me to have the maximum freedom, I must thank the former Director of the Institut d'Etudes Politiques, Michel Gemot, for his generosity and understanding, and Janine Bourdin for her dexterity in overcoming on my behalf numerous administrative obstacles. I am also grateful to Alain Lancelot, the current Director of the Institut d'Etudes Politiques in Paris, for his kindness and for the many ways in which he has facilitated my work. I am also grateful to my friends and colleagues at the Institut d'Etudes Politiques at the University of Bordeaux and the University of Paris I (Sorbonne). I presented a series of seminars, chaired by Pierre Birnbaum, at the University of Paris I, as well as a seminar at the Fondation Nationale des Sciences Politiques. All centered on the theoretical themes and empirical material of this work. My discussions with the students and faculty of the University of Paris I, at the University of Bordeaux, and of the FNSP helped me to clarify concepts and refine findings. During the time that this study was being conducted in France, I also received support from a number of administrative

Preface

xix

and professional institutions. In particular, I want to express my appreciation to the Caisse des Depots et Consignations, and to its clients the Conseil Superieur du Notariat and the Caisse Centrale de Garantie (CCG), all of which made it possible for me to carry out this study. My thanks go to Maitre Paul Chardon, former President of the Conseil Superieur du Notariat, Maitre Jean-Pierre Oilier, Maitre Gerard Petitfrere, and Maitre JeanPierre Delpeuch, all of the CSN, and to Maitre Yves Sanseau, President of the Caisse de Garantie. My appreciation also goes to the Credit Agricole, the Ministry of Justice, and the Ministry of Finance. Although I frequented the corridors of all these institutions over an extended period, the patience of the officials I interacted with seemed inexhaustible. Many of these officials will not agree with my analysis. Some, particularly members of the notarial profession, may not appreciate the ways in which I have presented the ideological foundations of their matter, nor the explanations of the mechanisms that have allowed the profession to consolidate its gains. But I feel certain that none would deny a scholar the right to arrive at his independent conclusions. No parts of this book were read or seen by any of the institutions that gave institutional or material support or documentary (often confidential) information. Any errors that it contains are therefore solely due to my own judgements. An earlier draft of the manuscript was read by colleagues and friends. I want particularly to thank William Schonfeld, Harvey Feigenbaum, Valerie Rubsamen, Tony King, Franco Ferraresi, John Ambler, and Helen Milner for their careful reading of the manuscript. All offered detailed comments that helped me not to lose sight of the larger issues. William Schonfeld gave me numerous insights through our many discussions and through his detailed comments. Tony King was equally unstinting with his time. He sacrificed precious time in his beloved French countryside in order to write up his notes on the manuscript. That alone made me guilty and terribly grateful. A number of research assistants helped me to dig up more material than I could have found myself. I want to thank Valerie Rubsamen, Eileen Clucas, Ramon Bolanos, Daniel Fuchs, and

XX

PREFACE

Olivia Wellman Farrar, who is responsible for the translations from French into English. Gladys Starkey and Gail A. Wenrich of the Center of International Studies at Princeton were responsible for typing (more than once) the manuscript with remarkable efficiency, and were always helpful and accommodating. Finally, I have been fortunate to have Helen Doherty as my Administrative Assistant since I came to Princeton. Her tact and professionalism have made sometimes onerous schedules seem easily manageable. My association with the Princeton University Press goes back over a decade. Sanford Thatcher is chiefly responsible for this loyalty. After working with him on three books, one can but admire his knowledge, experience, and remarkable editorial expertise. My children made their share of sacrifices. For this, and for the inspiration they have been providing, I dedicate this book to them both. Saint-Andre-le-Desert July 1987

Abbreviations

CCG CDC CNI CRIDON CSN DATAR RPR TPG UDF

VIP

Caisse Centrale de Garantie des Notaires Caisse des Depots et Consignations Centre Notariale d'Informatique Centre de Recherches d'Information et de Documentation Notariale Conseil SupeYieur du Notariat Delegation Generale a PAmenagement du Territoire Rassemblement pour la Republique Tresorier Payeur-General Union pour la Democratic Fra^aise Vie Professionnelle (official monthly publication of the CSN)

xxi

PART ONE

The Problem of the State

CHAPTERI

Introduction

This chapter briefly outlines the general concerns of this study and explains the unusual nature of the case I have chosen to analyze. Chapter 2 will discuss in greater detail the theoretical underpinnings that guide this work. The Issue Does the particular organizational form of a state determine, or significantly influence, that state's capacity to assert its independence from society? Ever since Tocqueville discovered the capacity of civil society in America to organize itself and to establish a democratic polity, there has been a strong tendency to use the kinds of structures that a state possesses as a guide to explaining the form or degree of democracy that characterizes a society. To be sure, the same state of affairs can explain contradictory phenomena. For Tocqueville, decentralized state structures were synonymous with a democratic society. For modern-day critics of American pluralism, decentralization is synonymous with the state's abdication of its autonomy and its authority. In either case, it is the state's structures that are thought to account for the politics of the society. It was also Tocqueville who saw in the French tradition of centralized government the root cause of the incapacity of French citizens to organize themselves to establish a democratic polity. "Never since the fall of the Roman Empire had the world seen a government so highly centralized,"1 wrote Tocqueville of his own country. How could so critical a phenomenon as centralization of the state not have determining consequences for the entire society? The citizen was seen as confronting a mono1

Alexis de Tocqueville, The OldRigime and the French Revolution (Garden City, N.Y.: Doubleday & Company, 1955), pp. 8-9.

3

4

CHAPTER I

lithic state which he was powerless to influence. Tocqueville's descriptions of centralization, of the role of the state, and of politics under centralized government find their echo in every text on France. One contemporary sociologist was even able to write that "the vehement pages written by Tocqueville describing this 'regulatory, constraining administration that would like to oversee and control everything . . .' seem as apt today as when he wrote them."2 Could a society change so little in a century? This is why we need to ask whether the questions raised at a particular moment in history have the same relevance a century later. Tocqueville was describing a society that existed under very different conditions; he could not possibly be describing a modern industrial society. An administration based on the sale of offices and patronage cannot be viewed in the same way as one that is responsible for providing the services of a modern welfare state.3 The structure of a state and the politics of a particular society cannot have a link that is unvarying over time. Centralization in Tocqueville's time undoubtedly produced different results from those it has in an industrial society in which the capacity of groups to organize themselves has undergone a revolutionary change. The central theme of this study revolves around the permeability of a centralized state. But the other side of this coin is the strength and importance of the society. Tocquevillian analysis, from Tocqueville's time to the present day, has had the unfortunate effect of underestimating the impact of societal forces on the policymaking forces. Societal forces have been accorded importance in France in moments of crisis only. In day-to-day politics, it is the state that has been seen as the sole agency of change. The popular view that change occurs in France only as the 2

Michel Crozier, LaSoctite bhquU (Paris: Editions du Seuil, 1969), p. 94. See the suggestive article by Frarujois Bourricaud, "Changement et theories du changement dans la France d'apres 1945," Contrepoint, no. 16, 1975, pp. 61— 84. 3

Introduction

5

result of a crisis4 is one that downplays the maturity of a society. Nor is it possible to explain so rapid and such widespread change over a thirty-year period by the invocation of the socalled crisis theory. The fact remains, and this will become clear in the course of this work, that it is time now to recognize that French society can no longer be examined through uniquely TocqueviUian lenses. If anything, our view of the society (and the state, for that matter) needs reexamination. The development of a modern industrial society, the remarkable capacity for organization in French social and economic life, the greater maturity and the incremental approach of social groups, and the pluralistic nature of the political system have all but made it impossible to seek an understanding of the political system by invoking a highly perceptive analyst of a century earlier. Any society that experiences such enormous economic and social changes must be seen as dynamic. It is the dynamism, or the particular form that change has taken, that needs to be explained. Dwelling on why the society has remained "blocked" has practically no utility or relevance in today's world. Different times clearly call for new analyses. Using outdated lenses only serves to produce distorted pictures. Nowhere has this been more evident than in the analysis of French society in the postwar period. The historians of the next century will likely come to see the postwar period in Western Europe in general, and in France in particular, as having brought in its train probably as profound changes as these societies experienced at any time in their earlier history. France during this time went from being an agricultural country to a modern industrial one. Its people became among the most prosperous in the world. And yet, long after these changes had taken root, many a contemporary observer persisted in seeing the country as having scarcely changed. It will be for the historian of a future genera4

This TocqueviUian view has been popularized in Michel Crozier, The Bureaucratic Phenomenon (Chicago: University of Chicago Press, 1964). It became the standard and most influential explanation for the inability of the society to integrate orderly change. Crozier remains the father of the view that France is still today a "societe bloquee."

6

CHAPTER I

tion to explain the paradox of why the monumental changes of the French society following the Second World War went unnoticed by many contemporary analysts. Much of the recent literature on French politics implicitly recognizes that an interaction between the state and civil society is occurring that is so complex that it cannot be merely encapsulated within the old framework and the usual references to the centralized state. If "the old structures are fading away,"5 as Hoffmann rightly observes, the state and the society necessarily begin to have a different relationship. The fact that it is no longer clear just how to characterize the relationship between the state and private groups is a felicitous state of affairs, indicating as it does that France is not unlike other democratic industrial societies in that it shares patterns with such societies while retaining a degree of specificity born of its cultural traditions.6 The problem is to isolate the universal and the unique. This can only be done by using as a point of departure theoretical precepts of some importance that have been, or that can be, applied to other contexts. Indeed, as we shall see, the very distinction between what is public and what is private may require modification, for often there is no strict line of demarcation. A private institution may be so heavily dependent on public support that one may ques5

Stanley Hoffmann, 'The Fifth Republic at Twenty," in William G. Andrews and Stanley Hoffmann, eds., The Impact of the Fifth Republic on France (Albany: State University of New York Press, 1981), p. 282. 6 The recent discussions, and disagreements, on the role of the French state, on whether France is or is not "corporatist," on the influence of interest groups, are all testimony to the attempt to escape from a preestablished, highly cultural, mode of analysis. See D. Ashford, Policy and Politics in France (Philadelphia: Temple University Press, 1982); Philip Cerny and Martin Schain, eds., French Politics and Public Policy (New York: St. Martin's Press, 1980); Jean Padioleau, UEtatau concret (Paris: Presses Universitaires de France, 1982); Harvey B. Feigenbaum, The Politics ofPublic Enterprise: Oil and the French State (Princeton: Princeton University Press, 1985); Frank L. Wilson, "French Interest Group Politics: Pluralist or Neo-Corporatist?" American Political Science Review, 77 A (December 1983), pp. 907-09; and John S. Keeler, "Situating France on the Pluralism-Corporatism Continuum: A Critique of and Alternative to the Wilson Perspective," Comparative Politics, 17:2 (January 1985).

Introduction

7

tion its categorization as a private institution. A private firm that depends exclusively on public orders is private only in a limited legal sense. Similarly, a profession that is publicly licensed and that is subject to some state control while being allowed to operate within a private, commercial context is also in an ambiguous position. In the case of the notarial profession (as of other professions) we are dealing with a publicly licensed and controlled profession that operates within a private, commercial context. It is, in fact, possible to place the notarial profession in both the public and the private camp. Its status is, at any rate, ambiguous. In attempting to examine politics and the policy process in a centralized state we shall throughout base our work on theories of the state that are applicable to modern industrial societies. We shall deal with, and often revise, the accepted conventional wisdom about the French state: the coherence of the policymaking process, the strength of regulatory agencies, the weakness or absence of clientelistic relationship between the state and private groups, the significance of the state's tutelle over specific sectors, and the authority of party government to establish clearly delineated policies. In looking with different lenses at the French state and the French policymaking process we shall find ourselves taking France as another democratic and modern industrial society. We shall give less emphasis to the purely cultural explanations that have dominated the study of this society while remaining sensitive to the historical and cultural basis of contemporary institutions and processes. The adoption of this approach will lead us to modify, in many cases simply abandon, the received wisdom about the strength of the state, the immaturity of social groups, and the incapacity of the society to accept change that is not born of crises. Although this work reposes on a case study within a single nation, the method of analysis and the approach adopted derive from theoretical considerations that transcend a specific national context. The issues that I have chosen to treat—institutional change, state power, and the policy process—are

8

CHAPTER I

grounded in theories and intellectual concerns developed outside a single national context. I have tried to deal with what I consider to be critical issues in contemporary politics within a particular context. I have also tried to tie theoretical issues to empirical material. My own view is that the most fruitful course that a discipline can take is the linking of theory and empirical work. This bias is reflected in this study. To be sure, I am referring to theories and concepts that lend themselves to testable hypotheses—middle-range theories—and not to grand theories that either do not allow themselves to be tested or can be confirmed or disconfirmed without empirical work. The utility of a case study based on theoretical propositions is greatly increased both for theory and for comparisons.7 The Case The relationship between the state and private groups is studied in this work through a detailed examination of the relationship between the state and the notarial profession. This is a key legal profession, even if there is a general lack of knowledge about its specific functions and utility. The law grants the notaire a monopoly over the drawing up of contracts that the party or parties wish to have legalized. Rather than the state taking it upon itself to legalize contracts, it delegates this authority to officials that it names, but who purchase their practice in the open market. The notaire is an official who exercises his public monopoly in a private context. Unlike the lawyer, he does not plead a case for a client in a court of law. He brings clients with conflicting interests together. He may 7

1 agree with Harry Eckstein, who noted some years ago that "the constant reconsideration of generalizations in terms of data and the selection of data in terms of generalizations is the heart and soul of systematic research, and both should be done quite consciously." (Pressure Group Politics: The Case of the British Medical Association [Stanford, Calif.: Stanford University Press, 1960], p. 7). See also the excellent essay by Eckstein, "Case Study and Theory in Political Science," in Fred I. Greenstein and Nelson W. Polsby, eds., Handbook of Political Science: Strategies ofInquiry, vol. 7 (Reading, Mass.: Addison-Wesley Publishing Company, 1975), pp. 79-138.

Introduction

9

represent one party, or he may represent both parties. AngloSaxon jurisprudence recognizes the need for individual representation of conflicting interests. The tradition of jurisprudence upon which is based the notarial profession takes the view that above the selfish interests of each party there exists a higher interest or (the) "just solution." The notaire is neither a lawyer nor an arbitrator. Yet he may be both at the same time, save that he will not argue his case before a judge. Once the aspiring notaire has fulfilled a number of specified conditions, his candidacy for purchasing an office is presented to the minister of justice.8 He can purchase an established practice, or may be granted by the state a newly created one. Each individual practice belongs to a specified territorial entity and cannot be moved to another part of the country. Hence, the presence of notarial offices is widespread across the country, but competition among notaires within a specified territorial unit is limited because the numerus clausus limits the number of those allowed to exercise the profession at any given time and because the state fixes the fees that can be charged for the services it requires the profession to perform. The notaire thus enjoys a functional as well as a territorial monopoly. In addition to exercising the state-granted monopoly, the notaire is free to pursue other activities—act as a tax consultant, a management consultant, an accountant—for which the state does not fix a level of remuneration. Since the notaire is then carrying out activities that fall beyond the competence of the notarial monopoly, he is free to charge what he pleases. Notaires are, as we shall see, encouraged both by the profession and by the state not to confine themselves to the monopoly. Indeed, they are urged to go in search of new markets that both place them in competition with other professions and are more remunerative. What does the functional monopoly consist of? To understand what a notaire actually does, one merely has to know that 8 Women began to be admitted to the notarial profession after the Second World War. They represent today an insignificant minority in what remains very largely a masculine profession.

10

CHAPTER I

a call for his services cannot be avoided where the sale or purchase of a property is involved (whether it be an apartment, a house, a factory, or a parcel of land), where a marriage contract is desired by a couple, where a mortgage is obtained from a bank, where an inheritance has to be allocated among friendly or vying members of a family, where a business is bought or sold, where a merger between individual fortunes or companies is desired. In all such cases, an agreement is considered legal only when a notarial contract has been drawn up. The notaire is responsible for the verification of the contents of the document as well as for its legalization. Just as only a doctor can perform an operation, so only a notaire can legalize a contract. The notaire is also responsible for the conservation of documents, which is why notarial archives represent such a rich fund of materials for historical research. In some societies, the functions which the notaire in France performs are carried out on an optional basis, by a lawyer. Such is the case in the United States. In other societies, a legal profession has been able to maintain a monopoly over specific legal functions, such as the purchase of property. Such is the case of solicitors in Britain.9 In still other societies where the notarial profession exists (Belgium, Latin America, Italy, Spain) the principal responsibilities are much the same as the French notaires' but the mode of operation may differ; essentially, the public function in certain societies receives greater emphasis in that notaires are (as in Spain and Italy, for example) 10 admitted to the profession through a state-sponsored examination and not through the purchase of a practice. Even in Alsace and Lorraine, where the impact of German law continued to dominate after the reintegration of this area into French territory following World War I, notaires do not buy and sell the (public) office. They are thus more akin to civil servants than to the free professions. The French notaire (excluding 9

The Administration of Justice Act of 1985 removed the conveyancing monopoly from solicitors. See Chapter 14. 10 See "Notaio," Enciclopedia italiana, vol. xxrv, pp. 973-74.

Introduction

11

those who practice the profession in Alsace and Lorraine) enjoys the purest form of a state-granted monopoly (both territorial and functional), the greatest degree of state protection, and the widest latitude for operating as a commercial enterprise. Though the case of the notaires may be unusual, and may lack the grand aura or significance of business or labor, for example, the preservation of such an unusual status indicates that a complex relationship with the state is at work. Whether the state grants a tax concession to business or a wage increase to labor does not by itself reveal a great deal about the interaction of these groups with the state. The attempt and subsequent failure by a long series of governments to break with patterns of notaire-state relations give us considerable insight into the workings and mechanism of a centralized state. Apparendy unusual cases may reveal more than more obvious cases about the politics and the policy process of what are regarded as "strong" states. This is not a work that traces the history of the notarial profession, a subject that has yet to find its historian. For many years historians have been making excellent use of notarial archives in writing the social history of the society. But no major historical work has yet appeared on the profession as a whole. 11 While therefore I have not been oblivious to the long history of the profession, and have of necessity taken account of it, I have oriented the work in other directions. My interest in the history of the profession is selective. It reflects my own intellectual concerns and preoccupations. As a work in politics, the concerns are neither purely historical nor sociological; rather, they have a distinct political orientation. My concern is not to draw a portrait of the profession through the ages; it is to treat those aspects of the profession that help to explain why power, rights, privileges are distributed as they are, why attempts to alter their 11 Theodore Zeldin was one of the first historians to recognize the importance of the notarial profession in French society. See the fine chapter he devotes to the profession in his France 1848-1945, vol. 1: Ambition, Lore, Politics (Oxford: Oxford University Press, 1973), pp. 43-52.

12

CHAPTER I

distribution have been unsuccessful, why a centralized state is not always able to effect a change to which it professes to be committed. These are fundamentally political questions. Hence, my selective use of historical and sociological material. I indicate my own approach clearly at the outset because I believe it possible to adopt a variety of perspectives to any subject, each of which may lead to different conclusions. A purely juridical or historical approach would tend to concentrate on the evolution of the profession, and hence see its development in a narrower perspective. An approach that is guided by political questions, on the other hand, is more concerned to explain patterns in and mechanisms of relationships. It is also more concerned with questions of survival, of the distribution of power, and, finally, of the relative weight of the different inputs that shape public policies. Because of the approach I adopt I do not study the world through the eyes of the notarial profession. I deal with those factors that I consider to have been critical in allowing for the modernization of the notarial profession as well as with the factors that explain the capacity of the profession to hold its own against repeated attempts to bring it, from a social perspective, into the modern age. This requires treating the profession's relationship to the complex maze of the state apparatus, its impact on the policy process, and its success in having private interests substituted for public interests. What, then, is the role of a centralized state? This is the question that we shall explore through the case of the notarial profession.

CHAPTER 2

State Structures and State Power This is a study of policymaking in a centralized state. The vehicle used for this analysis is a case study interesting in itself, for it shows, among other things, how traditional institutions, practices, and even privileges can endure in a society that has made great progress along the path of political democratization and economic modernization. But the significance of the case lies in the doors it opens to an understanding of the roles of the society, the state, and the state's policymaking capacities. The theoretical concern of this study—namely, the capacity of what is generally considered to be the quintessential example of a "centralized" or "strong" or even "omnipotent" state to act independently of societal groups—necessitates an empirical approach. While one might want to discuss the appropriate case or cases, the appropriate number of cases, the national context or contexts that would constitute the ideal conditions for an assessment of a state's policymaking capacities, it remains undeniable that an empirical approach is perhaps the most valid method. Theoretical propositions can be confirmed or refuted by the introduction of additional theoretical propositions, but in the end a hypothesis requires testing in order to be confirmed or refuted. Underlying the analysis will not be an all-encompassing theory of the state, but rather a set of hypotheses centering on the extent to which a state freely establishes its preferences and its capacity to implement the policies that derive from these preferences. An effective way of dealing with these hypotheses is to undertake a detailed analysis of the policymaking apparatus: the interaction between private groups and public agencies, the interaction among public agencies, and the interaction among political authorities and public agencies. The understanding of the policymaking process requires its dissection, 13

14

CHAPTER 2

and this involves the unraveling of this triangular relationship. This is the principal aim of this work. The State as an Actor We are all aware of the revival of interest in the state and of the outpourings of works that lay claim to having rediscovered the state. "From the late 1950's until the mid-1970's the term state virtually disappeared from the professional academic lexicon. Political scientists wrote about government, political development, interest groups, voting, legislative behavior, leadership, and bureaucratic politics, almost everything but 'the state.' However, in the last decade 'the state' has reappeared in the literature."1 The state as such has not merely reappeared in the literature. It has, according to Theda Skocpol, come to represent a new paradigm in the study of politics. "There is no gainsaying that an intellectual sea change is underway, because not long ago the dominant theories and research agendas rarely spoke of states," whereas now states are taken as independent actors.2 To announce the imminence of a revolution is not the same thing as announcing the revolution itself, for even if the state represents the paradigm today that political development or voting behavior represented two decades ago, it still needs to be shown how our understanding of the political process has been advanced. Gabriel A. Almond has spoken of the "professional amnesia" that is characteristic of those who have "discovered" or "rediscovered," as the case may be, "the state" and suggests that the refusal to cumulate knowledge by the "statists" in the end helps to undermine the propositions they put forward. "The impairment of professional memory has become common in political science and helps to explain its fragmented and faddish character. The behavioral movement buried the memory of 1 Stephen D. Krasner, "Approaches to the State: Alternative Conceptions and Historical Dynamics," Comparative Politics, 16:2 (January 1984), p. 223. 2 "Bringing the State Back In: Strategies of Analysis in Current Research," in Peter Evans, Dietrich Rueschemeyer, and Theda Skocpol, eds., Bringing the State Back In (Cambridge: Cambridge University Press, 1985), p. 4. Skocpol uses the terms "government" and "state" interchangeably.

State Structures and State Power 15 the institutionalists, only to have a 'statist' counterrevolution take place in the last year or two. The 'dependency5 movement in comparative politics vilified and buried the modernization and pluralist theories, and now has come to terms with its own exaggerations and distortions."3 Almond's critique suggests that the current vogue of "the state" has little to do with the promise of a bright future for political science. The discovery of this paradigm is due simply to forgetfulness on the part of its champions of what political science had been about. This is the position taken by David Easton, though he emphasizes more strongly than does Almond the dangers that the study of politics runs if it follows the "statist" path. He argues that the reintroduction of the concept of the state after it had been abandoned almost three decades ago merely returns us to the "vapid debates of the nineteenth and early twentieth centuries" and "to a conceptual morass from which we thought we had but recently escaped."4 Whatever the respective merits and claims of the "old school" and the "new school" and whatever the outcome of the debate, it remains true that only the refinement of the state as a concept and only after it has been subjected to empirical investigations can we have more clear indications of the contributions and utility of the concept. One of the earliest champions of the "statist" approach, Stephen D. Krasner,5 has righdy observed that to maintain "that terms have changed, that certain scholars have self-consciously adopted a new vocabulary (or readopted an old one), does not necessarily imply that there has been a change in substance."6 How are we to know if there has 3

"Corporatism, Pluralism, and Professional Memory," World Politics, 35:2 (January 1983), p. 252. 4 'The Political System Besieged by the State," Political Theory, 9:3 (August 1981), pp. 321-22. 5 See Defending the National Interest (Princeton: Princeton University Press, 1978). 6 "Approaches to the State," pp. 223-24. It happens that Krasner believes that there has definitely come about a change in substance. This is not a view that is widely shared, as the views of Gabriel Almond and David Easton indicate. A

16

CHAPTER 2

been a change in substance? The confidence in a new paradigm can only come about by the exercise of empirical exploration within the context of theoretical models. In the absence of such an undertaking, it is inevitable that discussions about the state will be forced to fall back on what we already knew from more general (or, as some would call it, old-fashioned) analyses. Perhaps nowhere is this more evident than in the attempt to assess the power of a state by reference to the administrative organization of the state. A state may be more and may be less than the sum of its administrative parts, for when new admin­ istrative organizations are spawned, this does not always lead to a concentration of effective and authoritative use of power. 7 In­ deed, it is precisely for this reason that a purely institutional ap­ proach to the study of the political process was found wanting. Centralization and State Power Centralized structures have long been assumed to possess power and to be able to use that power for the good of the com­ munity, whereas decentralized structures are seen to be an ideal terrain for takeover by private groups and to allow for the un­ due influence of these groups over the policymaking process.8 Hence, public values "will fare best at the hands of large diverse constituencies—the presidency (and perhaps the Senate) rather than the House; the national government rather than the states and the local governments." 9 recent survey of changing trends in comparative politics makes no mention of the "state" paradigm. See Ronald Inglehart, "Changing Paradigms in Compar­ ative Political Behavior," paper presented at the 1982 Annual Meeting of the American Political Science Association, Denver, September 1-4,1982. 7 See Stephen Skowronek, Building a New American State: The Expansion of Na­ tional Administrative Capacities (Cambridge: Cambridge University Press, 1982). Skowronek addresses the issue οι administrative capacities rather than state power. Much of the literature on the state confuses the two. 8 See Grant McConnell, Private Power and American Democracy (New York: Alfred A. Knopf, 1966), and Theodore J. Low:, The End of Liberalism (New York: W. W. Norton). 9 J. David Greenstone, "The Public, the Private, and American Democracy: Re­ flections on Grant McConnell's Political Science," in J. David Greenstone, ed.,

State Structures and State Power 17 Does a unitary state with a centralized state apparatus resist the encroachments and the power of private groups more effectively than a decentralized (federal) state? This would be the case only if the centralized state were not constituted by a multitude of administrative agencies that pursued separate goals and if the private groups were poorly organized. Centralization concentrates jurisdictions. It does not concentrate effective power. Private groups organize themselves in response to an administrative structure in which jurisdictions over a given area are centralized. Hence, the private group concentrates its activities toward an administrative structure that is the repository of authority over a given sphere.10 I attempt in this study to examine not only the margin of maneuver available to a centralized state but also whether a centralized state is in fact capable of resisting the hegemony of private groups. We find, in effect, that centralized structures which allow for the concentration ofjurisdictions in an arm of the state often do not prevent but rather facilitate the takeover of the state by a private group. McConnell assumed that a centralized authority necessarily represents a large constituency and that the dispersion of power strengthens the hands of private groups. Our own analysis does not bear this out. We find that centralization offers a remarkable advantage to private groups: They need not disperse their efforts in accordance with jurisdictional dispersion as is the case in decentralized structures. All the efforts at influencing the policy process can be directed at one central organizational structure. Once a close, symbiotic relationship is established with a state structure that is given the power to regulate a sector, the private group often succeeds in using public power for private gain. The private group does not Public Values and Private Power in American Politics (Chicago: University of Chicago Press, 1984), p. x. 10 State intervention in a sector and the capacity of a group within that sector to assume a monopolistic representation lead to a symbiosis that is often referred to as corporatism. See John T. Keeler, The Politics ofNeo-Corporatism in France: Farmers, the State andAgricultural Policymaking in the Fifth Republic (New York: Oxford University Press, 1987).

18

CHAPTER 2

disperse its efforts, because jurisdiction and authority are not dispersed. Clientelism is more dangerous in a centralized system, because the client need take over only one structure. Hence the permeability of centralized structures. The organizational structure of the state does not, then, define the degree of power or strength or autonomy that a state possesses. A centralized state encourages the development of relatively centralized organizations (counterpowers) which more often than not come to regard the centralized agency as their spokesman and defender. The investment of regulatory powers (or the granting of a tutelle) in the hands of an administrative agency implies the granting of power and authority over private groups. But regulation and tutelle often come to mean, both to the agency and to the group in question, defense of the group. When that occurs, the public overseer is transformed into the spokesman of a private group without the state even noticing the subversion of its proper role. Similarly, a confusion regarding the extension of the role of the state needs to be cleared up. The growth of the public sector, or what the French call I'atat-providence, is not tied to state power or autonomy. 11 It has, rather, to do with the protective role of the state. Agencies are created to protect sectors and groups. And this protective role leads to a clientistic relationship between the state and private groups, a relationship that ends up circumscribing the power of the state to define and implement policies that do not protect the interests, goals, and privileges of the client group. The providential state becomes a protector and defender of groups rather than an independent entity with the power to effect important changes of a redistributive nature. Neither the extension of the public sector nor the centralization of the state apparatus necessarily implies an increase in the state's independence and autonomy. Administrative centralization is not immune to the fragmentation of authority. It is often welcomed by private groups because it 11

See Pierre Rosanvallon, La Crise Ae I'atat-providence (Paris: Editions du Seuil, 1981).

State Structures and State Power 19 facilitates their task of creating a close, reciprocal relationship with the state. The centralized state almost never (save perhaps in a totalitarian system) confronts the society in a unified manner. The pluralism of the society is mirrored in an administrative pluralism, which is more than an illustration of the bureaucratic politics phenomenon. Administrative pluralism refers to interests that go beyond the preservation of budgetary allocations. It refers to shared interests between the administrative agency and a private group. When this exists it becomes difficult for a state policy (as defined by the political authorities) to be implemented in a consistent way. Centralization,

"Corporatisme," and Change

In order to arrive at a more precise understanding of the mechanism of the policy process and the role that the state plays in this process, I have chosen to concentrate on the relationship between one group and the state. It does not much matter whether this group is typical of others that interact with the state apparatus. It matters only that the interactions and relationships that I am about to describe give us a perspective on the policymaking process that we had not previously associated with a centralized state. Legion are the expositions of the centralized, omnipotent nature of the French state. Rarer are the examples of this state hemmed in and constrained by the relationships it has established with society.12 I have indicated thus far that the theoretical underpinnings of the study will lead us to assess the ability of the state to set and to implement its preferences as well as to examine the extent to which a centralized administrative apparatus can resist the dominance of private groups. I hope that in dealing with these critical issues we shall come to have an understanding of 12 Centralization has sometimes been seen as hindering action, not for political reasons, but for cultural ones. See Michel Crozier, The Bureaucratic Phenomenon (Chicago: University of Chicago Press, 1964). I shall not discuss the cultural explanations in the chapters that follow. The emphasis throughout is on political factors and mechanisms.

20

CHAPTER 2

the process of political change. Tocqueville tried to reconcile the rampant individualism of the French people with the high degree of administrative and political centralization. Administrative centralization places the state face to face with the individual citizens, for it does not tolerate mediation by groups. Centralization and individualism thus do not provide a fertile ground for the creation of a democratic polity. It is more common today to attribute problems of the polity (and of the economy) to corpomtisme than to individualism. In the sense in which it is commonly employed, the term corporatisme does not refer to "a system of interest representation in which the constituent units . . . [are] granted a deliberate representational monopoly within their respective categories in exchange for observing certain controls on their selection of leaders and articulation of demands and supports."13 Rather, it is a variant of individualism, referring as it does to the defense of narrow sectoral interests. Each group seeks to defend its own advantages and to ward off attempts to encroach on or jeopardize its privileges or the advantages it succeeded at one point in extracting from the state.14 Corporatism, as the term is commonly used in political science, refers to the modalities of interest representation, whereas the term corporatisme, as it is commonly used in France, refers to the defense of narrow group interests, which explains why it is always employed with pejorative intent. The time has perhaps arrived for an analysis of the impact of this form of political organization on the policy process. Merely to condemn it as outdated or corpomtiste does not enable us to understand why this form of organization, as well as the tolerance of the state for such organizations, endures. Such groups form part of a democratic polity. It may be that the ultimate good of the collectivity finds more sympathy as a concept 13

Philippe C. Schmitter and G. Lembruch, Trends toward Corporatist Intermediation (Beverly Hills, Calif.: Sage Publications, 1979), p. 13. 14 An attempt to take the phenomenon of corporatisme seriously is found in Daniel Segrestin, Le Phanomene corporatiste: essat sur I'avenir des systemes professionnek fermes entrance (Paris: Fayard, 1985).

State Structures and State Power 21 in France than it does in the United States, which is perhaps why the defense of narrow interests by a group can be so easily condemned. Doctors, farmers, veterinarians, big business, shopkeepers, workers, do no more in France than they do in the United States: They seek to maintain their gains and to prevent unfavorable measures from being taken against them. The extent to which they succeed depends not merely on their organizational capacities but even more on the capacity of the state to overcome the pressures brought upon it by groups with legitimate claims, as well as by those who benefit at the expense of the society. The defense of group interests and privileges is seen as having hindered reforms and as aggravating inequalities within the society. Frangois de Closets's best-selling book Toujours plus! has as its twin themes the corporatisation, and the consequent inequalities, of the society. Those who have caused the recent inequality are thus no longer the French as individuals . . . but rather a multitude of corporations. Some enjoy great privileges and exclusivity—wealthy heirs, notaires, pharmacists, managers, tresoriers payeurs-generaux, etc.—while other corporations are larger and less wealthy—cereal growers, electricians, or railroad employees, for example.15 There is nothing startling about this state of affairs, from which one can merely conclude that the organized defend themselves better than the unorganized or less well organized. "To be successful [as an organization], the group must isolate itself from the population and, supported by leverage at its disposal, begin working to its own advantage. It is in this way that it will reap the greatest benefits, all the greater for being distributed among fewer members."16 That all groups "act for themselves" and ascribe little importance to the interests of the collectivity is practically self-evident in a pluralistic society. What is perhaps less evident, and what might have been expected to strike the 15 (Paris: Grasset, 1982), p. 11. ' 6 Ibid.

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CHAPTER 2

observer, is the capacity for organization that French groups have. Just as at an earlier time "individualism" was seen as the nemesis of the society, so now the culprit is corporatkme, which generally refers to any group defending its interests without regard to the interests of the collectivity. "One has the impression of a France divided into as many interest groups as there are professions, of a country incapable of instilling a sense of solidarity, a state literally beseiged by groups' demands."17 There remains, as this quotation indicates, a tendency to regard as unwholesome the activity of private groups to press their cause on the state. Such activity is seen as a negation of national union and solidarity. This is a moral view, with a strong religious undercurrent, and while it is interesting to observe, it is not one that need detain us. Our interest lies more in the direction of understanding the mechanisms of the relationship between the state and civil groups, and the consequences for the political process of this relationship. French society has most often been viewed, and criticized, for its inability to cooperate and to form groups. The cause for this has typically been found in the omnipotence of the state and in the individualistic nature of the French character. But French society is now mostly viewed, and criticized, for being able to organize itself into a multitude of effective groups. Hence, the society is condemned for displaying a particular characteristic and its opposite. The missing link here is the state: The first view implies the omnipotence of the state (the thesis popularized by Tocqueville); the second view implies the impotence of the state in the face of entrenched interests. The popularity of the former explanation has hitherto taken precedence over an analysis of what the state is or is not able to do. One cannot view the defense of private interests as a celebration of democracy in one country (the United States) and condemn the same phenomenon in another country (France) as a manifestation of individualism and corporatisme. 17

"La France au penl des corporatismes," interview with Guy Saez, Le Monde, 7 March 1984.

State Structures and State Power 23 That there is a strong capacity for organization within French society can no longer be denied. Whether this leads to the defense of situations acquises or results in professions ferndes should not be of great political significance. What is of political import is how the state interacts with such groups. This is a phenomenon that calls for analysis and requires setting aside all a priori notions having to do with so-called individualism, corporatistne, situations acquises, and even centralization. Such descriptions can only result from analyzing the political and policy process. They cannot precede the analysis. In view of the changes that French society has undergone since the Second World War and in view of the capacity that the society has demonstrated for organization, two questions present themselves: First, given the rigidity that is implied by the existence of such corporatiste groups and by the power that they display, how does change come about in the society? Second, if France is the prototypical example of the strong state, which is omnipresent and all-powerful, why has this state not been able to create a greater degree of equality among the multitude of groups and so prevent some from acquiring the kinds of advantages that, often, are jusdy denounced for their flagrant nature? Why, in short, has the state not been able to exert its authority in the face of groups seeking to maintain their privileges? If the widely held belief that "in France, the general interest appears so easy to determine because determining it is the monopoly ofa single institution: the omniscient State"18 corresponds to reality, one would expect the state to manifest a more determined—and successful—will to confront organized interests that it views as making illegitimate demands. The changes that have occurred in France during what has come to be known as les trente glorieuses, that is, the period of remarkable economic expansion from 1945 to 1975, scarcely 18 Laurent Cohen-Tangui, Le Droit sans Vitat: sur la dhnocratie en France et en AnUrique (Paris: Presses Universitaires de France, 1985), p. 118 (emphasis in original).

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CHAPTER 2

need documentation. 19 Hence, vast changes can evidendy take place while each category seeks to hold on to its position and its privileges. We shall see that there is no incompatibility between groups seeking to preserve their advantages in the society while at the same time contributing to the transformation of the society. The reason for this is that in order for the traditional group to maintain its advantages or privileges it needs to modify its role and its contribution to the society. In so doing, it strengthens its organizational capacity, and hence its own position vis-a-vis the state. Hence, the group changes sufficiendy to enable it to respond to society's new demands and to contribute to the development of the society. By the same token, the modernization of the group strengthens its hand vis-a-vis the state and in effect renders the state powerless to reduce its privileges. In effect, the strengthening of the group allows it to make additional demands on the state which the state generally seeks to fulfill. In so doing the state creates a reciprocal relationship with the group, one in which it needs the group as much as the group needs it. The continued existence of traditional groups and organizations that maintain their traditional privileges has led some writers to characterize France as a "stalled" or "stagnant" society. What they saw was a centralized state apparatus on the one hand and groups seeking to maintain their long-established advantages on the other. But this was only part of what was going on. What was less perceptible, but more significant, was the internal transformation that each group was undergoing. This is what allowed the groups to acquire a new vitality, to contribute to the modernization of the society and, as a consequence, to maintain their traditional roles, rights, and even privileges. The postwar transformation of the society was made possible by profound changes within numerous institutions—the managerial class, the civil service, industry—that were ultimately re19

See Jean Fourastie, Les Trenteglomuses ou la resolution invisible de 1946 a 1975 (Paris: Fayard, 1979).

State Structures and State Power 25 sponsible for les trenteglorieuses. If some have persisted in viewing the postwar period as one which is characterized by little change and in which the society remained a societe bloquae, it is not because they did not see things correctly. It is because they saw only what was evident on the surface, the tip of the iceberg, so to speak. What was apparent were the same groups making the same demands, not what they were doing at the same time to meet the challenges of their respective sectors. The process of change was not only complex but was also undoubtedly difficult to decipher: It entailed important macrolevel changes while appearing to sanction micro-level rigidities. In this way the society was able both to preserve its traditional institutions (even if at some earlier point it considered them archaic) and to sap the state's capacity to effect radical reforms despite an organizational structure that appeared well suited for undertaking such reforms. For one thing, the micro-level rigidities were in many cases more apparent than real. The groups simply used the same language, made the same demands, and appeared uncompromising. Beneath this surface, which constituted no more than a smokescreen, they had set about the process of modernization. Secondly, the state played an important role in prodding sectors and groups to effect their internal modernization. Once it adopted this role, its mission became a protective one rather than one involving threats of radical reform. Once the state's mission became that of protecting groups and sectors, it was no longer in a position to dictate or to order changes. Theory and Practice The theoretical context of this study is provided by the problem of the independence of the state in an advanced industrial democracy. Moreover, this context is also characterized by an administratively centralized state, presumed to be more capable than a decentralized one to assume and preserve its independence from the society. Because this is also an empirical study, however, it takes place within a specific society and in a specific case within that society.

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CHAPTER 2

The case I have chosen to examine within the theoretical concerns outlined above is that of a group that maintains a close (if sometimes conflictual) relationship to the state and that represents characteristics of both an archaic and a highly modern society. The essential functions of the profession in question— the legal profession of notaires—have remained intact, but the profession now carries them out in the context of the means that the twentieth century has made available. In concentrating on the case of the notarial profession I intend to explore three central issues. First is the critical issue of the relationship of the state to civil groups. What is the nature of the relationship between the state and the notarial profession? Is it merely one which involves the state playing a protective role? Does the state consider the profession to be a public service and hence see its own role as that of a defender of the profession? Do the interests of the state diverge from those of a semipublic group like the notaires? If so, what is usually the outcome? These questions have not been posed in the past because it was generally taken for granted that the French state, being highly centralized, was not likely to be influenced by a group, particularly one that is semipublic in nature. But the issue is not whether a group is semipublic or not (such a group is also semiprivate); the issue is rather whether any group is able to compromise the state's independence by creating a clientistic relationship. When that occurs the state more often than not becomes an ally of the group and may be moved to act in ways that do not wholly accord with an objectively defined public interest. The interests of a group like the notaires, whether according to some strict definition the group is public or private or a hybrid, often diverge from the public interest. What does the state do in such instances? We seek, in other words, to examine the issue in a functional perspective—one group seeking to influence decisions in its favor—and not according to some definition that allows a group to claim that, being part public service, its interests cannot deviate from the public interest. The existence of a centralized administrative structure

State Structures and State Power 27 does not always allow it to escape the clutches of private groups. Neither does it necessarily allow the state to speak with one voice. This is because, as I have indicated and as we shall see in some detail, the structure of modern public administrations in pluralist societies conforms more and more to the structure of societal interests. This means that the executive branch is often faced with societal interests when it attempts to mobilize the instrument of the state—the state bureaucracy—to effect some policy goal. Anyone familiar with the relationship between the executive and the bureaucracy in the United States knows how necessary and how difficult it has been for modern presidents to make the bureaucracy comply with and implement executive policies.20 Because of the very nature of administrative pluralism, it is sometimes difficult to define a state policy. The multiplicity of state institutions, each with its own missions, goals, priorities, interests, and constituencies, means that it is unlikely that all can work to achieve the same goal. The unitary nature of the French state does not make it any more of a strong state than the federal structure makes the American state a weak one. Hence, it is not entirely logical to expect a state to be autonomous, or independent of civil groups, while having at the same time its chief instrument for the implementation of policies permeated by civil groups or reflecting the pluralism of the society at large.21 A state represents the conflicting interests of a society. Can the state's administrative apparatus act as a more homogeneous entity in a pluralist society? The reality is that state administrations respond more often than not to particular constituencies. Any group may therefore exploit the divisions 20

See Richard P. Nathan, The Administrative Presidency (New York: John Wiley & Sons, 1983). 21 It is difficult to see how one author, arguing against the statist approach, can claim that "although the state has unity in the sense that it is the single most comprehensive vehicle for achieving the common aspirations of a people, that unity is not contradicted by federal arrangements, by checks and balances, nor by a pluralist society." See Howard H. Lentner, 'The Concept of the State: A Response to Stephen Krasner," Comparative Politics, 16:3 (April 1984), p. 373.

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within the state apparatus by choosing allies, and the allies need not be permanent, for alliances can be changed as issues and interests change. The Ministry of Justice was not only the tutelle ministry for the notaires prior to 1981, but it was also the profession's most important ally and staunchest defender. At that time there was no talk of serious reform, there were no threats from the government to the profession, and the Ministry of Justice could be counted on to come to the defense of the profession. Indeed, it is clear that, for the notarial profession, tutelle was synonymous with defense, since after May 1981, when the Ministry of Justice shared a willingness to entertain reforms of certain outdated practices of the notarial profession, the president of this group wrote the minister of justice and reminded him, "Vous assurez notre tutelle, done notre defense."22 After June 1981 it was no longer possible for the notarial profession to consider the Ministry of Justice its chief ally. This led the profession to choose other allies in order to thwart reforms that might be proposed by the Ministry of Justice or by the government. It worked with those allies in the state bureaucracy to undermine the projected reforms—and with considerable success. One should not forget that we are referring to a state in which one party controlled the executive and legislative branches, had great patronage powers, and controlled a major segment of the economy. None of this matters when a policy is not a top political priority (and few policies can be), and when bureaucratic agencies pursue specific goals and ally themselves with groups that help them attain these goals. The second issue that is treated through the case study is the one posed by the protection that the state grants to what are essentially private groups under the cover that they are performing a public service. It is evident that the remarkable transformation of the notarial profession has served to ward off questions about the appropriateness or utility of such a profession in today's society. The profession is responsible for legalizing deeds and contracts, a monopoly that the state grants it. The profession is also free to pursue other activities of a pecuniary 22

Paul Chardon to Robert Badinter, VIP, 83/8 (December 1983).

State Structures and State Power 29 nature that are akin to what accountants orfiscalconsultants do and that are in no way regulated by the state. Hence, the legitimacy that the notaires acquire by the monopoly which the state vests in them is transferable to spheres that are wholly private in nature. The ambiguity inheres in the very nature of the office and is a legacy of the venality of offices practiced under the ancien regime. We shall look closely at the issues raised by the vestiges of the venality of offices in the twentieth century. How appropriate, then, is it for the state to protect—or have a tutelle over—groups that are essentially private in nature? Is it part of the duty of the state to facilitate the increase in profits of a group that it grants a monopoly to? These questions raise issues not so much about the notaires' privileges or the advantages that accrue to the profession from the ambiguous status, but rather about whether the state is doing what it is supposed to be doing. The notaire enjoys the tutelle of the Ministry of Justice, but he also buys and sells his office. Moreover, he enjoys the right to name his successor, whom he presents to the Ministry of Justice as the buyer of his practice and as the inheritor of his office.23 One glimpses here a heavy legacy of a distant past. There are, to be sure, a host of offices (known as offices ministtriek, of which the notaires are one) that enjoy the droit de presentation. The state has recentiy, and in the past, attempted to rectify a situation that appears more appropriate to a bygone era. Yet it finds itself hamstrung by its earlier actions of associating this group with a public service. When the state itself is unable to decide whether a particular group falls within the public or the private sector, it has already compromised a substantial part of its authority. A third ancillary issue that the case under study will treat is more specific to France. It has to do with the transformation 23

The notaire's right to name his successor is known as Ie droit deprisentation. It became an important issue recently when the socialist government sought to abolish the right. The profession protested vigorously, arguing that this constituted expropriation, since the right to present (read "name") one's successor adds to the value of a notaire's practice. Reducing the value of one's practice amounted to a unilateral action entailing expropriation. Hence, the notaires argued, the government needed to indemnify them.

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of the society through the modernization of many of its individual parts. The modernization of the notarial profession is but a microcosm of what the society has experienced over the past three decades. I suggested that the macrosocietal change was made possible by a multitude of micro-level transformations. This will be illustrated by a group that, as of 1950, could not be said to have entered the twentieth century. What is true of the notarial profession is also true, though perhaps to a slightly lesser extent, of other groups in the society. Where the literary representations, particularly those of Balzac, of the notarial profession were probably not out of date thirty years ago, they bear little relationship to today's France, except in a few isolated corners of La France profonde. The profession has organized, modernized, and developed to an extent that makes it the envy of and the model for other liberal professions. All this came about less than twenty-five years after a state commission had singled it out as an example of archaism and had raised the possibility of its abolition. The modernization of a group in a society has to be seen in an objective perspective, for while it involves considerable transformations that in and of themselves are admirable, those transformations are put to ends that may be dubious from the society's point of view. This does not mean that judgements about the group's utility or its activities have to be suspended. They clearly cannot be. It means only that the process of modernization has to be examined separately, as has the activity which this modernization serves. Hence, the question "Modernization for what?" is not one that can be skirted. In the end, it is the state that is responsible for tolerating—or being forced to tolerate—the existence of private power that may be parasitic or that may exist at the expense of the public's interest or that may simply not be fulfilling a useful function. From our perspective, the point of interest is not the attempt of sectors or groups to maintain themselves or their privileges; it is, rather, the reaction of the state to the actions and demands of civil groups.

PART TWO

The Legacy of History

CHAPTER 3

The Eternal Dilemma We must distinguish private from public, and so return to private enterprise what belongs to private enterprise, and return to the public sector what is a public function. This is the crux ofa rational solution. —Louis THEUREAU (1858)

It sometimes happens that a problem is so clearly perceived that the solution more or less defines itself. Yet nothing much happens and the problem persists from one epoch to another. In 1894 one writer noted that "the notarial profession is more than ever before the order of the day. In newspapers as in journals, in pamphlets and books, even in Parlement through proposals, everywhere the notarial question is debated, studied, and discussed."1 These words describing a state of affairs characterized as a "problem" could have been written at any time in the nineteenth and even in the twentieth century. There may be less public discussion today of "la question notariale," but the underlying problems remain in search of solutions. Hence the "eternal dilemma." The law defines the notaire as "a public official appointed to receive the documents and contracts which the interested parties must or wish to legalize."2 The notaire is thus a public official in whom is vested a juridical monopoly by the state. The official belongs to a profession that, with a number of others (greffiers, huissiers, commissaires-priseurs), forms a group of professions known as offices ministariek, a term imbued with a precise juridical connotation.3 An qfficier ministinel is named by 1

Emile Legrand, LeNotariat etsa crise actuelle (Paris: Librarie de Firmin-Didot, 1894), p. 1. 2 M. E. GeIk, Rapport fait au nam de la Commission Fiscaie, Chambre des Deputes, session de 1900, no. 1594, p. 3. 3 For the origin of the term qfficier ministeriel and for a juridical definition, see

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the state to occupy an office to which is delegated a public function. He thus exercises a public service role. At the same time, the officier ministirkl buys and sells his office, and thus exercises a commercial activity. Is he a public servant or the head of a private enterprise? No discussion of the notarial role or of the notarial problem, and of the role of the state with regard to the profession, can ignore the ambiguity of a status that is at once public and private. This ambiguity has been present for centuries and it has posed moral and legal problems to which no resolution has been found. This is why the issues raised today concerning the role of the profession in the society are not fundamentally different from the ones that different regimes have confronted in the past two centuries. The complex and unique status of the office ministiriel has its origins in the practice of the venality of offices, a practice begun under the ancien regime, challenged repeatedly under the monarchical regimes, revoked during the Revolution of 1789, reinstated subsequently, revoked again briefly during the Commune, reinstated thereafter, and questioned throughout the Third Republic and again at the outset of the Fifth Republic. We are dealing with a phenomenon of the ancien regime, even if the practice has undergone important modifications. Nonetheless, the remnants of an ancien Hgime practice have survived all attacks for two centuries and, as we shall see, have remained unscathed by the aims and projects of the socialist government that came to power in 1981. The socialist government undertook to reform the profession in a manner that might ultimately have resolved the dilemma inherent in the notarial status. If the profession therefore saw itself as being confronted by a profound crisis after 1981, this was no different in nature from, and perhaps milder than, what it faced in the second half of the nineteenth century. Indeed, it is likely that the various attempts at reform and the Louis Theureau, Etude sur I'abolition de la vinalitt des offices (Paris: Librarie de Guillaumin, 1868), pp. 10-11.

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kinds of bills that were presented to parliament in the Third Republic, and which I shall have occasion to discuss, were more audacious than what any Fourth or Fifth Republic government dared to propose. Origins of Venality ofOffices The sale of public offices goes back to the end of the fifteenth century. The kings engaged in the practice in order to fill the state's coffers and resorted to it whenever they needed to raise additional funds. At the beginning of the practice of the sale of offices, a purchase could be revoked by the king. Gradually, however, purchasers became proprietors of their offices, which allowed their offspring to inherit the offices. By the mid eighteenth century, offices became "permanent, venal, and even hereditary."4 Some offices, particularly judicial and other high administrative posts, were sold simply for the purpose of raising funds. Others had a clientele, and the wellbeing of the purchaser of such an office, as well as that of his heirs, depended on their capacity to attract business. The outright sale of judicial, military, and other offices ceased with the downfall of the ancien regime. Although the state ceased selling offices of any kind over two centuries ago, it continued to appoint officials who buy, sell, and leave to their children public offices. The offices in question are those to which the state delegates a parcel of its authority and which it endows with a monopoly—the offices ministirkls. These are also the offices a clientele of the ancien regime; the notarial office is a remnant and a beneficiary of this practice. The practice of the venality of offices, whether this involved an outright sale of an administrative or judicial post, or whether it was for an office a clientele, had detractors from the beginning. It was recognized from the outset that the practice involved, in Mousnier's words, "the confusion of public authority with private property."5 This confusion continues to 4

GeWe, Rapport, p. 3. Roland Mousnier, La Vanalitas ties offices sous Henri TV et Louis XJII (Rouen: Editions Mangard, 1945), p. xxix. 5

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plague the public offices which serve a private clientele, and it represents the essence of the notarial dilemma. Writing of the early practice of the venality of offices, Mousnier describes the problems that were immediately apparent: The king and his representatives thus provided the example. They are the ones who initially filled public offices for a fee, a practice which began the venality ofoffices. They probably saw nothing reprehensible in this at a time when, except for a few elitists (especially among churchmen), little distinction was made between private property and public office, between public and private interest, in a period when it seemed only natural to make a profit (which we would consider immoral) from the public office one held.6 Already in the thirteenth century important personages like Frere Durand de Champagne (confessor to Queen Jeanne) said that "which should not be sold is being sold" and "we are selling to unworthy people who care nothing for the general interest and who are intent only on making a fortune and getting back on their personal enemies."7 In the sixteenth century, the criticism of the sale of offices became widespread, with the Etats Generaux of 1560 and 1576 requesting the abolition of the practice and that of 1588 going so far as to draw up a detailed plan for ending the sale of all offices. There were genuine efforts to move in this direction under Fra^ois I and at the beginning of Charles DCs reign,8 without important results. Because it was evident that the sale of offices "favors the rich—who are often incompetent and corrupt—to the detriment of the competent man and the worthy man," the voices raised in favor of the abolition of the practice included assemblies (like the Notables of 1596, 1617, and 1627), the Etats Generaux of 1614, and officials of the stature of Sully, Marillac, and Richelieu.9 The privileges associated with the sale of offices were 6

Ibid., p. 4. Ibid., pp. 3-4. 8 Ibid., p. 27. 9 Ibid., p. 81. 7

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37

abolished on the night of 4 August 1789. The Revolution thus accomplished what Frangois I, Henri IV, the assemblies, and the highest officials had been unable to do, generally for reasons having to do with lack of funds for indemnifying the officeholders. Frangois I and Charles IX failed to put an end to the venality of offices because the Treasury lacked the funds,10 while Henri IV promised to end the practice as soon as he had the means to compensate the officeholders.11 At first, the Revolution abolished outright the sale of administrative offices only, while leaving intact the practice of the sale of offices a clienteles because some people argued that such offices fell within the domain of legitimate private property. But a series of laws passed in 1790 and 1791 abolished the offices a clienteles (notaires, huissiers, agents de change, courtiers, procurers). But a subsequent law (of 6 October 1791) recognized these officeholders' right to an idemnity.12 A distinction was thus made from the outset, and even partially recognized by the legislation of the Revolution, between the outright sale of administrative offices and the sale of offices that had to live off the sale of services to clients. This distinction has had profound consequences, for it has allowed, down to the present day, the sale and purchase of public offices. The state of course no longer sells the offices, but the means by which such public offices are transferred from one owner to another is a legacy of the venality of offices practiced under the ancien rigime. It therefore remains an important moral, political, and to some extent legal issue. The social arguments against the venality of offices—rewarding wealth and incompetence—were as valid for the offices a, clientele as they were for the administrative and other offices. But the economic arguments advanced in the eighteenth century against the venality of offices were aimed more at the offices a clienteles, because this practice created monopolies and hin10

Ibid., p. 27. Ibid., pp. 119-20. GeHe, Rapport, p. 5.

11 12

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CHAPTER J

dered competition. Turgot was vehement in his denunciation of "the spirit of monopoly whose sole purpose is to discourage enterprise, to concentrate business among the fewest possible through endless formalities and expenses, through compulsory apprenticeships and journeymanships of ten years for professions that could be mastered in ten days, through excluding those who are not sons of a master and those who are born outside certain spheres."13 The economic arguments advanced by Turgot against monopolies created by the state not only attack a legacy of the ancien regime, but also find an echo in the mid twentieth century, for the same state monopolies continue to exist. The Armand and Rueff report on the obstacles to economic expansion written at the outset of the Fifth Republic attacked the "closed" professions for being a chief cause of rigidity in the economy and for being a structural cause of inflation. The socialist government elected in mid 1981 rehabilitated the arguments put forward by Armand and Rueff, who themselves were echoing Turgot when he wrote, "Furthermore, the administration must commit itself to removing obstacles which slow the progress of private enterprise through the reduction of either the scope or the reliability of its profit margin."14 Legacy of Venality:

TbeNotaires

The notarial profession represents the office a clientele par excellence. Neither the notaires nor the state have ever arrived at an acceptable understanding of where the public interests end and the private ones begin. We shall examine the resilience of the ambiguous status that results from occupying functions that are public while carrying them out by the capitalistic form of private property. Having explicated the complexity of the status, we shall examine the arguments advanced for resolving the ambiguity either by removing the commercial aspect from the public function or by removing the public function altogether, and hence creating a purely commercial activity. Finally, we shall ex13 14

A.R.J. Turgot, Ecrits iconomiques (Paris: Calmann-Levy, 1970), pp. 85-86. Ibid., p. 91.

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39

amine (in Chapter 4) a number of important attempts to resolve the dilemma during the years of the Third Republic. I shall reserve for a later part of this work the post-1981 attempts of the left to grapple with this problem. The end of the venality of offices in 1789 did not end privileges or monopolies for certain professions. Gradually, the notarial profession reacquired its monopoly and the privileges which had been threatened by the Revolution. Indeed, even during the Revolution notaires continued to buy and sell their offices. The reappearance, legitimation, and consolidation of functions and privileges are owed, like much else in French institutional structures, to Napoleon. The basis of notarial functions is stipulated in the law of 25 Ventose an XI (1803). It is this law that defines the notarial function of authentification of contracts, that stipulates the conditions under which one may become a notaire, that guarantees the notaire permanence, and that stipulates the conditions under which he exercises his functions. It is not difficult to discern in the Loi de Ventose the Napoleonic preoccupation with insuring stability by creating permanent institutions.15 The purpose of the law is stated very clearly at the outset in the Expose des Motifs that accompanies it: "to establish, on firm foundations, the rights of property, civil liberty and domestic peace."16 The Loi de Ventose assigns to the notaire an important role in maintaining social harmony. It is worth quoting the Napoleonic vision of this profession, pronounced in the Expose des Motifs of the Loi de Ventose by the Conseiller d'Etat Real, and ever since referred to by the notaires as the basis of all that they do. A fourth institution is necessary, and alongside those civil servants who reconcile and judge disputes, harmony requires other civil servants. These serve as disinterested counsels to the parties as well as 15 Napoleon's influence on the administrative structure suggests that precisely the same considerations were at work. See Ezra N. Suleiman, Ehtes in French Society (Princeton: Princeton University Press, 1978), pp. 17-24. 16 Expose des motifs du projet de loi sur !'organisation du notariat par Ie Conseiller d'Etat Real, seance du 14 ventose an XI.

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being the impartial inditers of their desires, explaining to them the extent of the obligations they are contracting, drawing up these contracts simply and clearly, giving these documents a legalform and the force ofjudgment in the last resort, upholding their memory and faithfully guarding their deposition: These civil servants prevent differences from arising between men ofgood faith while removing, along with the hope ofsuccess, the desire of greedy men to win an unjust suit. These disinterested counselors, these impartial inditers, this group of voluntary judges who irrevocably bind the contracting parties, are the notaires: This institution is the notariat.17 If Napoleon re-created on a sound juridical basis the notarial institution, it was the Restoration that re-created the venal aspect of the institution. The reason for this was no different from what had led to the practice of the venality of offices under the ancien regime: the need to fill the state's coffers. The Loi des Finances of 28 April 1816 (article 91) states that certain civil servants are allowed to present their successors to the sovereign. The law called for an increase in the amount of "guarantee" or "insurance" funds (cautionnement) that qfficiers ministeriels were called upon to pay prior to assuming their functions. The right to present one's successor was a way of reintroducing the venality of offices by the back door. "This law, which implicidy allowed a price to be set, granted—without establishing absolutely—the venality of offices as compensation for the supplementary fee demanded of ministerial offices by the law of 1816." 18 The law of 28 April 1816, which stipulated the means for the transmission of offices, "uses neither the words sale, appointment, nor any equivalent term."19 By simply stating that certain public officials (avocats a la Cour de Cassation, notaires, avoues, greffiers, huissiers, agents de change, courtiers, and 17

Ibid. R. Hurson, Etude sur une organisation du notariat en France (Paris: A. Chevalier-Marescq, 1894), p. 27. 19 J.-B. Duvergier, conseiiler d'etat, cited in Theureau, Etude sur I'abohtum, p. 200. 18

The Eternal Dilemma

41

commissaires-priseurs) have the right "to submit their successor for his majesty's approval," the law reintroduced the venality of offices. As one writer noted, "Beneath the cover of these few vague terms, an entire system of venality has opened up." 20 The Loi de Ventose (1803) and the Loi des Finances of 1816 must be taken as the yardsticks by which all state actions regarding the notarial profession ought to be examined. Taken together they created a situation full of ambiguity: The first defined the notaires' juridical functions; the second re-created the ambiguous status of a public official exercising a commercial activity, a status that met many challenges in the following century and a half. We turn now to an examination of this bastardized status, a status that, as we shall see, the profession has been loath to abandon. Indeed, the ambiguity in the profession's status has been transformed into the raison d'etre of the profession. The Advantages cf Ambiguity "There no longer exists either venality or heredity for any public office," the constitution of 3-14 September 1791 stated. "There no longer exist either wardenships or corporations of professions, arts, or trades."21 The law of 29 September-6 October 1791 agreed to indemnify the owners of the expropriated venal offices. "As for the future, the law placed the notaires among civil servants. This innovation was audacious and of great consequence but it was never carried out."22 This is as close as any government has come to resolving the problems posed by the offices minutenels. It is understandable that the notarial profession has sought to maintain a status that allows it to be seen as part of the public service and at the same time allows it to pursue its profit-making activities in the private sector. Consequently, the 20

Ibid. Theureau, Etude sur I'abolition, p. 9. 22 Jean-Louis Magnan, Le Notarial· et la Revolution francaise (Montauban: Imprimerie Forestie, 1952), p. 154. 21

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task of defining and legislating a clear status for the profession has had to fall on the political authorities. Yet no regime or government has ever succeeded in clarifying the ambiguous status. The profession has not felt the need to see its ambiguous status clarified. It has not regarded its public-private status as posing a dilemma or as being in any way ambiguous. This is because the self-interest of the profession has always dictated that a legal status that offers the advantages of public security and private gain is more desirable than a status that offered only one of these. This is unassailable logic, and notaires have acted by this precept in their battles for the preservation of the status quo and the defense of their self-interest. The bastardized status carries with it remarkable advantages for the profession. The state grants the notaire a monopoly, fixes the prices for the services the monopoly obligates him to render, protects him in numerous ways, particularly against the hazards of the market, and helps create the conditions for lucrative gain. The state is thus placed at the service of the profession. The notaires depend on the state for the creation of conditions that allow them to improve their economic wellbeing. The profession may well be a conservative one, but the basis of its existence is the tutelle and it has ferociously clung to the protective umbrella of the state.23 Despite the profession's need of the state's tutelle, it has never hesitated to attack state interference and to quote authors like Taine to the effect that state interference annihilates individual initiative. It has always argued that the state cannot supplant the private sector, so that whenever the state has taken over a specific private function it has carried out this function less efficiently. Moreover, "even where the State maintains or supplies the endowment for a service, it thereby controls it and the possibility exists that the State could corrupt it. In almost every instance where rulers have interfered with an institution it has been to exploit it for their profit and to the detriment of the 23

The analysis of the relationship between the state and the notarial profession (Chapter 11) will fully document this point.

The Eternal Dilemma

43

institution."24 And even when the state is well intentioned it will carry out these functions badly, "worse than the spontaneous and specialized bodies for which [it has] substituted [itself], for the structure of these bodies and the structure of the State are different."25 The notaires are delegated by the state to perform a function—the legalization of deeds—that the state requires performed on behalf of private parties. While they carry out this function on behalf of a state that grants them this monopoly, names them to their office, and controls their numbers, they do not always consider themselves to be a part of the state apparatus. And the prospect of becoming full-fledged civil servants appeals only to a minority that is attracted by the economic security that state service offers. The profession is clearly ttatiste when it seeks the state's tutelle for its own protection, which means above all the guarantee of the monopoly that the profession enjoys. The tutelle is also critical in less prosperous times, for the notaires then turn to the state and ask it to assume responsibility for those who are performing services on its behalf. The contradiction between the profession's ability to seek state links and protection on the one hand and its freedom to act as a private enterprise on the other was most clearly seen in the post-1981 period. The socialist government was at first feared because its Statute (and "collectivist") tendencies might lead it to nationalize the profession. When it turned out that all the projects that the government sought to introduce went in the opposite direction—loosening of the monopoly, introduction of competition within the profession, ending of the numerus clausus—the profession reacted vehemently, arguing that the state was set on a course designed to kill a profession that performed a public service.26 This was also a period when a number of notaires were suffering the adverse consequences of the economic recession, and the 24

Cited in Legrand, Le Notarial, p. 29. Ibid. 26 This is discussed fully in Chapter 10.

25

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profession sought as always state aid for its own public officials (i.e., thenotaires). The notaires have all along resisted full integration into the public service because this would remove the freedom to carry out ancillary activities which, in some cases, are far more lucrative than the monopoly. Since the state has always accepted—and in fact oversees the conditions of—the sale and purchase of offices, it has contributed to maintaining the ambiguity of the notarial function and of the profession. "A distinction has always been made between the monetary aspect and the office itself: The monetary component is the right to present a successor, the inheritable and venal nature of the position; the office itself is its public function and the delegation of supreme authority." 27 Indeed, it is claimed that because the state is powerless to act against the financial part of this duality—itself a dubious distinction—it attempts to compensate by claiming to control the management of such corporations (like the notaires) . 28 The fact remains that it is the state that has been chiefly responsible for perpetuating the ambiguity between public service and private commerce, even if that ambiguity has been sought and defended by the profession. The state delegates a part of its authority to the notarial profession and exercises a mild watchdog activity over the profession. This has earned it attacks for its attempts to control and centralize authority in any sphere that it comes into contact with. Under the ancien rtgime the kings were seen as filling the state's coffers by the sale of offices. In modern times, and even with the abolition of the earlier practice of the venality of offices, the state is still seen as engaging essentially in the practice of filling its coffers, but in a more modern style, "by requiring deposits into the Caisse des Depots et Consignations,"29 and by "using" the notaires as tax collectors, since all contracts drawn 27

H. Charrier, Le Notariatfremitus(Paris: Imprimerie Henri Jouve, 1905), p. 85. 28 Ibid. 29 Ibid., p. 84.

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45

up by notaires carry fees and taxes that go directly to the state Treasury. Hence, the state is still often seen by the profession as seeking to give vent to its appetite for control, since it seeks to regulate the profession and to be motivated by its considerable financial needs. "In short, these tendencies follow the more general movement toward control of all public functions and toward centralization. If the State seems insensitive to arguments against the venality of offices . . . it is because the financial situation cannot allow it to be." 30 It is true that the state would find it difficult to expropriate the notarial offices, given the sums that would be involved in indemnification. However, is there not a contradiction between seeking the protection of the state and even fearing its disappearance, and accusing the state of having an all-consuming appetite for control? The problem is not merely one of logic. It is a contradiction in reality, for the state leaves the control over members of the profession to the profession itself. One author has well expressed this contradiction. The notaire is a representative of state authority, but at the same time he is subject, in practice, to no higher authority: He alone controls his business, which w justifiable in the case of the small entrepreneur who is subject to the risks and sanctions ofthe market. Inasmuch as he acts in the capacity of "civil servanf he should be under the authority ofa judicial magistrate and not ofhis colleagues.31 Thus, the notaires have often tended to see the state as ready to seize control over any institution in the society. The survival—indeed, the prosperity—of the profession requires it to have the state maintain its tutelle but stop short of assimilating the notaires into the public service proper. The tutelle is a guarantor of legitimacy, and this legitimacy is transferable into economic gain, since it enables the notaires to make inroads in other sectors clothed in a robe legitimized by the seal of the 30

Ibid., pp. 84-85. Henri Mendras, "Les Contradictions du statut de notaire," unpublished note, 30 May 1983, p. 3.

31

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state. The tutelle which the state exercises over the profession involves minimal control, since the corporation is left to police itself, and maximal protection. The notaires, who are mindful of this privileged status, have sometimes tended to cloud the picture by introducing the smokescreen of total control that the state is seeking in its attempt to transform the notaire into a civil servant. This warning was sounded over and over again in the nineteenth century: "The notaires face a serious danger, the loss of their freedom and their assimilation into other public service. The State is slowly moving in this direction. It is up to them to limit this movement by enforcing strict accounting and scrupulous honesty among all their members. Through their behavior, they must deny the State any possibility of further encroachment."32 The venality of offices ended when the state ceased to sell offices. The venal aspect of public offices continued for a limited number of professions when the state allowed the sale and purchase of offices to which it delegated public authority. The venal aspect was also continued when the state allowed the seller of a public office to name his successor. The state went further than merely sanctioning these practices: It provided a guarantee that the corporation would be protected against competition by the establishment of a fee scale and by control over the numbers of those entering the profession. Neither the uniform fixed fee nor the principle of numerus dcutsus has been abandoned. The state therefore sanctions private gain emanating from the performance of public duties and has raised no objection to the practice whereby the notaire seeks to enrich himself by carrying out activities that do not come under the monopoly for which the state has established a fee. The state thus comes to have an ambiguous relationship to the office it supervises, since it has granted it an ambiguous status. The notaires, for their part, have, as I indicated earlier, done all that is possible not only to avoid resolving this ambiguity, but in fact to perpetuate it. To be thought of as public servants carries with it great advanCharrier, Le Notariatfremitus, p. 85.

The Eternal Dilemma 47 tages so long as the profession succeeds in escaping being brought completely into the public service. The profession needs the legitimacy which association with the state confers on it. Beyond that, it seeks to be viewed as engaged in private entrepreneurial activity. The ambiguity in the notaires' relationship with the state has served the profession well. It has given it both legitimacy and protection with minimal control, to an extent that has enabled the profession to make use of or to benefit from the state in an exemplary way. The state, on the other hand, has not been wholly comfortable with what has been referred to as a "hybrid" status.33 For almost two centuries, a variety of governments and politicians have sensed that the hybrid or bastardized status of the notarial profession was somewhat unhealthy and, as we shall see, sought to introduce measures that would rectify this state of affairs. Public Service or Liberal Profession? At the 1983 annual congress of notaires in Avignon, Robert Badinter, the minister of justice, assured the profession that it was not about to be abolished ("'even if the notarial profession must change? he said, "it must nonetheless continue to exist") and that there was no question of either turning the notaires into civil servants or turning them into a liberal profession. Beyond the two extremes that the socialist government had rejected, Badinter explained that certain reforms had nonetheless to be envisaged.34 The important point is that Badinter felt it necessary to reassure the profession that the government had no intention of disturbing the ambiguity in which the notaires had been accustomed to exercise their profession. The public service-liberal profession issue is as old as the original statute defining the notaires' duties, and that it remains an issue today is tes33 Raoul de La Grasserie, L'Etat actuel et la reforme du notariat en France (Paris: A. Fontemoing, 1898), p. 154. 34 Text of speech by Robert Badinter in "Revue du C.S.N.," supplement 1 in VIP, 83/4, pp. 17-21. The reforms proposed by Robert Badinter, as well as their fate, are discussed in Chapter 10.

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timony to the resilience of the "hybrid" concept that has served the profession so well in the past. During the course of the nineteenth century there were genuine efforts made to resolve the dilemma created by the notarial statute. As we saw, the venality of offices was abolished by the Revolution of 1789, though the actual sale and purchase of offices continued until it was recognized again as being legitimate during the Napoleonic period. An attempt to do away with the profession's hybrid status was made by the Commune in a decree dated 23 April 1871, which turned all the officiers minuteneh into civil servants who were required to turn over to the state each month all the sums they received for the services they rendered. The decree had no lasting impact and the next thirty years saw a number of bills presented to parliament, all of which aimed at removing the vestiges of the venality of offices.35 It was generally recognized that once the practice of the venality of offices is abolished, two possibilities present themselves: "Either the notaire will become a salaried civil servant, or else entry into the profession will be completely open to anyone who wishes to practice it."36 Should the notaires become civil servants, or should they become practitioners of a liberal profession like doctors, lawyers, and accountants? Should the state assume responsibility for the legalization of contracts, or should this function be assigned to a profession that is wholly independent of the state? This is, as we have seen, not a new dilemma, and the central issues have remained unchanged: (1) Is pecuniary gain compatible with a public service function? (2) If not, should the function then be permitted to be carried out within the context of a business enterprise? (3) If, on the other hand, pecuniary gain is considered admissible because it introduces competition which 35

Among the most important bills presented to parliament were those of Pontoise, 6 May 1890; Emile Ferry, 13 June 1892; Fourniere, 12 January 1899; and Clemenceau, 23 October 1902. See Charrier, LeNotariatfran(ais, pp. 13744. 36 Ibid., p. 144.

The Eternal Dilemma

49

ultimately serves the clients, should the state then not withdraw its protection entirely? When the issues are posed in these terms, it is easy to understand why the notarial profession has preferred to leave them unresolved. The status quo guarantees government protection and the possibilities of private gain. It is interesting to note that legal scholars, governments, and the public in general were far more concerned with these issues in the nineteenth and early twentieth centuries than they are today. The basic issues are still there, but they are no longer widely discussed as they were prior to World War I. This says much about the changed role, influence, and power of the notarial profession in the society, and we shall examine this more closely in Parts Two and Three. The objections to the ambiguous status of the notaire in the nineteenth century were of a moral and legal nature. The state could not be involved in commerce, since it represented the general interest; and to the extent that it helped a group make money, it could not be representing the interests of the entire collectivity. One distinguished jurist noted: France is the only country to have venality of offices. It exists nowhere else. . . . Every other country believes that public offices should not be sold, any more than positions in the army or the judiciary.. . . Under the old laws, venality ofoffices was understandable: Everyone practiced it. Under the new laws nothing justifies it, nothing explains it. Itu a monstrosity. In fact, it has only been reintroduced in France through the back door, for a financial purpose. Venality was approved in 1816 to provide security, and this security did not serve to protect the public, but rather to provide liquid capital to fill the Treasury. It was in the interest ofmoney that the interests ofall were abandoned}7 The objection to the existence of a hybrid property is that it mixes commerce and public authority. The choice, it was suggested, was a simple one: Either the state takes over all the offices 37

La Grasserie, L'Etat nctuel, p. 239 (emphasis in original).

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minutarieh or they become entirely independent of the state. "In the first case, the official would become fully a civil servant; in the second, he would head an enterprise that is entirely private. But all the confusion would thereby be removed. Those privileges, both public and private, which are against the nature of our profession—although exploited by some to the detriment of all—would disappear."38 The issue of the venality of offices remained a sensitive one in the nineteenth century, particularly under the Third Republic, when it came under severe attack because of its ties to the ancien rtgime. As the state gained its independent authority and became separated from society, the view that "a public office should not be commercial"39 gained momentum. The notaires themselves did not consider their hybrid property to pose particular legal or moral problems. They have always viewed with horror the prospect of being turned into civil servants, because they consider that such a measure would signal "the death sentence for the notarial profession."40 The justification for their public and private status has sometimes had a tautological ring to it. The notarial function, "since it can be neither free nor part of the State, must necessarily be of a hybrid form. . . . Because of this blend of complex elements, the notarial role is said to be both public and private."41 This is the position that the profession has always adopted, and to state it in a definitive manner is not the same thing as providing justification for its mixte status. The profession has generally been armed with other arguments to defend its status. These have had to do with a particular relationship to clients and, secondly, with the specter of an omnipotent state trying to fill the special role that only a notaire who is close to the people can do properly. The notaires have seen themselves as creating a relation38 39

Theureau, Etude sur I'abolition, p. 216. Raoul de La Grasserie, Da offices (Rennes: Imprimerie E. Baraise, 1887), p.

6.

40

41

Charrier,LeNotariatfrangaL·, p. 145. Legrand, LeNotariat, pp. 30-31 (emphasis in original).

The Eternal Dilemma

51

ship of trust and confidence between themselves and their clients, a relationship that could not exist if the notaires were turned into civil servants. "Would the public willingly go to him the day after he set up shop to entrust an entire personal fortune to his care?"42 A civil servant has not paid a high price for his practice and cannot have the same devotion to his clients. "To be convinced of this, one need only think of the continual patience required, day and night, of a notaire in order to satisfy his clients."43 The particular relationship of the notaire to his clients was taken very seriously in the nineteenth century. The notaire as the guardian of family secrets and as the peacemaker among families is an image that dies hard. Indeed, even a deputy who proposed the abolition of all the offices ministineh in 1910 had second thoughts when he came to consider the notaires. The delicate issue remains the fact that relations between the client and the notaire presuppose a degree of trust which would be difficult to find in a civil servant. When one considers the extremely delicate negotiations required by a marriage contract or the intimate secrets preceding the writing cfa will, one is forced to ask oneself whether it would be possible to require the parties to use a civil servantfor all of these documents, even if this official were not sitting behind a counter.** The image of the notaire drawing up marriage contracts, resolving family quarrels over property, advising families on what to do with their fortunes is a powerful one. He is close to his clients, he knows them and knows all about them, and because they trust him he can influence them. The invocation of this image continues to be made today, and while it may have corresponded to reality in a rural society, it is doubtful whether it is appropriate to justify the hybrid role of the notaire by invoking a role that scarcely exists in an urban society. As one sociologist expressed the change: 42

Charles Bomn, Du monopole des notaires (Paris: A. Pedore, 1902), pp. 38-39. Hurson, Etude sur une organisation, p. 34. 44 Cited in A. de Gayffier, LeRoIe economique du notaire (Paris: Giard et Briere, 1911), p. 6. 43

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The stability of a notaire spending his whole life in one office corresponds to the idea of a local magistrate, the family adviser who can "resolve" issues among families because he knows them all. This role can no longer be guaranteed in the city in large offices, nor if the notaire pursues his career by moving from one office to a larger one in a larger city. There is a contradiction between the traditional image of a notaire and the idea ofa career.45 In addition to doing away with a close confidential relationship between the public and the notaires, the notaires also claim that turning them into civil servants would add to the public payroll an additional ten thousand 46 or hundred thousand 47 —depending on the estimate—civil servants. The specter of a large, centralized state that would end in the loss of liberty for all is often invoked by the profession. "The major problem that would result would be the limitation of political freedom, and this new objection to the [state] purchase of offices seems to us of such importance as to cause serious reflection!" 48 The integration of the notaires into the civil service is thus seen as posing a danger for democracy and for public liberties. The confidence established between the citizen and "the true magistrate. . . of voluntary jurisdiction"49 would be replaced by the interests of an army of civil servants bent only on their careers and devoid of a human concern for their clients' personal problems. "What plotting, what solicitation, what favoritism would result! To do so is to throw open the door to the deadly effects of politics."50 The civil servant has no soul, because "the soul of a civil servant is to aspire to promotions. Thus no relationship of trust or intimacy is possible between him and his clients."51 45

Mendras, "Les Contradictions du statut de notaire," p. 3. Hurson, Etude sur une organisation, p. 33. 47 Charrier, Le Notariat francaL·, p. 145. 48 Gayffier, LeRdIe (conomique, p. 163. 49 Hurson, Etude sur une organisation, p. 4. 50 Charrier, Le Notariatfran(ais, p. 147. 51 Ibid., p. 151.

46

The Eternal Dilemma

53

If the arguments against assimilating the notarial profession into the civil service have to do with Courtinlesque images of the rond-de-cuir arriving and leaving his office at the sound of the bell, having no heart, devoting little time and care to people's problems, and ultimately threatening their liberties, why then not set the profession totally free, leaving it to act in the same manner as the doctor and the lawyer? The notaire could continue being the adviser and confidant of families, as well as whatever else he wished to be, and the state would be that much less of a weight on the society. The profession has been no more favorable to liberalization and the shunning of the state's tutelle than it has been to integration into the civil service. It was perhaps easier to argue against economic gain when anticapitalist values dominated in the nineteenth century. Prior to the modernization of the profession that occurred in the post-World War II period, the notaire saw himself as a noble figure for whom it was not becoming to manifest an interest in economic gain. Being anchored in the countryside, he adopted the aristocratic values that included disdain for money. He did not go in search of clients, who were expected to seek him out in the same way that they sought out a priest. "An office is not and should not be a commercial venture,"52 and a notaire was expected to exercise his functions "without making a business of it."53 The general acceptance of a market economy in the society has altered the notaires' own view of their work and made them far more sympathetic to the view that commerce is an honorable activity in a capitalist society. The most dynamic notaires are those who go in search of markets and who show an increased profit margin from year to year. Yet the self-interest of the profession as a whole requires the rejection of liberalism. Just as integration into the civil service is rejected on the ground that it is against the public's interest, so too is liberalization seen as being harmful to the public. Competition would 52 53

Hurson, Etude sur une organisation, p. 29. Ibid., p. 31.

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lead to "afiercebattle between [practitioners] at the expense of their customers."54 While competition is generally recognized as including advantages for the public, the notaires argue that where they are concerned, a monopoly has the same advantages, "for it must not be forgotten that while competition may be healthy and necessary in business, in the notarial profession it is absolutely deadly and contrary to the public's better interests."55 Commerce, even if it is not regarded as the unwholesome activity it once was, nonetheless attracts profiteers and unscrupulous people, and the profession would befilledwith such undesirables. One writer, to make such a point, went so far as to paint a caricature of the role of lawyers in America and of solicitors in England: "There exists no legal system of control, no disciplinary action, no guarantees. Nothing protects the client from negligence or fraud."56 The loss of monopoly implies the loss of control by the state, which implies competition with other professions. As Charrier put it, "In point of fact, if the offices were given complete freedom we would see present businessmen filling all the positions and bringing to the job those practices so often criticized in businessmen."57 Competition would also, it was argued, have an adverse influence on the notaires' probity, for it often forced them into questionable financial arrangements that had terrible consequences for the clients. Making the notaires civil servants would end all the vices associated with the frantic search for money and with highly questionable investments and would give them "all the qualities unquestionably associated with the great family of civil servants."58 Preservation tf the Dilemma The dilemma that characterizes the notarial status can be summarized as follows: To be confined to a narrowly circumscribed M

Ibid., pp. 13-14. Ibid., p. 14. 56 Cited in Charrier, LeNotariatfrangais, p. 152. 57 Ibid., p. 153. 58 La Grasserie, L'Etat actud, p. 252. 55

The Eternal Dilemma

55

role is to be reduced to insignificance; to go beyond the legally defined role is to engage in commerce and to be subject to the vicissitudes of competition. How, then, to prosper? How, in other words, can the profession maintain its monopoly, engage in commercial activities, and ward off competition? This is what the profession has sought to have and it explains the reasons for the existence of the public and private status of which it is the beneficiary, and which has been accurately described here: Thus on the one hand private enterprise, and on the other, public service: ThisL·the condition we find the notarial profession in today at the end of the law of25 VentoseXI. It is the accumulation of two types of privileges of completely different natures, but which can only offer, as one might imagine, a far greater and far more dangerous freedom ofscope to the person occupying it.59 The dilemma that I have described is thus a dilemma of the state and not, strictly speaking, of the notaires. The notaires have fought against integration into the civil service and against the freedom to exercise their profession without the state's tutelle. This is because, from their point of view, both would have essentially the same consequences. Becoming civil servants means the total abandonment of possibilities for earning money. The danger of liberalizing the profession comes from the fact that competition from other professions could render the notaires insignificant by reducing them to rubber stamps. The notaires have always feared competition from other professions (lawyers, accountants, fiscal experts, real estate agents) who succeeded in varying degrees and at different times in acquiring notarial markets. The notaires have even objected (and continue to do so today) to competition from the state, since the state is legally empowered to legalize certain deeds. Living off their legally defined monopoly, which is why they are named to their office in the first place, has become synonymous with lack of financial prosperity. Were they ever to be forced into doing merely what the state appoints them to do, they would, Theureau, Etude sur I'abolitim, p. 239.

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it is claimed, fall into this position. "Privately, the notaire per­ forms only insignificant tasks: Like a public writer he writes let­ ters at five shillings apiece, he gives advice whose price is pro­ portionate to the time required to give it, he writes protests for businesses, travel reports for captains of merchant ships, he no­ tarizes signatures." 60 The goal of the notaires has always been to use the state's legitimacy to engage in commercial activities and to use the state to protect it against competition. Even within the confines of the law which obliges legalization of contracts, there is room for contracts sous sang prive, and the notaires have never hesi­ tated to ask the state to put an end to means by which contracts could be obtained more cheaply. Institutions—state and nonstate—could fulfill many of the same legal functions. A former notaire, wondering at the beginning of the century about the logic and utility of the notarial function, suggested that the way to carry out the notarial function in the least cosdy and most ef­ ficient way would be to constitute a large corporation that would draw up contracts sous seing prive. He asked what would happen if an institution like the Credit Lyonnais were to open new counters and to say: " 'Such and such a contract sous sang ρηνέ that anyone may write, with the cooperation of special agents, specially trained both in theory and practice, I, Credit Lyonnais, I am offering it to you at a reduced rate.' Who could refuse such an offer? Who would lose with this deal and so who would refuse to give his custom to a business of such size and 61 reliability?" The profession continues today to attack the practice of the actc administratif, which allows both the state and, in certain instances, the private citizen to legalize transactions by admin­ istrative as opposed to notarial means. It considers that the state is competing with it, that it is an obstacle to the exercise of its liberties, and that it is not in the administration's interest. "The notarial profession, like most free professions, expects admin­ istrations to recognize the value of its services and to stop cornCited in Charrier, LeNotariatfrangais, p. 152. Bonin, Du monopole des notaires, p. 51.

The Eternal Dilemma

57

peting with it."62 The administration has recourse to the acte administratif because it believes itself capable of doing what the law requires as efficiently and more cheaply than would be the case if a notarial contract were drawn up. The public authorities have been taken to task by the profession for bypassing it. "One can understand that for the past ten years or so, the notaires have viewed these acts as a form of hazing."63 In the profession's attacks against any form of competition, both within the profession and between it and other professions, is revealed the whole ambiguity of the context within which the notarial profession has sought to operate. The profession has sought to preserve its monopoly but has feared being confined merely to that monopoly. It has therefore sought to go beyond its legally defined role and enter into the domains of accountants, fiscal experts, lawyers, and real estate agents. All proposals for reform started out from the basis that the venality of offices is incompatible with any kind of public service. At question were the sale of offices and the droit de presentation.64 In addition, the notaires exercised their function within a monopolistic context and according to the principle of a numerus clausus. Hence, they engaged in commercial activities, enjoyed a monopoly, and reduced competition among themselves to a minimum. This is the situation that prevails today, no different from the one described in the mid nineteenth century: None ofusL·ignorant of. . . what passesfor the office ofa notaire, an attorney, a moneychanger, and others. The number ofpositions L· limited and the selection ofcandidates is the responsibility ofthegov62

Cited in Guy Bellargent, "Requisitoire contre facte administratif," VIP, 83/3, p. 4. 63 Ibid., p. 8. 64 The droit de presentation has been a major issue since the start of the nineteenth century. The latest attempt to do away with this right was made by Robert Badinter, minister of justice in the socialist governments of Prime Ministers Pierre Mauroy and Laurent Fabius. A detailed discussion of Badinter's effort to effect important changes in the notarial profession and the consequences of these efforts can be found in Chapters 10 and 11.

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ernment. So muchfor appearances, this is the reality: The incumbent who, for whatever reason, has decided that the time is nghtfor retirement finds someone to buy his business, keeps a certain sum for himself (which has been substantial in some cases), and receives from the authorities the nomination of the candidate he presents. This practice, which was merely tolerated under the Empire, has been sanctioned by the law of 1816 (article 91) .65 It was often necessary, as the socialist government tried to do when it came to power in 1981, to emphasize the ambiguity inherent in a legal profession exercising a monopoly on behalf of the state and using the state's benediction to engage in private activities. From time to time it became necessary to strip away the masks and recognize and, if need be, accept that state service was being converted into pecuniary gain. Moreover, because the profession feared the public's reaction to its anomalous and privileged status, it gradually adopted a language that served to make its practices more palatable. One jurist noted at the end of the nineteenth century that so incredible was the concept of a notaire buying and selling his practice that an attempt was made to change "all ordinary terminology. Sale was only a transfer; that which was being sold was not the office, but its income. These are mere subtleties. The harsh reality is that the office itself is sold. . .a saleL·always a sale, whatever name L·given to it; moreover, the sale ofpublic offices will always be dktasteful to common sense"66 The use, or abuse, of language to cover the act of the sale of public office is understandable in light of the fact that such a sale was repudiated by the law of 25 Ventose an XI, and by the post-1789 sense of justice and morality. The law of 1816 used, so to speak, the back door to reintroduce the sale of offices by allowing the notaire to present his successor. In spirit, the sale of public offices had ceased. The view that "it is shameful that a Cited in Thcureau, Etude sur I'abohtum, p. 170. La Grasserie, L'Etat actuel, p. 146 (emphasis in original).

The Eternal Dilemma 59 public office should be sold"67 was widely shared, and many shared the view in the nineteenth century that "this venality is . . . monstrous."68 Yet the profession has succeeded in preserving its ambiguous status. The dilemma of the hybrid status was and remains solely a problem for the state. 67 68

Ibid., p. 147. Ibid.

CHAPTER 4

The Eternal Crisis The notaires'function. . .is ennobled by the state's investiture. The profession receives all its prestige ana reaps significant benefits . . . from this investiture. —EMILE BENDER (1931)

There has scarcely been a time when the notarial profession did not consider itself, or was not considered by the society, to be in the midst of a crisis. The semipermanent nature of the crisis is tied to the ambiguous status of the profession. Hence, a crisis exists whenever the notaires do not fulfill their public role in the expected manner and whenever they fall on hard times. In the first case, they are public servants distracted by their private economic activity; in the second they run profit-making enterprises but appeal to the state in their guise as public servants. In the 1980s the profession considered itself to be in the midst of a profound crisis that entailed above all economic dangers for the profession. In 1983, a deputy put a question to the minister of justice in the National Assembly about the notarial profession, which, because of the decline in the real estate market, "has been experiencing a serious crisis since the spring of 1982." 1 The 1960s and 1970s were the golden age that witnessed France's spectacular economic growth, and particularly the development of the housing industry. The profession was a direct beneficiary of an economic and housing boom that it had no hand in creating. A semiofficial publication of the notarial profession noted in 1983 that "like many sectors of the French economy, the notarial profession has gone through several economic stages since the war: a period of rapid growth until about 1973, followed by a period of slower growth from 1974 to 1981, and a period of decline during the last two years."2 What 1

Journal Officiel, 2 May 1983, p. 2046. Cited in VIP, 83/7, p. 19. J. Lesourne, H. Mendras, P. Raynaud, and J. Rivero,LeNotariatfrancais: analyse etperspective (Clermont-Ferrand, 1983), pp. 40-43. 2

60

The Eternal Crisis 61 is less evident is that the profession is directly dependent on the economic activity created by the productive sectors of the economy. The prosperity of the profession in the postwar period was directly linked to the housing industry's remarkable growth. It is indeed a cliche within the profession that when real estate is in good health, so is the notarial profession. In view of the fact that "the real estate boom of the postwar period is definitely over,"3 the profession found itself in the early 1980s in less prosperous circumstances than during the 1960s and 1970s. Economically, the notarial profession sees itself as confronting a new situation, one in which its traditional markets are on the decline.4 It therefore appeals to the public authorities for aid as it searches for new markets. The latest economic difficulties came at a time when the profession was politically vulnerable. It considered itself to be one of the "mal-aime" groups of the left government that came to power in 1981. Gone, it felt, were the days when the profession had for the asking a sympathetic hearing from the public authorities, when tutelle meant defense, when lobbying scarcely needed to be called by its name because matters between the profession and the public authorities were settled a Vamiable, and when an increase in notarial fees could come on the eve of an election even though the votes of the profession were assured.5 In the early 1980s the notarial profession was, for the first time in three decades, subjected to a situation that was threatening both politically and economically. The coming to power of the left in the midst of an economic crisis meant that little relief could be expected from a government that would be catering to a different constituency. "This is a regime that favors unions and not patrons, so we are under heavy attack," said a 3

Maitre Lcgeay, "Ne ratons pas Ie train," VIP, 83/4, p. 33. For the changes in the notaires' economic activity from the 1960s to 1981, see Lesourne et al., LeNotariatfran{ais, pp. 43--46. 5 A significant increase in notarial fees was granted by Alain Peyrefitte, minister of justice, in March 1978. 4

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high-ranking official of the profession. Another official put it this way: "The socialists don't like those who make money, so the liberal professions can't expect anything from this regime." The relationship between the notarial profession and the state is not quite so simple and did not in reality undergo such a drastic change. Indeed, the official cited above who noted the preference which the left showed for unions was not unaware that, as he put it, "the state has different parts, and a few of these remain favorable to us." Yet it is the case that the profession viewed the left government as being hostile to the liberal professions, which are generally seen as consisting of wealthy tax-dodgers, and which practice narrow corporatiste policies. The left had, to be sure, not viewed kindly the liberal professions that not only enjoyed privileges but served a wealthy clientele. "The rich serving the rich" could not be viewed kindly by a left-wing government. Whatever the reality—and certainly there are poor doctors and poor notaires—the liberal professions had a greater affinity with the right. The change in the political landscape produced by the presidential and legislative elections of 1981 came as a shock to the notarial profession. A Ministry of Justice official put it this way: "The problem is that these professions had it very easy. Look at the notarial profession. Before 1981 they had their entry everywhere, and they almost always got what they wanted. They were well connected and they were well received everywhere, in the government, in the ministerial cabinets, in the administration. The government never proposed to do anything that displeased them. So if s natural that they should be wary of us, and that the most timid of reforms that we propose will appear revolutionary to them." We shall discuss the attempts of the socialist government to reform the profession and the extent to which a socialist state was able (or unable) to confront the profession head-on. The question of whether a government bent on injecting a greater degree of egalitarianism into the society by ending abuses and privileges was able to act

The Eternal Crisis 63 with greater determination and independence than a government that was more willing to accept pockets of privileges is one that we shall turn to in a later part of this work. The socialists and their communist allies stirred fear among the more privileged groups when they took over the reins of the state. They aroused particular consternation among a number of groups that they singled out as being in need of reform. The notarial profession was one such group.6 Hence the political threats that the profession experienced in 1981 and the economic downturn that the profession was experiencing produced yet another crisis for the notaires. Crises in Perspective FRAUD

For most notaires, as well as for the official organizations of the profession, the crisis opened up by the arrival to power of the left was so severe as to render it unique in the annals of notarial history. "We have never before faced a crisis of this sort," said one notaire, expressing a widely shared view. Memories are undoubtedly short, for a historical perspective suggests that, serious as the threat posed by the left was, it was mild compared with the threats and crises that the profession faced in the nineteenth century. Two forms of crises may be distinguished: one emanating from the notaires' abuse of their office; the other deriving from political attempts to rectify abusive situations. Hence, economic and political factors, in one form or another, have thrust the profession into numerous crises in the past. The crisis of the 1980s did not become a matter of public debate. The profession's anxieties and the left's projects for reform did not enter the public sphere and never really became a subject that was openly debated. The debates and discussions 6

For the criticisms that the left directed at the notarial profession, see Chapter 9. The criticisms that came from various parts of the left did not represent government policy, and they need to be (and will be) distinguished from the specific proposals that the public authorities made to reform the profession.

64

CHAPTER 4

took place behind closed doors between the profession and the public authorities. The lobbying, the compromises, and the mobilization of allies all took place in the corridors of power. This is very different from what occurred throughout the nineteenth century. As Emile Legrand noted in the mid 1890s in his book Le Notariat et la crise actuelle, there was considerable public debate over the notarial issue.7 Why such public concern? Why so many projects? Why such concern by the political authorities? Legrand noted that whereas prior to 1890 it was usual to speak of the notarial "crisis" and to allude to "reforms and improvements," "today, given the inability of laws to put a halt to the problem, we are going even further; extreme solutions are being proposed, to such an extent that a writer no longer hesitates to write an article on the topic entitled 'The End of the Notarial Profession.' " 8 The notarial crisis of the nineteenth century, which became acute in the second half (and particularly the last quarter) of the century, was related to the notaires' ambiguous status and to their questionable competence. The profession did not inspire confidence and several governments grew concerned by the scandals that the profession brought upon itself almost daily. Public outcry led to numerous attempts to resolve what had become an untenable situation. The clearest manifestation, as well as a cause, of the crisis was the existence of a large number of dishonest notaires against whom measures had to be taken by the public authorities. A parliamentary study was made in 1890 which cited figures for the number of notaires revoked by the government. Prior to 1870, about fifteen notaires were revoked every year. In the last quarter of the nineteenth century, the number of notaires that had to be revoked began to climb sharply, as Table 4.1 shows. The minister of justice, M. Darlan, gave figures for the revocations that the government carried out in the last decade 7 8

(Paris: Librarie de Firmin-Didot, 1984), p. 1. Ibid.

The Eternal CrisL· 65 of the nineteenth century. He did so in the Expose des Motifs of a law relating to the recruitment of notaires.9 After 1895, according to Charrier, the number of sinistres (a rather mild word that is used in the profession to cover fraud) averaged between 20 and 30 a year, except in the first years of the twentieth century, when the average rose to between 30 and 40. 10 The amount of money that the public was defrauded of could not always be accurately estimated. It is reported that 62 million francs were involved in the revocations that occurred between 1880 and 1886, and 13 million francs in just 46 of the 103 revocations that occurred in 1889. The amount that the

TABLE

4.1

Number of Notaires Revoked in the 1880s Tear

No.

1882 1883 1884 1886 1889

31 41 55 71 103

TABLE

4.2

Number of Notaires Revoked in the 1890s

9

Tear

No.

1891 1892 1893 1894 1895

48 39 38 48 24

For the figures cited, see H. Charrier, LeNotariatfran(ais (Paris: Imprimerie Henri Jouve, 1905), p. 28. 10 Ibid., pp. 28-29.

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public lost in the other revocations of 1889 could not be even approximately estimated.11 These figures give only an indication of the large sums of money that notarial clients lost, and do not even accurately represent the number of notaires involved in illicit dealings. For one thing, the figures refer only to revocations that required a judicial judgment. In addition to these destitutions, it was well known that a certain number of notaires were forced either by the government or by the Chambre de Discipline of the profession to give up their practices "as a result of either bad business, or the illegal nature of their transactions; they leave their practice either to avoid a scandal which always affects the profession as a whole, or to protect the interests of the creditors by allowing the holder of the office to get a better price through a voluntary sale."12 Hence, action was taken whenever possible both to avoid scandals and even greater losses and to help the notaires to salvage what they could of their businesses. Such action did not involve judicial judgments; as a consequence, exact figures on notarial fraud were difficult to come by in the nineteenth century. Figures relating to notarial fraud are always difficult to obtain. The authorities fear a breakdown in the public's confidence in the notarial profession, while the profession itself fears jeopardizing a shaky public image. The consequence is that the extent of notarial fraud is never actually known. This is as true for the 1960s and 1970s, when the public grew accustomed to reading about enormous losses caused by notaires who were in a hurry to utilize their clients' funds for questionable investments that promised large returns, as it was for the nineteenth century. However, internal documents of the Conseil Superieur du Notariat give as precise an idea as it is possible to obtain of the extent of fraud committed by the profession. The number of frauds which required compensation by the Caisse de Garantie (the notarial organization that guarantees all funds lost by 11 12

Legrand, LeNotariat, p. 73. Charrier, LeNotariat frangais, p. 29.

The Eternal Crisis 67 clients when this occurs through notarial deeds) was between 15 and 20 a year in the 1970s. 13 It is interesting to note that the notaires who have exercised their profession for the longest period (and who are oldest) tend to be the most fraudulent. Whereas only 1 percent of notaires under the age of thirty-five are involved in fraudulent activities, 39 percent of frauds are committed by those who are over sixty years old. 14 It stands to reason, therefore, that the notaires who have exercised their profession for the longest time are the most fraudulent (Table 4.5). How significant are the frauds committed by notaires? It is very difficult to estimate with accuracy the sums that the public is defrauded of. Some of the fraud goes unreported because a person may have entered into a private arrangement with the fraudulent notaire. Wishing to avoid scrutiny by tax authorities or by his family, this individual will make no claim to the Caisse de Garantie. Others will have ignored the fact that the notaire did not draw up the required documents and so will see their claims rejected by the Caisse de Garantie. The figures given in Table 4.6 have not previously been made public, but care should be taken to note that they pertain only to what the Caisse

TABLE

4.3

Number of Notaires Involved in Fraud (1971-1980) Year

No.

Year

No.

1971 1972 1973 1974 1975

15 18 15 20 13

1976 1977 1978 1979 1980

33 20 14 14 15

13 CSN, Groupe de Travail Livre Blanc, Compte-rendu no. 7, 18 March 1983, p. 8. 14 Ibid., p. 9. All data for the contemporary period are taken from this document.

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de Garantie paid out, and what the CSN considers to have been lost by clients as a result of notarial fraud. Because the public authorities have never issued figures taking account of the total claims made by the public against fraudulent notaires and the total amount actually paid out by the Caisse de Garantie, we need to bear in mind that the figures in Table 4.6 refer only to what the Caisse de Garantie considers to have been lost by "legitimate" fraud. Occasionally a fraud by a notaire will reach gigantic proportions. Two notaires (Boyance and Delarue) have entered the annals of notarial fraud. Between them the sums involved totaled 110 million francs.15 The fact is that notaires handle very TABLE 4 . 4

Age Structure and Fraud by Notaires Age

% of frauds

36-40 41-45 46-50 51-55 56-60 Over 60

7 12 18 15 10 39

TABLE 4.5

Number ofTears of Practice and Fraud by Notaires

15

No. of years in practice

% of frauds

Under 6 years 6-10 years 11-15 years 16-20 years 21-25 years 26-30 years Over 30 years

6 17 16 18 13 10 20

CSN, Compte-rendu no. 7, p. 9. On the subject of notarial fraud, and for in-

The Eternal Crisu 69 substantial sums of money, and if they are overcome by dishonest temptations the losses are generally considerable. It is not insignificant to observe that the word fraud is unknown in the notarial lexicon. Language is used (or abused) once again in the service of a cause. To call a spade a spade is to risk damaging further the image of the profession. Hence, at all times the neutral term sinistres must be invoked. Lefevre put this well some years ago: When a notairegoes bankruptfor one reason or another, or should he run off with a pretty woman—which is far lessfrequentthan people would like to believe—thisL·called a sinistre [dhaster]. And this single term is the key to the mindset ofthe notarial profession. Never, at least in public, does a notaire use the termfraud,and only rarely that of bankruptcy. He always says sinistre. For everyone else it refers to a fire,flood,some catastrophe, something completely beyond human control or initiative. In other words, an event about which one can do absolutely nothing. For notaires, the bankruptcy ofone oftheir members produces the same reaction.16 The question these data pose is whether some structural factor encourages fraud in the profession. Why is it that those who have exercised their profession for the longest time are the most likely to commit fraudulent acts? The simple and likely exTABLE

4.6

Amounts Lost through Notarial Fraud Year

Francs (in millions)

Year

Francs (in millions)

1971 1972 1973 1974 1975

50 49 40 25 46

1976 1977 1978 1979 1980

51 42 32 30 21

formation on the historic case of Maitre Paul Boyance, see Paul Lefevre, Les Notaires (Paris: Editions et Publications Premieres, 1969), pp. 12-25. 16 Les Notaires, p. 21.

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planation is that these notaires had long been engaged in fraudulent practices but that it took many years before the fraud became too big to be contained and carried out in secrecy. As one official of the profession put it, "Often sinistres take years to come to light. This, for example, is the case with illegal banking practices, where a notaire has not established direct contact between lender and borrower as he should have."17 Moreover, no region except Alsace-Lorraine is spared fraudulent notaires. While the south, inspired by the spectacular construction boom of the 1950s and 1960s, had more than its share of notaires anxious for big and quick profits, other regions were not without dishonest notaires. It remains the case, however, that the crooked notaire was almost unknown in Alsace-Lorraine.18 This is not entirely accidental. Notaires operate under a different statute in this part of France. German law underlies the functioning of the notarial profession in this region, which means that notaires are closer to being civil servants than is the case in the rest of the country. It is therefore not coincidental that the public-private ambiguity, the hybrid status that has always characterized the notarial profession, is unknown in Alsace-Lorraine, as is the fraudulent notaire. The notarial profession has long felt uncomfortable about the existence of a separate legal basis for the three departments (Haute-Rhin, Bas-Rhin, and the Moselle) of Alsace and Lorraine. In part, this is because the profession in this part of the country is a model of probity and its legal status corresponds more to the exercise of a public function. The notaire does not buy and sell his office. He is named by the minister of justice after having fulfilled a number of conditions, including passing a amcours. But the fear of the notarial profession also comes from the fact that the functioning of the profession in Alsace and Lorraine provides an alternative model to the status under which the profession functions today. The profession is always ready to advance arguments de17 18

CSN, Compte-rendu no. 7, p. 9. Ibid.

The Eternal Crisis 71 tailing why the legal basis of the profession in Alsace-Lorraine is appropriate for that part of the country but not for the rest of France. One of the effects of these arguments—the notaires of Alsace-Lorraine are older, less dynamic, they have to wait a long time for their nomination—has been to exclude the model from consideration as an alternative.19 Yet the fact remains that the notaires of the three departments on the German border that were returned to France in 1918 are less contested in their region than their counterparts in the country and have given rise to no scandals. ECONOMIC CONDITIONS

The fraudulence of notaires in the nineteenth century brought considerable public attention on the profession. Indeed, for most of the last century, and particularly in the second half, the profession was considered to be in a state of crisis. What were the causes of this crisis? Was fraudulence a cause or a consequence of the crisis? How does the crisis of the nineteenth century differ from today's crisis?20 A crisis is often in the eye of the beholder, and an analysis of the causes of the crisis is scarcely ever objectively determined. For example, both good and bad economic conditions have been used to explain the notaire's temptation to make a quick profit. In the nineteenth century, the public's desire to regulate the profession came from the large number of sinistres. The acts of fraudulence by notaires were attributed both to a declining and to a growing economy, since the number ofsinistres did not 19 The same arguments traditionally made by the profession are made for it in Lesourne et al., LeNotariatfraniais, pp. 17,82-83. The Alsace-Lorraine model does not receive a detailed treatment in this commissioned work. The profession itself came armed with a document for the Ministry of Justice outlining the inapplicability of the Alsace-Lorraine model to the rest of France. This is document no. IX, "Note sur Ie regime particulier du notairat Alsacien-Lorraine," entretien du 13 Janvier 1983 a la Chancellerie. The two models are compared in Alain Murcier, "La Crepuscule des notaires: II. Les charges de la venalite," Le Monde, 6-7 June 1971. 20 The last question will be dealt with more fully in Part Three when I discuss the transformation of the profession after the Second World War.

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seem to vary between two vastly different economic conditions. It was argued that notarial fraud in the nineteenth century was linked to the declining economic condition of the nation and of the profession.21 The number of notarial deeds declined from 3,464,907 in 1845 to 2,661,603 in 1902. This half-century witnessed economic recessions as well as remarkable expansion of business activity. Yet the number of frauds remained relatively stable. Similarly, the economic prosperity of the postWorld War II period, particularly the 1960s and 1970s, was used with equal conviction as an explanation of the large number of fraudulent acts committed by members of the notarial profession. It explains little to cite a notaire to the effect that "to become a swindler-notaire you need only one temptation. . . to remain an honest notaire, it will cost you a lot of willpower and many sleepless nights."22 Temptations are available in good and bad times, and hence both depressions and prosperity can be used to explain notarial fraud. Indeed, the potential fraudulence of notaires has become a weapon that the profession uses periodically to extract aid from the state. Since 1981, for example, the profession has urged the public authorities to extend greater aid to notaires who find themselves in economic difficulties and has warned that unless this happens, as one official put it, "the present crisis will encourage some notaires to become dishonest." Another official of the profession noted that "many of our colleagues are now up against the wall and we fear that they won't be able to resist dipping into the till." When it was pointed out that a decade earlier when the profession was flourishing many notaires did not have their backs to the wall and still dipped into the till, this official acknowledged: "Yes, when some have a lot of money, they want more, and when they don't have any, they also want more." In the nineteenth century, economic factors were most often cited as causing the crisis of the notarial profession. The profession at that time was, to be sure, a rural one, so that the Charrier, Le Notariatfraniais, pp. 28-30. Cited in Lefevre, LesNotaires, p. 19.

The Eternal Crisis 73 changes that took place in the value of agricultural land adversely affected a large number of rural notaires. Many reasons are given for the agricultural crisis of the nineteenth century: the phylloxera that ravaged a good part of the French countryside, poor harvests, growing imports, the increasing price of agricultural labor. The transfer of labor and capital out of the countryside created problems for agricultural rents and affected the value of land. Landowners and industrialists "who used to put their money into land have turned to liquid assets whose value has increased so significantly."23 A direct link was generally found between the declining agricultural conditions and the penchant for notarial fraud. Even a more balanced analysis than one normally found in the nineteenth century establishes a relationship between the conditions of the economy and notarial probity. Considering the depressed condition of rural real estate, it is easy to understand that the rural notaires have been the hardest hit and that the profitability oftheir practices has been seriously reduced. But the undeniable reduction of profits does not explain those sinistres^or which a notaire u liable. Nonetheless, the cause of these sinistres must be found in the condition of the rural real estate market.24 In effect, more objective analysis leads inevitably to the conclusion that it is rarely the objective economic situation that accounts for notarial misappropriation of funds. Both flourishing and depressed economies provide temptations. The notaire usually gets caught in a morass in which he is both used by others and driven by greed. Notaires often became bankers by investing people's money. Although they started out as mere intermediaries between a lender and a borrower, they ended up assuming the responsibility for paying the interest for fear of incurring the displeasure of their clients. As a borrower fails to pay his interest, the notaire continues to advance the money. In order to do so he has to take money deposited for other (legit23 24

Charrier, Le Notariatfremitus, p. 32. Ibid., pp. 34-35.

74

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imate) reasons and use it to pay unpaid debts incurred by one of his clients. After all, "it was he who was responsible for coming up with the deposit, distributing the cost among the mortgagees, and often for investing the money received in this way so that it would not leave his hands."25 Finding himself in more and more of a difficult squeeze, the notaire was driven to seek quick profits by making hazardous investments. If the depressed agricultural economy in the second half of the nineteenth century forced notaires into fraudulent acts, the booming economy of the post—World War II period had precisely the same effect. The reasons for the imprudent behavior of notaires in both cases were the same, and what is described for the earlier period can be used, with little modification, to describe the frauds of the 1960s and 1970s. Being responsible for the funds they had received personally, responsible likewise for the value of mortgage investments, and frequently responsible for the sale offurniture, goods, harvest, and so forth, many notaires were ruined by this situation. Most tried to keep their head above water by keeping land in circulation by buying it themselves so as to maintain their credit. Eventually they put all their liquid assets into real estate, but since the crisis continued—contrary to their expectations—they had to sell it all off, which only made the disaster worse.26 This is an accurate analysis of the process that takes place once a notaire first enters into an illicit financial activity, however slight it may be. And yet the responsibility is most often thrown on outside forces. "However, it must be noted that the notaires were more prey to these abuses than they wanted to be; it was more the result of the times and circumstances."27 Charrier goes even further in his defense of the notaires when he says that once they are caught in the morass, "miscalculations and irresponsibilities [are] inevitable," for they are obliged to enter 25

Ibid., pp. 36-37. Ibid., pp. 37-38. 27 Ibid., p. 38. 26

The Eternal Crisis 75 into "some shady deals."28 Besides, while some notaires may have been involved in fraud, very few employed "criminal means to make good or to cover up a debt," and they were even fewer "who took off with their clients' money."29 Indeed, they are praised for their courage for having battled "to the end" and for succumbing only after having "exhausted their last resources and often those of their families as well."30 In the nineteenth century it was, some argued, "la crise agricole" which was the cause of most of the notarial disasters,31 while in the twentieth century it was the boom in construction and real estate that led to the majority of frauds.32 As one writer noted in the early part of this century, "Unfortunately, full responsibility for this worrisome state of affairs cannot be attributed to external circumstances. . . . The proof of this lies in the fact that the crises are not permanent and when they are over, once prosperity returns, bankruptcies continue to occur all the same."33 The conclusion became inescapable even for an observer as partial to the notarial profession as Charrier: "Without a doubt, the agricultural crisis would not have had such disastrous consequences for the notaires if they had remained within the bounds of their jurisdiction."34 We are thus brought back to the very center of the schizophrenic status that characterizes the notarial profession. Transcendence of the Monopoly The notaires could not be confined to their narrowly delimited sphere of activity over which they had a monopoly because of the ambiguous nature of their status, part of which called for them to exercise a monopoly on behalf of the state and part of which allowed them to engage in remunerative activities over 28

Ibid., p. 4 1 . Ibid., p. 42. 30 Ibid. 31 Ibid., p. 38. 32 See Lesourne et al., LeNotariatfranfais, p. 62. 33 Emile Bender, LaRiforme notariale (Paris: Arthur Rousseau, 1931), p. 24. 34 Charrier, LeNotariatfranfais, p. 42.

29

76

CHAPTER 4

which the state had no control. The state thus allowed a market to develop in the sale and purchase of offices. The bankruptcies of notarial offices in the nineteenth century were also attributed to the fact that "the attraction of the office put up the price beyond what it was worth," 35 for many an individual saw the notarial office not as a chance to serve the state but as a chance to make his fortune. But the price of notarial offices was probably a contributing factor rather than the cause of the widespread fraud and bankruptcy. As one notaire noted at the time, the regulation of the profession was becoming stricter, "and yet abuses and sinistres increase; this increase forces one to conclude that it is less the exaggerated prices of practices that is the cause of the problem, than evils inherent to legislation and an insatiable greed which, under the cover of these evils, has taken control of countless public officers [offices mmistfriels]."36 As one nineteenth-century critic put it, 'The thirst for profit is so strong in some notaires that the notarial profession is no longer anything more than a job to them. They care very little for their responsibilities, the dignity of the profession, or their own personal honor. They have only one concern: to make money by hook or by crook."37 If the notaire engaged in activities that were unrelated to his legally delimited sphere, this was because the law usually allowed the notaire to set his own fees for activities that went beyond his monopoly. 38 Besides the official functions, the notaire came to fulfill a host of functions that have been described as "officieuse." The modern notaire, as a senator noted in 1898 in an official report, has become "in the countryside as in the cities, the parties' private and continual counsel, the arbitrator of any dispute, negotiator for their interests, and often the trustee for 35

Theodore Zeldin, France 1848-1945, vol. I: Ambition, Love and Politics (Oxford: Oxford University Press, 1973), p. 46. 36 Albert Amiaud, EtudessurIe notanatfrancais (Paris: L. Larose, 1879), p. 19. 37 Ibid. 38 Article 3 of the decree of 25 August 1898 and article 4 of the 1945 statute (applicable today) leave the notaire free to set his fees for consulting or other activities that fall outside his monopoly.

The Eternal Crisis 77 their fortune."39 Throughout the nineteenth century, alongside the official functions which the law ascribed to the notaire, a series of other less official (qfficieuse) activities were being developed. A legal authority noted in the second half of the nineteenth century that the notaires had, in effect, become bankers and that this activity was even more important than the one they were appointed to fulfill. The notaires almost never limit themselves to their prescribed function, which L· to legalize documents. Often they act as attorney among parties, sometimes they serve as intermediaries, especially when it is a question of investing capital. It is a short stepfromthere to borrowing directly andfor their own personal deals; once they have control over sufficient capital, they then look to put it in a high-return investment, on which their own profit is therefore contingent. In other words, the notaire in recent times has become a notairebanker.40 The function of authentication was beginning to take second place to the officieuses (hidden) functions that the notaires were developing. It was in transcending the monopoly granted to them by the state that the notaires saw their chance for gaining wealth. The official functions became the investment for the ofi ficieuse functions. The role played by the notaire is important especially in investments, and in the buying and selling ofhouses and land. For the most part, someone who needs capital knows no one to borrowfrom;hegoes to hL· notaire, who in turn refers him to one of his clients who would like to make an investment. The reverseL·oho true: The notaireL·contacted by capitalists looking for a borrower and there again it is he who negotiates the loan. Similarly, the proprietor who wants to sell or rent his house often goes to hL· notaire to have him find a buyer or renter

for him.*1

39 Cited in Henri Guery, Des functions officieuses des notaires (Lille: Imprimerie Camille Robbe, 1908), pp. 9-10. 40 Raoul de La Grasserie, Des offices (Rennes: Imprimerie E. Baraise, 1887), p. 7. 41 Guery,Desfunctions officieuses, pp. 10-11.

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Questions about the notaire's proper role became gradually more pertinent in the course of the nineteenth century, in part because of the crisis of the profession and in part because the combination of public and private functions seemed highly anomalous. In 1905, it was already evident that "There is a huge difference . . . between the notaire of an XI, who merely drew up deeds . . . and today's notaire, whose sphere of activity has infinitely expanded. He is no longer just a civil servant required by law to legalize documents, but has made himself the private and continual adviser of these parties, the arbitrator of their interests, and often the regular trustee for their money."42 There are many explanations for why the notaires went beyond their legal competence in the nineteenth century.43 That they saw a chance to increase their wealth and status is evident. That the simple activity of drawing up contracts and legalizing deeds offered neither a chance for making considerable sums of money nor much intellectual interest was a view generally accepted in the profession. But the most important incentive was offered by the state, which explicitly recognized a notaire's right to conduct parallel activities over which it would have no control. Today a point has been reached at which the profession and, as we shall see, the state itself see the prosperity (and perhaps the survival) of the notarial profession as being dependent on the profession's ability to find new markets. Odd as it may seem, the state encourages the notaires to find new markets and to transcend their official functions. The notarial crisis of the nineteenth century, manifested in the large number of bankruptcies, was clearly engendered by the notaires' forays into speculative activities. They demonstrated the same lack of preparation for commercial activities that they showed for their normal legal functions. Incompetence was rampant, and the crisis of the profession was often attributed to the total lack of preparation of many notaires who had merely inherited their fathers' offices. Describing the gen42 43

Charrier, LeNotanatfranfau, p. 21. See Guery, Desfunctions officieuses, pp. 72ff.

The Eternal Crisis 79 eral situation that prevailed in the nineteenth century, La Grasserie put it thus: "To be a notaire, it is enough to know how to read and write, nothing more."44 Incompetent notaires acquired their offices either by having sufficient money to purchase them and pay the required caution money to the state or by inheriting the offices. No diploma was required, and it was not until 1972 that a law was passed requiring a law degree of a notaire. The number of notaires' sons inheriting their fathers' practices has gradually declined, but even today, as Table 4.7 shows, over one-third of the notaires have fathers who exercised this profession.45 The notaire's lamentable preparation for the job, the price of an office, and the urge to transcend the state-granted monopoly all contributed heavily to the notarial crisis of the nineteenth century. In addition, the attacks on inherited privileges and on the improTABLE 4 . 7

Socioprofessional Origins of Notaires, 1984 (in percentages)

Category

Notaires exercising professions more than 5 years

Notaires exercising professions more than 5 years Total

Notaires Other liberal professions Civil servants Industry Commerce and artisans Management Employees, works, & misc. Agriculture

36.6 12.3 9.2 2.9 16.2 4.9 8.8 8.8

28.9 13.5 11.4 3.8 8.4 11.8 10.9 10.9

2A.7 12.6 9.7 3.1 14.2 6.7 9.4 9.3

Source: Conseil Superieur du Notariat: IV. Enquete sur 1'ongine socio-professionnelle des notaires 44

Raoul de La Grasserie, L'Etat actuel de la riforme du notariat en France (Paris: A. Fontemoing, 1898), p. 157 (emphasis in original). 45 The figures given in Table 4.7 are slightly different from those given in J. Lesourne et al., Le Notariat francats (p. 31). Both tables are supplied by the CSN.

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priety of the sale of public offices placed the notarial profession in a vulnerable situation at the close of the last century. The Right to Choose a Successor Selling a public office to a successor whom the notaire has the right to choose (Ie droit de presentation) has been considered "the single cause of all the problems confronting the notarial profes­ sion." 4 6 The deficiencies of the profession were correctable, "whereas this principle has ruined everything, and only abolish­ ing it can save the institution. It has created a hybrid, abnormal entity which is an embarrassment even to itself, which dares not show its face, and which surrounds itself with euphemisms; it has made a business out of its responsibilities, but not compe­ tently, which is worse." 47 At issue throughout the nineteenth century was the sale of public office and the notaire's right to name his successor. As we saw, the finance law of 28 April 1816 reversed the system set up by the Revolution (whereby notaires were appointed through state examinations like other civil ser­ vants) without articulating a reversal. The droit de prasentation was reintroduced, and with it the venality of offices came into being once again. 48 Thanks to this law, which required notaires to give the state caution money and in return granted them the right to present their successors, the ambiguity of the notarial status was reintroduced and has subsisted to this day. 49 The law was discreet in its language, since it mentioned nothing about the sale of offices, but no less heavy in its consequences. It sim­ ply stated that a certain number of professions have the right to "present their successors to the king for his approval." The law did not elaborate, but it quickly became evident that the venal­ ity of office had come into being again. 50 What had previously, 46

La Grasserie, L'Etat actuel, p. 156. Ibid., p. 157. 48 See R. Hurson, Etude sur une organisation du notanat en France (Paris: A. Chevalier-Marescq, 1894), pp. 24-28. 49 This has remained an issue. A discussion of the socialist government's at­ tempts to resolve it follows in Chapter 10. 50 Louis Theureau, Etude sur I'abolitwn de la νέηαίιίέ des offices (Paris: Librarie de Gmllaumin, 1868), p. 200. 47

The Eternal Crisis 81 albeit briefly, been a property of the state became, with the law of 1816, recognized as private property with an increased value in the hands of the notaires. Once the droit de presentation was reintroduced, serious reform of the profession became all the more difficult. This was because the right to name one's own successor became part of the notaire's patrimoine. It added value to his practice and it augmented the sale price of his office. Hence, the notaires came to consider their practices as constituting private property. The state could not tamper with the profession in a way that affected the value of the practice without being accused of expropriation or without being ready to indemnify the notaires for the full value of their practices.51 The notaires simply adopted the po­ sition that "the ownership of an office should be incontesta­ ble." 52 The extent to which notarial offices constituted private property in a "pure" form was a subject of considerable debate in the nineteenth century, and yet all attempts at or projects for reform have recognized the need for indemnification. The droit de presentation highlights what I have referred to as the eternal dilemma in which the notaires find themselves and from which they seek no escape. The ambiguous nature of their status is revealed by their state appointment or state ratification of their presentation by the person whose office they have agreed to purchase. Notaires themselves have never had any dif­ ficulty arguing that the droit de presentation constituted "an im­ portant guarantee for the public," 53 an argument aimed at coun­ tering the evident confusion between public service and private gain. "A practice is not and should not be a business. Therefore, the personal wealth of a notaire should never be increased by the difference between the sale price of his practice and the price 51 When the socialist government sought to do away with the droit de presenta­ tion in 1983 and 1984, the notaires countered by using the argument against expropriation as they had done on a number of occasions in the previous cen­ tury. 52 A. Jeannest Saint-Hilaire, Rapport prisenti a la conference des notaires des άέpartements de France (1842), p. 33. 53 CODRUS, Position actuelle etfuture Au notariat dans lasociita (Paris: E. Dentu, 1869), p. 25.

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he originally paid for it."54 The droit de prisentation was thus seen not only as engendering private gain out of public service, but also as causing an unrealistic increase in the price of offices, which in turn engendered fraud.55 The reintroduction of the droit de prosentation in 1816 set the stage for the ambiguous and privileged status that notaires have continued to enjoy to this day. There were a number of reasons for the state's changed attitude in 1816, but the chief one was that it needed to raise money. In order for the notaires to be able to pay the increased amount of caution money, the state granted them the droit de prosentation, which clearly was going to augment the value of their practices. Together with the droit de presentation went other measures that consolidated the notaire's professional situation. In addition to having the right to nominate his successor and, in effect, charging a price for this right, the notaire came to enjoy a functional and a territorial monopoly. Competition within the profession was, and is, almost nonexistent, since prices are fixed by the state for the obligatory services and since the number of notaires in a given area is stricdy controlled.56 Hence, the profession has come to enjoy a state-protected monopoly, one that is more protected today than ever in the past. The profession has fought tooth and nail against all attempts to compromise the cherished monopoly. 54

Hurson, Etudesur une organisation, p. 29 (emphasis in original). See Ed. Peclet, Essai sur une rtfbrme du notanat en France (Paris: Chez Delaunay, 1845), p. 3. See also Hurson, Etude sur une organisation, pp. 26-28, and Theureau, Etude sur I'abolition, pp. 280-95. 56 Notaires, either individually or collectively, often wrote to the minister of justice making a case against allowing a new notaire to enter their locality, or arguing against the creation of a new ttude. For a typical example, see Memotre frtsenti a son Excellence Monsieur Ie Garde des Sceaux, par Frederick-Auguste Chardavoine, notaire a Verteuil, Canton dePaulliac, centre la demande en crfation d'une nouveUe ttude de Notaire dans Ie canton de Paulliac (Bordeaux: Imprimerie de Lanefranque, 1839); 45 pp. Many of these documents were only a few pages long, but they were generally printed at their authors' expense. A collection of them is in the Bibliotheque Nationale in Paris. 55

The Eternal Crisis 83 Attempts at Reform The socialist government's project for reforming the notarial profession has only been the latest in a long series of attempts to resolve some of the ambiguities and problems that have been posed by the profession over the past two centuries. The nineteenth century witnessed numerous calls and proposals for reform, as well as the presentation of bills in parliament.57 The projects for reform sought to deal with the abuses of the profession. Some sought to abolish the profession, others to make it more honest and efficient, and still others to convert it into a kind of magistrature.58 The aim was to insure that "the notarial profession would no longer be the exclusive privilege of wealth, speculation or ignorance.. . . Instead of a group of men poisoning the country with their evil influence, a new magistrature would appear, powerful and respected. A service would have replaced an abuse."59 Although the notaires feared in the nineteenth century that the government might at any time decide to abolish the droit depresentation, a proposal to do so did not come until 1890 when a deputy, M. Hug, proposed before a parliamentary commission the abolition of this right. 60 The purpose of this project, as of others, was to transform the notarial profession radically. "Instead of being, in some ways, a state within the state, [the profession] would have become a part of the civil service, collecting taxes for the Treasury and enforcing the law in the name of the king."61 Almost all the proposals and projects for reform sought to break the ambiguity between the public and 57

For the various governmental and other projects that were proposed from 1840 to the turn of the century, see Charrier, Le Notariatfrancais, pp. 66ff. 58 See A.M.F. de Persigny, Esquisse d'unprojet de transformation du notariat en magistrature (Paris: Imprimerie de A. Lacour, 1854); Maitre Frangois Hyest, Ce que I'm peutpenser des notaires vu par I'un d'eux (Fontainebleau: Imprimerie Brevetee, 1942). 59 Peclet, Essaisur une rtforme, p. 39. 60 See Charrier, Le Notariat francais, pp. 98-105. 61 Peclet, Essai sur une riforme, p. 40.

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private functions of the notarial profession.62 "It is an assimilation of two jurisdictions with completely different functions" that necessitated a reform "not only for the sake of a healthy public economy, but even more in the name of public morality; it is long since time for a privilege which produces such deplorable results to disappear."63 Georges Clemenceau was not in the least favorable to the notarial profession. In October 1902 he presented a bill to the Senate that called for the creation of two types of notaires: one defined by the law of 25 Ventose an XI, whose function would be to legalize deeds; the other would be a "notaire conseil." Clemenceau sought to separate the notarial function of legalization from that of conseille defamille and other services that notaires rendered and for which they needed to be remunerated. Both functions, said Clemenceau, were necessary, but they should not be confused. This was not a project that the notaires could take kindly to and they adopted the same attitude toward it that they had adopted toward other similar projects, considering that "its ostensible purpose was to regulate the notarial profession; its actual goal was to destroy it."64 The notaires conseils would simply become des agents d'affaires;65 hence they could no longer engage in commercial activity with the blessing of the state. Clemenceau, like others, was for the outright abolition of the offices ministerieL·, but his bill in the Senate stopped short of suggesting that the state purchase these offices. His project, as one author noted, "was noteworthy, particularly because, unlike the socialists, its author realized that it was impossible to abolish the offices minktiriels without buying them back and, according to the calculations of this great statesman, redeeming 62

One proposal called for constituting a national corporation that would undertake the responsibility for drawing up all deeds. See Charles Bonin,Z)« monopole des notaires (Paris: A. Pedone, 1902). 63 Theureau, Etude sur I'abohtton, p. 239. 64 A. Jeannest Saint-Hilaire, Du notariat et des offices (Pans: Durand, LibrarieEditeur, 1858), p. 91. 65 Charrier, Le Notariatfrancais, p. 150.

The Eternal Crisis 85 all the offices ministeriels . . . would cost us a hefty 951,098,083 francs."66 Clemenceau came up against the same obstacle that others before (Frangois I, Henri IV) had encountered and that others after (Armand-Rueff) would encounter: the cost of nationalization of a profession that ought, morally and, according to a number of politicians and jurists, legally, to be a public service. Even Armand and Rueff (two economists commissioned by de Gaulle at the outset of the Fifth Republic to write a report on the problems facing France's economic modernization), no friends of nationalization of any kind, observed in their Rapport sur les obstacles a Vexpansion iconomique that abolition of what they termed the "closed professions" was not unwarranted. It noted, however, that "the Committee does not consider it feasible to propose the abolition of the traditional system of venality of offices, owing to the cost to the State of indemnifying the approximately 6,370 metropolitan-area notaires."67 It is interesting to observe that monarchs, republicans of both left and right, and a wide variety of politicians have expressed the need for the abolition of the notarial profession, and that all have despaired of achieving this goal because of the insoluble problem of indemnification. The political leaders who were responsible for nationalizing the largest industrial enterprises and financial institutions claimed not to be able to nationalize the notarial profession and the other offices ministariels for lack of funds. As a nineteenth-century legal scholar observed, to start out by asking whether the state can indemnify the offices minutinels was to convert "the real judicial question . . . into a budgetary question" Hence, "it becomes insoluble."68 Taking account of the obstacle that all projects seemed to run up against, one jurist put forward a project that would allow the state to purchase the notarial offices without this entail66

Auguste de Gayffier, Le Role iconomique du notcure (Paris: Giard et Briere, 1911), p. 105. 67 (Paris: Imprimerie Nationale, 1960), p. 46. This became the most influential report of its kind written in the postwar period. 68 La Grasserie, D « offices, p. 4 (emphasis in original).

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ing an undue burden on the public treasury. "We should like those [notaires] dispossessed of their practices to receive complete compensation. We shall even go much further: We should like them to be compensated above what is strictiy due to them, and be treated fairly and not merely according to the law."69 La Grasserie then proceeded to outline an ingenious scheme whereby the notaires would be justly compensated and the state would not be heavily burdened by this compensation.70 No government has been able to do more than express a desire to abolish the profession, even if that desire went so far as to engender a bill in parliament. Aside from Clemenceau's attempts to do away with the profession by resolving the public-private context in which the notaires functioned,71 there have been no serious attempts in the twentieth century to confront directly the problems posed by the status of the profession.72 The numerous proposals for reforming or abolishing the notarial profession in the nineteenth century derived from the crises that were both caused and experienced by the profession: the fraudulent practices, the general incompetence of the profession, the questionable recruitment procedures, the hereditary nature of the profession. The ambiguity in the public and private roles of the notaires seemed to many jurists, politicians, and ordinary people to be highly questionable on moral and legal grounds. Indeed, the profession seemed out of tune with the inroads that notions of equality and democracy had made in the society. Its privileges, its hereditary nature, its monopoly, the practice of the purchase of public office, the commercial gain 69

Ibid., p. 15. Ibid., pp. 16-22. 71 It should be noted that Clemenceau withdrew his text, and so it was never voted on by the Senate. 72 The Vichy regime contributed to strengthening the notarial profession by giving it a national organization. The Vichy statute was abrogated in 1944 and all its major elements were reintegrated in the 1945 statute. The only serious attack on the profession between 1945 and 1981 came in the Armand-Rueff report. 70

The Eternal Crisis 87 that ensued out of a state-granted authority, all this appeared more scandalous in the nineteenth century than it does in the second half of the twentieth. The profession has resisted all major attempts at reform and has almost always preferred to see projected reforms as emanating from base political motives that seek to keep in tune with a century characterized by "democratic a outrance [excessive democracy]."73 In reviewing the various projects for reform, one observer noted in 1905: In actuality all ofthese parliamentary bilk have political motivations rather than practical concerns, eitherfor the State orfor individuals. In theory, it is true that it would be preferablefor practices to be open to anyone who could satisfy the professional and moral requirements, without requiring a capital investment, be it large or small. But in this period of excessive democracy it is important not to give in to measures which could prove harmful to the very class one intends to benefit.7* The result of all attempts to resolve the ambiguity of the public and private functions of notaires, either by abolishing the profession or by transforming it in such a way as to, effectively, nationalize it or convert it into a liberal profession have failed. Indeed, it can be said that the notarial profession has succeeded over the decades in preserving this ambiguity, which is what accounts for the privileged position that it has acquired in French society. The notaires have managed to consolidate their position in part because of the transformation they have brought about within their own profession,75 and in part because of their ability to remain "a state within a state." Over a century ago, a jurist noted that any proposal for reform of the notarial profession "will come up at every turn against . . . interest 73

Charrier, LeNotariatfranfais, p. 155. Ibid., p. 155. 75 To be discussed in Part Three. 74

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groups and vested privileges."76 This is true of any reform that any government might wish to undertake. Why, then, have the notaires been so successful in warding off reforms? What accounts for the preservation of a status that seemed out of tune with the time well over a century ago? La Grasserie, Des offices, p. 3.

PART THREE

Marshaling Forces

CHAPTERS

The Needfor Change History isfull ofexamples of professions, crafts and institutions that havefailed or disappeared and whose existence could no longer bejustified economically.. . . The notarial profession, like any other profession, enterprise, or value system, only justifies its existence ifitfilk a need and can only hope to survive if it is economically desirable, and even essential. —MAiTRE AUSSEDAT (1973)

The crisis that characterized the notarial profession in the nineteenth century and that continued unabated in the first half of the twentieth reached its zenith in the immediate post-World War II period. The rampant fraud within the profession as well as the profession's relatively undemocratic character were now seen as secondary to the main failing of this corporation, its glaring incompetence. No amount of dissimulation could obscure the fact that the profession as a whole was unable to provide the services that the state required of it and for which it had been granted a monopoly. The longstanding practices of the profession—admitting incompetents into its ranks, requiring almost no qualifications of new entrants, questionable and uncontrolled accounting and financial practices—took their toll and found the profession unable to assume its task at a moment when it was most needed. Moreover, the inheritance of a public office seemed no longer justifiable on any grounds. It was not therefore entirely a matter of chance that the influential Armand-Rueff Rapport sur Us obstacles a I'expansion aconomique should have singled out the notarial profession as the exemplar of the archaism and rigidity that characterized what the report called the closed professions. The report suggested that it would not be wholly disadvantageous to the society if the notarial profession were abolished. The ArmandRueff committee denounced the privileges of the profession 91

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and the pitiful way in which the notaires responded to changing times. Evidence of Failure The Armand-Rueff report gave a severe jolt to the profession. The next two decades both confirmed the report's charges and witnessed the transformation of the profession. A critical step taken by the profession was the commissioning of a confidential report based on a large survey of notaires. The five-volume report was published in 1970, and it served as a guide in the overhaul of the profession. It was not destined for the general public, and so was forthright in its analysis and conclusions. Indeed, the consulting firm that carried out the survey—the SEMA—was brought in precisely so that the profession could find out about itself, about the public's expectation of its role, and about what measures it should take to strengthen its position and to respond to society's needs. It was unlike the public relations use that the profession occasionally makes of reports by "outside authorities." The SEMA study conducted a survey with a national sample of 1,200 notaires. It echoed the Armand-Rueff report when it warned that "the notaire, satisfactorily performing his legal duties (a rather insignificant part of his job), nowadays incarnates for those who voice it, the relic of a more formal world which already belongs to the past."1 Demands for the notaire's services were increasing while his capacity for responding to them was declining. The incapacity of the notaire to provide the essential services his monopoly required of him was due to the fact that he was wholly unprepared to keep up with the flood of laws, decrees, and administrative regulations. At the same time, he was hampered by inefficient (or nonexistent, in most cases) managerial skills. The SEMA study noted that the inefficiency of the notaire's office was most evident in the absence of a modern system of accounting. Even while having to respond to an ever 1 SEMA, Synthese et conclusions des dix etudes SEMA sur la situation actuelle et Ie marchidu notariatfrancais (Paris: SEMA, 1970), p. 113.

The Need for Change

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greater demand for their services, many notaires persisted in keeping their books in much the same way their forebears did. Hence, increased activity often did not lead to increased income. The notaire's inability to respond to the new demands for his services was also demonstrated in the post-World War II period by the lack of specialization among his personnel. The nature of the demands for notarial services became far more diverse in the second half of the twentieth century. Hence, specialization of knowledge was now called for. The notaire jack-of-all-trades was not well suited to a world that was becoming ever more specialized. Nor was the notaire ready to see himself as rendering a service to a clientele, for that would have implied involvement in a commercial activity. He saw himself as dispensing a service rather than selling one. He never acted simply as a legalizer of deeds and was always loath to see himself as a mere fonctionnaire. A document issued by the Conseil Superieur du Notariat in 1946 noted: "If his job were in fact limited to fulfilling this official function—as is the case of the Anglo-Saxon notaire who merely certifies signatures—it would be easy to imagine his transformation into a civil servant, and the corresponding abolition of the droit de presentation?2 But, this document argued, the notaire "is much more and far better than that."3 He was seen as performing a variety of functions which elevated him above a civil servant and placed him on a level equal to that of a priest. In the city as in the countryside, people consult a notaire not only when thereL·a contract to be written, a lease to be drawn up, or a mortgage to be obtained, but they confide theirfamily secrets to him 2

CSN, "Discussion, en ce qui concerne Ie notariat, de la proposition de resolution no. 276 invitant Ie gouvernement a deposer un projet de loi abolissant d'une maniere generale et en toute matiere la venalite des charges" (March 1946), p. 1. This document comes from the personal archives of Maitre Louis Chaine, whose own father was president of the CSN immediately after the war. I am grateful to him for supplying me with this document. 3 Ibid., p. 1.

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as well. People have recourse to his experience and often to his friendship in order to resolve difficult situations or to smooth over unpleasant conflicts. He is called upon in any situation which threatens the family's future, the safety ofan inheritance, the children's future, or the grandparents'security * If the notaire was loath to see himself as a simple fonctionnaire, he was no more eager to view himself as being engaged in a commercial activity. He preferred the priestly image of receiving, counseling, and arranging things for people. People came, or should come to him, of their own volition. He had a "natural" clientele, not one that he had to seek out and cultivate. The clients sought him; he did not seek them. As one third-generation notaire put it, "What did my father and grandfather do as notaires? They tried to arrange things for bourgeois people so that their fortunes were well taken care of." It goes without saying that such a self-image did not inspire the notaire to dynamism. The 1969 SEMA survey confirmed the notaire's reluctance to view himself in anything but his traditional role. Table 5.1 shows that by far the largest majority of notaires saw themselves as counselors to families and as legalizers of contracts. To the question of whether the notaire ought to seek to increase his clientele in order to increase his business or whether he ought simply to remain at the disposition of the clients, 77 percent thought that the latter was the more appropriate. Of the notaires interviewed, however, only 18 percent thought that the notaire was a public officer most of whose activities were subordinated to and limited by the principal activity of legalization, whereas 81 percent saw the notaire as one who, in addition to his role as a public officer, played an equally important role as an "adviser and initiator of the transaction between contracting parties." The SEMA survey attempted to determine whether the notaire plays a passive role, simply guaranteeing the legality of agreements already reached by two parties, or 4

SEMA, Situation actudle du notariatfranfais, vol. 1: Comportements, opinions et attitudes des notaires (Paris: SEMA, 1969), p. 20.

The Needfor Change 95 whether in addition to his role as a "public officer," he also played a more active role—the role of a negociateur—in the initiation and conclusion of the agreements between the two parties. The question was therefore asked: Do you practice with some frequency "la negociation?" Forty-six percent said that they did, and 54 percent said they didn't. The urban-rural split becomes an important explanatory variable. Those notaires who live in a very urban environment will therefore behave very differentlyfromthose in a rural orsemirural area: Their relationship with their client will be limited to strictly legal duties. In real estate transactions, for example, their role will be confined to the legalization ofa sale of property. In a similar situation, the rural notaire will often leave his office, put the buyer and seller in contact with each other, playing the role of legal counsel infixing a price.5 The important point is that the activity of nagociateur is clearly linked to the profitability of notarial offices. Closely tied TABLE 5.1

What Are the Most Important Roles of 'aNotaire? 1st choice (%) Magistrate for voluntary jurisdiction, peacemaker Link between individuals and public authority Protector of clients' inheritance, confidence Promoter of projects and of economic activity at the local level Family adviser Legalizer of deeds and contracts (security) Adviser and sales agent for financial investments for individuals Source: SEMA Study, VIP, 70/5, p. 312. 5

Ibid., p. 24.

2nd choice (%)

7

7

2

6

7

16

7 50

12 27

24

30

0

1

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to the role oinagociateur is that of adviser, the traditional role of the notaire. But in large cities, the notaire's role of adviser was found to have declined markedly. In part this was attributed to competition from other professions and in part to the small number of offices serving a large clientele. The notaire remained "plus privatiste"6 in the less industrialized regions where he continued to play the traditional role of adviser to families. Not surprisingly, the SEMA survey found that it was the traditional notaire who was least able to render the services required of him. Over one-third of the sample interviewed avowed that they were sometimes obliged to turn away clients because they lacked the competence to handle the cases in question. These mostly involved corporate law and taxation.7 The notaire's inability to render a service was not linked to his level of education but rather to the amount of time he devoted to gathering information. The more time he spent enlarging his legal horizon the more likely was he to be able to respond to the diversity of questions he was likely to come up against. The rural notaire devoted the greater part of his time (over two-thirds) to receiving clients and to managing his office.8 It is important to observe that despite the traditionalism of the notaires, evidenced in the way they perceived their jobs when the SEMA study was conducted, there was little doubt that by the end of the 1960s or early in the 1970s the notaires were well aware that their profession was face to face with a crisis. For one thing, 58 percent of those interviewed said that if they had to start their careers over again they would choose the same profession. This might appear to be a high figure, but, as the SEMA study observes, "this percentage is small if one considers the strong desire for self-justification provoked by such a question." 9 A somewhat smaller proportion of those interviewed— 6

Ibid., p. 25. Ibid., p. 26. 8 Ibid., p. 14. 9 Ibid., p. 47. 7

The Needfor Change

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49 percent—said they would advise their sons to pursue the same profession. "This figure," notes the SEMA study, "if compared with results obtained by studies of other judicial branches, is significantly low, especially for a profession that has a tradition of passing practices from father to son."10 In the public mind, the notarial profession as a whole is a lucrative one, if only because of the monopoly exercised. However, there are enormous variations of wealth—certainly as much as in the society as a whole—within the profession. The urban notaires were more likely to advise their sons to go into the profession than those who practiced their profession in rural areas. The latter were more likely to feel the pressures of their profession, devote long hours to drawing up contracts, lack the time to acquire additional legal knowledge, do their own accounts, and, above all, consider the unprofitability of the profession. The survey indicated that the profession as a whole took the view that it was not well adapted to the modern world. It accepted the need for reform and it believed that it was only by reforming itself that it would survive. Over two-thirds of the profession believed that at least partial reforms were necessary, and this varied not at all with the size of office or across regions. 11 What was becoming apparent by the mid 1960s was that the notarial profession was out of step with the modern economy and society. First, the industrialization of the economy, and the concomitant development of industrial firms, meant that other professions stepped in to compete with the notaires for a large part of what could or ought to have been notarial business. Second, the failure of the notarial profession to keep pace meant that the public tended to look to other professions for many services. Third, the profitability of the notarial activity was likely to come into question in the long run. The SEMA study concluded: 10 11

Ibid. Ibid., p. 54.

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—The notaire feels more and more on the fringe of the economy: At a time when the workplace has become a centralfactor in society, the notairefeels in some way "out ofit? He senses implicitly that he is gradually losing the new legal market. —The notaire feels himself to be less and less respected, as a result of his profession's wait-and-see attitude in the face of an expanding legal market.. . . —The notaire feels less and less remunerated for his work: The reduced profitability in terms of the work provided is, in fact, severely felt.12 The SEMA survey was not an academic study. It was commissioned by the profession and was destined for the eyes of the profession only.13 It thus stated its conclusion in unambiguous terms: "Thus the present situation, while characterized by a certain short-term prosperity, is shadowed by a worrisome decay in the long run, which is perceived to varying degrees by the notaire."14 Recognition of Dangers It remained for a small number of notaires, themselves dynamic and capable of recognizing the dangers that lay ahead for the profession, to point to the inevitable bleak future that loomed on the horizon for the profession in the event that it continued traveling along the same traditional path. The dynamic element 12

These conclusions of the SEMA study are reproduced in VIP, 70/5, p. 355 (emphasis in original). 13 The SEMA study observed, in the volume synthesizing the conclusions of the five volumes, "the lack ofdresstng-up of the conclusions presented in this report" It noted that "if this report were intended for publication, the presentation of its conclusions and suggestions would have to be modified to accommodate the background of different potential readers." The document submitted by SEMA "is of a confidential nature: It is intended to be read only by the president of the Conseil Superieur and a select group of officers of the profession" (Synthese et concisions des dix ttudes SEMA, pp. 1-2; emphasis added). 14 VIP, 70/5, p. 355.

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within the profession also had to undertake the task of convincing the profession of the need for change and of pointing to the new directions that the profession should be heading toward. There was not always a consensus within the profession as to the new directions that it ought to take. It was clear to many, however, that the notaire had to go beyond the confines of his monopoly, which now came to be seen as more of a constraining factor than a guarantee of wealth and stability; had to see himself as rendering a service; and had to recognize that he was operating within a competitive market. In the 1960s, these were, for the majority of notaires, revolutionary ideas. Paul Chardon was among those who tried to push the profession into a more market-oriented mentality. On the occasion of the 68th congress of notaires in 1971 held at Vittel, he created a slight stir within the profession by suggesting that the notarial profession as practiced in the nineteenth century bore little resemblance to what it ought to be today. At the end ofthe last century, the notaire had not only the monopoly, but, better yet, a privilege over certain activities. In villages as in the cities, he alone was responsibleforjuridical matters. Lawyers and attorneys limited themselves to the judiciary. Only the bailiffwould occasionally and in some areas share with the notaire the duties ofadnser and draw up contracts agreed to by private parties. With this one exception, the notaire was his clients'permanent and almost only confidant.15 In that bygone era when France still lived off its agriculture, the notaire was also the real estate agent in his area. He also managed buildings, the leases for which he drew up. The notaire's financial role was also extremely important, since rural France was a society in which banks did not much affect the lives of most people. Consequently it was to the notaire that people went when they wanted to invest their money. This was 15 Allocution de Matin Paul Chardon, Prisident Au 68tm Congres des Notaires de France, Vittel, 5-9 jutn 1971 (CSN, 1971), p. 4.

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an enormously profitable activity for the notaire, since he received a commission on all transactions. Being as he was the person to whom people went for advice concerning all financial matters, they naturally sought him out when they needed advice on fiscal matters. Taxation was not a complicated legal branch in the nineteenth century, and so he was able to handle most of the economic problems that confronted the bourgeoisie. The notaire was more often than not a notable in his village or town. He was a personnage, to whom considerable respect was due, for he had influence and was the keeper of family secrets. He was, or appeared to be, in an unassailable position. Balzac drew the portrait of this dignified personage thus: "The notaire always has a mask on, which he rarely drops within the confines of his domestic pleasures. He is always obliged to play a role, to be serious with his clients, serious with his clerks, and he certainly has reasons to be serious with his wife!" The notaire had "to laugh for no reason, and reason without humor."16 A contemporary notaire described the importance of this notable in the bygone era: Hence, the notaire played a crucial role in everything affecting personal rights and civil contracts, as well as in the vital areas of real estate and financing. It could be said that during these years of plenty, almost all economic activity passed through hL· office. His importance was such that the courts and the Ministry of Justice worked to increase hL· status in order to guarantee hL· competence as well as—and even more important—hL· integrity and honor. While he certainly benefitedfrom being a representative of public authority, he was above all the almost obligatory intermediary for hL· clients.17 Since then the notarial profession has undergone profound changes. The development of a banking structure, the rise of real estate agents, of syndics de copropriita,fiscalexperts, 16

Honori de Balzac, Oeuvres diverses (II), ed. M. Bouteron and H. Longnon (Paris: Louis Conard, 1920-50), vol. 39, p. 202. 17 Allocution deMaitre Cbardon, p. 5.

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other specialized professions—all this has led to the notaire's loss of what was once a natural market. "His activities have suffered a series of amputations,"18 so that "the notaire no longer remains what he once was: the special confidant in the judicial arena."19 The most serious consequence of these changes was that the notaire became someone to whom one had to go for the purpose of legalizing certain contracts—buying and selling of property, drawing up mortgage or loan agreements and marriage contracts. "Whereas before one went naturally to him for all sorts of advice and help, his function has now been made more specific. His job is often limited to the duties of legalizing [documents] and has been dissociated from the notion of service; service is provided by other specialists among whom the notaire's presence seems superfluous, and with no clear motivation, except as a holdover from a bygone era."20 The notaire, according to Chardon, was "in 1971 the man of missed opportunities," because of the loss of "substance, confidence, and importance"21 which the whole notarial profession had undergone. The real problem, according to Chardon and to others, was that the notarial profession was a prisoner of its monopoly. Having been granted the monopoly of legalization of deeds, it lost the initiative to do anything else—above all, it forgot that it had clients that needed to be served. "Dear colleagues," asked Chardon, "have we not been somewhat distracted by legalizing documents, while the most important thing is, after all, the client; legalization is merely one way to provide this service. Let us not lose sight of the fact that if we favor legalization of documents over the client, we risk becoming like the notary publics of Anglo-Saxon countries. Without the client we are no more than a court clerk without a judge and, Gentlemen, we shall soon become 'rubber stamps.' " 22 18

Ibid., p. 5. Ibid., p. 6. 20 Ibid., pp. 6-7. 21 Ibid., p. 7. 22 Ibid., p. 10. 19

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Chardon, himself a successful Parisian notaire, was among those who tried to get across to the profession the notion that a client will go where he can get the best service. He will not go to a notaire for the purchase of a house or land if there are more dynamic real estate agents willing to devote themselves to providing this service. He will not go to a notaire for advice on how to form a company if there are more competent legal counselors available. He will not go to the notaire for advice on fiscal matters if he knows he can obtain specialized advice from tax accountants. He will only address himself to the notaire when the law obliges him to have a contract legalized.23 If that becomes the generalized practice, the question of the eventual survival of the profession would have to be starkly posed. The SEMA study provided the ammunition for people like Chardon who tried to exhort the profession to become more attuned to the competitive world around it. The study noted that banks were beginning to constitute serious competition to the notarial profession, in part because most people had some form of financial need (usually borrowing), and in part because people saw banks as being specialized in financial matters. The agent d'affaires was also an exceptionally strong competitor for the notaire, specifically in areas where the notaire had been in a strong position—finding appropriate residential or commercial property, helping in lending and borrowing money, advising people on how to pay less tax. These activities were of considerable importance, so that, as the SEMA study noted, "Despite the large range of interventions, the 'agents d'affaires' are better trained in those areas where buyers and sellers must 23 The SEMA survey questioned a sample of the public and asked them whom they were most likely to address themselves to for specific tasks (tax advice, creation of a company, establishing contracts). The results show very clearly that the public felt in no way tied to the notaire. In fact, those interviewed were all clients of notaires, and even they did not hesitate to address themselves to lawyers, accountants, and legal counselors when they felt they could be better served than by their notaire. See SEMA, Situation actuelle Au notanat francats, vol. 2: Le grand public (Paris: SEMA, 1969), p. 25.

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be put into contact with one another than they are in other situations^ The survey of the public showed that the notaire was seen as lacking in "modernism," that he was slow and not as dynamic as others in similar professions. The survey also showed that there was a tendency among the young and the managers to question the utility of the legalization function, as well as the privileges which this function granted to the profession. The notaire could not therefore ignore the changing world around him and take shelter in his legalizing monopoly. That option was no longer even open to him; it would ultimately lead to his disappearance, either because he would be relegated to insignificance or because the function itself would be called into question. The issue of whether it was necessary to grant a monopoly to a profession in order to legalize a contract when this task could be performed—more cheaply—by the state was raised again in the 1960s. Hence, the dangers that lay ahead were multiple. The profession could no longer stand still. In order to survive it had to evolve. The SEMA study essentially showed that the notarial profession was blessed with many opportunities. Whether or how it would exploit them was up to the leaders of the profession. The notaires did, after all, have great advantages: their presence throughout the country, their prestige, their being credited with a degree of integrity, discretion, competence. It was necessary to exploit these qualities and put them to work for the renewal of the profession. This could be done only if the notaire accepted a different image of himself. He ought not to abandon his legalizing monopoly—that was the source of his legitimacy. He ought to use this legitimacy to make incursions into other domains that were either formerly his or that he was especially qualified to move into. To do this required that he regard himself less as a magistrate and more as a businessman. The combination of businessman and magistrate, some of the leaders of the profession were quick to recognize, was hard to 21

Ibid., p. 24 (emphasis in original).

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match. Certainly no other profession could use the aura of the state for pecuniary gain in quite the same way as the notaires. Chardon expressed the direction the notariat ought to take. To begin with, our attitude must change. We must focus ourselves on the client's needs and even solicit needs; this is in fact the objective of the methodology and techniques known as "marketing." The notaire—today a player in the market, the legal market—must adopt a "dealer" mentality, which does not imply, however, that thL· market should become a jungle. This marketing perspective should be found at the level ofeach office as well as in the structure of the corporations [defending specific interests] .25 The notarial profession has always wanted the advantages derived from the legitimacy conferred by the state but has also sought the advantages of operating entirely freely in a market. The best example of this is the periodic attack directed at the fees established by the state for the services rendered. It is claimed that the other professions compete with the notaires on the most lucrative terrain, and because of the freedom they have to establish their prices, they succeed in attracting the notaires' clients. For the services which are not well remunerated because of the fixed fee scale no competition is likely to arise—and for these services clients are likely to remain with the notarial profession. As Chardon put it, "As soon as the notarial profession has to compete for a market—i.e., the legal market—we cannot expect prices to be fixed by an administration, even one with the best of intentions, but which is by definition motivated by the needs of public service and not those of the marketplace.26 The view expressed by Chardon is gradually coming to be shared by the profession as a whole: More and more must the notaire be ready to see himself as an entrepreneur or as a member of a liberal profession. "Victim of the legalization of deeds 25 26

Allocution de Matin Chardon, p. 12. Ibid., p. 16.

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by his own doing, and victim of his fees, the notaire is also victim of these professional structures."27 We are gradually getting a certain idea of the notaire. For us, he is not merely someone who legalizes documents; he is notjust the person taking advantage of a delegation of public authority to legalize deeds. He L·, and must become even more so, a service entrepreneur, someone who offers various services for the benefit of a private clientele, whether it be individuals or groups. He L· tuned in to the legal market as are all his competitors. To remain competitive, he has to enjoy the same conveniences that they do.2S Some notaires (like Chardon in 1971) prefer to see the notarial profession become a totally liberal profession. "A profession that is too structured and too protected," said Chardon, "is automatically in an inferior position compared to an open profession."29 The notaire needs to be competitive and, being competitive, "is also to offer the profession the same powers available to neighboring professions in terms of recruitment, selection of members, their placement, disciplining their mistakes, and, if need be, exclusion from the profession."30 Chardon's emphasis was on the notaire's incapacity to become competitive with (and like) other professions. If he was losing ground, "it is his own fault [because] he tends to get himself locked into legalizing deeds rather than promoting a real marketing strategy at every level."31 It is interesting to note that in its effort to push the profession in the 1960s and 1970s toward a more market-oriented frame of mind, some of the leaders of the profession (like Chardon) pushed the idea of market freedom very far. In effect, the profession even today fears the perils of being left entirely to the market. As we shall see, Chardon was not to heed his own words of the early 1970s when the socialist government that 27

Ibid., p. 17. Ibid., pp. 17-18. 29 Ibid., p. 18. 30 Ibid., p. 21. 31 Ibid., p. 24. 28

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came to power in 1981 sought to liberalize the fee structure of the notarial profession. As president of the Conseil Superieur du Notariat (1982-84), Chardon led the battle against competition and against surrendering the state's tutelle. The market has never been the gospel of the notaires. It was used as a vehicle to force the notaire to be aware of competition and to become more dynamic. But it was never the intention of the leaders of the profession to allow themselves to be converted to the principles of free trade. The advantages of protectionism are too important to abandon.

CHAPTER 6

The Modernization of the Profession: Changing a Mentality Until very recently, most notaires did not live in the twentieth century—some still don't—and they didn't even know it. We had to try to change the way they saw the WOrU. —OFFICIAL OF THE PROFESSION

The Armand-Rueff report can be taken as a watershed in the recent history of the profession. The report singled out the notarial profession as the quintessential example of archaism and of those groups that were doing so much to obstruct the economic development of the country. To this attack can be traced the entry of the profession into the modern age. The report's message was not lost on some of the leaders of the profession. Some of the more farsighted saw the Armand-Rueff report as a precursor of more dangerous things to come. This was, after all, not a report prepared by people fundamentally hostile to a capitalistic society or to an economy based on private property. The danger was evident: The prestige of the report could allow it to be used by those on the left who had no particular sympathy for the liberal professions in general and for the notarial profession in particular. A similar report coming from people on the left could not therefore have had the impact that the Armand-Rueff report had. After the initial reaction of shock and outrage at being singled out in such a spectacular way, tempers cooled within the profession. The report was used by leaders of the profession to effect a rude awakening in their ranks. As Louis Chaine observed in a report written in 1976 at the time he was president of the Conseil Supdrieur, "Written by people who were unfamiliar with the notarial profession and who came to it from the outside, the criticism contained in the Armand-Rueff report was not totally justified. It did prove, however, to be very beneficial to the 107

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profession, since it allowed the profession to take stock of its true position within the country."1 Two decades after the publication of the Armand-Rueff report it was no longer difficult for the notaires to concede that the report jolted the profession out of a prolonged lethargy that would eventually have led to its demise. "It is really difficult to imagine," observed a leading notaire, "how backward most members of the profession were in 1960. They didn't even want to hear about changes and reforms." Another notaire put it this way: "The task we had was almost impossible to accomplish, but we were very much helped by the Armand-Rueff report. We used it to let it be known that unless we reformed ourselves, we were doomed. After all, Armand-RuefF weren't wrong. In fact, I would say that we were lucky that they didn't know how backward we really were." The leaders of the profession used the report to gain a measure of acceptance and respectability for the profession. In his 1976 report, President Chaine noted that, "thanks to the combined efforts of the Ministry of Justice and the profession, the notarial profession has, in fifteen years, responded to all the criticisms contained in the Armand-Rueff report and has even gone well beyond it in its transformation."2 The notarial profession could not respond to all the criticisms that the ArmandRuefF report directed against it, because the report called into question the utility of the profession itself. What the profession did succeed in doing was save itself from extinction, consolidate its position, and prosper. How this was done, and how it continues, will become clear in the course of this work. The transformation of the notarial profession is looked upon as a model by other professions. The way in which the notaires planned and executed the changes within their profession as well as their capacity for organization and for getting the 1

Notessur !'evolution Au notariat (CSN, 1976), p. 2 (emphasis in original). Maltre Chaine noted—and this is something that members of the profession were fond of quoting—that in a 1969 interview in La Vie Frangaise, M. Rueff is quoted as having said that "the notarial profession is among those professions that have undertaken their reform from within." 2

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state to do what they want have made them the envy of other professions. A representative of the profession of huissiers at the 75 th annual congress of notaires at La Baule observed that "the Notarial profession is the most remarkable profession in France. Everything my profession does is taken from them. Every liberal profession wants to be like the notarial profession and they all come to it for advice. Why? Because no other profession has responded so well to outside pressures and gotten into such harmony with its times." A banker who deals considerably with notaires put it slightly differendy: "The notaires have obviously done the right things over the past fifteen or so years. They went from being on the verge of abolition to their present unassailable position. Today it's even possible to take pride in being a notaire." This transformation suggests that the strategy undertaken by the profession following the Armand-Rueff report and the SEMA survey has been remarkably successful. Part of the strategy consisted first in getting the majority of notaires to view their profession differendy and, secondly, in modernizing the profession so as to allow it both to render a greater number of services and to render them more efficiently. The Conference du Plan Institutional change does not occur by itself. It results from a conscious desire to avoid further decay once that state of affairs is recognized. This is what largely occurred in the notarial profession, whose changes paralleled, and reacted to, the changes that the society was undergoing. Evidence of the notarial profession's attempt to respond to and emulate the transformation of the society is amply provided by the setting up of its own "planning" agency. The postwar period in France was, after all, the glorious age of French planning. The creation of the Commissariat General du Plan, an agency that sought to establish goals and have the government take the necessary action to attain these goals, had considerable influence beyond national economic planning. It provided an example that the notarial profession sought to follow. As one of

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the notaires who took a major initiative in the creation of the profession's own planning agency put it, "We wanted to establish a body within the profession that would do for the profession what the Commissariat du Plan did for the economy: guide it—no more and no less." Indeed, the name first proposed for this body was the Commission du Plan. This name was changed because it denoted a body with a dirigiste bent. The proposal to create a planning agency dates back to 1963. At its session of 9 and 10 December 1963, the Assemblee de Liaison of the profession adopted the following motion: a) The interdependence of various problems facing the profession and the need to coordinate efforts made in different areas, b) the need to adopt a continuous, long-range policy unaffected by changes in personnel, c) the utility of afar-reaching study of the notarial profession ofthefuture, Proposes that the Conseil Superieurform, from among its members, a Commission du Plan to study in particular the structure and organization ofthe notarial profession ofthefuture, to present the Plan which will be the result of its work, and then to implement it.3 The influence of the plan was evident in the report of Maitre Bercy, who in this report concluded: "And why should we not foresee the implementation of the first stage of the modernization and equipment plan of the notarial profession, and conceive of a concerted policy which would end in its realization?" 4 It was on 5 April 1965 that the General Assembly of the Conseil Supdrieur du Notariat approved the creation of the Conference du Plan. There was little doubt that the purpose of this new body was corporatiste in a narrow sense, that is, to permit a group held together by common professional interests to meet the challenges and exploit the opportunities of the society 3 Maitre Aussedat, "L'Avenir du notariat a travers sa Conference du Plan," AssembUe de Liaison lies Notaires de France, session 1972, p. 8 (emphasis in original). 4 Cited in ibid., p. 3.

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in which it functioned. Its mission was defined in more elaborate terms: —to study the professional and corporate problems submitted to it by the President, taking into account economic change, the direction of government policy, and, in terms ofproductivity, simplification and efficiency, —under the same conditions, to study and suggest all methods for organizing and coordinating the work and activities of the various professional organizations, —to present to the Conseil Suparieur du Notariat the reports and projects resulting from its research} It was the Armand-Rueff report (1960) that led to the creation of the Conference du Plan. It was judged necessary by the profession to move from the diagnostic stage, which had been accomplished, to the stage of prognosis or prescription. The Conference du Plan was charged with this task. Its task was to be, as its first president called it, a "shaker of ideas." But at the same time it became evident that this world was no longer the one which had given rise to the notarial profession, that it had changed and that there was every reason to believe that its transformation would be such, in decades to come, that a gulf would divide its earlier conditionfromthe one to come. It was necessary to consider at this point the numerous problems that this transformation would inevitably produce. Only an organization (at once separate from the Conseil Superieur and yet closely tied to it) that would concentrate on research and analysis could devote itself to the double task of defining this world and of adapting the profession to the role it would have to assume.6 The essential task of the Conference du Plan was to awaken the profession and in so doing to allow it to seize new opportunities. Its task was to facilitate the constant adaptation of the profession. To enable it to undertake this task, it looked 5

Ibid. Maitre Aussedat, "Le Shaker a idees, ou pourquoi de la Conference du Plan," VIP, 73/1, p. 49.

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to dynamic governmental institutions—not to the private sector: The Conference du Plan aims to define, in a similar manner, those tools that will allow the notarial profession to give itself a facelift, a new professional image. But in order to do so, the Conference must rely on the work and methods of DATAR, with whom it is in contact, for there are strong ties between governmental policy, in terms ofmanagement—a policy inspired by DATAR—and the notarial profession's restructuring and development policy.7 It was necessary to assure the profession that the Conference du Plan was to be a consultative body and not an authoritative one. All decisions were to continue being made by the Conseil Superieur. This was important, for the Conference du Plan was likely to introduce ideas hitherto alien to the members of the profession, many of whom wanted assurances that they would not have to submit to the proposals of this new body. As one of the heads of the Conference du Plan put it, "Many in the profession consider the Conference du Plan something of a dreamer. They're always afraid of what might be proposed." Indeed, the guiding principle of the Conference du Plan, as we shall see when we come to the ateliers it organizes, is not to have changes imposed from above. "If changes, I mean really meaningful, enduring changes, are to come about," said an official of the Conference du Plan, "they must come from within the profession. We therefore concentrate on the base. We try to get the notaires together to think about changing, about improving their efficiency—once they've done that then they'll want the changes to be introduced." Cooperation Notaires belong to a corporate entity, but their reluctance to cooperate with one another is notorious. In part this is due to 7 Ibid., pp. 50-51. DATAR is the public agency responsible for regional development.

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competitiveness within the same town, and in part it is due to the lack of time, for the small notaire cannot free himself from his itude (practice). The SEMA survey observed that progress toward efficiency would be greatly accelerated if the notaire could liberate himself from the chores of running his practice. The Conference du Plan thus recognized that the small notaire was overburdened and that unless he was freed from the chains of his accounting, which he did all by himself, there was no way to get him to see beyond his own practice. There is a vicious circle in this: Unless he can see beyond his own practice, he will not agree to cooperate with his competitors, and unless he cooperates with his fellow notaires, he will not be able to free himself from the management of his practice. As one notaire who is responsible for inducing change in the profession observed, 'The small notaire is overburdened. It is imperative that he become more free. In order to become freer, he has to free himself from keeping his own books." Technically, this is of course a relatively simple matter, and more and more notaires today utilize some form of computerized system. The obstacle, however, is not technical. It results from the small notaire's feeling of intrusion into his private world. There are obvious ways in which the notaire can liberate himself from the running of his practice in order to be able to extend his horizons and compete with neighboring professions that are threatening to squeeze him out. As one official of the Conference du Plan put it, "The way for the notaire to liberate himself so that he can grow is to enter into a group with his colleagues and create a center that will write up all their deeds and that will take care of all their accounts. For this to occur, each notaire has to be willing to standardize his deeds and all of them would have to agree to follow the standardized procedure." In order for the notaire to enter into this form of cooperation, it is necessary to show him that it is in his interest to do so. "The problem," noted this official, "is that for such a center to become self-supporting all the notaires of the vicinity would have to agree to give all their deeds to the center. Some notaires want to give only a few deeds. Others want to give only certain kinds

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of deeds. The moment notaires begin to pick and choose what deeds they'll have drawn up by the center, the whole thing collapses." The SEMA study noted that one reason why the small notaire is a slave of his practice is that he spends a good portion of each day managing his own office and doing his own accounts. The Conseil Superieur has undertaken numerous efforts to show how simple doing accounts can be. During the annual Congres des Notaires de France there are always numerous exhibitions of computerized systems. "In part," notes one official, "the notaire's reluctance to try something new comes from his fear of losing the total control that he is used to exercising, and in part it comes from the fact that certain notaires cheat and therefore have good reason for not wanting to standardize their accounting practices." The first task of the Conference du Plan consisted in strengthening the profession through the grouping of notaires, who learn to cooperate with one another so that they become more efficient and so that the profession as a whole is better defended. This is what was known as the first step in the Conference du Plan's short-term strategy. Much of the Conference du Plan's efforts went into this attempt to force the notaires to examine their situation, to think of ways of improving it, and to work out the modalities of greater cooperation. This effort was considered crucial to the second step of the long-term strategy: entering into relationship with other groups. This was a major innovation for the notarial profession, which came to recognize that it no longer lives in a vacuum, that it could not continue to exist without at once entering into competition with other professions and joining with them and other groups to defend their interests. The significant point that the leaders of the profession have attempted to get across is that the future of the profession depends on forces beyond the profession and that therefore the notaires have a stake in the general welfare of the region in which they carry out their activities. They need therefore to get accepted by other groups (Chambers of Commerce, professional associations, regional

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governmental bodies) and think with them about the future of their region. It is a wholly different approach to one's work that is called for. As one of the leaders of the Conference du Plan put it, "The notaire has always been used to asking: Will I have enough work to keep me going? Now we try to ask: What need can we fill? Does the public need us? Are we filling this need well? Can we fill it better?" Maitre Chardon, in his harsh critique of his profession, spoke of the need to enter "the legal market" and of the need to "go beyond legalization of deeds, to surpass it and meet the client's needs,"8 which meant that the notaire had to be concerned more and more with marketing techniques.9 The SEMA study in one of its more important conclusions noted the need for a greater degree of collective action: It seems certain that an office, even within a group, constitutes too restricted an environment to perform certain tasks. It would therefore be appropriate: —to study how some horizontal organizations (i.e., interoffice) could be set up to provide, for example, for the purchase of equipment, use ofcertain materials, and information exchange on real estate. In this last example, some experiments have already been conducted and could serve as models; —to prepare notaires for this collective organization whose structure remains to be determined, the spirit of which, going as it does against the profession's individualist tradition, is still to be developed.10 Yet another of the SEMA study's important conclusions placed the emphasis on the need for a changing mentality in order to seize the opportunities offered by the "legal market." But to see the possibilities offered by the outside world required important internal changes in the profession, which was precisely 8 AUocution de Maitre Chardon, dS*"" Congres des Notaires de France, Vittel, 5-9 juin 1971 (ess, 1971), p. 11. 9 Ibid., p. 12. 10 SEMA, Synthese et conclusions des six eludes SEMA sur la situation actuelle et Ie marchidu notarialfrancais (Pans: SEMA, 1970), p. 39.

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why the Conference du Plan regarded it as the first step in its overall strategy that notaires be grouped together in collabora­ tive attempts. The SEMA study concluded, under the heading "Opening on the Outside World": Another aspect of the change in attitude that seems necessary to effect within the profession is that ofan opening on the outside world, which translates into: —being actively available such that the notaire, without being a "salesman" and conscious of his role as a drivingforce and legal ad­ viser, is able to anticipate the real legal needs of his client, —consequently, a better sense of information among his clients: A visit to the notaire allows the public to be exposed to his serv­ ices. We feel that each "client" should be kept up to date as to the breakdown of the fees he L· being charged, as well as the long-term legal ramifications of his contract and the services a notaire can pro­ vide in such circumstances. It therefore seems to us that short-term measures should essen­ tially occur within the profession. The same cannot be said for middleand long-range measures.λ l Seminars and "Atelier?" The changes within the profession were sought largely at the re­ gional level, both for political reasons and for effectiveness. "A plan for national development conceived at the top level would, on the one hand, probably have been unrealistic, and on the other hand would certainly not have been accepted by the no­ tarial profession as a whole. Above all, since it would have rested on only a few 'leaders,' it would have been extremely ten­ 12 uous." It was decided that the best thing to do was to "make the notaires aware of the basics, of the need for change, and to 13 have them take their future into their own hands." A series of 11 12

Ibid., p. 40.

CSN, Conference du Plan, Une Confirence du Plan: pour qui, pour quoi? (April 1977), p. 3. 13 Ibid.

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meetings and conferences were organized around the country beginning in 1972. These meetings were "an initial attempt": —for information about completed studies, —for a recognition of the strengths and weaknesses ofregional areas of the notarial profession, —for an understanding of the notarial profession within a society and economic environment, and ofthe importance ofthis environment}^ These meetings were no more than the first attempts to get the notaires to think about their profession and its problems and to encourage them to believe that they could influence the future. But the leaders of the profession recognized that this could not be done by lectures or by purely didactic methods. As one notaire put it, "You can tell a notaire until you are blue in the face that the way he has been doing things for the past thirty years is absurd and show him how important—and how easy—it is to change his method of work and he'll still prefer to go on doing what his father and grandfather taught him. He has to realize it himself or nothing will happen." Another notaire said, "What we're essentially trying to do is to get the notaires not only to help defend the profession as a whole—most can't think beyond their own lot so that isn't the primary purpose—but to help them defend themselves by convincing them that there is much they can do themselves. The only way to do this is to find a way to make them realize that they have this and that problem and that they have to do this or that to solve it." The Conference du Plan put it this way: Since a development plan for a profession cannot be conceived by one man alone or even by a small group, it was important to "mobilize" the greatest number of notaires possible, who, ingoing through certain steps, would transform themselves into the image of what they would like to be in the future. It was for this reason that the Conseil Supirieur, through its Conference du Plan, spearheaded a certain number oflarge regional 14

Ibid.

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seminarsfocused on "the development ofthe notarial profession in regions," whose major objectives should be highlighted: —to make notaires, working in groups, determine the needs ofclients in the area, —to adapt the attitude of notaires to these needs, —to define the direction ofactivity and reflection, and to collectively elaborate a development policy, —finally, and most important, to foster a group spirit.15 How was this to be accomplished? First, by the organization of regional seminars that group as many as a hundred notaires (the number of participants varies depending on the region and on the interest that can be generated, which sometimes requires herculean efforts) and, second, by the organization of ateliers which group together notaires within a region to discuss ways of cooperating in specific areas. The seminars were based on a fundamental assumption: Change has not only to be accepted at the base, but it needs to be initiated (with guidance) by the base. As M. Levesque, a consultant who ran these sessions, put it before the seminar held in Bourges in 1976, "If you want to change or alter the notaires' (or the Morvandians') mind set it is not enough to tell them: 'You were doing this . . . now do that.' You never convince anyone that way. Everyone has to give himself new MOTIVATIONS which in turn produce new ATTITUDES and a new BEHAVIOR."16 This is gone about in two ways: first, by making a series of presentations using psychological devices that place the participating notaires in a frame of mind ready to envisage change; and, secondly, by asking the notaires at a later stage of the seminar to work on problems relating to the profession. "One reason that many notaires are reluctant to come to these seminars," said one notaire, "is that they know that they aren't coming to have fun but are going to have to spend several hours working." 15

Ibid., p. 5. Les Notaires de la Cour d'Appd de Bourges face a leur avenir (Conseil Regional de la Cour d'Appel de Bourges, 29-30 April 1976), p. 7 (emphasis in original). 16

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M. Levesque even puts the matter graphically by drawing a cone and observing: Let us show the notarial profession as a cone. If this cone stands on its point (the Conseil Supirieur) it is extremely fragile. If we want to give itgreater stability, it has to be truncated. In other words, a certain number of notaires must be given the chance to take the same route and to work out apian for development. Thefurther onegoes down towards the base, the more stable the cone will be and the more the region or the profession will repose on ITS BASE.

This is the reason for thL· seminar.. . .It is necessary to descend to the level of each district so that the greatest possible number of notaires can visualize the future of their profession in their area}7 The seminars were conducted by a social psychologist whose task it was to oblige the participating notaires to see that their condition could be changed and that change depended on how they saw and reacted to the world around them. The social psychologist was not there primarily to present facts about the profession. What he did in seminar after seminar throughout France was to force the notaires to think about their profession by means of a thinly disguised associative method. For example, in his attempt to show the notaires that they must come to rely less on the monopoly which the state grants them than on the realization that they render services to clients, he proceeded thus: Development is RELATIVE.

What is a RELATIONSHIP? Here's a simple example: the relationship FATHER-CHILD

or

MOTHER-CHILD.

A Woman becomes a Mother, A Man becomes a Father, only once they have a CHILD. No one is a Father or a Mother in and of himself. It's the child who makes us one. The Child asks questions ofhL· Parents and thereby 17

Ibid., p. 9.

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forces them το BE MORE OF A FATHER or MORE OF A

MOTHER.

When Parents answer a CHILD'S NEEDS, it's the Child who devel­ ops. The more he becomes an individual, the more he forces them to become FATHER or

MOTHER.

The same is true of PROFESSIONS. The notarial profession is not self-sufficient. Its monopoly will not save it. It exists because of OTHERS, because of its CLIENTS.18 I give the excerpt above at length in order to show that because the message is so important—and novel—it had to be couched in simplistic terms. The idea that the notaire deals with "clients" and that he renders a "service," that he is not some ex­ alted jurist to whom people are obliged to go, is one that had to be forced on the majority of members of this profession. Be­ cause it calls for a different perception of their roles, it also calls for an entirely novel approach to their jobs. It means doing dif­ ferent things and it also means doing the same things differ­ ently. One of the important changes called for is the abandon­ ment of thinking in terms of the individual notaire in favor of the "notariat." In other words, the seminars attempted to show that what was good for the profession was good for all notaires, but that what was good for an individual notaire might not be so for the profession. Hence, the notaire had an interest in thinking in collective terms. As M. Levesque summed it up in a seminar held in the department of Ilk et Villaine: While there appeared to be some reluctance to "go from the idea of'individ­ ual' notaires to one of a 'notarial profession,' " it was necessary to remember that "the individual by himself does not have much opportunity in our world of doing something of great importance." 19 What was particularly stressed was the need to revitalize the associations d'arrondissements, for it is at this level that notaires can feel the greatest solidarity. 18

Ibid., p. 7. Les Notaires d'llle et Villmneprennent un "second souffle" (CSN, Conference du Plan, Mur de Bretague, 10-11 October 1977), p. 59. 19

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Solidarity and the Future Since the Conference du Plan was modeled on the Commissariat du Plan, its essential mandate was to deal with the future. To that end it attempted to demonstrate (1) that the world in which the notaire lives is changing; (2) that to meet the rapid changes, solidarity is absolutely essential; and (3) that the economic wellbeing of the notaires is a direct function of the economic activity of the region in which they work. The concern with the future has reasons of its own, but it was considered the most effective strategy for getting the notaires to see that their fate as a collectivity was dependent on the outside world. As M. Levesque put it in one of the regional seminars, "If a snail stays in its shell, it will die. The notarial profession, if it changes itself without turning to the world outside, will die."20 Planning requires foreseeing; this was the task of the Conference du Plan for which it elicited the help of outside specialized consultants. As Maitre Aussedat, the first president of the Conference du Plan put it: The Conference du Plan is in a position to control the future of the profession. It was able to surround itselfwith a very diversified body ofadvisers . . . and we shall never be able to say enough what an incredible service they have rendered us. . .in opening our eyes and expanding our horizons. It [the Conference du Flan] intends to continue its work if the human and financial resources are provided to promote the profession's development and to give it this new image. . . . Then, and only then, should we have finished with those who have criticized us and mocked us. That will be the end of "farewell to the notaires."11 The Conference du Plan organized several seminars having such themes as "Notaires in the 21st Century" and "The World, France, and the Notarial Profession in the Next 25 20 21

Les Notaires de la Cour d'Appel de Bourgesface a leur avenir, p. 5. Aussedat, "Le Shaker a idees," p. 51.

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Years." Some, like the former, held at the Abbaye de Senanque in 1976, included a presentation by M. Lattes (a consultant), entitled "A Possible Scenario, Year 2000," and presentations by two consultants and a group of notaires as well as by members of the Conseil Supdrieur du Notariat. Others, also like the former, involved brief presentations by the consultants, with the majority of the time spent operationalizing some of the concepts dealt with in the presentations. In the seminar "The World, France, and the Notarial Profession in the Next 25 Years," the objectives were defined as follows in the introductory remarks made by M. Levesque: 1. Whoever we are, we tend either to focus on the past or be limited by the Immediate future, the Concrete, the Sectoral. We undergo the future rather than create it. The primary objective of the seminar is: In order to escape this mindset, this session will try to ALIENATE us in TIME, SO that we may imagine ANOTHER WORLD, TO SEE IN LARGER TERMS (globally), FARTHER. . . . 2. The notarial profession has spent a great deal of effort over many years "dusting itself off" creating new markets, new products, and making itselfreceptive to new attitudes. 2nd Objective: It is crucial that this gain be exploited, that without detaching ourselvesfromreality we nonetheless question ourselves about the validity ofour present choices.. . . 3rd Objective: As DELEGATE TO THE NOTARIAL PROFESSION, we must try to arrive at IDEAS, communicable PRODUCTS, which are already workable to a certain extent.22 M. Lattes followed with a presentation that concerned the notariat not at all. It was entitled "Essai de prospective 2000," and it dealt with changes taking place in the world and in France and in daily and professional life. The purpose of such a presentation, beyond the knowledge that it transmits to the audience, 22

Le Monde, la France et Ie notariat dans les 25 anntes a venir (CSN, Conference du Plan, Abbaye de Senanque, 16-18 September 1976), p. 4 (emphasis in original).

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is to place the notaires within a particular framework: constant and rapid change in the world that surrounds them. Once they have assimilated awareness of this fact, it is up to them to play with the concepts and to absorb the changes going on in the world. What M. Lattes did, according to M. Levesque, was "to 'disorient' us, to look further, think larger."23 A transition, however, always had to be made from the general to the particular, and it then became the task of the notaires themselves to make the transition. It was they who applied some of the concepts they had been toying with to their own specific situations. For the most part, the notaires participating in these seminars were not those with the largest practices. Most had practices of rather modest size, so that it was important that they came to believe that it was within their power to implement changes of significant proportions where the profession as a whole was concerned and where the functioning and profitability of their own practices were concerned. There was a tendency for them to feel that the "hierarchy"—that is, the Conseil Superieur in Paris, or the influential Parisian notaires whom they felt disdained by and with whom they had little in common—would impose on them what they thought was in the best interest of the profession. There was, therefore, an important step that was taken before the notaires broke up into groups to discuss the applicability of the concepts they had been dealing with during the previous two days: an attempt to show them that every organization needs a "hierarchy"—a decision-making body that is responsible for the profession, that has the power to make decisions and that can impose sanctions on those who may harm the organization—but that alongside this hierarchy there needs to exist a functional arm whose task it is to prepare decisions at different levels and to produce ideas on which the hierarchy leans when making decisions. Any institution or organization, the notaires were told, must have a double dimension: the hierarchique and thcfoncIbid., p. 39 (emphasis in original).

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tionnel. M. Levesque provides the notaires with an example which is well chosen since it concerns one of the giant French corporations: Rhone-Poulenc operates with a central Conseil d'Adminutration that serves as the head, governing the "Rhdne-Poulenc Empire." This head sends orders and information to the major divisions of "RhonePoulenc," with each division having its own president—Decisions come from above. Each division has a certain number of factories. Each factory has a Director who gets his ordersfrom the president. Then each Director relays these orders, these decisions, to the various departments ofhis factory. The entire pyramid relies on a HIERARCHICAL SYSTEM. 24 Having shown the importance of hierarchy for an organization as a whole, M. Levesque then attempts to show that it is insufficient and that without the solid support of the base, the organization cannot function effectively. But even huge, extremely hierarchical organizations have incorporated a FUNCTIONAL DIMENSION: —THE OFFICE OF RESEARCH, an element that does not fit into the HIERARCHY, which is responsible for making decmons at various levels. —In some companies, this OFFICE of research is associated with A METHODS DEPARTMENT.

—The most dynamic companies have a CREATIVITY AND GROUP made up of2 or 3 people, whose task itL·to look into the future, to look for signs of this future. No one asks this group to produce, to be cost-ejfective, only to be CREATIVE. —Finally, another aspect of the functional side [of an organization] is the TRAINING office..25 PLANNING

The task of this technically charged opposition between "Phierarchie" et "Ie fonctionnel" was to get the notaires not to 24 25

Ibid., p. 59 (emphasis in original). Ibid., p. 60 (emphasis in original).

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regard the national organization of the profession as an entity with its own interests, separate from the interests of the local notaires. In fact, the message that was conveyed to the notaires was that the profession depended a great deal on their participation. Their participation in the seminar was a means by which they were socialized into being actively engaged in the profession. Those in charge ofan organization such as the notarial profession are responsible for the Unity of the Profession. But unless they allow for somefreepfay, some innovation, the body of the profession will tend to become STATIC, it will DIE. . . . But any modem Society, any profession that wants to change, must have a Detection (functional) arm and a Regulatory (hierarchical) arm.26 Having been instructed that their active participation in the profession was crucial for the survival of the profession, the notaires then proceeded to move to the task of thinking through and working on some of the problems that had been raised in the earlier session. But whereas the earlier sessions had consisted in their playing almost entirely a passive role, the seminar was structured in such a way as to give them an active role. This had two purposes: to convince each notaire to see that he cannot survive by standing still, which is why there was such great emphasis placed on change and the rapid pace of change, and to facilitate collective action on the part of the notaires. Both goals were intended to serve the ultimate aim: to strengthen the notarial profession and render it less vulnerable to external events. The seminar held at the Abbaye de Senanque in September 1976 was divided into seven ateliers, each having assigned to it a specific task of reflection. Most of the ateliers dealt with questions which were very specific to the profession. But there was usually one that had to do with the general question of change. Just as M. Lattes spoke at the opening of the seminar Ibid., p. 61 (emphasis in original).

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on the many different kinds of changes that were occurring in the world and in France and the need to respond rapidly to these changes, so the profession took its cue from this warning and attempted to see what the likely external changes might be and how it would go about responding to these changes. The first theme that was treated was therefore entided "Simulation and a Look into the Future." Its task was to deal with three "creative ideas": —A simulation of the left's coming to power, to study the notarial profession's adaptation. —To simulate, with the scenario method, the future of the notarial profession in different situations. —Setting up a brainstorming group.27 This atelier, which was mostly concerned with the profession's capacity to respond to different kinds of changes, also dealt with the different kinds of possible responses. For example, in the case of the coming to power of the left, the questions raised had to do with the impact on property rights and consequently on the profession itself. The profession then had to decide what attitude it ought to adopt: "unity-adaptation-resistance."28 Above all, regardless of the situation, the profession needs at all times to have a clear idea of what its own interests are. Not surprisingly, the atelier devoted a separate discussion to the question of "interests," which are: —To have foreseen as many situations as possible so as to be ready to respond to any problem, —To provide itselfwith safety measures, —To solve present problems in terms of the Future (to extend the present) .29 The other ateliers treated matters that were direcdy related to the notarial profession—reentry into the real estate market, 27

Ibid., p. 62. Ibid., p. 63. » Ibid. 28

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the enlargement of the notion of "service," the training of future notaires. These ateliers examined each of these areas through the same angles: What interest does the profession have in a particular sector? What is it currendy doing in this sector? What can it do to further its efficiency? For example, insofar as the real estate market was concerned, a market over which the notaires once had almost a monopoly and over which they have gradually lost control, the notaires now devote considerable effort to reentering or recapturing this market. The first reason why the notaires have a particular interest in this market has to do with its size. The real estate market is huge: 400 billion old francs ([versus] the steel industry: 42 billion; the automotive industry: 35 billion). During his lifetime, the head of a family will move 6 or 7 times, on average. 52% of Frenchmen are homeowners. The yearly number of transactions in France has risen to 1,500,000 and to 150,000 in the Paris area (80 to 100,000 for metropolitan Paris) . 30 The atelier discussed all the relevant factors: the advantages the profession has over real estate agents, the extent to which real estate agents are beginning to cooperate with one another, the close relationship they are beginning to have with the public authorities, how the notarial profession should behave vis-a-vis its competitors. The conclusion, here as in other matters, calls for collective action at the national, regional, and local level. It involves the use of multiple listings, that is, the establishment of one list of available property to which all notaires have access. This is an idea that has made substantial headway within the profession. There was considerable reluctance among the notaires to accept this kind of cooperation, in part because in rural regions they see themselves as competing with one another, and in part because reentry into this market called for considerable aggressiveness, as the notaires now themselves recognize: 'They [the notaires] have a lawyer's training and enjoy a monopoly which 30

Ibid., p. 65.

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keeps them from wanting to enter into a competitive activity. Moreover, they fear they might lose real estate agents' clients."31 One of the goals of the ateliers was to show what the notaires are equipped to do and what strengths they have at their fingertips, some of which are intangible but of critical importance. In the real estate area, for example, where much more is involved than buying and selling property, the notaires benefit from their aura of having a "public role." In other words, they believe that people are more likely to have confidence in them than in a real estate agent. For this reason many within the profession argue that the notaires should seek to conquer this market completely because they can render such services as giving estimates, negotiating transactions, helping with the financing, providing information on loans, and so on. The ateliers thus attempted not merely to open up the horizon of the notaires, but also to make them examine what it was they were doing and how they were doing it. In each atelier a particular idea was put forth and its advantages were examined with respect to (1) the individual notaire; (2) the profession; and (3) the public. The problems involved in the realization of the extension of certain activities were then examined, and the atelier analyzed how to transmit the recommendation to other members of the profession. As one notaire put it, "You can have the most beautiful, logical, and rational ideas imaginable. They are worthless unless you can transmit them in a convincing way to the members of the profession, who can be counted on to be hostile to anything that calls for them to change what they've been doing." To the extent that the seminars had any effect, this was due almost entirely to the ateliers, since they involved an activity in which the notaires themselves felt a certain responsibility. They did not deal in abstract ideas or goals. They remained at a very concrete level, working through on their own the problems they faced in a given sector. The ateliers had a further advantage: They served to link 31

Ibid., p. 66.

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the notaires to the external environment. When the notarial role concerned the function of legalization, the notaire's relationship to his environment mattered little. He did not have to seek clients and he could continue to regard himself as a jurist, or as the guardian of family secrets. The awareness that changes are occurring in the world, that these changes can take different forms and that they all occur rapidly was always the starting point of the seminars. Sometimes even excerpts from Herman Kahn's writings were distributed (as was the case of the seminar held in Bourges in 1976). But there was a point at which the relationship between the activity of the notaire and that of the region in which he lived and worked was clearly established. The purpose of presenting this evidence was to indicate to the notaire that he could not remain oblivious to the fate of his surroundings, for his own wellbeing was a direct function of the wellbeing of his region. Having grasped this fact, which was statistically shown to him, the notaire was then shown the next logical step: the need to play a part in the political and economic activity of the region. The statistics presented to him showing the positive relationship between the profitability of the notarial practices in the region and the region's level of economic activity were clear evidence that what was asked of him was not to increase his level of altruism or sense of public service but simply to serve his own interests better. In the seminar that brought together the notaires of the department of Ille et Villaine in October 1977, M. Desjonqueres, a long-time consultant to the profession, went to great lengths to lay out the nature of the region's economic activity— demographic changes, employment structure, age structure, socioprofessional activity, economic activity through a sectoral analysis, which was then broken down by arrondissement. His presentation was simple and its only purpose was to show how the economic activity of the region was changing. There were times, however, when he interjected the role of the profession while discussing a particular sector, as when he warned about the critical changes taking place in the construction area:

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Beware the vulnerability of all aspects of the construction industry! Notaires have been most affected by the crisis in big cities since their activity has been primarily geared towards construction. This is the danger of monoculture: When there is no diversity of activity, severe problems arise. Will the notarial profession be able to diversify its duties sufficiently? Or will it be jolted by this construction sector "whose best years are behind it?™2 Now, having shown that their fate was intimately tied to the fate of their regions, the presenter posed the question how they were to influence the developments in those regions. As M. Levesque put in an interview, "The main idea that we try to get across is that the notaire exists not by himself but through others. This is the basis of all the seminars we hold. And the notaire is obliged to ask himself over and over again: What are the new needs of agriculture, business, the working man, etc., and how can I help to fill these needs? This is the question that underlies everything we do." Parallel with this new conception of the tasks that the notaire fulfills goes the need to enter into close relationships with other groups. This is a critical part of the profession's strategy. "The aim here," noted M. Levesque, "is to have the profession accepted by other influential groups so that its members can think with them about the future of the region." Conclusion Throughout the 1970s the seminars and ateliers took place across the country. They were the means by which the modern, urban notaire brought the profession face to face with reality. The didactic method was eschewed in favor of an elementary (sometimes infantile) psychology. The Conference du Plan played an important role in charting trends and developments for the profession. Like its model, the Commissariat du Plan, it 32 Les Notaires d'llle et Villame prennent un "second souffle", p. 21 (emphasis in original).

Changing a Mentality 131 achieved a good measure of success. Its role (again like that of the Planning Commission) has changed, to what is not entirely clear. Nonetheless, it carried out remarkably successfully the original task for which it had been created. At the outset, the Conference du Plan intended to be "The research laboratory for the notarial profession."33 Having gone through this stage, as well as through the subsequent stage of attempting to sensitize the profession to the changing world, the Conference du Plan is now in search of a new role. 'The period of sensitization seems to be over, at least in the form of regional seminars. In fact, young notaires are used to and open to group work."34 The Conference du Plan is now forced to "modify its tactics, not its philosophy."35 It is one of several of the profession's organizations that helped pave the way for the transformation of the profession and that, like all organizations, have come both to lack a mission and to have an interest in their own existence. 33 Assemblee dc Liaison des Notaires de France, L'Avemr du notariat a travers sa Conference du Plan, report, session 1972, p. 7 (emphasis in original). 34 CSN—Conference du Plan, "Bilan et programme," Bulletin de Liaison, no. xx (February 1981), p. 3. 35 Ibid.

CHAPTER 7

The Modernization of the Profession: Information and the Computer A young man decides to become a notaire; it is indeed a profession that has this advantage over all others: No prior training is required. From this point of view, to be a notaire it suffices to know how to read and write, nothing more. —R. DE LA GRASSERIE (1898)

The notaire's aptitude for exercising his profession was by all accounts at an abysmal level throughout the nineteenth and for most of the present century. It was not until 1972 that notaires were required to have a licence en droit. In 1905 one jurist could write that "the state is not strict enough in admitting notaires, it requires too little guarantee of ability. Because of this excessive ease, entry into the notarial profession is open to any mediocrity, any washout. . . who failed his baccalauriat or shrinks at the qualifications required of other positions in society."1 In the early part of the nineteenth century projects were put forth that proposed a more rigorous legal training for notaires, but nothing came of them.2 The notaires themselves did not always see the need for more rigorous training and feared the requirement of a licence en droit. "Let us not be afraid to admit," one notaire proclaimed before his peers in 1842, "that requiring a lkence would be the notarial profession's stumbling block; it would completely destroy third-class practices, without exception, and a large part of second-class ones." This notaire went on to warn his colleagues: "Not only would you have to despair of ever finding a successor, dear Sirs, but your practices would be instantly emptied as your staff would have left you."3 1

H. Charrier, Le Notariat francais (Paris: Imprimerie Henri Jouve, 1905), p. 31. 2 Ibid., pp. 37-39. See also pp. 213-29. 3 A. Jeannest Saint-Hilaire, Rapport prisenti a la conffrence des notaires des dt-

132

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133

Such an attitude took a severe toll on the profession, for by the end of the Second World War the general incompetence of the notarial profession became incontestable. The ArmandRueff report alluded to it and the SEMA survey provided ample documentation. In order for the notarial profession to enter the "juridical market" and render a service to a clientele, it had as a starting point to have a high degree of competence. Hence, the training that an aspiring notaire receives has been considerably improved. A licence (or even sometimes a doctorat en droit) is now practically de nguer. The profession also has its own training institutions—the Centre National d'Enseignement Professionnel Notarial, the Ecoles de Notariat, and the Institut Notarial de Formation Continue. Tightening up recruitment into the profession assumes a certain minimum standard. The profession recognized that, as part and parcel of the general competence of notaires, there had to be a means by which the notaire could keep up with the deluge of laws and administrative regulations. If he could not, then the raising of entrance requirements into the profession would not in the long run have much effect on the quality of the service rendered. Hence, in addition to forcing the notaire to take cognizance of the new world in which he operated, he had also to be given the means to fulfill his new role. The CRIDON

With the changes in the economic activity of the society, the functions notaires fulfilled began to change. They were now called on to deal with a far greater number of cases than before. Today notaires are responsible for a total of 4,700,000 deeds, whereas in the prewar period they were responsible for fewer than one-third of this number. In addition to the increase in the absolute number of contracts which they draw up and legalize, they are now responsible for an increasing number of contracts that call for particular partements de France (1842), p. 15. At that time notarial practices were divided into three classes.

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skills and that require considerably more time than the traditional contracts (buying and selling property, loan agreements) that notaires have also drawn up. Much of the notaire's work in recent years has been complicated by the need to conform to an increasing number of administrative directives. Knowing what the directives are is a large task, particularly for a small notaire; interpreting them is an even larger task. Finally, the increase in the workload and the changing nature of this workload have been particularly complicated by the diversity, as well as the number, of laws and regulations that affect every sphere of life. In 1920 the Journal Officiel was a mere 1,200 pages; today it is over 14,000. Every year close to 1,500 laws and decrees are passed, over 5,000 arretas and circulaires are published, and there are some 1,500 ministerial responses to questions. 4 The notaire, even the most competent, cannot keep track of the avalanche of legal texts which he has the obligation to put into practice forthwith. The legal field knows few limits for him. He must keep up with civil law, with fiscal legislation and regulations, with agricultural law, with commercial law, with construction laws, and even with international law. He is no legal scholar and consequently does not have the leisure to study and interpret legislation. Yet he has to apply or put into practice this legislation. The notaires have been seen as "seeking to revive their power by turning themselves into some kind of intellectuals."5 Yet they are, as they are fond of repeating, practkiens. The source of their power, as we shall see, has little to do with their contribution to the field of jurisprudence. The problem that arose after the war was how to keep track of the deluge of legal texts so as to be able to apply them. The competence and utility of the profession depended on being able to do this. 4

Henriette Mignot, S)Sf^WK de Documentation Notarialelnformatique: SlDONI (CSN, 14 June 1978), p. 2. 5 Theodore Zeldin, France 1848-1945, vol. 1: Ambition, Love and Politics (Oxford: Oxford University Press, 1973), p. 52.

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It was in order to keep the notaires in tune with the legal world that the profession, overcoming the intense individualism of its members, created in 1962 the Centre de Recherches, d'Information, de Documentation, et d'Organisation Notariales (CRIDON) in Lyon. Subsequentiy, four other CRIDONS—in Lille, Bordeaux, Nantes, and Paris—were created. The origin of the first CRIDON can be traced to the legislative inflation of the postwar era and to the notaires' incapacity to follow this legislation. In 1958, at the annual congress of notaires, the avalanche of laws, decrees, circulars, articles, books, and all sorts of legal information became a subject of some concern. A decision was taken to create a library that would house a considerable amount of legal documentation. The library was opened in February 1962, but notaires are not researchers and tended to use the library as a documentation center. They wrote letters in which they outlined their problems and requested answers. It was a heavy responsibility, however, to give legal advice, and those responsible for the library could not take it upon themselves to render this advice. The spontaneous demands made by notaires on the library led to the creation of the first CRIDON, which remains the most important of the five. As Maitre Lapeyre, the president of the CRIDON in Lyon, put it: The CRIDON was not the product of a central authority, and covering the country with a [notarial] presence was not solicited, nor was it imposedfromabove. The procedure was in fact the opposite. Initiative was provided by needs expressed by the base [of the profession] and the base has been the one controlling the results. The structures grow in response to increases in demandfor legal services.6 It is true, of course, that some notaires had second thoughts about the creation of an institution that would make information readily available not only to the notaire but to his clerks. "My heavens, my clerk will know as much as I do!" was 6

Andre Lapeyre, Presentation du CRIDON (Paris: CSN, 14-15 June 1978), p. 8.

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not an untypical attitude. As the CRIDON began to respond to more and more of the notaire's research needs, the time he saved by sending his clerk gradually eroded the attitude of suspicion. What does the CRIDON do? It is endowed with the most modern and sophisticated means. Visiting the CRIDON in Lyon one is struck by the modern surroundings, the computers, the libraries, the layout of offices and consultation rooms. The CRi DON reflects two things about the notarial profession: the capacity for organization and its transformation into a modern institution. The CRIDON is, first of all, a library. It contains 50,000 legal documents culled from over one hundred legal journals as well as from administrative and legal decisions. The library also contains analyses of these decisions. This documentation is analyzed and indexed by the jurists whom the CRIDON employs. The results are then stored in data banks and kept up to date. Maintaining the indexed information up to date is a centralized activity taken charge of by the CRIDON in Lyon. The retrieval of information, however, can be effected by any of thefiveCRIDONS separately. "Our base''' notes Mile. Mignot, "is not specialized in these legislative or legal areas [court positions]. We consult all sources whatever their nature or degree. The practical value of memorized documentation is, at least during a certain period, inversely proportional to the traditional hierarchy of legal sources. These, however, are the most difficult documents to locate."7 Secondly, the CRIDON acts as a consultant to its members. In this respect, it is the first such institution created by a profession. It is independent of the Conseil Superieur and is paid for by the notaires themselves, whose "dues" are calculated on the basis of their total revenue. Dues are paid to the department chambre. (The Conseil Superieur also provides a subsidy.) Hence, no notaire need fear asking too many questions, and all questions are treated equally. As Maitre Lapeyre notes, "The goal of the CRIDON is to master legal knowledge, but "no pre7

Mignot, Systeme de Documentation, p, 4.

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cedent existed, either in public or private Law. There was no comparable institution to inspire us. We had to create and invent as we went along, and even as we were growing." 8 The jurists employed by the CRIDON respond to the requests that notaires make. Consultations may be made by phone, by letter, or by a visit, depending on the matter in question. In extremely complicated cases, a notaire or one of his senior employees will go over the case with one or more of the jurists who have compiled a file on it. Having the research done by the CRIDON, which involves a clear understanding of the laws and regulations handed down by the courts, the decisions and various interpretations of the laws, clearly allows the notaire to take on more complicated cases than he could possibly undertake were he obliged to rely on his own resources. The diversity of subjects that the CRIDONS are called upon to treat is quite impressive. Table 7.1 shows that the subjects that the Lyon CRIDON responded to have varied somewhat over the recent past. As matters having to do with civil law—the notaire's traditonal area of competence—decline, those testifying to the changing interests of the profession—tax and real estate law— show a slight increase. In the area of fiscal legislation, the notaire requires all the assistance he can get, not only because of

TABLE 7.1

Questions Posed to the Lyon CRIDON, According to Legal Areas Subject Civil Fiscal Construction Commercial International (private) law Rural Misc. Total 8

1968 (%) 1977 (%) 38 33 18 22 14 17 12 12 8 9 5 4 5 3 100 100

Lapeyre, Presentation dn CRIDON, p. 7.

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the complexity of tax laws, but also because he is called upon to give advice to individuals, to groups, and to companies on tax laws. He plays the role of the American tax lawyer, and he competes here with the tax consultants and accountants. This is largely their specialty and not his. Hence, because of the wide area over which the notaire has competence, or over which he has chosen to have competence, he cannot be a specialist. There is, of course, a difference in the degree of service rendered by the five CRIDONS. The CRIDON in Lyon, the first and best equipped of the five, also receives the most requests for information. The CRIDON that serves Paris and the Ile-deFrance has been something of a controversial institution in part because the notaires of the Ile-de-France look upon it mosdy as a Parisian institution and in part because the Parisian notaires do not really need it. The size of notarial offices in Paris is such that they have adequate means of research. They are organized along highly specialized lines and are largely equipped to respond to their own questions. Why, then, was the Paris CRIDON created? Mostly for purposes of prestige. The Lyon CRIDON was created in 1962, and the Chambre de Paris felt that it was important to create a modern documentation center in Paris because other regions were going to have them. In order to respond to the multifarious juridical problems that notaires pose, the CRIDONS employ a large number of legal researchers. The Lyon CRIDON has thirty-six employees, of whom eighteen are engaged in full-time research and six in library and documentation work. Many of those who do the research and give counsel to the notaires are people who have had considerable experience with the law as lawyers, avouos, inspecteurs des impots. Others are younger jurists for whom this work provides an apprenticeship in the legal profession. The CRIDONS exist not just for notaires, but for the notarial profession as a whole, which includes the clerks. The participation of notaires and clerks in working groups and in consultation meetings with CRIDON researchers is a recent phenomenon. With the existence of Societes Civiles Profession-

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nelles, all clerks are potential notaires. Hence, the upgrading of the clerks in the profession. In addition to the accumulation, storage, retrieval, and distribution of legal information that the CRIDONS provide, they also orgmizegroupes de travail on legal questions that pose particular difficulties. In these groupes de travail the CRIDONS own researchers, professors of law, notaires, and other specialists (civil servants) participate. Thcgroupes de travail allow the researchers to keep abreast of the complexities of the law as well as being a means oiricyclage (retraining). "The goal of the CRIDON," notes Maitre Lapeyre, "is to master legal knowledge, and to do so it must increase the level of expertise of its specialists. The researchers' energy must be sustained, inasmuch as Law is a field that changes continually."9 In general, the subject for one of thescjjroupes de travail is derived from questions posed to the CRIDON by one or more notaires. The object is both the accumulation of knowledge about certain aspects of the law and the solution of particular problems. In this instance, the solution of legal problems is secondary and the research aspect predominant. Inter-CRiDON seminars are called to discuss legal questions. The CRIDON also organizes lectures on important subjects ("The Status of Tenant Farming," "Problems Posed by Bankruptcy in a Notaire's Daily Practice"). Clearly, the activity that the CRIDON undertakes has a practical aim, for the notaire is primarily a jurist. He is a "user" of the law, and as such needs to understand how, when, and in what manner he can use it. This can only be done by the accumulation of information. In order to accumulate and utilize this mass of information, the notarial profession (the CRIDON) has had devised a set of special programs (SYDONI) that allow for the storage and retrieval of legal documents. Stored in the data bank is information gathered from legal journals, laws, decrees, circulaires, arrets minutariek; from all court decisions; and from ministerial responses. All this information, which is kept up to date day by 9

Ibid., p. 15.

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day, is put on tapes and can be consulted through one of six terminals (five at each CRIDON and one at the Conseil Superieur in Paris). Individual notaires are now beginning to have their own terminals. In the SEMA survey conducted in 1969, 51 percent of the notaires interviewed said that they spent only between one and three hours a week gathering information, and 22 percent said they devoted between 4 and 5 hours. When asked what the reason was for this, 68 percent indicated that they lacked the time. The same survey indicated a certain hunger for information on the part of the notaire, since over 70 percent said that they attended lectures or ricyclage seminars. The CRIDONS were intended as a response to this problem. The technical sophistication of the computer system that the CRIDON has at its disposal and all its ancillary activities mean that in order to be effective it must diffuse its accumulated information. This the CRIDON does by preparing reports on legislation that touches on the notaire's work, by holding ajournee d'information on important topics, by making available tapes which synthesize discussions of crucial issues. In part, the activity of the CRIDON derives from the need to find new objectives to achieve. Having set up the collection of information by computer, it needs now to develop additional goals. Undoubtedly these will take it toward further widespread use of the computer. One reason why the CRIDON continues to search for new goals is that it is very much at the service of the profession. Maitre Lapeyre is correct in his assessment of the initiatives that originally gave rise to the CRIDON: The CRIDON is not the work of a single mind that conceived of an organization and then decided to place it in certain locations, governmentally determined through statutes, with branch offices, geographic subdivisions, a budget, and administration. It arose because ofa "need" seen by afew notaires which caught the attention ofmany others. The solution received the backing of two regional organiza-

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tions, then of two Regional Councils, then gradually of28 regional organizations, and then the other regions ofFrance followed suit.10 But the cost of running the CRIDON is high, and it is borne entirely by the notaires themselves. It is inevitable that some who have little occasion to make use of the CRIDONS services will complain about the "waste," whereas those who constantly use its services (and there are no limits to using the CRIDON once the subscription fee has been paid) will feel that it is worthwhile. But those who do not use the CRIDON as well as those who do often feel (and wish) that the cost would be reduced, and they raise the question whether or not similar services might not be gotten elsewhere more cheaply. Many notaires are often struck by the lavish buildings and offices of the CRIDONS.

The CRIDON, of course, has its defenders within the profession; they come mosdy from a group of notaires committed to the modernization of the profession, of which the greatest symbol is, of course, the computer. This group is a veritable lobby for the CRIDON. It argues that the CRIDONS are independent of the Conseil Superieur; that they are decentralized so that each region can call on the services of its own CRIDON; that owing to the method of subscription (by Chambres Departementales), the costs that are normally associated with such organizations (invoicing, billing on a scale to individual notaires, etc.) are absent. Hence, the CRIDONS have an insignificant administrative staff. Finally, the defenders argue that the CRIDONS are democratic in intent, that they do not serve the biggest notaires at the expense of the smallest. 'The structure of the CRIDONS is set up to help the poorest, those with the fewest resources, but it does not ignore the needs of the best and the most powerful. It is a service without demagoguery and does not benefit only a minority. Everyone gets the same treatment. 10

Ibid., p. 13.

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Consultation is free of charge. It is available to everyone, without concern for cost or cost effectiveness."11 The CRIDONs undertake a certain number of activities because they are driven by a need to justify their existence. They do not have to defend the use of the computer and the importance of legal documentation. That is now entirely accepted by the profession. But they are under a compulsion to demonstrate that the CRIDONS are not just serving a few notaires. Hence, the wide distribution of statistics relating to the use made of them by the notaires. Nor are the CRIDONS unaware of their constant need to justify themselves. As Maitre Lapeyre, president of the Lyon CRIDON, observed, "The Administrative Board [of CRIDON] is continually faced with the notion that it must recoup the CRIDON'S budget each year by converting it into the cash value of the services rendered.. . . The user thereby controls the service. This control is done with no strings attached; it is based solely on the 'result' to be achieved."12 How much the user actually controls is a question that is open to debate. The constant task of the CRIDONS has been to convince the profession of the utility and profitability of its services. Competition among the CRIDONS is one reason why each one finds it necessary to think up ways to render additional services. It was the idea of the Nantes CRIDON to provide summaries of discussions on tapes that could be distributed to the notaires. It was the idea of the Lyon CRIDON to set up interdisciplinary work groups. And so each CRIDON attempts to preserve its individual character. What the notariat has done is what no other legal profession has done: to assemble and store an enormous amount of legal information that can be retrieved and transmitted rapidly to members of the profession. But the larger notarial practices have become more specialized and so have come to have less need of the CRIDON. The question of the CRIDON'S future will be posted more 11 12

Ibid., p. 14. Ibid., p. 15.

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starkly in the years to come. Like the Conference du Plan, the CRIDON filled an important need at a crucial time. Whether it can be justified in its present form, and in view of the development of notarial offices over the past twenty years, is a question that is now very much open to debate. Like the Confdrence du Plan, and like any bureaucracy, the CRIDONS cannot be expected to efface themselves just because they may have oudived their usefulness. Interests develop around all such institutions, and the main task—at least for a while—becomes the search for a new raison d'etre. The Computer Revolution A slight familiarity with a notarial office in a large French city is enough to give a general impression of the long road that the profession has traveled since Balzac's days. In fact, many practices are now indistinguishable from any modern office. In large part, this is a result of the widespread use of the computer in the profession. The notaire who has no access to any form of computer technology (even for his accounting) is today a rarity. The introduction of the use of computer technology was encouraged both by the leaders of the profession and by the state, which wanted to see the profession modernize as quickly as possible. The Caisse des Depots played a large role—and continues to do so—in providing incentives (free consultants, loans at preferential interest rates) to notaires to modernize their offices. The largest loans made by the Caisse des Dipots are for renovating offices and for the purchase of materials. More important, the Caisse des Depots provides consultants for notaires for which it does not charge. Generally, these consultants are highly skilled technicians hired by the Caisse des Depots to look over a notaire's office and advise him on the best means of modernizing this office. If the notaire decides to go through with the proposed plan, the Caisse provides the financing. The profession itself has done a great deal to spread the use of the computer. At the time when the profession took note of its backwardness, the Chambre de Paris set up (in 1969) the Centre Notariale d'Informatique. Created to spearhead the ap-

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plication of computer technology to many aspects of the management of notarial offices, the CNI'S original project included the development of computer programs designed to simplify the administration of offices and particularly accounting procedures. From a budget of 280,000 francs in its first year of existence,13 the CNI'S budget now is on the order of 12 million francs. The CNi has grown to perform tasks for the profession that go well beyond the mission its originally set for itself. Under the direction of Yves Salats, the CNI has come to provide services for the profession ranging from the provision of statistical studies on the profession itself to seminars on computerrelated topics to the research and development of computer programs aimed at improving the accounting, financial, administrative, and legal practices of the profession.14 The problems encountered by the CNI since its inception reflect some of the obstacles to modernization within the profession. The CNI sought to adapt computer technology to the disparate needs of the profession and at the same time to develop a system of operation that would grant it financial independence and assure its survival. It had to provide a variety of services and it had to sell those services to a wide variety of notaires. Only by selling its computer programs and having a large number of subscribers to its services could the CNI survive. In its annual report, the CNI proclaimed that its foremost objective was the computerization of administrative tasks in notarial offices. This alone would result in more efficient planning of manpower and work hours. It would liberate the notaire from the shackles of outdated management and accounting techniques and so allow him to acquire further legal informa13

CNI, Rapport d'activite 1969. Yves Salats has played an important role in the introduction of the computer in the notarial profession. He is a man of independent mind, and because he has always expressed his own views he has been marginal to the official hierarchy of the profession. Understandably, gadflies and mavericks cannot be accommodated within hierarchical structures of corporatiste organizations of the type the notarial profession has. 14

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tion. The CNi postponed, in the year following its creation, the establishment of computer programs for deeds. It focused instead on the computerization of accounting procedures. The first five or six years of the CNI'S operation were devoted to the application and diffusion of the computerized accounting system. The CNI'S accounting programs operated in the following way: The offices sent their accounting clerks to one of two computing centers (Paris—sis; Lille—SEGIN) which processed and returned the information. Numerous communication systems were employed including teletransmission, SNCF, regular mail. Adoption of the CNI techniques was facilitated by initiation seminars organized in Paris and in the provinces, traveling CNI technicians, and telephone contact between the CNI centers and the notarial offices. From the very beginning, the development of this system was faced with the dual problems of gaining the acceptance in provincial and smaller offices and convincing the largest and most profitable offices to rely on the collective computer services of the CNI instead of investing in their own computer hardware. The 1972 rapport d'activite" noted that "notaires are relatively unaware of investments required by the present economy."15 The subscription of these groups was necessary in order to assure the financing of the CNI centers and to fulfill its vocation as a service for all categories of the profession. Starting in 1974, the number of offices joining the CNI to participate in the accounting system declined. The year 1974 was also marked by the CNI'S first budgetary deficit. The progressive deterioration of the CNI'S situation prompted its president, Maitre Yves Salats, to write an open letter to the Conseil Superieur du Notariat in October 1976, asking the CSN to examine the problems of computer technology in the profession, and to develop a clear long-term policy concerning the adoption of computer techniques. Salats criticized the neglect of information about the CNI'S activities, as well as the tendency of some notaires to invest in their own computers. He called for a 15

CNI, Rapport d'activite 1972, p. 14.

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reform of the CNI'S financing and for a greatly expanded regional network of computer centers.16 The CNI'S finances were entirely dependent on the grants of the CSN (750,000 francs in 1974; 500,000 in 1971) as well as a loan from the Caisse des Depots in 1974. 17 The membership problems were largely due to the fact that by 1974, 91 percent of Parisian offices had joined the CNI'S system and that insufficient numbers of provincial notaires were aware of or attracted to the offerings of the CNI. 18

The CNi services the accounting procedures of about 20 percent of notarial offices. It began over the years to offer a larger number of services—computerization of employees' salaries, diffusion of real estate information, computer programs for a variety of legal deeds, access to data banks (legal data banks, commercial court judgments). Some of these programs have met with greater success than others. Although the CNI was responsible for opening the eyes of the profession to the possibilities of the computer and its contribution to the modernization of the profession was critical, it, too, is now in search of a role. Like the Conference du Plan and the CRIDON, it no longer enjoys a monopoly in its sphere of action. Indeed, there is more and more of an overlap in the activities of these institutions. As each tries to define a new role for itself and seeks to justify its existence, it inevitably becomes impelled to trespass on the domain of a neighboring institution within the profession. The Conference du Plan now has ambitious plans which, if successful, threaten the existence of the CNI. My purpose is not to examine the bureaucratic politics of the notarial institutions, for in important respects they do not differ from the institutional conflicts that occur in other bureaucracies. I have, rather, sought to underline that in the critical periods confronting the profession a series of institutions came into being and fulfilled a role that allowed for the transforma16

Ibid., 1976. " See ibid., 1974 and 1975. 18 Ibid., 1974.

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tion of the profession. Once that task had been accomplished, each of these institutions began to search for a new self-justifying function. This is today the case for all the major institutions that did so much to shake the profession out of a prolonged sleep—the CRIDONS, the Conference du Plan, the CNI, and even, to some extent, the Conseil Superieur—and to transform it into an effective lobby bent on preserving the state's protection and the profession's monopoly.

CHAPTER 8

Organization There is a very small percentage ofnataires who really know what they are doing. But we are so well organized that the public authorities aren't aware ofthisfact. —OFFICIAL OF THE

CSN

A group that has survived such harsh criticism, managed to preserve its monopoly and its many privileges, induce its rank and file to accept tumultuous changes, and end up being assured by a socialist government whose ideology was fundamentally hostile to the existence of this group that it could look with confidence to the future must be capable of marshaling considerable strength. In short, it must dispose an organizational capability that it is able to call upon in order to influence its environment. The present organizational structure of the notarial profession is a recent creation. The corporatist form of organization of the Vichy regime that created the ordres for all professions and economic and social groups endowed the notarial profession for the first time with a national organization that would henceforth represent the entire profession. The Conseil Superieur du Notariat, created in 1941 and confirmed by the ordonntmce of 2 November 1945, became the national and legally recognized representative of the profession. The profession came to have a three-tiered structure: the Chambres Departementales, the Conseil Regionaux, and, at the apex, the Conseil Supdrieur.1 This is not, however, a hierarchical structure in a strict sense. The individual notaire is named by the state and is wholly responsible for his own practice. The official structures of the profession, at the local and national level, conduct inspections 1 On the relevant texts promulgated by the Vichy regime and their abrogation by the Provisional Government, see Charles Collet and Andr6 Oudard, L'Activitt de la Chambre des Notaires de Paris au cours de la guerre 1939-1949 (Paris: Librarie Techniques, 1965), pp. 44—50.

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of notarial offices. But this self-control by the profession has never been very rigorous. There is no indication that inspections help to catch fraud at an early stage. Hence, the individual notaire is not subject in a strict sense to the authority of the national organization. Yet the local and national organizations of the profession are entirely financed by the members of the profession, who are obliged to pay a percentage of their gross revenue to the official organizations. The strength of the profession's national organization derives in large part from its relative wealth. No other liberal profession possesses a national organization that is financed by all the members of the profession. This mode of obligatory contribution has an indirect effect in that it suggests that the CSN is, generally, speaking for all its members. Although the CSN is not legally an ordre, since it has no disciplinary powers over the members of the profession, it is nonetheless recognized as the national representative of the profession. The CSN'S strength lies in the enormous resources which it disposes. Its membership is the totality of the profession, and every member makes an obligatory payment to the CSN, as well as payments to other official organizations of the profession. He is presented with a figure based on his previous year's gross revenue. He pays his obligatory contribution to the Chambre Ddpartementale, which retains its own share and then pays its contribution to the Conseil Supdrieur. Hence, it is the departmental organizations that make contributions to the CSN, rather than the individual notaires. The notaire who possesses a small or medium-size practice does not always look kindly on the amount of money that is extracted from him to keep the professional organizations going. Many notaires feel that their money is not well spent and that too much of it goes to maintain a large bureaucracy, and to maintain it in good style. The Conseil Superieur The CSN employs close to a hundred persons in its 8th arrondissement headquarters in Paris. What was once a small organi-

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zation has grown into a substantial bureaucracy, which is run by a president (elected for two years) and seven divisions (organized much like a public bureaucracy, with a Direction de Cabinet, a Direction des Relations Exterieures, a Direction des Affaires Sociales, and so on), each of which is headed by a former notaire. To maintain such a large bureaucracy, the CSN has a budget of over 50 million francs.2 Such a budget allows not only for a large staff but also for commissioning surveys, using consultants, performing a wide variety of lobbying activities, and subsidizing programs within the profession. Like the other organizations of the profession (the CRIDON, the Conference du Plan), the CSN has not escaped the bureaucratic virus. Indeed, one CSN administrator who knows the ins and outs of the profession and of the CSN noted, perhaps with only slight exaggeration, that "all that we do could easily be done with a president, a couple of administrators, and a few secretaries." He observed that certain practices almost oblige the CSN to become a regular bureaucracy, for it creates functionaries. "Once an administrator is hired, he can never be fired. He has nowhere to go, for he has sold his practice in order to become a full-time employee of the profession. You can't put him out on the street." In fact, the only instance in which an administrator was let go was one where the employee was not a former notaire. But with former notaires, who give up their practices in order to become full-time administrators, there is no way of firing them or even of kicking them upstairs. They become precisely like those public civil servants for whom they have such harsh words and whose attachment to their "job security" they disdain. Many notaires are of the opinion that the creation of a large bureaucracy within the profession leads to ills common to all bureaucracies: waste, a routine approach to the solution of problems, and a lack of dynamism. One notaire put it this way: 2

See Assemblee de Liaison des Notaires de France, "Rapport de la Session 1979," VIP, 79/4, numero special, p. 37. Thefigurefor the 1985-86 budget runs to 51,499,000 francs. See VIP, 85/5, pp. 6-7.

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"What do these administrators do? You give them an idea and they give you a hundred reasons why it won't work. You try to move them, to inject some dynamism into them, and nothing happens. They are cautious and conservative like any functionary." The CSN has been the object of virulent attacks within the profession. When in the mid 1970s projects were introduced that would have increased the CSN'S powers, Maitre Maubrey, the president of the Syndicat National des Notaires, objected to the projects on the additional grounds that "the Conseil Superieur is not elected democratically by a general vote as are the departmental chambres"* The Syndicat's publication, Ventose, often expresses its dissatisfaction with the CSN, as well as its own points of view on matters relating to the profession. Members of the profession have themselves attacked the inequality within the profession, the role played by the "the huge OFFICES making SUPER-PROFITS." 4 The Syndicat has repeatedly attacked the CSN: ". . . what is the Conseil Superieur good for? Practically nothing, except to extract huge sums of money from us. The Syndicat should publish the salaries and benefits of administrators of the Conseil Supdrieur. We are guaranteeing them unearned income for life."5 The CSN is often contested within the profession simply because it is seen to be an authoritative (and Parisian) organization. But its specific positions are often opposed by its members, or by the other, nonofficial, organizations that members belong to. 6 3

VIP, 76/4, p. 26. The Syndicat's attacks are referred to in this piece in the profession's official publication. But the piece is an adroit defense of the CSN by the then president, Louis Chaine. 4 P. Sorret, "Un Administration s'adresse a ses pairs," Ventose, no. 10 (November 1982), p. 11 (emphasis in original). 5 Ibid. 6 As an example, see the Syndicat's objection to the CSN'S decision to suspend subsidies given to notaires employing "des clerc stagiaires—maitres en droit" (Michel Maubrey, "La Priorite des priorites," Ventose, no. 2 [1982], p. 5). See also Ventose, no. 4 (April 1982), pp. 4 - 7 .

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The CSN is the main lobbying organization for the profession. It is generally credited with being effective in the way it conducts "traditional" lobbying activities—negotiating with the administration, sending around memos and studies, wining and dining public officials. It is criticized, however, for taking too narrow a view of ways to strengthen the profession. "Having meetings is one thing; getting out there with a novel idea is another—and this the Conseil Superieur is incapable of doing," said one notaire. Another notaire went further, noting that the CSN never takes a daring initiative but is very good at letting others take the risk, only to step in at the moment when the credit for the idea is being distributed. "When the CSN sees something is working," said a notaire, "then it will jump on the bandwagon, but it never wants to take the initial risk or initial step." An example cited by several members of the profession is the organization of what has come to be known as the annual Journee de Maillot, which is a rather remarkable example of a successful public relations venture. The idea, launched less than a decade ago, was to devote a day to a particular subject that is of concern to the general public (taxes, housing, matrimonial law) during which notaires from all over the country would come to Paris (to the Palais des Congres at the Porte Maillot) and give private, anonymous, and free advice. The purpose of this exercise is to "personalize" the notaire, to show his competence in all sorts of matters of great importance to people, and to "humanize" him by showing him capable of offering free advice. The original aim was simply to try to change the image of the notaires, and it was intended as a public relations venture. The original idea for organizing such a venture came from a few notaires in the Jeune Notariat movement, an organization within the profession that was created on the initiative of notaires acting independently of the official organizations of the profession. They approached the CSN, which showed no interest whatever in the idea. The champions of the idea believed that such publicity could only help the profession. The CSN feared any additional publicity. The notaires who had the idea

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for the Journee de Maillot decided to go ahead on their own despite the refusal of the CSN to take upon itself the organization of the venture or even to contribute to it. The first experiment was therefore run on a shoestring. It was widely covered in the press and attracted a substantial public. This success induced the CSN to contribute a modest sum in the second year of the project. Once it became clear that the operation was a total success, the CSN agreed to assume almost all of the financing. It did not create the Journee de Maillot and was even hostile to the project at the outset. Yet it has now adopted the operation as its own. Although the CSN has often been the object of criticism by the rank and file, who have accused it of being a bloated, expensive bureaucracy, of a lack of dynamism, and of being run by a small clique, it is nevertheless credited with the capacity for recognizing what is successful or useful and of integrating it within its organizational goals and structure. If it is not always an efficacious or imaginative leader, it knows how to appear as such. Its job is to represent the profession and defend its interests. What it appears to do with remarkable tenacity, and success, is to adopt defensive positions. In its representation of the profession it must be attuned to the base, and yet it must appear to the public authorities to be a respectable, credible representative. Prior to the reform projects of 1982, the CSN became much contested by the rank and file and was subjected to virulent criticism. Many notaires at the base felt that the CSN did not represent them in any real sense, and the divide between the CSN and the base was as wide as it had ever been. The CSN artfully used the crisis created by the government's projects to unify the profession and redirect the anger of the rank and file toward the socialist government. "We are all threatened now and this is no time to fight among ourselves" was the position adopted by the CSN. The CSN maintains an ambiguous position when it comes to representing the profession vis-a-vis the public authorities: It seconds, sometimes encourages, the loud cries of the base; and it tries to appear as if it is being pushed by the base. It presents

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itself to the public authorities as a moderate, conciliatory interlocutor willing to accept compromises but unable to make them. A Ministry of Justice official explained that this sometimes creates problems "because we don't know what the CSN is up to. In their meetings with us they tell us, 'All that you're proposing is very reasonable and we are prepared to accept all your proposals, but in public we have to employ a different language since our base won't go for it.' We never know what game the CSN is playing." The very ambiguity the CSN adopts is part of the profession's political sophistication. The officials of the CSN are willing to engage in endless discussions with the public authorities. Unlike the weaker, or less well-organized, professions, they never storm out of meetings or threaten to go on strike. They inundate the authorities with carefully drawn-up arguments and "proofs" of likely outcomes. The demonstration of their arguments is often highly technical, but the conclusion is always clear. They do not themselves engage in "unrespectable" protests—demonstrations, strikes, etc.—but they discreetly encourage other, weaker professions to undertake actions that they themselves would not countenance. They use the actions of others as weapons in their struggles with the public authorities. As one notaire put it, "The government gets the message quickly: If you don't do something for the notaires quickly, they might also take to the street like the doctors, pharmacists, or syndics" The notaires do not officially take part in demonstrations held by the liberal professions. But the profession makes sure that notaires have a presence "as individuals." Again, they maintain their respectability and their stance as loyal public officials by not officially participating in a demonstration, but they manifest their solidarity with other professions and they send a warning to the government by actually insuring a presence in the demonstration. The CSN cultivates its image of not being a lobby that is defending a private interest. In its meetings with officials of the Ministry of Justice, the CSN tries to remind the ministry that it is the profession's defender. How can the notarial profession be

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a lobby if it is part of the public service and if the Ministry of Justice exercises a tutelle? The Ministry of Justice is expected to come to the defense of its notarial clients. These appearances are extremely important, for they constitute part of the profession's strategy to disguise the fact that it is a lobby artfully using the state to serve its ends. As we shall see later, the tutelle which the Ministry of Justice is granted is devoid of authority. The profes­ sion attempts to insure that it is maintained, and that it remains a fiction. In view of the public-private dichotomy of the profession, it cannot make threats in the way a trade union does. It makes them in a manner that is dressed up to appear as if in going against its requests the public authorities are attempting to defy logic and reality. When the CSN was engaged in prolonged ne­ gotiations with the public authorities over the government's proposed reforms, CSN officials presented the arguments in this way: "It's not us speaking, it's the computer. If the government goes through with its projects there will be χ number of bank­ ruptcies and je amount of unemployment in the profession." No one presented with these figures was quite sure what to make of them. The demonstration always appears convincing; yet one is not always convinced. Still, the position papers based on com­ plex calculations and simulations generally have an impact. The threats of upheaval within the profession are usually presented in this roundabout way. The CSN has become a highly political institution, since its primary task has come to be the defense of the profession and the representation of the profession vis-a-vis the public author­ ities. It knows the exact political nerve it has to touch. When the technical arguments do not appear to be doing their job, mem­ bers of the CSN can go right to the heart of the political issues. One official gave this example: "I went to see M. in the Ministry of Justice. We talked about the reform project and how far it was going and finally I said, 'Let's talk about the political advisability of this issue.' Then his ears perked up. He must have been impressed because he then wrote a long letter to the pres­ ident of the Commission des Lois, who then wrote to me saying

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that he hopes that the question of the reform will be resolved in the 'desired manner.'" Now, the CSN must appear to be the representative of the entire profession. It must also try to insure that the profession appears united and is entirely supportive of its own efforts. In closed sessions of meetings with members of the profession, divergent opinions are expressed. But they find no echo within the profession as a whole. The CSN controls the official press and insures that only the voice of unity is heard. Dissident opinions have no outlet. The Tribune Libre (or Op-Ed page) does not exist as a format because it would invite the expression of dissident opinions. 7 Unofficial

Organizations

Alongside the official organizations—the CSN and the regional and departmental chambrcs—have grown up a number of organizations that owe their creation to the initiative of individual notaires. The creation of all these organizations came about in part because of dissatisfaction with the official organizations of the profession. The Syndicat des Notaires originally sprang up to challenge the CSN. It adopted positions on a number of issues that were different from those taken by the CSN, and it expressed its own points of view on all issues concerning the profession. Robert Badinter, the minister of justice, in his speech before the congress of notaires in Versailles in 1984 specifically thanked the Syndicat des Notaires for ideas it had put forward. Although Badinter's aim may have been to suggest that the administration was well aware that the CSN does not always speak for all notaires and that certain unofficial organizations within the profession have more forward-looking views, the fact remains that very little of the Syndicat's original independence remains. The CSN has come to accept the existence of a multiplicity of organizations within the profession. They help to inject a degree of dynamism that the CSN is not always capable of. But the 7

For a discussion of the role of the CSN, see VIP, 82/4.

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CSN seeks to become the only spokesman for the profession. When an independent organization gets created, like the Syndicat des Notaires or the Jeune Notariat movement, 8 the CSN cannot stand by and watch it develop autonomously. In part because such organizations get created in a spirit of challenge to the CSN and in part because the CSN may no longer be considered the only voice of the profession, the CSN proceeds to coopt these organizations. As each extra-official organization gains a certain degree of importance, it finds itself invited to be represented on the various committees of the CSN. Indeed, the CSN insures that the various organizations are represented in the delegations that negotiate with the public authorities. The Ministry of Justice prefers to see as large a representation of the profession as possible, and the extra-official organizations were all represented in the long series of meetings that took place in 1982—84 between the profession and the public authorities. The impact of the creation of extra-professional organisations within the profession is to allow for a certain degree of dynamism. The Centre National d'Informatique, the CRIDON, the Syndicat des Notaires, the Jeune Notariat movement are all examples of organizations that have helped to modernize the profession. No extra-professional organization, however, can be tolerated that poses a challenge to the official representative of the profession, the CSN. And the CSN has masterfully employed the art of cooptation to thwart challenges to its predominance and to its authority. Hierarchy and Independence Although there is an official hierarchy in the organization of the profession, the independence of each organization is a reality that cannot be ignored. In fact, the independence exists even with respect to the notarial office, since an individual notaire is free to choose the nature of activities he wishes to pursue. No official or unofficial organization of the profession can interfere in the running of his enterprise. He is free to contribute his time 8

Founded in 1955.

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to the profession or not. The one obligation that all notaires have is to pay their dues to the professional organizations. The official organizations of the profession exercise their greatest power over those who aspire to enter the profession. Potential notaires, in addition to having the minimum qualifications, must be acceptable to their chambre and to the CSN. Those found acceptable are then proposed to the Ministry of Justice, which has the ultimate authority for naming a notaire and swearing him in. This procedure has not been found to be wholly satisfactory; it has given rise to numerous abuses. Departmental chambres sometimes have a very precise idea of the kind of person they want in their midst. Occasionally, the president of a chambre has the effective power to name or prevent the nomination of an aspiring notaire. The power of the Chambre de Paris within the profession provides a good example, though by no means the only one, of how the nomination can function or malfunction. It is not insignificant to note that the Chambre de Paris was not wholly in favor after the war of the creation of the Conseil Superieur. The absence of an official national organization allowed the Chambre de Paris, composed of the wealthiest and most powerful notaires, to play this role. The Chambre de Paris gradually came to accept the dictates of the law. To this day, however, the Chambre de Paris exercises a powerful hold over the CSN. One of the two vice-presidents of the CSN must also be a Paris notaire, and every third president of the CSN must also be a Parisian notaire. As a consequence, the Parisian notaires keep a careful watch over the CSN, insuring that their own representatives are always present in its hierarchy and that the president is one of their own for a third of the time. The Chambre de Paris had always tried to extend its authority to cover the entire profession. This was the case under the ancien regime.9 This goal had to be definitively abandoned 9

F. Foiret, Um Corporation panstenne pendant la Revolution (Paris: Librarie Ancienne Honore Champion, 1912), p. 389.

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when the CSN was created. Nonetheless, given the way in which the Chambre de Paris insured that the CSN was constituted, it has come to exercise a remarkable power over the profession, all the more important for being disguised. It is probably correct to say that the CSN would have some difficulty making a decision that ran counter to the interests of the Chambre de Paris, though this does not mean that all decisions taken respond to the interests of the Chambre de Paris. It is not surprising that a chambre that wields so much power within the profession should be particularly concerned to select with care those who wish to enter the Paris chambre. Consequendy, it rarely permits a non-Parisian notaire to purchase a practice in Paris. One former notaire who was a highranking official in the CSN explained his experience thus: "I had built up a very successful practice in the provinces. I had good support, but the Chambre de Paris wouldn't let me exercise the profession in Paris. They want to have total control over whom they admit into their sanctuary. They want to coopt Parisians who will be like them. That's why they fear outsiders." This official pressed his case but got nowhere because, as the officials of the Chambre de Paris told him, "We know you have an impeccable record, but we don't want people coming from outside." Another notaire put it this way: "Often you get the president of the chambre choosing practically on his own who gets into the chambre. But there is nothing as absurd, as undemocratic, and as backward as the Chambre de Paris." The notaire who wished to practice in Paris saw the door close in his face and was obliged to abandon his quest. He eventually became a highranking official of the profession. "The Paris chambre remains very powerful in the profession and very narrow-minded. They have a certain idea of the kind of notaire they want, and the fact that you have a successful practice twenty miles outside Paris makes no difference. To them you're an outsider." One notaire did succeed in cracking the iron curtain of the Paris chambre. Practicing outside Paris and desiring for family reasons to buy a practice in Paris, this notaire encountered the usual refusal of the Chambre de Paris. Unlike almost all no-

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taires, or aspiring notaires, who encounter the opposition of a chambre, this notaire decided to fight what he considered his unjust and unfounded exclusion from the right to practice in Paris. He informed the Chambre de Paris that he intended to dig in his heels and fight. Many of those who are acquainted with this case maintain that the chambre's strong hostility to this candidate was motivated not just by the fact that he was an outsider but also by the fact that he was a Jew. He took his case to the Ministry of Justice, which, after examining the case, was not wholly convinced of the absence of antisemitic motivations in the chambre's decision.10 The ministry supported the nomination and refused to accede to the pressures of the Chambre de Paris, pressures that involved unfounded accusations impugning the candidate's probity and moral conduct. The case reached Prime Minister Raymond Barre's office, and Barre's staff intervened on the notaire's behalf. The Paris chambre did not get its way that time. In the end this outsider was named to the Chambre de Paris because, as he put it to the members of the chambre, "I intend to fight your opposition all the way." But as one of the officials in the Ministry of Justice explained, "In this case we were able to support the notaire, who came to us. In most cases, the refusal stops at the chambre and we never hear about it. The notaires in question are advised, and usually feel, that they ought not to make a fuss. So, although we are responsible for naming the notaires, we can usually only name those who are acceptable to their colleagues." This official also noted that if notaires want to fight their chambres they have to be willing to subject themselves to a lot of unpleasantness. He explained what happened to the notaire who was eventually accepted: "There is no question that antisemitism had a role. They told us he wasn't accept10 It would not be correct to single out the notarial profession as antisemitic. Like all traditional French institutions, it has had its share of those who are hostile to "foreign" elements. See Jules Rouxel, La Crise notariale (Paris: Marchal et Billard, 1891), pp. 108 and 212, for an expression of the antisemitic views prevalent at the time. See also Fra^ois Hyest, Ce que I'onpeutpenser des notaires vusparl'un deux (Fontainebleau: Imprimerie Brevetee, 1942), p. 19.

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able because of his having been involved in this and that twenty years earlier and so on. But there never was proof of any wrongdoing on his part and still they dug up anything that they could get hold of. We could fight for him because he was willing to fight."11 This example indicates how the tutelle of the public authorities has gradually slipped away and how independent the professional organizations have become. As early as the mid nineteenth century, the power of the official organizations to choose whom they wanted was recognized. "In terms of Article 44 of the Loi de Ventose," wrote a jurist, "it is true that any rejection must be justified and referred to a higher authority. What an empty formality against an injustice which the candidate, wrongly attacked, would not dare to contest!!! He was expected to shut up and humble himself before the decisions made by the Group of Ten."12 The independence which a number of the profession's organizations possess is a natural consequence of the decentralized structure of the profession. If certain cbambres can control strictly—and the Chambre de Paris is by no means the only one—the entry of those desiring to join their ranks, this is in large part because of the absence of an authoritative institution, whether within or outside the profession. Yet the form of organization that the profession has de11

There have never been many Jews in the notarial profession, and they have been a rarity in the Chambre de Paris. At the time of the Vichy regime there was only one Jewish notaire in Paris. He was sent to a camp in 1941 and released in 1942. Thereafter his ttude had to have the yellow star stuck on the door. If he was released because of pressure from his colleagues, they did not protest his having to hang the yellow star outside his door. The profession's role during the Vichy regime was a delicate one and has yet to be studied. The profession, by its very nature, had a large role in applying Vichy regulations having to do with inheritance, sale of Jewish businesses, and drawing up marriage contracts between individuals of different races. This whole matter is touched on but obfuscated, probably because it is not a chapter that would give reason for pride, in Collet and Oudard, L'Actinta de la Chambre de Parts, pp. 44—60. 12 Ed. Peclet, Essai sur une reforme du notariat en France (Paris: Chez Delaunay, 1845), pp. 15-16.

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veloped has helped to insure that at the helm will be leaders who can represent the profession effectively. Although the term of the CSN president is only two years, it is the most important position in the hierarchy of the profession. The president becomes the spokesman for and representative of the profession. He leads the notarial delegation in its meetings with the public authorities. The president continues to run his own practice during the two years of his presidency, which generally implies that he has a very successful practice that others can run for him. On the whole, the profession, which sometimes chooses colorless and at other times more flamboyant presidents, has generally had the knack of choosing notaires who best meet the needs of the times. When Maitre Louis Chaine of Lyon was president of the CSN in the mid 1970s, he contributed probably more than any other figure to the transformation of the profession. Coming from an old, distinguished Lyonnaise family, being one of the most respected jurists in the profession, and being a successful notaire, Maitre Chaine was what the profession needed in its attempt to adapt to modern times and to earn a new respectability. Maitre Paul Chardon, president of the CSN from 1982 to 1984, is a different sort of notaire. He belongs, like Maitre Chaine, to the aristocracy of the profession, presiding over a substantial practice that belonged to his father and grandfather and that he developed into a large and successful enterprise that specializes in corporate law. Maitre Chardon takes not a little pride in his accomplishments, which are considerable, and he cherishes his relations and contacts with the world of politics and business. For so long had he lived in the stratosphere of the Parisian world of the notaires that he lacked much knowledge of the "other notaire," the rural, struggling notaire. As president he would make trips to la France profonde and meet notaires working on their own, possibly with the help of their wives, and barely eking out a living. On more than one occasion he confessed that he did not know that such notaires still existed in France. His bourgeois background, his stricdy Parisian world of finance, and his temperament make Chardon the prototypical successful Parisian notaire. His passing

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through the Harvard Business School, his education, and his own business skills have allowed him to escape from the confines of the notarial job of legalization of contracts. "If the profession were abolished tomorrow, it wouldn't change a thing in my business," he once said. He has thus both diversified and specialized. "When a foreign company wants to set up shop in France they come to me." Maitre Chardon is not regarded in the same way as Maitre Chaine was. He is a more recent arrival at success, which may explain what many refer to as his "domineering tendencies." He is proud of his right-wing views, is pugnacious, and is not wholly tolerant of those beneath him. No one has ever accused him of having the common touch. But if he is not loved, he has made himself respected in the profession. He has been at the forefront of the profession for many years and no one doubted diat he would end up being the president of the CSN. In fact, he has been responsible for pushing the profession to "think big," not to be disdainful of money, the market, and competition. In 1971 he made a speech at the 68th congress of notaires at Vittel in which he chastized the profession for having lagged behind and lost so many opportunities. In 1973 he made another analysis before the Assemblee de Liaison des Notaires de France in which he urged the notaires to think of themselves as fulfilling diverse needs of consumers.13 Chardon's dynamic, aggressive, and political qualities have been manifest throughout. In 1973, he was already exhorting the profession to open itself up to the outside world and not to ignore the importance of political influence. Let us come out of our fortress; let us leave our splendid bolation! Let us leave this camp that we believe to be so secure but which may be less so than we think. We must open ourselves to other professions: Let us make contacts in economic organizations. . . . We must likewise open ourselves to the political world, not only through electoral offices (which should be far more numerous); in13 Paul Chardon, "Le notariat fra^ais face au choix de son avenir," Expose a VAssembUe de Liaison des Notaires de France, session 1978 (CSN), p. 16.

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deed, if our presence in parliament were more noticeable, governmental policy vis-a-vis our profession would be very different. But we must oho act as advisers to local governments, we must serve as representatives at the departmental level, we must enter dynamically and competently into the wheels of the country's political and economic life.1* Whatever his other qualities, Chardon is keenly aware of the need for political support and alliances. In the post-1981 period, this is precisely what the profession was most in need of, and as a consequence he was generally considered to be the right man at the right place at the right time. To be sure, not everyone agreed with his tactics,15 and his standing in the profession was never that of Maitre Chaine. Maitre Chardon's successor (Maitre Cordier) was very different in every respect from his predecessor. A local notaire who practices with his wife (also a notaire), Maitre Cordier is a successful rural notaire, who was not given to flamboyance and lacked an aggressive disposition. In short, a quieter man in quieter times. The success of the profession in preserving its privileges and in warding off threats to its position derives to a large extent from its organizational strength. The particular mode of organization developed by the profession includes hierarchy and decentralization, central authority and local independence. The combination, together with the profession's resources, has allowed it to preserve its ambiguous status and to alter completely the juridical intentions of a tutelle. It may well be that the profession's strength lies more in its ability to resist changes than in producing a change. Nonetheless, my emphasis has been on the organizational capacity of the profession, a capacity it shares with many groups in French society and which accounts for the critical transformations of the society in the postwar era. 14

Ibid., pp. 17-18 (emphasis in original). These will be described in Part Four when we come to examine the socialist government's reform projects. 15

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Transformation into a Profession The notaires started out as mere delegates of the public authorities. They have gradually transformed themselves into a profession. If "professionalization is . . . an attempt to translate one order of scarce resources—special knowledge and skills—into another—social and economic rewards,"16 then the notaires can be said to have created a profession out of what might have remained simply an occupation. They succeeded in creating both a "monopoly of expertise" and a "monopoly of status in a system of stratification."17 Professional authority is based, as TaIcott Parsons put it, "on the superior 'technical competence' of the professional man."18 Once the notaires succeeded in delimiting a field of "specialized knowledge and skills,"19 they effectively created a profession. This process was aided when the notaires began to gain independence from outside authorities, that is, to become ever more self-regulating, while at the same time assuring themselves of the state's protection over their monopoly. The control over new entrants into their ranks—what Sarffati Larson calls the "production of producers"—the officially defined monopoly granted by the state, the nature of the service that the notaires market, the uncompetitive nature of the market within which they operate, and, finally, the unorganized clientele that they serve, all these serve to extend the power of the profession.20 Finally, since the "profession's particular ideology coincides with the dominant ideological structures,"21 or at least has tended to do so, the profession's anchoring in the society has been all the more powerful. The notaires in France have thus been able to structure 1(1

Magali Sarfatti Larson, The Rise of Professionalism: A Sociological Analysis (Berkeley and Los Angeles: University of California Press, 1977), p. xvii. 17 Ibid. 18 'The Professions and Social Structure," Essays in Sociological Theory (New York: Free Press, 1954), p. 38. 19 Ibid. 20 Larson, The Rise of Professionalism, p. 47. 21 Ibid., p. 48.

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their functions in a way that insures maximum advantage and protection for the exercise of their occupation. The control of the profession by the more dynamic elements has generally allowed for the more dynamic notaires to pave the way for changes within the profession. If the Chambre de Paris has exercised such a strong hold over the profession, this has clearly not been without its advantages for the profession. The Parisian notaires are at the center of a large number of commercial and industrial activities. They tend to have broader experience and to have more diversified practices. Their view of the evolution of the profession is necessarily different from that of those colleagues who, by the force of circumstance, have viewed their occupations through narrower lenses. But to maintain professional harmony, the beliefhas had to be fostered that all notaires are working toward a common goal and all have similar interests. Yet all professions have in some sense to respond to changes in the society.22 The transformations in the French economy have practically insured that the future belongs to the ambitious notaire who does not cling to his state-granted monopoly and who diversifies his practice. The small-village or rural notaire will likely be an extinct species by the end of this century, so that a double-track (instead of the current three-track) profession will exist. This will largely consist of the large-city notaire, who will continue to branch out into other activities while continuing to have his notarial monopoly protected, and the notaire who operates in small and medium-size cities, who will not operate on the same level as his large-city counterparts but who will reap the benefits occasioned by the disappearance of the rural notaires. Closing down numerous unprofitable rural practices is simply an unavoidable response to changing economic conditions. It is part of the evolution of the profession, as well as part 22

See Gerald L. Geison, ed., Professions and the French State, 1700-1900 (Philadelphia: University of Pennsylvania Press, 1984).

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of its modernization. The consequence will be to create a more cohesive profession that will no longer have to be concerned with a severely disadvantaged group in its midst. The profession will become more competitive, though the competition will be with other professions—tax consultants, accountants, lawyers, real estate agents. The organizational structure and strength of the profession will insure that the state-granted monopoly will more and more be utilized by the notaires as the legitimizing vehicle for forays into other fields. In the end, the profession will survive by doing something other than what it was originally created to do. Paradoxically, this is occurring with the benediction of the state. Organizational Ethics I emphasize throughout the remainder of this work the political basis of the policymaking process. Yet it is important not to lose sight of the fact that understanding the policy process also sheds light on the ethical foundations of a society. Hence, the ethical questions that the notarial profession raises need to be addressed. Organizations are imbued with values and function on the basis of ethical conceptions, even if these are not clearly articulated. I use the term ethics in a collective rather than in an individual sense. How an individual responds to a particular dilemma, how he conceives of his duties and obligations, and what actions follow from this depend, to be sure, on his value system and his ethical stance.23 But an individual's professional ethical position may be shaped, or at any rate deeply influenced, by the ethics of the organization in which he works. Hence, the ethics of organizations, as opposed to the individual's professional and/or personal ethics, need to receive more attention than has been the case so far. 23 See Sissela Bok, "Blowing the Whistle," and Dennis F. Thompson, "The Private Lives of Public Officials," in Joel L. Fleishman, L. Liebman, and M. H. Moore, eds., Public Duties: The Moral Obligations of Government Officials (Cambridge: Harvard University Press, 1981), pp. 204-20 and 2 2 1 ^ 7 .

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The ethical questions that the notarial profession raises have to do with: (1) its success in effacing the distinction between the public and private spheres; (2) its success in representing two conflicting parties; and (3) its ability to act as an agent of the state when it collects taxes while at the same time advising the client on the means of increasing his wealth and assuring him of total secrecy. The state has created the conditions that allow the profession to operate within these ethical criteria. The profession's ethics preclude the rise of a whistle blower because an ideological-ethical basis has been developed for the profession. Only the state can alter the ethical foundations on which the profession reposes. In one way or another, the reform projects (of the last century as of the 1980s) had as one of their unavowed goals the desire to alter the ethical basis of the profession. This was an unarticulated part of the agenda of the governments that proposed reforms. But it has not been brought to the fore in an unambiguous manner. Hence, the need to articulate ethical issues has not arisen. The only ethical issue that has received attention has been that involving notarial fraud. But this is a relatively minor issue and has no part in the fundamental organizational ethical substance of the problem. A judicial system exists to handle the fraudulent notaire in the same way it handles other fraudulent officials. In so doing it cannot alter the ethical edifice within which the profession functions. The question of organizational and professional ethics needs to be raised because it is the foundation on which a profession exercises its functions. To raise an issue about ethics is not to condemn a profession a priori.24 Rather, it allows for a definition of more explicit criteria for judging the functions that a particular profession fulfills. It may even be possible to justify 24

See Alan H. Goldman, The Moral Foundations of Professional Ethics (Totowa, N.J.: Rowman & Littlefield, 1980), esp. chaps. 4 and 5.

Organization 169 certain contradictions in the exercise of functions, particularly if an alternative is likely to be more risky. But as a first step, the state, which has had such a strong hand in developing the profession, has to assume a large part of the responsibility for constructing its ethical premises.

PART FOUR

Policymaking under Centralization

CHAPTER 9

Socialism and the Profession The offices ministenels are indeed private property and. . . they could not be abolished without being purchased. Only the socialists contest this point, which is understandable since they are the enemies of private property. —A. DE GAYFFIER (1911) If you don't watch out, we'll be afflicted by the plague of egalitarianism. —PAUL CHARDON ( 1 9 8 4 )

Between Right and Left The notaires successfully resisted attempts at a structural reform of their profession during the nineteenth and first half of the twentieth century. The profession's capacity to resist reforms that might compromise a protected monopoly and better serve the collective interests of citizens increased immeasurably after the Second World War. Aided by a new organizational structure introduced by the Vichy regime, by the severe shock that the Armand-Rueff report occasioned, and by the rapid growth of the postwar French economy, the notarial profession entered the modern age and became ever more effective in defending its own monopoly. Once the scare caused by the publication of the Armand-Rueff report in the infancy of the Fifth Republic had subsided, no government of the center-right ever again raised the question of the abolition or even the reform of the profession. Indeed, the profession was a natural ally of the centerright, and the mounting pressure of the left, particularly from 1972 until 1981, simply led to an even closer alliance between the notarial profession and the governments of the Fifth Republic. A minister of justice could always be expected to be friendly to the profession, and in some cases, particularly during the years Alain Peyrefitte was minister of justice, he could be counted upon to take initiatives in defending and coddling the profession.1 1

Even in the earlier years of the Fifth Republic the notaires sometimes pressed

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That the notarial profession should have a natural affinity with the more conservative forces in the society cannot come as a surprise. It is, as the notaires themselves have always recognized, a profession that is "closely associated with maintaining social order."2 The justifications that the profession has found for its existence over the centuries have linked it to the preservation of private property and social peace. "Private property is, in general, the child of work,"3 wrote one notaire in the mid nineteenth century. The task of the notaire is to help the individual preserve most of what he has gained through private initiative. He thus becomes the "instrument of private initiative and a liberal economy."4 Yet, if the notaire benefits from a market economy, he remains fundamentally hostile to operating under its constraints. The notaire remains attached not to a conservative, market-oriented society but rather to a traditional ideology that does not accept competition.5 A century ago a notaire could still write: "All of man's virtues are inscribed in the system of private property; everything that is noble about him derives from private property. . . . Private property is civilization at its height; any attack on it is barbarism."6 The notaire serves private interests the basis of which are private property and profit. He thus cannot find himself on the side offerees that question the principle of private property. "In their case too hard and came across resistance from the government. In 1971 they even closed their offices for two days, though the president of the CSN insisted that the notaires weren't really on strike, since they were "always available in case of an emergency." They were objecting to their fiscal status and to their fee scale. SceL'Aurore, 14 December 1971. 2 J. C. Serret, Discours sur la profession de notaire (Valence: Imprimerie d'A.-F. Joland Aine, 1840), p. 7. 3 A. Jeannest Saint-Hilaire, Du notanat et des offices (Paris: Durand, LibrarieEditeur, 1858), p. 67. 4 Emile Parfait, Essai sur une organisation liberate etsolidariste du notanat (Paris: Marchal & Goode, 1913), p. 27. 5 For an attack on both competition (for the notarial profession) and egalitarianism, see Paul Chardon, "Le Tarif et les notaires," VJP, 84/7, pp. 37-43, and 84/8, p. 9. 6 Jeannest Saint-Hilaire, Du notanat et des offices, pp. 99-100.

Socialism and the Profession 175 a way," said one notaire, "our job used to consist of helping the father give his daughter away but not his money." If this BaIzacian role was paramount in the nineteenth century, it became transformed into "helping people preserve their patrimoine." And, as one notaire put it, "When one is engaged in this activity one cannot be in favor of revolution. So, to put it simply, the notarial profession is naturally a conservative profession." The notaires cannot allow themselves to be seen merely as defenders of private property and of rich people's fortunes. They have attempted to downplay this role by the projection of an image that emphasizes a more socially oriented function. They have sought to be seen as arbiters of social conflict and as crucial instruments of social peace. Side by side with his self-image as a defender of private property, the notaire has sought to project a social image, one that clothes him in the garb of a defender of the weak and the poor. "Through tact and discretion, he can curb appetites, sustain the timid ones, and bring greater equality among men. In this manner, he becomes the unofficial agency ofsocial protection for the weak.'"7 The notaires have adopted and made their own the image of peacemakers that the Conseiller d'Etat Real saw them as having when he stated in his Expose des Motifs of the law of Ventose an XI (1803), that the notaires "prevent differences from arising between men of good faith while removing, along with the hope of success, the desire of greedy men to win an unjust suit."8 Real saw the notaires as being "juges volontaires." He thus assigned to them an impartial, noble, and paternalistic role. The notaires have understandably latched onto this definition of their role, which places the emphasis on bringing people together so that conflicts are lessened and agreements are arrived at without undue pain. In fact, they see themselves as having a role in the preservation of social harmony while law7

Ibid., p. 25 (emphasis in original). Expose des motifs du projet de loi sur !'organisation du notariat par Ie Conseiller d'Etat Real (session of 14 ventose an XI), cited also in Favard de Langlade, "Opinion sur l'origine et l'etablissement des notaires," in Repertoire de la legislation universale du notariat, vol. 5 (Paris: Firmin Didot, 1829), p. 8. 8

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yers tend to cause divisiveness. "The notaire knows how to avoid the conflict, the difficulties, the trials that arise and multiply as if by magic beneath the hands of litigators. For a notaire, it is a system of peace, with its compromises, transactions and prosperity; for these others, it's war, with its disasters and destruction."9 The profession has thus come to see itself, in the words of a nineteenth-century notaire, as "one of the most indispensable professions in maintaining the harmony and order of civil society."10 "As confidant of a man's most intimate secrets under difficult and momentous circumstances, as the trustworthy and incorruptible guardian of a family's heritage, only the notaire is able to protect and perpetuate their status and their family fortunes. He alone can draw up any deed affecting civilian life and give it legal status."11 The idea that the notarial profession exists to preserve social harmony was propagated not only by the profession but also by jurists who helped to buttress this image. One weighty juridical tome noted that "the notarial profession has established itself. . . as one of the necessary elements in our French civilization."12 The question can legitimately be raised whether the roles of the notaire as peacemaker, as impartial arbitrator, as conciliator who stands above conflicting interests and becomes "l'homme de contrat" (as he often refers to himself), even if he fulfilled such roles to perfection, are not ex post facto rationalizations designed to have a legitimating function. What is the connection between the rationalizations that the notaires offer to justify their role in the society and what the law obliges them to do? Why are extralegal justifications invoked to sanction the notarial function? Important as the notaires' role might be in contributing to social peace and harmony, in acting as the guardians of people's secrets, and in helping families preserve their fortunes, the fact remains that "in no document can one 9

Jeannest Saint-Hilaire, Du notariat et Acs offices, p. 274. M. R., Lc Notariat amsiAirt dans ses rapports intimes etjoumaliers avcc la morale (Paris: Chez Durand, 1847), p. 41. 11 Ibid. 12 F. Dubas, LaResponsabiliti notariale (Paris: Recueil Sirey, 1937), p. 271. 10

Socialism and the Profession 177 find the basis for the notaire's extra-professional activities."13 It can be argued that the notaire's monopoly—that is, the public service function—is today less important than the ancillary ac­ tivities that he undertakes. The profession is constantly re­ minded by its leaders that "the kernel of our existence is legal­ izing deeds . . . but let us not lock ourselves into it. Too many of us use it as a refuge."14 The notarial profession has found it necessary to invoke extra-professional arguments in order to counter attacks di­ rected at it and to improve its public image. Although the "so­ cial" role of the notaire has become markedly less important in an urban society, the profession finds itself based on two crucial contradictions. First, the notaire is dependent for his livelihood on an economy that is guided by the principle of private prop­ erty. To the extent that he advises families on how best to keep the state from putting its hands on their fortunes, he falls into a serious contradiction: He is an qfficier public who collects taxes for the state and a private consultant advising his clients on how to pay as little tax as possible.15 It was such a contradiction that Balzac had in mind when he wrote that the notaire "has to ig­ nore what he has well understood and understand what cannot be explained too finely to him" and that he has to "see every­ 16 thing without looking and look without seeing." Secondly, the notaire represents conflicting interests and is remunerated for this, since if he represented only one party he would receive only half of the allowable fee for the transaction. This is not often referred to or avowed as constituting a conflict of interest. Yet the fact remains that being an "homme de contrat" and 13

Jacques Tardieu, La Responsabihta des notmres en mature extraprqfesstonnelle (Paris: Imprimerie Boissy-Colomb, 1938), p. 14. 14 Paul Chardon, "Le Message du president," editorial, VIP, 84/8, p. 8. 15 As one jurist put it,". . . while it is against the law for a notaire to commit any fraud or to lie, he is nonetheless under strict obligation to protect his client's legitimate interests." See Emile Legrand, Traiti des devoirs nwraux des notaires (Paris: Administration du Journal du Notariat, 1904), p. 248. 16 ΗοηοΓέ de Balzac, Oeuvres diverses (II), ed. Marcel Bouteron and Henri Longnon (Paris: Louis Conard, 1920-50), vol. 39, p. 202.

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"promoting social harmony" implies the representation of two (often) conflicting parties and thereby the collection of the entire fee. A rare jurist did make the observation at the end of the nineteenth century that What is even odder is that the notaire can, in this way,findhimself the agent for two parties with conflicting interests, for example the buyer and seller, but always under the cover ofhis clerks—the apparent agents. In this case, it is the notaire who will actually claim that as agentfor X he sold to himselfas agentfor Z; throughout the transaction only the notaire is to befound, representing three people.17 Both contradictions have been transformed into virtues: The notaire helps the state by collecting taxes and he renders a social service by representing two conflicting parties. Serious as these contradictions are, no proposed reform has actually invoked them as the basis for a major reform of the profession. The coming to power of the left in 1981 sent tremors through the profession, which had lent its hand discreedy to defeating the presidential candidate of the left and the left-wing candidates in the parliamentary elections of June 1981. Why did the profession fear the left's coming to power? In the first place, aside from having grown accustomed to having a very comfortable relationship with all the previous governments of the Fifth Republic, the profession did not much appreciate the left's emphasis on egalitarianism. The notaires do not belong to a profession that is overly preoccupied with the creation of an egalitarian social order. The profession itself is an example of an inegalitarian society. A socialist party report noted that the disparity in earnings among notaires "is 17

Raoul de La Grasserie, L'Etat actuel de la rtforme du notariat en France (Paris: A. Fontemoing, 1898), p. 19. One British journalist who spent nine years as the Guardian's correspondent in Paris was scathing in his assessment of the notaire's role (as he was of most French social institutions): "To buy or sell a house you absolutely need a notaire. This arrogant, self-satisfied, grasping relic of past centuries expresses, more than anything else, the social backwardness of France. He often represents both parties to a transaction, as well as the government. The result is he represents nobody properly except himself' (Walter Schwarz, "Souvenir of a Belle Epoque," Guardian, 9 September 1984).

Socialism and the Profession 179 truly enormous," and observed that in 1979 11 percent earned less than 135,000 francs, 57 percent earned between 135,000 and 410,000 francs, and 2 percent earned between 410,000 and 1,090,000 francs. The report noted that these figures did not give the full measure of the inequality within the profession, since "the majority of this 2% earn several times the income given [i.e., 1,090,000 francs], and one-fiftieth of the notaires have a net profit equivalent to that made by a quarter or a third of the other notaires."18 De Closets also notes the disparity in income within the profession, though he places the emphasis on the wealthy minority that earns over 100,000 francs a month and on the 150 notaires who are "among the highest taxpayers in France."19 If the profession mirrors the society in its inequality, that is simply because a liberal society rewards the more capable. Individual initiative is the order of the day for the notaires, and their wealthy clients, whether individuals or companies, demonstrate their capacities and talents because the society recognizes and rewards their success. The notaires were not wrong in the assessment that the socialist government was committed to a more just distribution of wealth, a measure that they were not known to be in favor of. "France has been possessed by an egalitarian frenzy" was how Henri Chardon disdainfully referred to the social climate that he saw the socialists as having created.20 The report of the socialist party's Groupe de Droit Civil recommended a solution to the vast inequality within the profession: a huge disparity exists among various practices.. . . The sum total of revenues is badly distributed; there should be a redistribution by an organization within the profession; 18 Dominique Labbe, "La Riforme du notanat" (Groupe de Droit Civil du Parti Socialiste, n.d.), p. 4. 19 Frangois de Closets, Taujoursplus! (Paris: Grasset, 1982), p. 162. 20 President of the CSN, citing Jean Fourastie in his speech before the Congres des Notaires de France, Versailles, 24 May 1984, p. 23. The reference to the socialist "frenesie egalitariste" seems to have entered the profession's lexicon. The new president of the CSN, Michel Cordier, used it in his first statement as president to the profession. See VIP, 84/8, p. 15. For a variation on the term, "Ie fleau d'egalitarisme," see Chardon, VIP, 84/8, p. 9.

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Those notaires who make a large profit from their monopoly wouldpay apercentage which wouldgo to rural notaires in financial straits, with the Regional Commissions overseeing the redistribution.21 Second, the left (the socialists and communists) was not a champion of private property, at least not in the same unequivocal way as was the right. The nationalization program that had formed the basis of the Programme Commun between the socialists and communists in 1972 indicated that the state would play an increasingly important role in the economy and in the society. Since the possibility of nationalizing the notarial profession had been raised many times in the past, the notaires feared the eventual extension of the nationalization measures to include them. Third, the left's emphasis on collective goods as opposed to individual gain assured the notaires that an attack on wealth and privileges was now unavoidable. The natural constituency of the left consisted of the poor, the workers, the schoolteachers, and other groups that were not likely to be affected by the wealth tax but were likely to be the beneficiaries of the Loi Quillot (which protected renters) and the Lois Auroux (which extended the rights of workers) and other measures that favored the less well-to-do groups in the society. Between the haves and have-nots, the notaires had no doubt as to where they belonged or where they were seen to belong. Finally, the notaires were part of a group—known as the liberal professions—that had long been seen as wealthy, privileged, and tax dodging. They felt that they were targets for reform even when they were not singled out as a specific group, because they were generally identified with the liberal professions. The notaires were, of course, often singled out in a number of reports for not responding to society's needs, or for incompetence, or for their wealth, or for their privileges. In 1981 they believed that they were about to suffer from the fact that 21

Labb£, "La Riforme du notariat," p. 10.

Socialism and the Profession 181 "the majority of people today do not believe in the legitimacy of making a fortune . . . in an economic meritocracy."22 The notaires were not proven wrong in their assessment that the left's arrival at the helm of power was bound to result in attempts to reform their profession. But what principles would guide such a reform? To set as an objective the ending of privileges is one thing; to devise specific measures that take account of the group and its clients is another thing. The political and social reforms that the socialists sought to undertake with respect to the notarial profession tended to conform to a socialist ideology far more than did the proposed economic reforms. Political Critiques There was no left program as such with respect to the notaires or to the liberal professions prior to 1981. Much talk, campaign rhetoric, position papers emanated from the socialist party, but it cannot be said that there was anything resembling a coherent viewpoint or a program that could be applied once the left came to power. The question will need to be raised by future historians of the socialist experience as to why upon taking power the socialists were so unprepared, given the years of preparation they had had at their disposal. This was even the case in areas (such as nationalization) where it was clear that a reform would take place. The modalities had received little attention. So it was with the liberal professions. Reforms would have to be introduced, but to rectify what abuses and to create what practices? What was clear once the left had come to power was that the tide would turn away from the liberal professions and move in favor of the more disadvantaged groups in the society. There were early indications, not always emanating from official sources, that led the notarial profession to suspect that it could not expect the kind of favorable treatment that it had been used to. Even before 1981 the view was expressed within the judiciary that the longstanding system that characterized the ofDe Closets, Toujour*plus! p. 122.

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fices ministenels was not compatible with a democratic and egalitarian society. The criticisms were not in themselves novel, for they tended to be the same as those directed at the semipublic, semiprivate professions in earlier times. But they were not without importance, in part because they came from within the public (judicial) sector and in part because they revived criticisms that had been dormant for at least two decades. Responsible to a large extent for reviving the unresolved issues associated with the offices minhtariek was the Syndicat de la Magistrature, which is identified with liberal views of justice and which wanted to introduce a more efficient and egalitarian judicial system. Michel Jeol, a magistrate and a member of the socialist party, wrote a book in 1977 that rendered him the nemesis of the notarial profession. Jeol was mentioned with remarkable frequency in interviews I had with officials of the profession and was generally referred to as a hothead, gauchkte, guiding on behalf of the leftist Syndicat de la Magistrature the government's plans to strangle the profession. The profession no doubt ascribed to Jeol designs, power, and influence that he did not possess. It did fear, however, that his own opinions expressed in a book represented the official position of the socialist party. In this book, Changer la justice, Jeol raised the issue of the compatibility between a democratic society and the privileges granted to a profession that emanates from the public domain. "It is the system that is unjustifiable, however you look at it! Is it normal that in a liberal society the members of a group with limited admittance should benefit from a total monopoly which puts them beyond the reach of any competition? Is it acceptable in a republican political system to be allowed to hold a public office by buying it?"23 The monopolistic aspect of the profession as well as the age-old criticism of the venality of offices were revived by Jeol in a way that the profession was no longer used to. And yet these issues had not been resolved or been put to rest. With the left in opposition during all the years of the French economic (Paris: Editions Jean-Claude Simoen, 1977), p. 98.

Socialism and the Profession 183 miracle, it was inevitable that it would seek to attack the way in which the increasing wealth had been divided, and the undemocratic nature of recruitment into many institutions that this led to. Although the government had to sanction the sale and purchase of offices, These controh offer no guarantee of democratic access to the profession. Instead, they tend towards discrimination, to such an extent that the financial barrier is strengthened by political, social, or even racial and religious exclusions. Obviously all these factors tend to inspire a certain conservatism among interested parties which may reassure those in power, but which ought to disturb Frenchmen because it explains, in large part, the intransigence of the judicial system bhcked, as it is, by this sclerosu of special interest groups and prejudice.24 The reforms were difficult to envisage, especially since the obvious ones—integration within the public service sector and freedom to operate freely in the market—had been discussed many times in the past. The problem was that the state was hampered in nationalizing these "privileged"25 professions because it could not afford to indemnify the owners of offices. "This is the handicap that weighs and will continue to weigh on our leaders' decisions whoever they may be: The state has very unwisely allowed the development of offices which it is in no position to repurchase, given the condition of the economy and its own budgetary problems."26 The notaires feared Jeol's proposals, for they regarded them as being presented in a clever, innocuous way but being in reality extremely dangerous. He suggested the progressive opening up the profession so that an essential purchase by the state might become possible. Their status should gradually come to resemble that of the liberal professions "by gradually opening up the numerus clausus and by making their offices ten24 25 26

Ibid. Ibid., p. 99. Ibid.

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able for a lifetime or only temporarily, which would allow the cost of a practice to be spread out over time."27 After the left came to power, a series of critiques against the closed professions came from different quarters. Some of the most serious were directed specifically at the offices minuterids and particularly at the notarial profession. Frangois de CIosets's bestselling book Toujous plus! took the notaires to task in a chapter entided "A Cruise among the Ultra-Privileged." Not only did he classify the notaires among the most advantaged groups in the society, but he criticized them for limiting competition within the profession as well as the number of possible competitors, and for controlling access to the profession. He attacked them for their hypocrisy, which consisted in defending their own interests by constant references to the general interest.28 Thus in a few pages de Closets publicized the protection the profession receives and the privileges it enjoys. The profession did not take kindly to de Closets's criticism, coming as it did in a book about inequality in France and not long after the coming to power of the left.29 The privileges and wealth of the profession were denounced again in 1982 by a socialist deputy, Jean-Pierre Michel, who was a former magistrate. He attacked the hereditary nature of the profession and its numerus clausus, as well as insisting on the fact that the legalization of deeds is a task that other public institutions could easily take on. He called on the Ministry of Justice to introduce a major reform of the notarial profession.30 Michel's attack was followed by a more serious at27

Ibid., p. 101. De Closets, Toujoursplus! p. 165. 29 Nor did the profession appreciate the attention de Closets caused the notaires to receive. VIP, the profession's official publication, reprinted an article published by a Belgian notaire which accused de Closets of ignorance about the profession, but which nonetheless recognized that some of the issues raised merited reflection. See VIP, 83/2, pp. 31-32. Privately the officials of the profession showed nothing but contempt for and hostility toward de Closets. 30 Radio interview of Jean-Pierre Michel by Arlette Chabot, reprinted in VIP, 82/5, pp. 69-70. 28

Socialism and the Profession 185 tack on inequalities and privileges, if only because it came from the prime minister himself. Pierre Mauroy was quoted as having said that "it's all done for pharmacists, notaires, syndics, and bailiffs!" He later denied having made this categorical remark, and noted that each profession had to be considered separately because some were overprotected while others were underprotected.31 The prime minister's attempt to allay the fears of those professions that were most threatened by his remarks were not entirely successful. Many of those concerned by the remarks feared that there were forces within the socialist party that wanted to see profound structural reforms. In addition to the mood of the moment, which witnessed the socialist party congress in Valence and in which calls were heard for "heads to roll," there were those like the deputy Jean-Pierre Michel, who called for reforms as opposed to "mini-reforms," and the deputy Jean-Louis Masson, who introduced a bill in parliament calling for the notarial statute to be transformed in line with the statute of notaires in Alsace-Lorraine, where financial considerations are of little importance. He noted that the statute applying to notaires outside Alsace-Lorraine is particularly unfair because to become a notaire it is essential, above all, to have a great deal ofmoney available, and peoplefrom families with few means are thereby handicapped. Thus it is important that the system of Alsace-Lorraine be used as a model (which in thk area is immensely superior and far more equitable) while a transitional regime is set up, so that new regulations do not translate into the expropriation of current holders of these offices.12 Besides the political declarations and remarks, there were private voices to be heard. The National Consumers' Organization, concerned above all by the relationship between prices and inflation, noted that the closed professions, which included 31 Declaration de monsieur Pierre Mauroy, Premier Mimstre, au Conseil Municipale de Lille, 17 December 1982, p. 2. 32 Proposition de Loi relative a la modification de !'organisation du notariat, presentee par Jean-Louis Masson, Assemble Nationale, session extraordinaire de 1980-1981, 6 July 1981, p. 2. The bill was not adopted.

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the notaires, "benefit from a privilege which seems exorbitant in a free market and competitive economy."33 The organization established a link between privilege and unjustified pricing. "Vestige of an earlier period, narrow interests or general interest, each explains or tries to justify the official or hidden numerus clausus which denies newcomers access to various professions. These restrictions reward cooptation and wealth rather than merit. They tend to encourage the practice of overpricing the products sold or services rendered."34 For the first time in over two decades the offices minutiriek, and the notarial profession in particular, had once again become a concern of the public authorities. They had lived a prosperous two decades and grown accustomed to working with governments that paid close attention to their requests and demands. And except for the occasional scandal involving a member of their profession, they were happy to be able to keep off the front pages of newspapers. The coming to power of the left in 1981 focused attention on them again, attention which could not be ignored in view of the fact that it came from a diversity of sources, not all of which could be accused of working as sousmarins for the account of some collectivist organization or foreign country. Economic Considerations The clamor for reform did not derive simply from political considerations. To be sure, the issues of equality, privileges, and monopoly were real enough for most of those who were concerned with the "closed" professions. The economic basis for reforming the profession was every bit as important as the political arguments. The National Consumers' Organization, which was not interested in reform for reform's sake, had touched on critical issues having to do with prices, products, and competi33

Comiti Nationale de la Consummation, Les causes d'inflation ressenties par Ie consommateur: trentc-six propositions avancies par les organisations nationales de consommateurs (Paris, 1982), p. 75. 34 Ibid.

Socialism and the Profession 187 tion, or lack thereof. Much as the professions, and in particular the notarial profession, preferred to attribute all desire for reform to ideological considerations and to the intent of the "socialocommunist" alliance to establish a collectivized society, they were soon confronted with the need to respond to the economic arguments that had their origins in sectors and among people who could not be accused of a priori hostility toward the profession. The left can be credited not with injecting a new outiook on an old practice but simply with resurrecting criticisms and points of view that were put forward by commissions and administrative agencies prior to 1981. The left was, to be sure, concerned to rectify some of the negative social effects associated with the notarial and other professions. But it soon became equally concerned with less ideological issues having to do with monopolistic practices, fixed pricing, unfair practices, and, as a consequence, the fueling of inflationary pressures in the economy. Reconciling the political and economic rationales for reforms gave rise, as we shall see, to paradoxes. Needless to say, this was not the first time, nor the first country, in which a left government attempted to carry out a set of reforms that conformed more closely to the right's ideology. Thus, for example, the socialist government sought to democratize access to the profession and to break the monopolistic practices over price controls and over the control of new entrants into the profession. These goals could only be achieved by the introduction of a greater degree of competition within the profession. The left thus became the champion, in spite of itself, of a liberal economic policy. When Pierre Mauroy, in his capacity as prime minister, in 1982 attacked certain professions, he was careful to base his arguments on economic grounds, rather than making provocative ideological attacks. His arguments were not new. Inflation had long been seen as one of the major obstacles to economic expansion, and it had structural roots that needed to be attacked. "The struggle against the structural causes of inflation that we have undertaken with determination means that no one may

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hide behind customs or laws in an attempt to justify profits that are out of proportion to services rendered, training, or a particular talent."35 The Mauroy government had simply made its own what Armand and Rueff had highlighted in the 1959 report on the obstacles to economic expansion. The Armand-Rueff report had given, as we have seen, a prominent role to the notaires, considering them to be a major example of an archaic structure and using them to highlight the obstacles to economic expansion.36 The report noted that the notarial profession needed a greater degree of openness and competition. It recommended the creation of additional notarial offices and the greater availability of loans for candidates aspiring to enter the profession. It also recommended an end to the practice whereby the creation of a new office obliged the newly installed notaire to pay an indemnity (compensation) to his colleagues in the surrounding geographic area. The response of the profession was defensive, arguing that the notarial profession was special and that it had to enjoy a special status. "The public also realizes that although competition may be useful in business which is open in the way it functions, it is impossible in the notarial profession, a regulated, controlled profession.. . . And it is for this reason that the public trusts the notaire, whom it has chosen freely and without restriction and to whom it is very much attached."37 The profession even continued to argue for the need for compensation against competition because the absence of indemnification leads "either to unjustifiable growth in wealth or to prejudice which the state would have to compensate for."38 The profes35

Diclaration de Monsieur Pierre Mauroy, p. 2. The profession bitterly resented being singled out in this way, considering the attention to be unjustified, "since the Rueff Committee made no judgement on banks, insurance companies, or butchers, professions which, unfortunately, have played an important role in the economic expansion and in setting prices." See the profession's occasionally intemperate response to the Armand-Rueff report, Observations prisenUes par Ie Conseil Supeneur du Notariatsur lespropositions Au Comitt Rueff'(CSN, 30 September 1960), p. 1. 37 Ibid., p. 2. 38 Ibid. 36

Socialism and the Profession 189 sion had long been accustomed to making defensive arguments that were difficult to substantiate. In the wake of the scare caused by the Armand-Rueff report, the profession resorted full-scale to the defensive form of argument. The Armand-Rueff report struck hard at the ways in which notarial services are priced. It considered the principle of proportionality, that is, that the level of remuneration depends on the cost of the operation, to be both unjust and inflationary. The amount of work involved in the sale of an apartment or in a building is not substantially different, yet the remuneration received was multiplied manyfold in the latter case. The report therefore stated: 1. The Notairef remuneration on a proportional basis for deeds involving substantial sums, as in the case ofcompanies, appears unjustified. A reduction in the fee scale for such deedsL·extremely desirable. 2. The Notaires' remuneration on a proportional bask for repetitive work, such as the sale of apartments,L·excessively high given the actual services performedfor each sale}9 The Armand-Rueff report has been cited in some detail because it was one of the more influential reports of the postwar era, written by two conservative economists at the behest of General de Gaulle, and because it raised specific issues that were obscured by the rapid economic growth of the 1960s. As a consequence, the urgency for resolving such issues as the charging of fees based on the cost of an operation subsided, and no subsequent government felt it sufficiently important to tackle the issue of inflation caused by such pricing methods. In the 1970s the issue of inflation became once again paramount, and some of the problems relating to the offices ministeriels were raised within a more general context. It was not the offices ministeriek as such that were the targets of attack. It was inflation, and they were thought to be major contributors to this ill. In 1978 Prime Minister Raymond Barre asked the Min39

Rapport surles obstacles a !'expansion iconomique (Armand-Rueff report) (Paris: Imprimerie Nationale, 1960), p. 8.

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istry of Finance to undertake a review of the structural causes of inflation. He specifically requested that the ministry examine all cases where professions and businesses were remunerated on a percentage basis. The Direction de la Concurrence of the Ministry of Finance prepared a confidential report, Professions payaes aupourcentage, in which it noted that the attempt to limit salary increases in order to slow the inflation rate could not be fully successful without some limitation on remuneration that was proportional to costs. The report recognized that in certain cases such remuneration was excessively high and therefore unjustified. In addition, "it [this remuneration] leads to a cost indexation on the value of the work to which this is added, even though the rise in costs has no real justification."40 The report separated the professions that were paid on a percentage basis into three groups—commerce, intermediaries (e.g., insurance), and a host of professions that render individualized services which are billed separately. The last group includes the offices ministariek. The report was realistic enough to note that no single measure could be applied to all three groups. In the case of commerce, for example, the fact that prices depend on the quantity sold "is perfectly in keeping with the workings of a free market economy, and only with difficulty could it be called into question. Competition already gives the system a certain flexibility."41 The report categorically stated that it would make no recommendation to modify the system of pricing in this instance. In the second case—that of the intermediaries—the report observed that while the system of remuneration may be more open to criticism than in thefirstcase, it nonetheless has its justifications. Not only is the service rendered effectively proportional to the sale, but the producer can himself undertake direct sale to the client in the event that the intermediary begins charging too much. It was in the third case, that of the individualized service 40 41

Ministry of Finance, Professions payies au pourcentage (1978), p. 1. Ibid., p. 6.

Socialism and the Profession 191 charged on a percentage basis—tax consultants, accountants, architects, real estate agents, and the qfficiers ministerieL·—that the need for corrective measures was seen. The fee is paid by the client on the basis of a percentage that not only "often constitutes an implicit agreement" but also "in practice, allows [the provider of the service] to set a price while hiding behind calculations which are presented as self-explanatory."42 The client is also placed in a situation where the provider of a particular service (e.g., an architect) is caught in a conflict of interest when he offers advice, since he stands to gain most by having his client augment his expenses. In these cases—and this is the principal objection to this form of remuneration—most often there is no relationship between services rendered to the client and the cost of the job. When there is a relationship, it is tenuous: The architect's or the notaire's responsibility explains why his fee scale must include the cost of insurance, which may be proportionate to the cost of the completed job. But this in no way justifies the calculation of the wholefee on a percentage bask. ProposaL· have therefore been suggestedfor this thirdgroup.*3 A particular problem is posed by the case of the monopoly granted by the state and for which a pricing policy is in fact imposed by the state in order to insure equity and protection for the client. The Ministry of Finance report recognized the problem that was posed by this case and suggested that it might be necessary to reexamine such cases within a larger context. It thus was led to ask (1) whether a monopoly in these cases was still justified; (2) in the cases where it was justified, whether remuneration based on a percentage was still valid; and (3) where it was valid, whether it was possible to establish a maximum price rather than a fixed price. In raising these questions, the report was manifesting its concern for "opening up the closed professions to introduce competition which would allow for a freer discussion of «Ibid., p. 8. 43 Ibid., p. 8.

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prices."44 It did not hesitate to state that where a monopoly could be broken, "its abolition will be suggested across the board. This is the case with accountants, or, in other spheres of their activity, the notaires."45 In the appendix concerning the notaires, the Ministry of Finance report noted that the profession was both "extremely regimented" and "closed."46 This clearly represented a state of affairs that ran counter to the new policy of a more "liberal" economy. "The notarial profession thus embodies all the characteristics of a controlled economy. This situation, which already appeared shocking when our economy was primarily a controlled one, is far more questionable today."47 The report recommended opening up the profession by the creation of more etudes, abolishing percentage charges for corporations, establishing a ceiling for charges to individuals, rendering voluntary certain notarial deeds that were obligatory, dispensing with a preestablished price list for all notarial functions that were not obligatory and, finally, basing notarial prices as much as possible on a maximum price beyond which there was to be open discussion between the notaire and the client.48 The report foresaw the hostility of the notarial profession to any measures that called for greater liberalization. The Ministry of Finance report was very important, even though Raymond Barre's government did not implement any of its measures. The political context forced Barre to shelve the project, since the elections of May 1981 were looming. However, the report prepared by the Ministry of Finance remained in a drawer, and when Jacques Delors became minister of finance in June 1981 it was revived. Given the importance of the continuing battle against inflation, the report attracted the new minister's attention. It fitted in with the social and political re44

Ibid., p. 14. Ibid., p. 15. 46 "Notaires" appendix to Professions payies aupourcentage, p. 1. 47 Ibid., pp. 1-2. 48 Ibid., p. 7. 45

Socialism and the Profession 193 forms desired by the government in general and with those de­ sired by the Ministry of Justice in particular. The Politics of Paradox In order to develop a coherent program of reform it was neces­ sary for the various parts of the government concerned with these professions to work in concert. All were agreed that re­ form was needed. The problem was that what was important to one was unimportant to the other. And since the government itself did not have a neat plan of what it wished to accomplish, the contending politico-administrative forces ended up cancel­ ing each other out. The government for its part avowed its lack of policy and cautious approach by creating the Delegation Interministerielle au Professions Liberates with Professor Frangois Luchaire at its head. The Delegation immediately became the object of pres­ sures from the concerned professions. Its mandate was very general and encompassed all the liberal professions. It did not seek to deal with individual professions. It did not expect to is­ sue any startling recommendations, since the real purpose of its creation was to reassure the professions, who felt disfavored by 49 a left-wing government. No sooner had Fra^ois Luchaire been named to head the Delegation Interministerielle than he appeared before the annual congress of notaires. He went so far in reassuring the notaires of their importance to the society and of the importance of preserving their status that questions were raised about a divergence of views between Luchaire and the government. The professions lost no time in insuring that the Delegation Interministerielle would represent their interests. In 49

See the first report issued by the Delegation, Rapport de M. Ie Professeur Lu­ chaire, adresseIe30juin 1983 AM. IePremierMimstre (Paris: UNAPL, 1983). This is a totally innocuous report. The Delegation sought to be even-handed and deal with all the liberal professions. It was especially careful, according to Franςοίβ Luchaire, not to single out any profession or to suggest different policies for different professions. The Ministry of Finance adopted a wholly different approach when it studied the professions paid on a percentage basis.

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addition, the D6legation had no power to implement a program. The main thrust for reforming the notarial profession could no longer come from the socialist party, because such a reform could no longer be considered a priority.50 The economic issues came quickly to dominate the social ones. "It would be very easy for me," said a leading member of the socialist parliamentary group, "to stir up some major noise about reforming certain groups, and we could even have a few serious scary texts. But this kind of dreaming is over. When we were in opposition, we said we would reform everything. Now we are in power it's different. We have Kogtrer [manage], rather than reform." The new "realism" meant that the initiative for a major reform could not come from the party. It could not come from the prime minister and it could not come from the ministers. But serious reforms were proposed, and we need to look at the reaction of the divergent interests of the various public authorities. To the extent that the public authorities agreed on any program, it was the following: the need to open up the profession and introduce some element of competition. This was always interpreted by the notaires as an underhanded way of seeking to abolish the profession. The notaires could not reconcile the socialist government's push for greater competition or for fewer price controls, or its objections to monopolistic prices with the general tenets of socialism. Nor could they reconcile the Ministry of Justice's push for a more open and modern profession with socialism. Had the left merely appropriated the right's program? The real paradox was that while the right had championed the idea of a more "liberal" economy, there was never a danger that it would undertake the necessary measures 50 The decision-making process within the socialist party, as well as the role which this party assigns its leader, is such as to make agreements on policy options difficult to come by. See William Schonfeld, Ethnographic du PS et du RPR: Us iUphants et I'aveugle (Paris: Economica, 1984), p. 97.

Socialism and the Profession 195 to achieve this. The socialists actually put forward specific and daring measures to create a more egalitarian, open, and competitive profession. Theirs was a program that if implemented would have received the approval of Armand and Rueff. It contained measures that would have shown the socialists in a truly modern light, far removed from the outdated rhetoric that they sought to shed after thefirstyear in power. A measure that seeks to deprive numerous groups of their longstanding privileges is one that tests a government's capacity to implement a set of "preferences." It is, in effect, a quintessential redistributive measure. That Raymond Barre, an economist whose main goal as prime minister was to reduce the rate of inflation and to attack its structural causes, and a socialist government bent both on reducing the rate of inflation and on creating a more egalitarian society both abandoned thefightis testimony to the circumscribed margin of maneuver available to a state in the area of redistribution. We turn now to an examination of what the government ultimately sought to do, the fate of its measures, and,finally,the role of the notarial profession in response to the measures proposed by the public authorities.

CHAPTERIO

Socialism and the Reform of the Profession The legislation was designed to protect transactions. Added to this was the concern, decreet but undeniable, of guaranteeing a comfortable situation for the notaires. It can be foreseen that anything threatening their interests would be presented by them as endangering the security of transactions. —MINISTRY OF FINANCE REPORT

(1978)

The socialist project for reforming the offices ministtriels was not clearly articulated in 1981. Aside from the laudable but vague desire to introduce a greater degree of democracy in French institutions, the government had some difficulty in devising specific policies that conformed to its enunciated principles. The vast changes in economic policies that the government undertook in its first year gave way to more measured policies—both economic and political—and more measured tones of political discourse. The socialist government from the outset was faced with an irreconcilable dilemma. The changes it wrought in its first year in power caused consternation among its adversaries; its subsequent move in the direction of greater pragmatism scarcely limited the hostility of its adversaries and raised the ire of its own supporters. The confusion in what it wanted to accomplish only grew, for it proposed reforms in order to satisfy its supporters and adhere to its principles, only to tone them down subsequently, which turned out to be a recipe for losing credibility among supporters and adversaries alike. Inflation and Institutional

Reform

In fact, economic conditions provided the government with a rare opportunity to carry out institutional reforms. But opportunities mean little unless they are seized. The worsening economic situation manifested in rising unemployment, a growing deficit in the balance of trade, and a worrisome inflation rate in 196

Socialism and Reform of the Profession 197 a deflationary economy did lead the government to change its perspective on reforming a number of institutions. The government was provided with a new guiding principle for the reform of institutions that were considered undemocratic, conservative, and rigid. Its reforms could now be based on an economic rationale, thus helping it to set aside potentially frightening ideological rhetoric. The institutions in question were primarily considered as being structurally inflationary. In attempting to curb the inflationary force of these institutions the government intended them to become more democratic and efficient at the same time. Rarely has such an opportunity to effect sound economic and political reforms in one swoop presented itself. The public authorities began to articulate the need to curb the structural causes of inflation and to bring anachronistic institutions into the modern age. It was understandable that some officials would prefer to place the emphasis on putting an end to the structural causes of inflation rather than on structural reforms of a social and political nature. But on the whole there was no mistaking that the economic rationale was intended to facilitate the social reforms. In a letter addressed to the presidents of the institutions under the tutelage of the Ministry of Justice, Robert Badinter, the minister of justice, went straight to the point: "As you know, the government has embarked on a policy to curb inflation. . . . Measures which have been taken during the past few months must be replaced by a general attack on the structural causes of inflation."1 Badinter went forthrighdy to the link between the government's battle against the structural causes of inflation and its intention to use this opportunity to effect long-needed institutional reforms. "In this regard, the Prime Minister has instructed the Minister of Finance to examine, together with affected ministries, the method of remunerating various services, as well as the statutory framework in which these services are performed by the professions which 1 Letter from Robert Badinter, minister of justice, to the presidents of the offices ministtneL·, 29 December 1982.

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enjoy (to varying degrees) a monopoly and are characterized by some kind of'numerus clausus.' " 2 Badinter did not hesitate to remind his audience that the "problem is not new"; it had been raised more than two decades earlier by the Armand-Rueff report. 3 Moreover, we now know that Raymond Barre had tried in the late 1970s to revive the issue of the enduring institutional bases of inflation, even if he might have been less interested in the social transformation of the institutions in question. The left felt on safer ground in invoking concerns that had been introduced by the right and that had periodically reemerged under conservative governments. It hoped to implement these reforms, which the right had not done, and it hoped to accomplish significant social reforms through its efforts to strike at the heart of the structural causes of inflation. Robert Badinter from the beginning attempted both to reassure the notarial profession and to indicate to its members that the time for serious changes had arrived. In his speech at the annual notarial congress in 1983, he indicated in clear terms that there was no question of nationalizing the profession. "A notaire's client does not and under no circumstances will he have to use a public service," because the civil servant cannot respond to an individual's concerns in the same way as a private official who is inspired by other than the public interest.4 Badinter thus recognized that what I have referred to as the eternal dilemma was not about to be resolved. The public and the private aspects of the notarial profession would be preserved. But the minister also indicated that the profession had to change and had to adapt itself to modern times. "The notarial profession, like any profession, is affected by the economic situation; it will become even more so as it participates in the life of firms. The notarial profession, like all those who play a role in the 2

Ibid. Ibid. 4 Speech by Robert Badinter, minister of justice, before annual Congres des Notaires de France, reprinted in supplement to VIP, 83/4, p. 18. 3

Socialism and Reform of the Profession 199 economy, must therefore make its contribution, together with business enterprises, in fighting the structural causes of inflation."5 It needs to be noted before we examine the government's specific attempts at reform that radical reforms of the profession were set aside from the outset. Given, then, that the government had determined at an early stage that the notarial profession would not be abolished, would not be nationalized, and would not be freed to become another liberal profession operating in the market without strict governmental controls and protection, what were the major elements of the reform that it proposed? Despite the decision to preserve the ambiguous status of the notarial profession, the government proposed a series of reforms that could have far-reaching consequences and that could, with time, help to resolve the ambiguity of its status. The reform put forward by the government included the three longfestering issues: the abolition of the droit de presentation; the end of the numerus dausus; and an important liberalization of fees. Each of these was proposed with a view toward rendering the structure of the profession both less inflationary and more democratic. Droit de presentation The notaire is the owner of his practice, even though he is named by the state. Since 1816 he has also possessed the right to sell his practice and to "present" his successor to the professional and public authorities. The value of his practice is thus constituted by his clientele (which the successor inherits) and by his ability to name his successor. This is now pretty much recognized to be the case, even though it remains true that the droit de presentation "is neither explained nor defined anywhere."6 For whatever reasons, the droit de presentation has come to have "a certain value . . . it is something that in reality 5

Ibid., p. 20. Louis Theureau, Etude sur I'abolition de la vtnalite des offices (Paris: Librarie de Guillaumin, 1868), p. 200. 6

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is probably imaginary, but real in the sense that, through a strange series of transmissions, has ended up forming a part of a family's inheritance."7 Much debate took place in the nineteenth century over whether a notarial practice, emanating as it does through delegation of public authority, could constitute, strictly speaking, private property. One writer analyzed the matter at length and concluded that "the offices ministeriels do not constitute private property." 8 He noted that the profession had reached a point of "impudence, if not buffoonery, to claim and dare to publish that 'procedure belongs to them,' that 'legal fees are their due,' and 'the fee scale is solely for them to determine,' a sacred, inviolable domain that no one may touch, not even the legislator—unless they have been previously compensated!"9 We have seen that the rise in the sale price of notarial practices led in the nineteenth century to numerous calls and projects for the abolition of the venality of offices and for the abolition of the droit de presentation.10 The most immediate reason that led to the numerous requests for the abolition of the droit de presentation was that it was generally believed that this led to excessive sale prices which in turn led to fraud. The second reason was that the droit de presentation granted unjust privileges and was not compatible with contemporary notions of democracy. "Nowhere but in France do you find a legislator passing a law similar to Article 91 of our law of 28 April 1816. Nor would you find courts to draw the most impossible conclusions from it, favoring a system of privileges and corruption which, among us, is as much against our democratic and egalitarian customs as it is contrary to the very principles of our modern, public legal system."11 7

Ibid. Ibid., p. 315. 9 Ibid. 10 See H. Charrier, LeNotarialfrancais (Pans: Imprimerie Henri Jouve, 1905), pp. 137-^13; Ed. Peclet, Essai sur une rtforme du notanat en France (Pans: Chez Delaunay, 1845), pp. 2 - 5 ; and R. Hurson, Etude sur une organisation du notarial en France (Pans: A. Chevalier-Marescq, 1894), pp. 25—33. 11 Theureau, Etude sur I'abolttion, p. 317. 8

Socialism and Reform of the Profession 201 From the Clemenceau bill presented to the Senate in 1902 until the Badinter project of 1982, there was no further attempt to abolish the droit de presentation. Hence the shock created by the revival of a sensitive issue that the notarial profession had long thought of as having been put to rest. The left government considered that the droit de presentation unjustly raises the price of a notarial practice, allows the state to privilege a small group, and restricts access to the profession, since this comes to depend largely on who can afford to purchase an office. For its part, the Ministry of Justice intended to abolish the droit de presentation because it considered the notarial sale of an office akin to the sale of a practice by a doctor or a pharmacist, that is, a practice whose value is determined by its clientele ("patrimonialite des clienteles"). In an essential document that sets forth the original project for reform and that was intended to serve as the basis for a reform of the offices minuteriels, the Ministry of Justice was unequivocal about the need for a genuine reform of the profession and, in particular, for the abolition of the droit de presentation. In this document, entitled Schema pour une evolution (Guidelines for Change) the Ministry of Justice showed that it intended to be audacious. "The clear evolution [of the notarial profession] towards a situation similar to that of other liberal professions, and as the value of the droit de presentation corresponds to the sale value of the clientele, these factors suggest rejecting this idea of the droit de presentation which has been so criticized by the public, which sees in it the vestiges of privileges from the ancien regime."12 The document categorically suggested "the abolition of the droit de presentation.'"13 None of the issues or arguments advanced by the Ministry of Justice was new, for, as we have had occasion to see, they were all made with an even greater degree of frequency in the nineteenth century. But no government in the twentieth century had dared to undertake an attempt to end the practice 12 Ministry of Justice, Schema pour une evolution (1983), p. 3. This document was sent to the presidents of all the offices ministinels by the Directeur des Affaires Civiles et du Sceau of the Ministry of Justice on 24 November 1983. 13 Ibid., p. 5.

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whereby semipublic officials had the right to name—and, in effect, to demand compensation from—their successors.14 The socialist government believed that the droit de presentation was no longer justified and ought to be abolished. As the Directeur des Affaires Civiles of the Ministry of Justice put it to the notaires, 'This is not the place to tell the chronology of this venerable institution, but you must nonetheless agree that the droit de presentation is somewhat obsolete, at least in the eyes of the public."15 The government's position, in the words of a Ministry of Justice official, was that "a notarial enterprise is not different from any other commercial enterprise. We want to end the droit de presentation so that the value of a notaire's practice becomes more closely linked to the value of his services." This official noted, however, that the notarial enterprise would always have a greater degree of protection than a normal commercial enterprise because of the control that existed on the number of notaires who could enter the profession. The droit de presentation is linked to the notion of property. French jurisprudence has never been able to arrive at a satisfactory answer to the question of whether private property can in fact be created from the delegation of public authority. The public authorities have shown themselves to be of two minds, now agreeing that a notaire's clientele is part of the value of his practice, now denying that private property can be created out of a public function. M. Darmon even cited a 1982 article by Fra^ois Luchaire to the effect that "it is difficult to consider as private property the right of some officeholders to present their 14 There was no determined attempt on the part of a government to end the practice of the sale of notarial offices or the practice of the droit de presentation, though there were several bills presented to parliament seeking to achieve these ends: xhcprojet de loi of Eugene Fourniere, 12 January 1899; xhcprojet de loi of Georges Clemenceau, 23 October 1902; xhcprojet de loi of Paul Gruet, 9 July 1918; xhcprojet de kn of M. Saget, 8 November 1920; xhcprojet de loi of Paul Gruet, March 1933. In addition to the bills presented to parliament there were also a number of bills put forth in parliament. 15 Speech by M. Darmon before the Syndicat National des Notaires, Paris, 1983, p. 4.

Socialism and Reform of the Profession 203 successors . . . presentation is simply one of several criteria for nomination by the authorities to certain offices that hold public authority."16 The droit de presentation presents both a juridical and a moral problem. What is incontestable, however, is that it adds value to a notarial practice. Hence, the notaires argue that its abolition would constitute expropriation that requires indemnification. This is the official position of the profession. The arguments that they presented to the public authorities against the abolition of the droit de presentation were based on the premise that the notarial practice is similar to a commercial enterprise. Its value is tied to its clientele and to its capital investment. Where, then, is the importance of the droit de presentation if the notarial enterprise is considered to be like any other enterprise? Here is where it becomes necessary for the profession to shift emphasis from commerce to public service. "The notaire thus hands over, along with his clientele, these other aspects, and so that this clientele may be properly served, he must present his successor for approval by the public authorities who confirm the assignment."17 Maitre Dejoie goes further and notes that "the notion of public service means, however, that the inheritable value of the office cannot be determined on an open market."18 The president of the Conseil Superieur du Notariat insisted on this double aspect of the profession in his numerous meetings with the Ministry of Justice. On the one hand, he maintained that "we are a profession that bears risks because we are a liberal profession" and that "there is a crucial business element to the notarial profession that must be recognized;"19 on the other hand, he insisted on the obligations of the state to the notarial profession because it is part of public service. 16 Cited in ibid. The article was published before Frar^ois Luchaire was named by the government as the head of the Delegation Interministerielle aux Professions Liberates. 17 Expose de Maitre Dejoie, entretien du 20 Janvier 1983 a la Chancellerie, I.

Patrimomaliti (CSN), p. 1. 18 19

Ibid., p. 4. Paul Chardon, entretien du 5 Janvier 1983 a la Chancellerie (CSN), pp. 3-4.

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The public authorities have to a large extent helped the notarial profession remain in a situation where they are seen both as public officials and as the owners of a private enterprise. Even an official who is regarded by the notarial profession as one of the main proponents in the Ministry of Justice of the most radical reforms stated that "we have from the beginning been conscious of the need to reassure the notaires. We made it clear that they would not be completely nationalized, nor would they be totally denationalized. We want to find some way to introduce some flexibility into the profession without resorting to those two extremes." But this official was convinced that "the state had an obligation to defend the delegates of the state because it had an obligation to assure the adequate functioning of the judicial system." The complicity between the state (specifically in this instance, the Ministry of Justice) and the notaires to allow the latter to invoke at will their role as public servants or as heads of private enterprises had succeeded in obscuring the issues which this confusion poses. The authors of a semiofficial publication take this double role as a given and simply list the characteristics that render the notaire a public servant and those that render him a private professional.20 In effect, even for some notaires the issues posed by this dual status are more complex than they appear and are even susceptible of being resolved. Maitre Salats, for example, has noted that the profession must cease eating its cake and having it at the same time. "If what we do is a public service, then we can't have the right to name our successors. Does a civil servant in a ministry name his successor and charge for this? If the notaire is really a public official then he must not have the droit depresentation." Maitre Salats stated categorically that "if the notarial profession is part of the public service, then it should not have the right to earn money from this service."21 20

J. Lesourne et al., Le Notariat frcmgau: analyse et perspectives (Paris: CSN,

1983), pp. 14-17. 21

Maitre Yves Salats is cited directly because he states his views openly and has no objection to being cited.

Socialism and Reform of the Profession 205 Maitre Salats has questioned the validity of the arguments that make the notaire a public official. In his view, the characteristics that make the notaire a public official (and that the authors of Le Notariat frangaL· accepted unquestioningly) are neither obligatory (such as presence throughout the country, since 7,000 offices have closed in the past two centuries) nor peculiar to the notarial profession. He cites rulings of the Cour de Cassation which lead one to question the notaire's right to maintain a double status. But even if the notion of public service has since been modified, it remains the case that it is in need of a more rigorous definition. The misunderstandings that currently exkt between the notarial profession and the Ministry of Justice derivefroman inadequate definition of a notaire's public service; it is unfortunate that the report [Le Notariat frangais] has made no contribution to resolving this crucial problem. The notarial profession is involved in areas that often affect the public, which is the justification for specific regulations; it has a certain economic function and a very important social purpose. But to what extent does it provide a public service?22 Although the official position of the profession has always been to maintain a confusing line of demarcation between the public service and private (commercial) roles, this has not been the position of all notaires. Some clearly would welcome a resolution of the ambiguous status. One notaire observed that "the problem right now is the very ambiguity of our profession: We can't choose our clients, we can't file for bankruptcy, we can't charge what we want, etc., because we are officiers minuUrieh. Many of us wouldn't mind if the liberalization of the profession would start being seriously considered. If we really are private enterprises, then we should be able to do all that these enterprises can do—choose their clients, close up shop, and so on." Other notaires take the view that the profession should be to22

Yves Salats, "Notes de lecture: Le NotariatfrangaL·:analyse et perspectives" (Paris: unpublished, 29 December 1983), p. 3.

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tally integrated into the public service sector. This view is taken by those who above all seek a security of income that they are unable to realize as notaires. It is understandable that the profession, which is run by the more successful notaires, should seek to prevent a movement within the profession to one extreme or the other. When the president of the CSN addresses the minister of justice and claims that "all of France's notaires, whom I represent and in whose name I am speaking to you, Monsieur Ie Garde des Sceaux, would never believe it could be otherwise,"23 some notaires wonder whether he does speak for everyone, but they all recognize that the posture is at any rate necessary. The position of the leaders of the profession, and hence of the profession itself, has been to assume both the public servant posture and the private entrepreneur posture. The first not only helps them in the second, but it also assures them of a certain degree of protection and it allows them to call on the public authorities for aid when their entrepreneurial functions experience a downturn. Using their public roles to augment their entrepreneurial gains is now a generally accepted practice. The French notaire is constantly told that "the monopoly must be abandoned,"24 and it is far from shameful to declare that "legalizing deeds is at the heart of the notarial profession, but while notaires do offer legalization of deeds, they must not offer that alone. Let us not be mere functionaries locked into the legalization of deeds. Let us offer services for which legalization provides the dynamic."25 Wanting to become entrepreneurs does not mean accepting the risks that accompany any business ventures. For the president of the CSN turns immediately to request public aid for members of his profession: "To the public authorities, I shall say now that certain problems can only be resolved with their help.. . . I realize that the Ministery of Justice 23

Allocution de M. Ie President Paul Chardon, Congres des Notaires de France, Versailles, 28 May 1984 CSN, p. 4. 24 Ibid., p. 9. 25 Ibid., pp. 9-10.

Socialism and Reform of the Profession 207 is now working on this issue. . . . But I would ask them to act quickly."26 The obligations of the state are expected to go beyond what might be considered as providing aid to an ailing sector or region. The state is constantly asked to take protective measures that the profession itself would not accept for other sectors. The state is asked not to have recourse to what the law entitles it to, namely, the "administrative deed," which represents "destructive competition."27 The state's duty is to reinforce and extend the notarial monopoly: "Rather than encroaching on our monopoly, the state (which always has the power to do so) should instead extend it to other areas."28 In view of the fact that the notarial enterprise represents a capital asset whose value is augmented by its links and associations with public service, it is easy to understand why the project to abolish the droit de presentation elicited such a torrent of hostility from the profession. Indeed, the profession reacted with equal vehemence to all government proposals that could have reduced the value of notarial offices. As Chardon put it, "The droit depresentation is the pivot of an office as private property. It is the element that externalizes and represents its value."29 Any measure that reduces the value of the notarial enterprise is tantamount to expropriation and calls for indemnification. The abolition of the droit de presentation can be accepted only if "the inheritance rights of notaires [are] . . . completely protected," and this necessitates that any measures taken "do not threaten the value of these offices."30 The profession's arguments against the abandonment of the droit de presentation ultimately prevailed. Perhaps it was not 26

Ibid., p. 11. The justification for public aid for the notarial profession is no different from that used by any other lobby: serving the public interest. 'The public's interest and the notaires' interest coincide in the desire to see better adapted and more productive notarial offices" (p. 11). 27 Ibid. 28 Ibid., p. 15. 29 Ibid., p. 16. 30 Ibid., p. 17.

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the arguments themselves, which, as public officials were quick to recognize, were mostly of a self-serving nature, but rather the political strategy that the profession employed, a strategy that involved, as we shall see, an awareness of the existence of a less than determined will on the part of the government and of an ability to exploit the differing interests among the public authorities. We shall examine the interaction of the profession with the state in the next chapter. The strategy that the profession employed did in fact cause the Ministry of Justice to retreat. By early 1984 a highranking Ministry of Justice official avowed that "we were wrong to speak about the abolition of the droit de presentation. We have now begun speaking of the abandonment of the concept of the droit de presentation. This the notaires accept." By May 1984, the notaires had won their battle. At the annual congress of notaires, the minister of justice adopted a conciliatory tone and suggested that the Ministry of Justice and the notarial profession ought not to add to the ideological conflicts of French society. "Let us end the squabble over the droit de presentation" as there was no need for "a theoretical confrontation which is completely useless as to its effect."31 Nonetheless, Badinter did not hide his feelings about the anachronistic practice: I do not like the phrase "droit de presentation of a successor for an office ministeriel." It reeks of the venality of offices even if it no longer corresponds to it. It brings to mind the matchmaker who gets herfee when the union is consummated. In short, the droit de presentation seems to me to be outdated in its symbolic value, unsuited to the present, and legally full of uncertainties.12 Despite this strong condemnation, Badinter appeared to object only to the use of outdated language that symbolized an epoch that the French had turned their backs on. Why use a phrase that was a relic of the ancienrigime>.How could socialists 31

Address by Robert Badinter, minister of justice, before the Congres des Notaires de France, Versailles, 24 May 1984, p. 3. 32 Ibid.

Socialism and Reform of the Profession 209 accept the use of terminology that conjured up an antidemocratic past? "This is why," Badinter informed the notaires, "I would welcome the disappearance of these words, but not the reality that they designate, i.e., the inheritable nature of practices."33 Not wanting to be misunderstood, Badinter assured the notaires that they had nothing to fear in this regard, because the status quo was going to be maintained. "Let the transfer of these rights be made through an open agreement between the grantor and the cessionary. Let the Ministry of Justice verify that the requisite guarantees of competence and integrity necessary for a profession performing a public service are met. This, I believe, satisfies all requirements of general interest and the interests of the professionals."34 The government had traveled a long way (backward, to be sure) in its attempt to do away with the cmcien rigime practice of permitting officiers publics to name their successors and to profit from this practice. The Ministry of Justice had also retreated from its original intention, expressed in its Schema pour une evolution, to abolish the droit de prisentation. From abolishing the droit de presentation, the ministry's position had moved to a plea, in the words of Badinter, to leave doctrine aside and "draw up together the document which will best reflect the reality of the situation."35 But the question remained: Whose reality? Numerus clausus The original basis for abolishing the droit de prisentation was moral, social, and economic. An immediate effect of ending this practice would have been to stem the escalating prices of notarial offices and hence to bring the profession within reach of those not blessed with a father who was a notaire and of those not born with a fortune. In addition, therefore, to doing away with a practice that was questioned on moral and legal grounds, 33 34 35

Ibid. Ibid. Ibid.

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the ending of the droit de presentation was intended to open up the profession to a wider circle of candidates. But the profession could not be opened up nor rendered more competitive without some modification of strict control over the number of notaires who could exercise the profession. The profession had effectively eliminated a competitive spirit by insuring a limitation on the free exercise of the profession (Hu­ merus clausus) and by having prices fixed by the state. The Ministry of Justice's document Schanmpour une ένοlution was unambiguous in its desire to open the profession up to a greater degree of competition. It put forward the idea that flexibility in the numerus clausus could be introduced by revers­ ing the normal procedure for naming notaires. Instead of the profession presenting to the public authorities a candidate who had agreed to purchase the office of a departing notaire, an as­ piring notaire ought to be able to practice where he wished. In other words, it would be the candidate who would select his site, rather than the candidate's being obliged to find an avail­ able site. The ministry's document noted that the number of those exercising the profession was limited, "since there is no freedom to set up a practice for all those who fulfill the require­ ments for entry into the profession, and the growth of this fig­ 36 ure is dependent on a decision by the public authorities." The profession had elaborated plans during the 1960s and 1970s to create new notarial practices. These plans of restruc37 turation had not given very satisfactory results. The Ministry of Justice came up with proposals for overcoming the closed na­ ture of the profession. The most important of these was the rec­ ommendation that the aspiring notaire take the initiative of opening a practice in a locality of his choice. The notaire was called upon to become, in the words of the Ministry of Justice's 36

Schtmapour une (volution, p. 1. There remain great disparities in the ratio of notaires to population. The de­ partment of Lot, for example, has one notaire for 3,865 inhabitants, whereas the town of Nice has one notaire for 8,454 inhabitants. Some rural areas are no longer well served, since it is scarcely profitable to open an office in desolate ru­ ral areas. See Dominique Labbe, LaRiforme du notariat (Groupe de Droit Civil du Parti Socialiste, n.d.), p. 2. 37

Socialism and Reform of the Profession 211 document, an "inventeur de sites" (an "inventor" of a location for his praaice). The ministry argued that "this means of entry into the profession seems a crucial innovation. It is characterized by nomination after a direct request by a candidate for a location of his choice, after an analysis of existing needs and the number of professionals already practicing in the chosen area."38 The Ministry of Justice did not intend to permit a total relaxation of the controls governing entry into the profession. Even when an aspiring notaire had established a locality for his office, the authorities would have to make their decision on the basis of "objective criteria" relating to the area (population, number of notaires, their level of activity, economic condition of the region). The authorities recognized that establishing these criteria would present certain difficulties.39 However, they felt that it was a step in the right direction, since they had hit upon a formula that allowed for flexibility without creating havoc within the profession. The ministry did not establish the "objective criteria" on its own. It wished first to gain an acceptance of the principle that the Humerus clausus of the profession was out of step with the times and required modification. The profession was vehemently opposed to a modification of the numerus clausus. There were many reasons for this opposition, some more convincing than others; in the end the opposition had to do with the defense of private interests. Clearly, the new measure, if adopted, would reduce the profession's control over the choice of those entering the profession. The Ministry of Justice would in all likelihood come to have a more important role, since it would not be merely ratifying a selection that had already been made by the profession. Candidates for an office would be able to make their case to the ministry whether approved or not by the profession's organizations.40 38

Schamapour une Evolution, p. 6. Ibid. 40 See Decree no. 86-356,11 March 1986 Journal Officiel, 14 March 1986, pp. 3916-17; and Decree no. 86-728, 29 April 1986, ibid., 30 April 1986, pp. 5896-98. 39

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Perhaps the main reason for the profession's opposition (what might be referred to as its hidden agenda, though it was not difficult to discern) was that the proposed measure meant competition. A notaire could open an office even in a town that already had its share of notaires and, by being more adventuresome and efficient, lure away the clients of his colleagues. Such a notaire might be less dependent on and less attached to his profession's organizations. He might, if the full measure of the government's proposed reform went through, even become engaged in competitive pricing. Until now, inefficiency or incompetence was not severely penalized, since there was no price competition. The introduction of competition both in the quality of the service delivered and in prices sent shudders through the profession. Some notaires stood to lose more than others by the measure that would allow an aspiring notaire to choose where to locate himself. Ironically, it was sometimes the most dynamic element of the profession that most feared competition. In the large cities where the big notarial offices and the wealthy notaires are to be found, there was always the danger that someone practicing a neighboring profession (lawyer, accountant, tax consultant) might choose to switch professions by acquiring the necessary qualifications rapidly and changing the shingle on his door. Such a person might make the choice of becoming a notaire because he could widen his clientele without major changes in his practice or substantial additional investments. The notaires in large cities therefore objected vehemently to allowing a notaire to become an inventeur de sites. The profession's arguments were not expressed in such a gross corporatiste manner. Its representatives tried to show that the main loser of this measure would be the public. It argued that "the very idea ofpublic service is incompatible with uncontrolled setting up of practices" and that total freedom to set up a notarial office would signal the end of the quadnllagejuridique (the policy of covering the national territory), since notaires would establish themselves only in the more economically prosperous regions. Also, it would be incompatible with the guar-

Socialism and Reform of the Profession 213 antee system that the profession provides its clients.41 The notarial profession possesses a Caisse de Garantie to which notaires contribute a portion of their revenue. This money is both invested and used to take out insurance against notarial errors and fraud. It is the only profession qua profession capable of reimbursing clients for losses incurred as a result of incompetence or fraud. The representatives of the profession argued that it was necessary to attract younger people to the profession, but that it would be a mistake to allow an aspiring notaire who possessed the necessary qualifications to choose on his own the area where he wished to practice. This idea, "which derives from a desire for accessibility and generosity toward young candidates,"42 was not acceptable because "the notarial profession. . . is not a liberal profession like the others."43 Chardon went so far as to state that "the creation of notarial offices on request seems to me to be contrary to the very principles of establishing a public service."44 If the creation of notarial posts in this manner was contrary to the principle of public service, could not the same be said of the sale of notarial offices? This was not a question that Chardon answered, but neither was he confronted with it, even though it must have occurred to a number of officials in the Ministry of Justice. The argument was repeatedly made by the profession that while the notaire might suffer somewhat from such an ill-advised measure, it was the public that would bear the brunt of the reform. The quality of notarial services would be lowered because the public could no longer be guaranteed against "the mistakes of notaires appointed without real control or consent."45 If there was ever a hint that the wellbeing of individual notaires might be affected by greater competition, this was gen41

Maltre Michel Cordier, entretien du 13 Janvier 1983 a la Chancellerie, I. Acces au notariat (CSN), p. 5. 42 Chardon, Allocution, p. 26. " Ibid. 44 Ibid. 45 Ibid., p. 27.

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erally slipped in through the side door. The notaires would be adversely affected not by the new competition but because they were now operating "in an economic context which does not increase notarial activity, and in a legislative context that does not extend their monopoly."46 No argument against breaching the monopoly was left unused. From warning against a reduction in the quality of notarial services, to indicating that guarantees would no longer have the same value, to chiding the government for not extending and even for reducing the monopoly of the notaires, the profession moved on to argue against the constitutionality of the government's measures. "This confronts," claimed President Chardon, "the principle of the abuse of rights of notaires already in practice and that of the state's compensation for the collective damage that would thereby be inflicted on them, with the basis of the constitutional principle of equality before the law."47 The government at no point intended to put a complete end to the numerus clausus. It merely wanted to introduce an element of the practices that governed other sectors of the economy. It sought a greater degree of flexibility in recruitment and it sought to make the profession more accessible to a wider variety of potential candidates. "We really don't want to put an end to the numerus clausus, because we have to have some controls over those to whom part of public authority is delegated," said a Ministry of Justice official, who went on to note that "the time [has] nevertheless arrived for introducing some democracy in this undemocratic profession." The object of the reform was not merely to make the profession more accessible. It was also intended to increase the number of notaires. In the late eighteenth century there were approximately 40,000 notaires. By the mid nineteenth, there were 10,000 practicing notaires.48 Today there are fewer than 46

Ibid. Ibid. 48 Theodore Zeldin, France 1848-1945, vol. 1: Amhtum, Love and Politics (Oxford: Oxford University Press, 1973), p. 43. 47

Socialism and Reform of the Profession 215 7,000. Leaders of the profession were aware that a serious attempt to increase the number of notaires ought to have been made some years earlier. "We should have taken the initiative and created more offices in the 1970s when the profession was prospering. But we were too greedy; we didn't want to have to share the pie," said one notaire. Another notaire who agreed with this assessment observed that "when things are going well you don't tend to pay attention to little problems. If we had been less blind and more foresighted in the good old days, we would have created more practices and we would certainly be less open to criticism today." The Ministry of Justice succumbed, if not to the profession's arguments against the proposed measure, to the strategy that the profession adopted. The profession was in part aided by the ministry's own ambivalence. The ministry had strongly argued for the opening up of the profession and it had presented a series of measures designed to maintain the essential characteristics of the profession while having it operate in a more flexible manner. At the same time it clearly feared antagonizing a group over which it had a tutelle. One official of the ministry put it this way: "We have a responsibility for the profession. That is why we can't be in favor of total liberalism, and that is why we have to control the numbers. But the introduction of flexibility into the system is essential. What the notaires need to understand is that the state does not have to guarantee a fixed level of income for them." The Ministry of Justice's ambivalence derived from the fact that it both wanted a reform and wished to preserve the notarial profession as one of its clients. Turning the notarial profession into a wholly liberal profession would effectively deny the ministry responsibility for a part of the legal system and hence tend to reduce its importance in the governmental-bureaucratic apparatus. Because the Ministry of Justice had for so long viewed the notarial profession as its ward, the prevalent position within the ministry became that no reform of the notarial profession could be undertaken without the agreement of the profession. Any proposal for reform made by the ministry is generally met with a deluge of arguments and documentation. Having gone

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through the minutes of a number of the meetings that took place between the ministry and the representatives of the profession, I was struck by the number and length of meetings where every fine point was discussed. On the whole, the impression is created that the ministry expended considerable time and energy seeking to elicit the agreement of the profession for fear of incurring its wrath. Did it not achieve something worse, namely, incurring the wrath of the profession and achieving little? The lobbying tactics of the profession are well known to the Ministry of Justice. One official noted that "they use every imaginable argument. It's obvious that they're playing for time. They're dragging their feet in the hope that the opposition will soon be back in power." The discussions between the ministry and the representatives of the profession dragged on for so long without anything substantial getting accomplished that this official noted that "I told them that we were wrong to have taken this road. We should have prepared a text, sent it to you, and given you two weeks to react to it. After that it goes to parliament. We wanted to be good democrats and not authoritarian, and the result was that they bought themselves the time to create a huge ruckus." It must be said that the time was well used by the profession, for it approached every conceivable nook and cranny of the power structure. And it mobilized the entire profession to fight against the proposed reform, which threatened to introduce some competition. The leaders of the profession managed to defuse the divisions within the profession, which involved questioning the Conseil Superieur du Notariat, and channel the animosities toward the socialist government. The external threat brought considerable internal cohesion to the profession. As minister of justice, Robert Badinter expressed his disappointment at the reaction he received after all the good will he had shown. He indicated that he had shown concern for the future of the profession and for its need for it to remain a liberal profession by his desire to have concertation with the profession's hierarchy. "The Ministry of Justice offered proposals which seemed scarcely revolutionary, and given the principles

Socialism and Reform of the Profession 217 raised, capable of opening the way (after necessary consultation) for a logical transformation of the profession. I expected observations, criticism, and suggestions. Instead, I watched an ideological tempest and forces of narrow interests unleash themselves."49 The response of the profession, aided by its lobbying skills and resources, achieved the same results that were accomplished when it sought to force the public authorities to abandon the project of abolishing the droit de presentation. Badinter was not unaware of the methods and objectives of the profession. The project of the Ministry of Justice was deformedfirstby those most concerned with presenting it to the profession under the ironic term inventeur de sites. It was rejected, uselessly aggressively at times in manner, but unusually revealingfor me of the secret desire ofsome people to accept nothing that might alter the status quo which was deemed unsatisfactory by your professional organizations.50 Why was the minister making these observations and allowing himself to express his anger as late as May 1984? Was this a prelude to announcing a more combative attitude? Quite the contrary. Badinter in effect informed the profession that he had abandoned his original project. He sought to assure the profession that the scare which the proposal of the notaire inventeur de sites had aroused could now be forgotten. He indicated that the ministry had agreed to work on a proposal put forward by the Syndicat National des Notaires and which had received "the agreement of all the professional bodies."51 In place of the original proposal would come a "contrat de programme" worked out jointly by the ministry and the profession. As Badinter expressed the abdication of the public authorities: from the inventeur de sites, we have now moved to the contrat de programme. . . . The public authorities together with the profession will first determine the objective economic indicators which will allow 49 50 51

Badinter, speech, pp. 1-2. Ibid., pp. 4r-S. Ibid., p. 5.

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for an understanding of the transformation of the notarial profession's activities and study whether customers' needs are adequately nut by the location and number of practices.52 There was to be no misunderstanding about the message: The government (represented in this instance by the Ministry of Justice) would not undertake a reform that was not acceptable to the profession. "We shall have to work together on how to set up and test the content of the new program."53 Thus, within less than two years, the profession obliged the government to retract two key elements of its proposed reform. That this was seen as a success by the profession there can be no doubt. "Yes, we did force them to drop their projects, but we have to remain vigilant," said one official of the profession. Whether being obliged to drop the main elements of their projected reform was seen as a failure by the officials of the Ministry of Justice is less clear. "We are responsible for the administration of justice in the country, so obviously we have to show understanding of the groups that have part of the state's authority. We have to work with them." This is how one official in the Ministry of Justice rationalized the diluting of the proposals originally made in the ministry's own Schema pour une evolution. There remained yet a third part to the proposed reform, one that went to the heart of the notarial enterprise and by which the public authorities set much store. This was the reform of notarial fees (the tarif), a reform that had the backing of different ministries and of the government because all were agreed that it was a key weapon in the fight against inflation. The "Tarif The fee that the notaire charges for the obligatory services he performs is set by the state. He is not free to negotiate a higher or a lower fee with a client. He may do so only for those services that fall beyond the state-granted monopoly. For the services that he performs as a delegate of the public authorities, he can 52 53

Ibid. Ibid., p. 6.

Socialism and Reform of the Profession 219 only apply the prices fixed by the state. The tarif was a major issue throughout the nineteenth century. The law of 1803 left the notarial fee to be decided between the notaire and the client.54 The possibility that such a practice might have to undergo some changes caused great consternation within the profession. What one notaire wrote in the mid nineteenth century remains the case today: "Among the causes of worry and uncertainty that have shaken the notarial profession, the possibility of a fixed and obligatory fee scale certainly occupies first place, not so much because of the material damage it could cause as because everything about it affects the profession's most praiseworthy sensitivity."55 The orderly system of regulated fees imposed by the state was adopted only in 1898. The preceding century had witnessed public opposition to a chaotic system that was abused by many notaires, and the desire for a regulated pricing system became widespread. The profession vehemently objected to the adoption of a uniform fee, arguing instead for the maintenance of the more liberal form of pricing. No argument was left unemployed when it came to opposing the introduction of uniform fees. 'The fee scale causes hostility between the client and the notaire," wrote Saint-Hilaire; "it alters all their relations, the respect and gratitude on the one hand, and the devotion, and disinterested concern on the other. In the face of the scale, whatever honorable, generous, and noble aspects there may be in their relations disappears; it humiliates the one while arousing the other's greed."56 As always, it is the public that it is claimed will suffer from any measure that affects the profession adversely. One notaire wrote in 1855 that a uniform tarif "applied to the entire Empire, to a whole department, even an arrondusement, could not occur without harming the best interests of both the notaires and the people."57 54

Peclet, Essaisur une rtforme, p. 18. A. Jeannest Saint-Hilaire, Du notariat et des offices (Paris: Durand, LibrarieEditeur, 1858), p. 131. 56 Ibid., p. 157. 57 Damoye, Duprojet de tarif des actes notaires (Fontainebleau: Imprimerie de 55

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The profession as a whole voiced strong opposition to the introduction of uniform fees.58 It considered such a system restrictive and an attack on the notaire's "dignity and moral standing." 59 Yet arguments for introducing a system of regulated and uniform fees were not lacking.60 It was maintained that such a system would benefit both the notaire and his clients. The notarial crisis of the second half of the nineteenth century, characterized above all by the scandals caused by notarial fraud, gave the final impetus to the introduction of a system of regulated fees. Ironically, the system has come to be so well accepted by the profession in the intervening period that it resists modifying it as assiduously as it resisted its introduction during the last century.61 No longer does the profession call for a liberal pricing policy. Guaranteed prices and minimum competition have their advantages, and for the profession these outweigh what a market pricing system could do for the individual notaires and for the profession as a whole. Hence, state regulation has been sought as a protective device against the market. A change from the tightly regulated fee system was suggested in 1979-80 by the Ministry of Finance. At that time, the ministry made five specific proposals for liberalizing the regulated fee system, which "originally all received a negative reE. Jacquin, 1855), p. 9. See also E. L. Vernets,D» tanfdes notaires (Montpellier: Pomathio-Durville, 1829). 58 Occasionally some notaires did argue for the establishment of a uniform tartf, but they were in a distinct minority. See, for example, E. Huet, Petition a 1'AssetnbUe Rationale pour I'ftablissement d'un tanfdes actes notaries (Paris, 4 April 1851). 59 M. Gardey de Clarac, Prqjet de reorganisation du notariat (Pans: Imprimerie deBlondeau, 1853), p. 9. 60 See the well-developed arguments in Albert Amiaud, Etudes sur Ie notariat francais (Paris: L. Larose, 1879), chap. v. Amiaud was himself a notaire. See also Hurson, Etude sur une organisation, pp. 49-51. Louis Theureau presents a strong attack on the then prevailing system of remuneration and particularly on the arguments used by the notaires to justify it. See his Etude sur I'abolition, pp. 202-14. 61 For a short historical overview of the tanf, see Maitre Yves Salats, "Connaissez-vous Ie notariat du XIXe Siecle?" (Unpublished paper, 9 November 1985).

Socialism and Reform of the Profession 221 sponse from the Ministry of Justice."62 The Ministry of Justice, as we noted, was given in the pre-1981 days to espousing the profession's positions on a variety of issues, and its rejection of the Ministry of Finance's proposals was consistent with its role as the defender of the notarial profession. In 1983, however, the Ministry of Justice became convinced by the arguments of the Ministry of Finance that a reform of the fee system was needed both in order to fight inflation and in the interest of equity. The Ministry of Finance formulated its proposals with two considerations in mind: "increase competition, and reduce the cost of services rendered."63 It proposed "to maintain the key characteristics of notaires' and bailiffs' status as public officials, but to correct its most anticompetitive aspects."64 The Finance Ministry proposed an overhauling of the notarial fee scale which would include: (1) maintenance of the fee scale for those functions that the client was legally obliged to have carried out by the notaire and for which he could not negotiate his fee; (2) no set scales in cases that involved no obligation to call on a notaire; and (3) avoidance of unnecessarily high fees through instituting a ceiling to and greater degression in fees charged on those services that fell within the notaire's state-granted monopoly.65 The last proposal is the critical one, for by introducing a ceiling price the ministry was proposing that the notaires enter into negotiations with clients (and into competition with one another) in order to obtain anything above the stipulated ceiling price. The Ministry of Finance was well aware that finding the right cutoff point posed certain "technical" problems. What would be a fair ceiling for fees beyond which the client and the notaire would have to reach their own agreement? It was important that the liberalizing of the fee system not result in 62

Ministry of Finance, Ktforme de la tarificatkn Acs notaires (1979-80), p. 1. Ministry of Justice document (1983), p. 3. M Ibid. 65 Ibid., p. 7. 63

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higher fees. It was important that the ceiling on fees not be set at too low a level, since this would in all likelihood result in higher fees for the smaller deeds. It was, finally, important to prevent a sudden sharp decrease in the revenue of the notaires, since it would lead to layoffs and to a delay in the modernization of the profession. The public authorities were involved in an attempt to create a reform that would not have serious adverse consequences for the profession. The aim was to arrive at a reform that would insure that the profession was no longer a structural contributor to inflation and that would increase competition—and hence make for greater efficiency and reduced fees—within the profession. Monopoly and inflation were linked; as a consequence, it was felt that any reform that increased competition would also undermine the structural causes of inflation. It would, finally, also help to democratize the profession. The first aspect of the present fee system that the public authorities proposed to change was that of the proportional fee. It was agreed among the authorities that a fee proportional to the cost of a transaction was generally not linked to the costs incurred by the notaire or to the quality of the service rendered. Officials in the Ministry of Justice cited an example of the absurdity of basing fees on the amount of money involved in a transaction. "Following the nationalization measures in 1981, Marcel Dassault gave half his empire to the state. A notarial deed was necessary to legalize this gift. We prepared all the necessary documents and handed them to the notaire. We gave the notaire a week to draw up the deed. Since we had done all his work for him he needed very little time. He had a right to charge something like 15 million francs if the fee was to be proportional to the amount of the transaction. We told him that he would have to make a special price in view of the fact that very little work was involved. He said not to worry. But then greed overtook him and he asked for 1,140,000 francs. We still found this too much and we proposed 400,000. He refused our offer. But the hierarchy of the profession forced him to accept it." This case was often cited by officials in the Ministry of Jus-

Socialism and Reform ofthe Profession 223 tice in order to show the unfairness of a system that allowed the notaire to be paid on a proportional basis. Hence, it was suggested that a maximum fee be introduced beyond which an agreement could be reached between the notaire and the client. If a notaire wished to charge anything beyond the maximum fee, the client would be free to agree or to go to another notaire. This would be the case only in the large transactions, generally involving corporations, where the ceiling prescribed by the state would be less than what the notaire would have been entided to under the current proportional and degressive scale that is applied. Corporations had long felt that they were being "taken" by the proportional fee system. The notaires reacted badly to the idea of a ceiling. They feared that they would be unable to negotiate with big clients, who would place them in competition with one another. Chardon, a believer in the principle of free enterprise, argued at the time he was president of the CSN against any form of competition because this would lead to what amounted to a battle between forces. "To substitute open discussion between the notaire and his client for the fixed fee is to risk financially destabilizing the public service. Financial equilibrium for the service would then come from the good will, power of discussion, or even influence of a given client or group of clients."66 Implicit in Chardon's argument is the belief, which the notaires made explicit in their briefs before the public authorities, that they would be unable to withstand the power of the large client and hence would end up losing money on the big transactions, which in turn would oblige them to restrain their activities, fire employees, and so on. They also claimed that many notaires make their living on the very profitable one or two large transactions on which they charge a proportional fee. Hence, one or two transactions, according to the notaires, enable the notaire to subsidize the multitude of small transactions that he is obliged to perform but from which he derives no profit. 66

Chardon, Allocution, p. 19.

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Now, one of the differences between the Ministry of Finance and the Ministry of Justice was that the former believed it necessary to try to arrive at an approximation of the real cost of a notarial contract. The latter, on the other hand, considered this less important, since it saw itself as defending both the little man and the notaires, so that the big contracts should in fact subsidize the little ones. This reflected an opposition between technocratic concerns (Ministry of Finance) and social concerns (Ministry of Justice). The Ministry of Justice merely reiterated the viewpoint of the profession. President Chardon had argued in a meeting with the Ministry of Justice that "the fee scale does not remunerate a notaire for a specific transaction, and there are a large number of transactions that we lose money on." 67 Faced with the serious prospect of a reform of the notarial fee structure, a reform on which there appeared to be some kind of consensus among the public authorities, the profession multiplied its interventions and prepared its counterattacks and every conceivable counterargument. No other office minuterid—indeed, few other professions—can match the capacity of the notarial profession to prepare arguments and documentation for their own point of view. They argued that not only were they not a cause of inflation, but were in fact its victims.68 They argued further that the current fee system by no means made them unduly wealthy. It had quite the opposite effect.69 They even went on the offensive and asked for an increase in the current fee scale, maintaining that "where the notaire encountered difficulties in meeting his obligations, it was up to the state to step in and help him."70 67

Expose1 du President Chardon, entretien du 5 janvier 1983 a la Chancellerie (CSN), p. 5. He went on to list all the "social" functions that the profession fulfills and that give a livelihood to "a socioeconomic group of 250,000 people" (p. 5). 68 Maitre Michel Cordier, "Tarif des notaires," entretien du 2 fevrier 1983 a la Chancellerie (CSN). 69 Maitre Luc Dejoie, "Le Tarif des notaires aboutit-il a des remunerations excessives?" entretien du 2 fevrier 1983 a la Chancellerie. 70 Chardon, Allocution, p. 23.

Socialkm una Reform of the Profession 225 But if the notaire heads an enterprise, should he not be expected to continually augment his efficiency by being subject to competition? ". . . in the context of the notaires' public service—which everyone seems to want—competition cannot occur in terms of the cost of services but only in terms of the quality of services rendered."71 It is the public who would lose from a liberalization of the regulated fee structure: "On the social level, liberalization would produce shocking results since it would allow the most powerful and the richest to exert an even greater pressure on the weakest which would in turn result in two notarial professions, a notarial profession for the rich and a notarial profession for the poor—which would be disastrous."72 The ending of a proportional and degressive fee structure would require the state to take on the work that would not be profitable for the notaire to do. It is simply "unthinkable to imagine a ceiling for the fee scale." And, finally, even though a notarial office functions as an enterprise, Chardon claimed that there simply was no way to work out the real cost of services.73 What is the relationship between a predetermined fee structure and public service? Chardon, and others, insisted that competition would be detrimental to public service. This was not logic that the Ministry of Justice questioned, even if the causality needed to be established. It was, however, questioned by a few notaires, not many of whom had the independence to express their view publicly. Maitre Salats, a well-known member of the profession with something of a scholarly bent and who has never been able to express himself in the official press of the profession, did question the arguments that were being used by the profession. He saw a fundamental contradiction between the profession's claim that it was engaged in running commercial enterprises and its appeal to the state for ever greater protections. As he put it when he discussed the logic of 71

Intervention du President Paul Chardon, reunion au Ministere de la Justice,

2 fevrier 1983 (CSN), p. 3. 72 73

Ibid., p. 3. Ibid., p. 3-4.

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the fixed fee system that the profession and the authors ofLeNotariat frangais had put forward, On the other hand, it would have to be proven that a link exists between mandatory fee scales and public service, whichL·far from evident. In this regard, it should be remembered that the notarial profession has beenforced to use mandatoryfee scales only since 1898 and that it is neither more nor less of a public service either before or after that date. The need for mandatory fee scales derives, in fact, from insufficient competition.7* Throughout the discussions that went on between the profession and the Ministry of Justice and other agencies of the public authority, the representatives of the profession emphasized the effects of the economic crisis on the notaires. They produced arguments and statistics showing the decline in the number of deeds and the rise in the costs they had to bear. So much did the profession hammer away at the public authorities that, in due course, it was possible to find officials of the Ministry of Justice employing the same arguments when it came to discussing the projected reform of the notarial profession with other agencies. One official noted, for example, that "it's true we need to reform the tarif but we have to remember that the profession has been affected by the economic crisis. We can't suddenly introduce a reform that hits at the base of their revenue and that strikes them when they are least able to confront the new situation." The minister of justice even reproduced the figures supplied to him by the profession showing the decline of its economic activity. In his address to the notarial congress in 1984 he promised that measures were being studied to relieve the hardships encountered by notaires.75 What, then, was the consequence of notarial pressures to prevent liberalization and an overhauling of the regulated fees? 74

Salats, "Notes de lecture," p. 5. Badinter, address before Congres des Notaires de France, Versailles, 28 May 1984, p. 11.

75

Socialism and Reform of the Profession 227 As this was not a matter that depended only on the Ministry of Justice, no decision could be taken by that ministry alone. The Ministry of Finance was only incidentally interested in the droit de prasentation and in the numerus clausus issues. It was directly concerned with the fee structure. Hence, while the minister of justice could announce his withdrawal of the projects for the abolition of the droit de prisentation and the ending of the numerus clausus, he had no authority to withdraw the project for reforming the fee system. He therefore threw the ball into the Ministry of Finance's court. "The decision belongs to the Ministry of Finance."76 He did assure the profession that any measures taken should not "compromise . . . the economic health of your practices."77 This position was merely reiterated by Badinter at the 1985 congress of notaires. He disclaimed responsibility for a reform of the fee scale because "you know that the decision is not mine in this area, and through a strange but regular phenomenon in ministerial meteorology, often when the sun is shining on the Place Vendome, a storm is brewing at the rue de Rivoli."78 The minister of justice was, in effect, placing himself on the side of the notaires and dissociating himself from a possible government policy. Although no overhaul of the fee scale has been undertaken, and is not likely to be undertaken, the Ministry of Justice succeeded in obtaining from the Ministry of Finance an increase in notarial fees. As the minister of justice's representative told the congress of the Syndicat des Notaires in May 1985, "By this symbolic rather than conciliatory gesture, the rue de Rivoli [the Ministry of Finance] shows its good intentions toward you."79 The profession has all along adopted a policy that consists in resisting any form of competition for the profession. The profession argued that the ending of the proportionality prin76

Ibid., p. 14. Ibid., p. 13. 78 Robert Badinter, address before Congres des Notaires de France, Lyon, 13 77

May 1985 (CSN), p. 19. 79

Representative of Robert Badinter, address before 36Snie Congres du Syndicat des Notaires, Perpignan, 27-28 May 1985 (Ministry of Justice), p. 11.

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ciple and the possibility of a ceiling on fees was likely to have disastrous consequences for a large number of notarial offices, particularly the smaller offices for whom one or two large contracts represent compensation for the many hundreds of smaller deeds they draw up. They argued that a study was needed to see the precise effects of a change in the tarif. "We should be irresponsible," President Chardon told the Ministry of Justice, "if we were to accept reforms of the fee scale without having simulated the consequences in a scientific manner."80 The public authorities accepted Chardon's proposal of putting the proposed reform in abeyance until the profession had had time to carry out its simulation. "We can't go any further until we have the results of this study," said a Ministry of Justice official. A Ministry of Finance official put it this way: "We need to know what the effects of our proposal will be and only the profession has the means to conduct such a study." It seemed entirely normal that public authorities should base a reform on the information furnished by the group that is intended to be the object of the reform. It is normal because this is how things have generally been done. As a civil servant in the Ministry of Justice put it, 'When we need any information, we always ask the profession to supply it to us. And they're usually very good about it. We have no way of obtaining the information on our own." Conclusion After two years of objecting to all of the government's initiatives, the notaires succeeded in staving off any reform. The public authorities, in part to save face, see the present hiatus as being not only a conciliatory gesture of good will toward the profession, but even rationalize it as a necessary step toward achieving a sound reform. In fact, it is a resounding defeat for every initiative that the government has put forward. One official in the Ministry of Justice put it this way when asked 80

Intervention du President Paul Chardon, reunion au Ministere de la Justice,

2 fevrier 1983 (CSN), p. 5.

Socialism and Reform of the Profession 229 whether any kind of reform was likely to emerge: "We've made so much noise for so long that we have to come up with some kind of a text." The profession succeeded once again in thwarting a reform that threatened to tamper with its protected monopoly. The profession not only obtained a reprieve but also got the public authorities to (tacitly) agree to base a reform on information it will supply. The reprieve was politically critical: It allowed the profession, as one official put it, "to play for time, for they originally said the study would be ready at the end of the summer; now they're talking about the end of the year." In the meantime, the number of urgent problems that the government had to face made a reform of the tarif less important. "And the government has to be careful because 1986 will soon be here," one official noted. A socialist deputy with considerable responsibility in parliament put it this way: 'The Ministry of Justice isn't really concerned with getting a major reform through. I can guarantee you that nothing will happen before 1986. It's just not a priority for the government." The Ministry of Justice, starting in 1981, indicated that it wanted a serious reform of the notarial profession. Its Schama pour une evolution left no doubt about its intentions. It created the impression that it wanted radical changes and it succeeded in angering the profession. One high-level official of the Caisse de Garantie des Notaires observed that "what scares me is not their desire to abolish the droit de presentation, or the idea of a notaire inventeur de sites, but that the government is guided by a socialist doctrine that is trying to destabilize the profession. For them (and for us) this is only the beginning of things to come." The profession was throughout willing to see the proposed reforms as the inspiration of leftist or communist "hotheads" who had taken over the Syndicat des Magistrats and since 1981 the Ministry of Justice. They saw the proposals emanating from the ministry through political lenses. The ministry, in contrast, tried as time went on to downplay doctrinal and moral issues. In the end, it succeeded only in both incurring the

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distrust of the profession and achieving little of what it set out to accomplish. The profession throughout employed a politically aggressive and a professionally defensive strategy. Since it had easy access, it never succumbed to the outbursts of the other less wellorganized offices ministiriels. There are clear indications that it egged on the other professions and used their demonstrations and outbursts to its advantage when it warned the public authorities that the notaires too were losing their patience. All the while they continued their meetings with the public authorities, with parliamentarians, with the various commissions, and they furnished statistics and documents to buttress their arguments. Rarely were significant proposals made. Indeed, some notaires criticized President Chardon for adopting a wholly defensive posture. "He's very political and he knows lots of people, but he doesn't take the bull by the horn and propose some changes that are really needed," said one notaire. Another one put it this way: "Chardon may be a wealthy and well-connected Parisian notaire, but he really is a small-time corporatiste. He just attacks whatever the government proposes." Although some notaires praised his political strategy, others were of the opinion that his aggressiveness and lack of diplomacy did not serve the profession well. "When Chardon walks into the office for a meeting with public officials and starts saying that he is speaking in the name of the small notaire in the provinces, people don't take him seriously." Nonetheless, the fact remains that the government was unable to carry out any of its proposed reforms in 1982-84. The profession adopted a defensive strategy because it wanted to save as much of the status quo as possible. As one public official put it: "These are not the most forward-looking people in the world, and what they do amounts to no more than trying to save as much of the store as possible. Public service, equality, etc., these are just words that they use." A harsh judgement, to be sure. Yet rarely was the profession willing to concede anything, and in the past concessions came only when the profession thought it was about to succumb to a fatal blow. But

Socialhm and Reform of the Profession 231 the profession also looks ahead and tries to ward off future threats. It may be a paradox, but it is no less real for all that, that the notarial profession gains its livelihood as a result of the capitalist economic system but is fundamentally antagonistic to any form of economic competition. Every argument the profession advanced to counter the government's proposed reforms suggested that competition would be disastrous for the profession.81 Yet the profession finds itself on the side of a conservative political force that has made economic liberalism the cornerstone of its ideology. In some respects, this is more frightening to the profession than socialism. What if the conservative force should win the next election and actually put an end to monopolies and rely on the market to make the necessary adjustments? Epilogue Success in defeating the socialist government's projects brought with it the realization that the success may have been too decisive. One Ministry of Justice official observed in mid 1985 that "the notaires would like some kind of measures to be taken quickly so that if the right should come back to power they want to be able to say: 'You can leave us alone because the socialists have already shaken us by their reforms.' " The notaires were not unaware that the newly adopted rhetoric of liberalism by the right could return to haunt them once the right was returned to power.82 Hence, it became all the more urgent to se81

See, for example, the statements by the last two presidents of the CSN in VTP, 84/2, 84/7, and 85/5. As Chardon said at the time he was president, "I agree, people talk a lot about it and I should clarify it: The notarial profession can in no way accept either a ceiling or liberalization of fee scales beyond a given fee, or a supplementary degressiviry in the scale" (VIP, 84/2, p. 2). 82 When the right came back to power in March 1986, there was the usual attack on monopolies and the "closed professions." It too used the Armand-Rueff report as its reference point. See Liberation, 17 June 1986, pp. 12-13. Every government, whether of the left or the right, now feels that it can make its economic and social programs legitimate by invoking the Armand-Rueff report.

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cure a reform that showed an evolution in a more "liberal" direction. This reform was accomplished by a decree of 11 March 1986 and by a decree of 29 April 1986. The first decree granted the notaires an increase in the fees they are permitted to charge. It is perhaps a coincidence, but one that nonetheless needs to be observed, that the last increase in the fee scale also took place a few days before legislative elections (8 March 1978). The second decree contained three important dispositions: the right of the notaire to have a legal signature across the country and not only in the area where his practice is located; the lifting of any fee scale on all commercial transactions and activities involving companies; and, finally, the right of the client to negotiate a fee in transactions above 500,000 francs. The Ministry of Justice had awaited the results of the simulation study undertaken by the profession and had labored with the profession to produce these texts. They are not insignificant, but they are a far cry from what the Ministry of Justice or the Ministry of Finance had originally desired to see implemented. Nonetheless, they provided a face-saving mechanism for each side: the Ministry of Justice was able to claim that it obtained a reform; the notaires could claim that they were reformed and, more important, that they had accepted the application of liberal measures to their profession. Not to be forgotten was the increase in the fee scale that they obtained. Hence, the reform was one that would entail no structural adjustments but that showed the profession willing to move with the times. The reform and the legal texts were, as always, the result of a joint effort involving representatives of the profession and the Ministry of Justice. It was a mild reform, one that did not compromise any of the key points that the profession had previously refused to compromise on. It was needed by both sides simply because the Ministry of Justice had to have something to show for its long efforts, and the profession had to guard against a more serious reform. The profession acted with a simple aim in mind: The preservation of its monopoly. By appearing to make concessions, it could appear to be a flexible group or a victim-

Socialkm and Reform of the Profession 233 ized one. Both serve the aim of preservation. The ministry, for its part, could be thankful to the profession for making possible this accommodation: the profession granted it a semblance of authority. We must not lose sight of the fact that the notaires were successful in their efforts to make the government abandon its original projects for reform. The central question that remains is: How was the profession able to make the government retreat? Or, why did the government—controlled by a party that had control of parliament and of the state apparatus—succumb to pressures? The question is posed in this way because no objection can be raised in a pluralist system to a group that seeks to preserve its gains even at the expense of the collectivity. On the other hand, one can legitimately ask why a state—and supposedly a strong state—allows this to occur. I now attempt to answer this question.

CHAPTERII

The Profession and the State . . .the Ministry of Justice exercises a tutelage that is more like careful protection than constraining supervision. —MA!TRE MICHEL MAUBREY (1983)

The notarial profession is under theguardianship of the state and is a delegate of pubIk authority. It does meddle in politics. —MAiTREPAULCHARDON (1982)

How does a state define a policy and insure its implementation? What means does it make available for incorporating the desires of groups? To what extent does a centralized state allow itself to be influenced by private groups? In examining the abortive attempt at reforming the notarial profession I shall attempt to answer these questions. It should be remembered that our example is of a centralized state; and, were policy to be developed and implemented in accordance with a state-defined objective, we should have to conclude that there is a close link between the structures of a state and policy outcomes. 1 To do so would also, however, incline us to conclude that politics is not an essential component of the policy process. The analysis in this and the following chapter will tend to suggest that state structures can facilitate the formulation and implementation of a policy when there is a general agreement on the political basis of a policy. When this consensus is lacking, state structures in a centralized state—just as much as in a decentralized one—cannot overcome political differences. State structures need to be regarded as facilitators of policy. They cannot bypass the political process. Hence, a pyramidal administrative structure does not centralize the power to define and implement a policy. That kind of centralization 1

John Zysman, Political Strategiesfor Industrial Order: State, Market and Industry inFrance (Berkeley and Los Angeles: University of California Press, 1977), p. 195.

234

The Profession and, the State 235 can only come about through an administrative-political consensus. An administrative-political consensus means (1) clear definition of a policy option by the political authorities; (2) acceptance by the key administrative agency of the objectives of this policy; and (3) agreement by the satellite administrative agencies to accept this policy. It is only when all three conditions are fulfilled that one can speak of a centralized structure of the policy process. Now, the problem is that this is likely to occur only when a policy option is defined by the political authorities in conjunction with the relevant civil groups. Hence, a state objective that is not a priori acceptable to private groups will not be able to gather around it an administrative-political consensus. The state's interests are not generally defined independently of civil groups' interests precisely because the political costs are likely too high (as was the case with the ill-fated socialists' attempt to undermine the private schools), or because the state will be unable to amass an administrative consensus on the political issues (as in the case of the notarial reform). Occasionally, however, a reform is considered to be urgent either for political reasons (a party program commits the government to it) or to alleviate a real or imagined social ill in the society. In this instance the state defines a policy or an objective on its own, independently of the private groups that will be affected by it. It succeeds only because it has made a priority of the objective, and generally only when the policy is adopted and implemented as soon as a new government takes power. A significant lapse of time means that the policy is no longer solely a state policy. Hence, pure state policies developed wholly independently of private groups and vigorously opposed by the groups in question are a rarity. Thus, state policies that are ultimately successful are policies that, first, achieve the agreement and reflect the inputs of the affected groups and, second, that gather an administrativepolitical consensus. The last is essential because of the clientistic nature of the bureaucracy-society relationship, which is of crit-

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ical importance in a centralized state, and which we shall examine in some detail in the next chapter. Notaires and Politics The history of the notarial profession has known varying degrees of closeness to and alienation from different regimes. It is true, as one author noted at the end of the last century, that notaires tend to believe that "in the upper echelons of the government and parliament, people are very reluctant to listen to notaires' whining and, as a result, reforms will certainly go against them." 2 If this really had been the case, it is doubtful that the profession would still be in existence in the last part of the twentieth century. That the profession has generally had a closer relationship with conservative regimes is beyond dispute. If the kings generally showed a kindly disposition toward "la corporation des notaires" 3 it was because the corporation "was sincerely devoted to the monarchy; it was able to return a respectful affection for the regal protection it received."4 The Revolution was less accommodating to the profession, which had to wait for Napoleon to father the law of 25 Ventose an XI (1803) that constitutes even today the profession's legal basis. This law has been referred to somewhat hyperbolically as "one of those works of art that are not to be touched; it has taken its place of honor majestically among those immortal laws which complement one another, and which are the most lasting glory of this already glorious era."5 The fortunes of the profession changed a number of times in the course of the nineteenth century. If the Restoration was particularly kind to it, the regime that came to power in 1848 was markedly less so, for this was the "period in which socialism 2 R. Hurson, Etude sur une organisation Au notariat en France (Paris: A. Chevalicr-Marescq, 1894), p. 11. 3 A. Jeannest Saint-Hilaire, Du notariat et des offices (Pans: Durand, LibraneEditeur, 1858), p. 209. 4 Ibid. 5 Ibid., p. 240.

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dealt it a sharp and deadly blow from which the earth and the notarial profession are still reeling."6 Nevertheless, although the Third Republic made numerous attempts to undo Napoleon's work in this area, it did not succeed. Emile Bender, a jurist who served as the rapporteur of the Commission Extra-Parlementaire de la Reforme du Notariat, noted that it was imperative that the legislative and executive powers take upon themselves the responsibility of imposing reform on the notarial profession. To rely on the profession to reform itself was simply a means of allowing it to do nothing and constituted, in effect, an abdication of authority by the state. The notarial profession cannot be counted on to make good on these promises to carry out the profound and indispensable reform. In fact, if it had wished to do so, the legal means were at its disposal. For seventy years it has possessed the necessary power. Its leaders have instead prrferred to use these powers to resist successfully, most notably in 1813 and 1890. The esprit de corps has been most evident—as might be expected—when it has been a question ofprerogatives, of hiding abuses or a colleagues malpractice, or ofconfronting the public.7 The strategy of the profession has always been to seek to persuade governments to allow the profession to reform itself. The history of the profession over the past two centuries suggests that this strategy has succeeded rather well. Fear arose within the profession that the political climate created after the 1981 elections might for the first time result in a major, externally imposed, reform. The image of the socialists who came to power—"the enemies of private property"—seeking to take away from the profession what is its "legal" right was a powerful one. Hence, the return of the socialists to power in 1981, and with an unprecedented force, must surely have conjured up images of 1848 for the profession. "In the blackest periods of 6

Ibid., p. 245. Emile Bender, LaRtforme notariale (Paris: Arthur Rousseau, 1913), pp. 3738.

7

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our history, notaires have always found themselves among the friends of order and stability."8 It may be that the notaires have preferences as to the kinds of regimes they like to see governing the country. The history of the profession suggests that some regimes are less hostile to it than others. But the profession's preference for one regime over another has meaning only in the context of sharp political turns. In general, the profession has to establish relationships with the state, whoever controls it, and it soon discovers that a state is not always defined by the name of the party that won the last election. Multiple State Relations The notaires sometimes imagine that a tension exists between the profession and the state. When "the friends of unions" and "the enemies of private property" came to power in 1981, the notaires took the view that the state had been "captured," had fallen into the hands of those who would be hostile to their cause. Of course, the notaires were not the only ones to think, in the wake of the left's victory, that freedom had come to an end in France. The notaires rightly recognized, however, that it was now ideologically respectable to denounce the privileged castes in the society. If the left was not well disposed toward the privileged groups, the last chapter suggested that the notarial profession successfully warded off attempts by the socialists to do away with those privileges. And the socialists had proposed no revolutionary reform to do away with the profession; they merely sought to open it up and grant it limited market freedom. And yet a former president of the Conseil Superieur du Notariat, Paul Chardon, was congratulated upon leaving office for having succeeded in preserving the complicated, bastardized status of the profession: He had insured that the "the notarial profession would remain a liberal profession, running a public service as a Jeannest Saint-Hilaire, Du notariat et des offices, p. 210.

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private one," 9 a status that requires decoding both by legal scholars and by ethnographers. How was the profession able to thwart the government's reforms? If it has succeeded in preserving its status, this has been owing in part to its organizational strength, in part to the weakness of the state, and in part to the complicity between the state and the notaires. Organizational strength is important, but it is not sufficient by itself to overcome a state's will. The question arises: Did the state undermine itself? The first thing that emerges from an examination of the relationship between the state and the profession is that there is in fact no clear-cut relationship between them, certainly none that can be characterized unequivocally as either hostile or complicitous. Generally, there is both hostility and complicity. The task of any professional organization is to decide where it can find allies and then to decide how it can use those allies to undermine those who are attempting to upset the "natural order." It was not always clear in the early 1980s whether the notarial profession understood that it was engaged in a political game. It may be that its interests were served by the picture it gave to its members: that they were now under siege. It adopted throughout an alarmist tactic, projecting the government and the state as being determined to break the back of the "closed" and "privileged" professions. "From meeting to meeting, from reports to proposals for reform, the leaders of the professions tried to oudine a reasonable evolution for their organizations. But they realized with bitterness and anxiety that while preaching cooperation the government had taken the irrevocable decision to undo everything."10 This melodramatic language is only a reflection of what the profession was trying to get across to its members. On the eve of the 1984 congress of notaires, the very congress in which the minister of justice announced the abandonment of his re9

VIP, 84/8, p. 3. Frar^ois Terre, "Haro sur les officiers ministiriels," Le Figaro, 14—15 January 1984. 10

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form projects, the president of the CSN, in an interview with Figaro-Magazine, stated that "these proposals for reform undermine the very foundations of the profession."11 But one has to separate the public relations aspect of pressure from the more political and mundane pressures that are applied. The first is used as a means of mobilizing the profession and of gaining support for the profession's main organization— the Conseil Superieur du Notariat. In maintaining the membership in a state of agitation, the CSN strengthens its hand in negotiation with the state. The second involves separating allies and enemies and utilizing alliances with segments of the state. This is not made explicit, since the state needs to be presented as a cohesive entity if it is to be portrayed as being menacing. The notarial profession always has multiple relationships with the state. The configuration of such relationships may change over time, depending on political circumstances, but at any given time the profession has allies, enemies, and others who may be swayed either way. The profession generally has one important advantage over the state it confronts: It is unified and its goal of survival is shared by all of its members, whereas the state is an amalgam of diverse institutions each of which pursues a separate goal. Only those who saw a Marxist plot underlying all of the state's actions after 1981 claimed that the state was a solid entity pursuing certain goals single-mindedly. The more sophisticated leaders of the profession expressed this view in their public pronouncements while privately striking alliances with segments of the state apparatus. As one such leader put it, "Yes, this is a socialist state, but it doesn't do only socialist things." Another put the same point in a slightly different way: "There is a socialist majority in power. Does this change the fact that parts of the state need us and we need them? We just have to find each other." 11

Figaro-Magazine, 26 May 1984, p. 130. In his address before the congress of notaires two days later, Robert Badinter expressed his bitterness at Chardon's remarks.

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Once the profession understood that the new era of socialism did not bring with it an end to administrative pluralism, it quickly set about finding allies and identifying enemies. The search did not take long, for the notaires' potential allies were at the same time searching for them and also saw in the new political circumstances an opportunity to turn them into clients. The notaires succeeded in thwarting reform because they operated politically and were thus able to drive a wedge into the government's projects, which depended on policy coordination among diverse state institutions. Clientism is as much part and parcel of the French state's interaction with society as it is of a decentralized state. Centralization even offers decisive advantages to the client group over a structure in which power is widely dispersed. The Fiction

ofTutelle

The relationship between the notarial profession and the state is multifaceted. The former's legal function makes it a ward of the Ministry of Justice, which exercises tutelle over the profession. The Service des Professions in the Direction des Affaires Civiles of the Ministry of Justice oversees the notarial as well as the other legal professions. Since the Ministry of Justice exercises the tutelle function over the profession, the profession might be thought to have a clientistic relationship with the ministry. It does, though between 1981 and 1985 the ministry demonstrated some ambivalence with respect to its tutelle function, sometimes considering it its duty to transcend the mere defense of a group that falls under its jurisdiction and at other times considering it its duty to come to the defense of the very group it sought to reform. It should be noted that this ambivalence came about in the wake of the left's victory in 1981. As we saw earlier, harmony reigned in the notaire-Ministry of Justice relationship prior to 1981. The profession had no need to seek other allies—though it did have them—because it had a comfortable clientistic relationship with the ministry. No minister of justice prior to 1981

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would have attempted even a mild reform without the full accord of the profession. The ministry was there to serve and defend the profession. The profession knew this to be the case, and the ministry accepted this role vis-a-vis the profession.12 The nature of a tutelle defines to a large extent the policy options available to a ministry with respect to its wards. A distinction needs to be made between a regulatory tutelle and a policy tutelle. In the regulatory case, the group in question is dependent on the ministry for the conditions that regulate its functioning. It is the ministry that insures that the public service in question is well provided for. No legal text that might alter the conditions under which the group in question functions can pass without the accord of the tutelle ministry. In the policy case, the tutelle does not involve direct regulation of or involvement in a specific group. Groups may have an anchor in a public agency (labor in the Labor Ministry; industry in the Ministry of Industry) whose interest in a given sector extends to questions of policy, but there is no direct regulation involved, since most policy questions are distributed over or involve a wide segment of the state apparatus. Hence, the policy tutelle of a public agency is necessarily diluted by its limited capacity for intervention and by the lack of concentration of jurisdictions and policymaking authority. It should not be thought that the regulatory tutelle controls all policy options concerning its wards, and is therefore able to deliver on all the requests that are made by the group in question. All financial matters—and in the case of the notaires this involves the central question of the fixed fee scale—must be approved by the Ministry of Finance. Moreover, because the notaires are also tax collectors (the state imposes a tax on all transactions), the Treasury's involvement in this profession is of 12

As President Chaine said in a speech at the 71st Congres des Notaires de France, "There is no fundamental difference between their [the Ministry of Justice's] and our objectives" ([CSN], p. 14). What disagreements there were resulted from the profession's pushing for more favorable measures rather than from threats of reforms.

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considerable importance. The Ministry of Finance has an interest in seeing that the notarial profession operates efficiently so that it can perform the critical task of tax collection on the state's behalf. However, the regulatory tutelle does mean that the ministry exercising this tutelle becomes the chief representative of the group in the state apparatus. What is not direcdy under its control it tries to influence on the group's behalf. Prior to 1981 the Ministry of Justice did a fine job of representing the notarial profession and of procuring fee hikes and other advantages. Why does an agency charged with a regulatory tutelle take it upon itself to defend and represent an interest group? The answer is fairly clear: The public agency is charged with a mission, and to accomplish what the law obliges it to do it must gain the loyalty of the group that carries out this mission. It therefore begins performing services for the group, which in turn leads the group to request further services. Gradually, a symbiotic relationship of the kind described by Philip Selznick in T.VA. and the Grassroots develops.13 The original mission of the public agency gets blurred; or, rather, it becomes entangled with the specific aims of the group it is supposed to regulate. When this occurs, the group itself comes to believe that the central mission of the public agency is not to look after the general interest but to defend the specific interests of the group. This is what leads to a situation in which the president of the CSN is able to remind the minister of justice: "You assume our guardianship, and thus our protection." 14 The symbiotic relationship between a public agency and a group does not follow ironclad principles. It is susceptible of change, especially when ideological and political winds shift drastically. This is precisely what occurred in the case of the Ministry of Justice-notaires relationship. Looking back at the full cycle of events, we see the relationship going through sev13 14

(New York: Harper [Torchbooks], 1966). VIP, 83/8 (December 1983), p. 1.

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eral stages: An assertive ministry produces a document warning the profession that things will be done differently and that serious reforms must be envisaged; this is followed by an aggressive counterattack by the profession and a mobilization of all its forces within the state apparatus; the ministry then ends up abandoning the reforms it had originally put forward and defending the profession against other segments of the state apparatus that had taken at their face value the ministry's original reform proposals; finally, an agreement is reached whereby the profession is asked to undertake a study based on a simulation model and to submit the results, together with a set of proposals (a "contrat de programme") to the ministry. In other words, the profession succeeds once again in writing its own reforms. On coming to power, the left sought to bring about reforms in different sectors, including the administration of justice. The minister of justice, Robert Badinter, a lawyer with a liberal background, sought among other things to abolish the death penalty. It was not surprising that his ministry should also have wanted to reform the offices minuUrids. The minister informed them of his intentions and asked them to provide the ministry with a wide array of information about their professions. It is true, however, that reforming the notarial profession was not the highest priority for Badinter. He preferred to leave his mark on other areas, particularly those that helped move France away from the law-and-order position that characterized his predecessor's passage in the ministry. His actions in this area earned him the opprobrium of his political opponents. Hence, Badinter would soon have to begin limiting his political costs and avoid further fallout from his socialist or progressive policies. The notaires were the first to respond with all the necessary documentation. There began a series of meetings and exchanges between the profession and the ministry. The notaires continued to provide the ministry with documentation, arguing that their mode of remuneration was not inflationary or excessive, that access to the profession had been opened up, that

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they were performing a public service but also ran a commercial enterprise that required capital investment, that the profession's economic situation had substantially deteriorated in recent years.15 The constant discussions and meetings between the profession and ministry were not regarded as concertation. The president of the CSN expressed the view that genuine concertation means that the public authorities adopt the positions recommended by the profession; otherwise the profession is being merely confronted with a diktat. "Of course," Chardon said of officials of the Ministry of Justice, "we presented only arguments, and of course they were completely ignored. It was obvious that it was a political decision. But at least we should be told so honestly. If it was a political decision, we would have accepted that. Why talk about cooperation?"16 More specifically, did the profession call concertation the adoption of its proposals, or the abandonment by the Ministry of Justice of all projects? More than a year before Badinter announced (at the congress of notaires in 1984) that future pro15

All these points were made in documents presented to the Ministry of Justice, usually as summaries of the profession's arguments following meetings with the ministry. Typical of such presentations are: M. Cordier, "Tarif des notaires," entretien du 2 fevrier 1983 a la Chancellerie (CSN); L. Dejoie, "Patrimonialiti," entretien du 20 Janvier 1983 a la Chancellerie (CSN); M. Cordier, "Le Controle de la profession" and "Exercice individuel ou collectif de la profession," entretien du 20 Janvier 1983 a la Chancellerie (CSN); M. Cordier, "Acces au notarial," and Julian Saint-Amand, "Acces a la profession de notaire," entretien du 13 Janvier 1983 a la Chancellerie (CSN). The profession issued a series of documents on relative costs and revenues, such as "Tableau comparatif de !'imposition sur Ie revenu d'un notaire et d'un salarie," entretien du 13 Janvier 1983 a la Chancellerie (CSN). President Chardon himself made a presentation on the deteriorating economic condition—declining revenue and increasing costs—of the profession at a meeting with the Ministry of Justice, 14 February 1984. The profession's own calculations had been provided in such documents as "Tableaux comparers de droits verses au Tresor et de la remuneration du notaire," "Comparaison des couts entre les agents immobiliers et les notaires," "Repartition des etudes en fonction de !'augmentation ou de la diminution des charges et des produits," entretien du 2 fevrier 1983 a la Chancellerie (CSN). 16 Entretien du 5 Janvier 1983 a la Chancellerie (CSN), p. 5.

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posals by the ministry would not be made before the profession had had a chance to provide the ministry with the results of its own detailed survey, this suggestion was made to the ministry by Chardon. At a meeting on 2 February 1983, Chardon stated that it would be irresponsible to accept a reform of the tanf without having first undertaken a "scientific" study, and he volunteered to study the problem with "experts" and by means of "simulations."17 Apparendy, the minister simply made his own what the profession had earlier proposed. That was what concertation amounted to. It becomes evident that tutelle is a juridical notion and by no means conveys the reality of the relationship between a public agency and a group. This is the case even where a regulatory tutelle is concerned, because the control that the public agency exercises over the group is often rudimentary and because its protective role comes to assume greater importance. The Ministry of Justice's control over the profession does not extend beyond the confirmation of a notaire to the office he has purchased. For the rest, the profession is left to police itself. The profession is of the view that this is an ideal distribution of roles and responsibilities. As Maitre Cordier, Chardon's successor as president of the CSN, put it, "Thus, the continual concern of the Conseil Superieur de Notariat is to improve control, not only in terms of bookkeeping, but also in its other spheres (deontology, notarial methods); and on this last point, it is crucial that supervision be maintained, under the control of the public prosecutor, by the profession itself, which seems technically best placed to judge the quality of services rendered."18 Tutelle, then, does mean what jurists have long understood it to mean. It implies state authority over private groups. The reality of tutelle is often the contrary—the permeability of the state by private groups, that is, the power of private groups over the state. Just 17 Intervention du President Chardon, entretien du 2 fevrier 1983 a la Chancellerie, pp. 5-6. 18 Michel Cordier, "Le Controle de la profession," entretien du 20 Janvier 1983

a la Chancellerie (CSN), p. 3.

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as the tutelle of the state is often fictitious, so the protection the state affords private groups is often the more normal state of affairs. The Reality ofProtection Thus, the tutelle function of the Ministry of Justice is insignificant when compared to the protective function it fulfills. In the end, the ministry neither sought greater control over the profession nor made serious attempts to push through the reforms it had originally claimed were essential. Quite the contrary; it began to undermine its own proposals and it became more attentive to the profession's claims once it observed that its ward was under attack from the outside. Prior to 1981, when the ministry fully accepted that its protective role was its tutelle function, it did not countenance reforms proposed by other public authorities. The reasons it gave for its opposition were reasonable, just as the reasons it gave after 1981 for wanting the reforms that it had earlier objected to were reasonable. When the Ministry of Finance made a number of proposals concerning the fee structure of the notarial profession in the late 1970s, the ministry rejected all of them out of hand. The proposals were not very different from what was proposed after 1981: —to abolish the percentage rate for work concerning companies; —to establish a ceiling on fees for work performedfor individuals; —to make the use ofnotaires optional in certain situations; —to authorize the notaire to grant a reduction in a fee whkh would no longer to be afixedfee, but instead a maximum one; —to remove restrictions on fees applied to work for whkh a notaire does not have to be consulted.19 The Ministry of Justice did eventually ease its position, recognizing that corporations were severely penalized by the current fee structure, but it was loath to tamper with the profession's monopoly and with the tarifi It was also totally opposed 19

Ministry of Finance, Riforme de la unification des notatres (1979), p. 1.

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"to the proposal to give the schedule [of fees] the air of a maximum fee rather than a fixed fee."20 The reasons given by the ministry were those that the profession itself has always given: —equality in terms of public service; —the risk of calling into question the profession'sfinancialequilibrium; —the possibility ofchanges under the profession's control in situations ofovert malpractice.21 Despite the position taken by the Ministry of Justice, the Ministry of Finance believed that Justice had moved from its earlier position. It therefore was hopeful that further discussions would lead to further compromises. Clearly, it would take some doing to get the Ministry of Justice to compromise the notaires' monopoly and get it to a point where it would accept competition over fees within the profession. The matter was left in abeyance until the elections of mid 1981. The Ministry of Justice then reversed its earlier positions. It now pushed for the very reforms that under the previous government it had refused to consider. Why did the reform of the notarial profession not turn out to be a simple issue? The answer lies in the fact that once the Ministry of Justice realized that a serious reform was a probability, given the intentions of the government, the resurrection of the Ministry of Finance's pre-1981 projects, and its own projects and intentions, it became aware that it was about to abandon, to a large extent, its protective role vis-a-vis the profession. Rather than assert its tutelle functions, it preferred to assert its protective functions. In the interministerial meetings, the Ministry of Justice became the defender of the profession against the projects of others. It might adopt a tough position when confronting the notaires, but it could only defend them when they were attacked by another bureaucratic agency. 20 21

Ibid., p. 3. Ibid.

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It viewed an attack on its ward as a threat to its jurisdictional authority. The Ministry of Finance was basically concerned with one reform: the tarif. It had no interest in the reforms concerning the numerus dausus and the droit de presentation. The tarif 'was central to its preoccupation with eliminating the structural causes of inflation. Any reform that helped bring about competitive pricing would receive its support. When the ministry broached the tarif question with the Ministry of Justice, even after 1981 it received only a lukewarm response. One official from the Finance Ministry explained that "when we ask the Ministry of Justice to look into the question of the tarif they usually suggest that we examine the profession as a whole—its functions, role, utility, etc. All this so that we discuss things other than the tarif." Now, to many people in the administration and in the government, the only reform that meant anything was the reform of the tarif. According to the same Ministry of Finance official, "After we suggested a serious reform [i.e., the tarif], the Ministry of Justice suddenly tells us that, after all, the notaires are useful! The truth of the matter is that the Ministry of Justice doesn't really want to do anything. They make a lot of noise, but they don't want reforms." The Ministry of Justice was not much interested in reforming the tarif. According to an official in the ministry, "M. Badinter can't get excited about this sort of problem," adding, "All the more so since this has become a burning issue. This is why he prefers to throw it in the lap of the Ministry of Finance." But the issue was not just returned to the Ministry of Finance to do with it as it pleased. On the contrary, it could not obtain the support of the Ministry of Justice for a reform of the tarif. The Justice Ministry argued that the notaires were in dire straits because of the downturn in the economy and that care should be taken not to impose such a serious reform at a time when they were so vulnerable. The notaires' vulnerability allowed the Ministry of Justice to plead their case. Despite all the proposals put forward by the Ministry of Justice and the Ministry of Finance, an official in the latter ministry observed in April 1984

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that because of the Ministry of Justice's position "we are at exactly the same point that we were at five years ago." This was, of course, essentially confirmed a month later when the Minister of Justice officially confirmed that his ministry was no longer concerned with initiating reforms on its own—that is, reforms that did not have the prior accord of the profession. While the shifting positions of the Ministry of Justice were somewhat baffling to officials elsewhere in the state apparatus, they were not always seen in the same light by others. The notaires did not always see their tutelle ministry as having a balanced position. They saw it—and sometimes chose to see it—as uniformly hostile. "They got scared when they saw who was around Badinter," said one Ministry of Finance official. He was referring to the presence of Pierre Lyon-Caen in Badinter's cabinet. For the profession, Lyon-Caen was one of those people bent on its destruction.22 Other officials in the administrative apparatus had a more realistic assessment of what was taking place. A look at the record of some of the interministerial meetings shows quite clearly that the Ministry of Justice generally came to the profession's defense. While to the profession it may have indicated that it was spearheading a reform movement, to others in the state apparatus it was providing a model example of a bureaucratic agency defending its client. Officials like Pierre Lyon-Caen may have appeared to the profession to be bent on its destruction, but neither he nor any other official in the Justice Ministry gave this impression when meeting with officials from other departments. In fact, one official from the Caisse des Depots et Consignations (the public agency that acts as the profession's banker) saw things very differently. He believed that the notaires' fright was not wholly unjustified, but that the Ministry of Justice should not be considered the cause for this. "The ministry isn't 22

I was not able to confirm the goals that the profession ascribed to Lyon-Caen. In fact, I could only confirm his moderation. Nothing in the record that I have consulted suggests that he was out to destroy the profession. The profession, on the other hand, took it as a sign of its strength that Lyon-Caen was not named Directeur des Affaires Civiles when the post became available.

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really very hostile to the notaires despite impressions the notaires have." He explained that the ministry did not have much weight in the policymaking process—certainly not when acting alone—and that it was not a true believer in a profound reform, because "in comparison with other professions—the huissiers, syndics, commissaires-priseurs—it doesn't see the notaires as being so bad." The so-called tutelle relationship creates over time a particular form of cooperation. One official put it this way: "There is a complicity between the Ministry of Justice and the notaires. The notaires give the ministry a lot of information which it needs to be able to do its job. Also, the notaires are part of the services of the Ministry of Justice. The ministry needs them, and it needs them to be present everywhere; otherwise people will start howling and it's the ministry that will bear the brunt of the public's outcry." The ministry was, in effect, tied down by its tutelle mission, for it could not attack a group that carried out functions for which it bore responsibility. All this means that any structural reform that undermines, or appears to undermine, the notaires not only cannot come from the Ministry of Justice but will in fact be opposed by this ministry. One official from the Caisse des Depots explained that the Ministry of Justice's hostility to the notaires was more apparent than real. "If you look," he said, "at the three points that are being discussed now as possible reforms, two—the droit de prisentation and the notaire inventeur de sites—were initiated by the ministry; the third—the tarif—came from the Ministry of Finance, and this is what is important, because it's the reform that really counts." The ministry did not, in the end, wish to risk losing the notarial profession as a client to another public agency. This would serve to undermine its authority over the legal system and would reduce its clout in bureaucratic battles. Tutelle and Clientism We have seen the extent to which tutelle is a juridical notion that is belied by the reality of its functioning. This reality is more akin to practices that we have tended to associate with different

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political practices and systems.23 In fact, neither French jurisprudence nor observers of the political system have ever seen a connection between the concepts of tutelle and clientism, which are a priori contradictory. Yet centralization clearly facilitates the clientistic relationship, allowing the client to concentrate his efforts and energies within a circumscribed set of institutions that set the agenda and determine the outcomes of public policies. Usually, the group that seeks to influence public policy in its favor does not have to reach further than its tutelle agency. But, as sometimes happens, political shifts may threaten to upset the agency-client relationship. When this occurs, the client will seek to establish the same relationship with another public agency and the tutelle agency will seek to reassert its tutelle and its ties to the group. Ultimately, and herein lies a key paradox, the tutelle agency cannot afford a divorce from its client. And so it attempts to return to the good graces of this client. This is a curious way to view a policy process that has so often been described as centralized, powerful, and cohesive. In the rare instances where a tutelle has been examined, it has been found to bear no relationship to its juridical sense. For example, to carry out his function effectively, the prefect was compelled to establish a complicity with mayors, which meant that he could never be merely the representative of the central authorities in the departments. He could therefore not dictate orders to the mayors, on whom it turned out he was heavily dependent. 24 The independence which public enterprises have from the state is yet another example of how inaccurate is the notion of tutelle for understanding the policy process. Even where the state owns an enterprise outright, it does not always control this enterprise's actions, guided as they are by particular interests.25 23

See James C. Scott et al., eds., Friends, Followers, and Factions: A Reader in Political Clientelism (Berkeley and Los Angeles: University of California Press, 1976). 24 Jean-Pierre Worms, "Ix Prefet et ses notables," Sociologie du Travail, 8:3 (1966), pp. 249-75. 25 See the fine study by Harvey Feigenbaum, The Politics of Public Enterprise: Oil and the French State (Princeton: Princeton University Press, 1985).

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Similarly, the Ministry of Justice can exercise only a minimum authority over the notarial profession. And, as we have seen, it cannot control the profession, which has largely been successful in remaining self-regulatory. The profession screens its own candidates, sets its own organizational procedures, polices itself, determines its own budgetary allocations, and enjoys an independence from its tutelle agency that is perhaps greater than many a private group. The profession even determines for the Caisse des Depots whether a notaire should receive a loan from the Caisse, since even the Caisse does not wish to intrude on the profession's prerogatives. The tutelle agency maintains this relationship, devoid of genuine powers over its ward, because it needs it to carry out a mission on its behalf and also because it does not want to lose its formal role vis-a-vis the group, or an important area of jurisdiction. For its part, the group does not want the relationship broken because it is a relationship that brings only advantages. As a private group without a "mother agency," the notaires might find themselves in the wilderness. Instead, they now enjoy all the advantages of a private group—independence, selfregulation—and also the advantages of being able to call on the state to come to their aid. The president of the profession can tell the state with utter conviction that it has to intervene on the profession's behalf. "For notaires, being responsible for a public service whose continuity has a value in and of itself, things are simple. If the [notarial] enterprise is unable to provide normal, regular service, it is up to the state to intervene and provide it with the necessary means.26 The profession can tell the state that its job is not to limit its monopoly but "rather to expand it"27—something that a private group would have a difficult time doing and getting accepted. Hence, a client group, particularly if it can claim to be linked to public service, can derive from a tutelle relationship advantages that caricature a centralized state's alleged power. It 26

Paul Chardon, Allocution au Congres des Notaires de France, Versailles, 28

May 1984 (CSN), p. 23. 27

Ibid., p. 15.

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can exploit its relationship with the state by creating yet another client-state relationship. It can thus place itself in the enviable situation of being a client courted by one or indeed several state agencies. When this occurs, a marriage of convenience may result which is likely to produce a clientistic relationship that is difficult to envisage in a centralized state. But such relationships exist and they relegate the general interest to secondary importance. The Ministry of Justice was in the end more concerned to calm and satisfy the profession than it was to push ahead with reforms that were considered in the general interest. It did not exercise the power of its tutelle because it had seen to it over the years that its tutelle could exist only if it were devoid of power. This is why the profession could understand concertation with the government to mean only that the public authorities accepted by and large what was good for the profession. The clientistic relationship—that is, protection of a private group rather than exercise of a tutelle over or regulation of the private group—is justified by the public agency without much difficulty when the private group can be linked to the performance of public service. It then becomes possible to view the private group as being not private. In view of this, it becomes possible to understand why the reform of a group that links itself to public service is not an easy task to accomplish. In 1913, the rapporteur of the Extra-Parliamentary Commission I cited earlier noted that "the legislator has continually failed in this crucial task. Good intentions formulated on many occasions in texts have given way to the resistance of interested parties. They have never produced measures of sufficient severity."28 Bender noted that no sooner had his commission been named than the notaires manifested their resistance to reforms that the commission had not yet even proposed. 29 The reformers of the 1980s might have paid attention 28

Bender, LaRtforme notariale, p. 29. Ibid., p. 31. A similar commission—the first of its kind—was appointed in 1839; the results of its efforts were never known.

29

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to the conclusion of the Extra-Parliamentary Commission's report of 1913: The need for a complete reform, the urgency of which is felt by all, followsfromthe facts above. It cannot be expected to comefromthe notarial profession. The solutions the profession has proposed, under the pressure of necessity, are truly insufficient and do not correspond to the severity ofthe crisL·. In every period. . . they have always tended to strengthen the profession, to increase its independence, its profits, and their effect has been the paralysis of public authority and the prevention of meaningful changes.™ The socialist government of the early 1980s simply followed a pattern that the profession had established over two centuries. It allowed the profession to propose its own reforms. In the end, the centralized state followed policies that were responsive to the interests of a specific group. Bender had, not surprisingly, concluded in the early part of this century: "To accomplish the reform, one can only count on the executive and legislative powers, who will be firm if they are really concerned with thegeneral interest"31 By the same token, if the political authorities are only concerned with the group's interests, then they will allow the reforms to be proposed by the group. If the Ministry of Justice was more concerned about protecting its client than about taking actions which it had judged to be in the general interest, it showed the hollowness of its tutelle. All the more did this become evident when the profession discovered a powerful ally in the state apparatus that was willing to give full support to the profession and at the same time to the status quo. We turn next to an examination of the adoption of the profession by a state agency willing to support and represent the profession, and seeking to create yet another quintessential clientistic relationship. 30 31

Ibid., pp. 34-35. Ibid., p. 38 (emphasis added).

CHAPTER 12

The Profession's Bankers The notaires don't really expect anything from us. It's we, like the Caisse des Depots, that keep creating needs. We both want them to ask us to provide more services. — O F FICIAL OF THE CREDIT AGWCOLE

I suggested in previous chapters that there is no simple and direct relationship between the notaires and the state. The notaires deal with numerous state agencies, all of which have either a legal supervisory role or some form of responsibility for or connection to the profession. The importance of an agency for the profession, or the degree of influence that an agency exercises over the profession, is not direcdy tied to the legal definition of the state's role vis-a-vis the profession. We have seen that the legal tutelle which the Ministry of Justice has over the profession is largely devoid of real authority. Like most of the tutelles of the state's agencies, that of the Ministry of Justice is largely fictional; and its lack of import can only be fully appreciated by an analysis of the actual contents of its relationship to the notarial profession. This suggests, as would an analysis of other administrative tutelles, that private groups can and often do successfully transform the tutelle agencies into handmaidens in a centralized administrative system or, at the minimum, neutralize their authority. As the notaires play an important economic role—at least in terms of the amount of money they handle—the state's economic institutions cannot be oblivious to the conditions under which the profession operates. The Ministry of Finance has a particular interest in the profession's fee scale, as well as in its tax-collecting function. The Finance Ministry, however, does not receive or handle the funds that notaires collect in their role as intermediaries between two transacting parties. This role is assumed by the Caisse des Depots et Consignations, which has effectively become the notarial profession's banker. Like any 256

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banker dealing with a major client, the Caisse des Ddpots provides privileged services to the notarial profession. The Caisse des Ddpots is not, however, a private bank. It is part of the state apparatus, though it has come to enjoy a large degree of autonomy from the Treasury and now operates as an independent institution. The Caisse des Depots as Banker The Caisse des Depots is not a well-known institution, no doubt because it is a financial institution that is neither a central bank nor a commercial bank. Aside from a semiofficial history of this institution, published in 1966, 1 its role, like indeed that of other critical economic institutions, has been ignored. And yet it is scarcely possible to understand the underlying institutional bases of the French economy, and its transformation since the Second World War, without an awareness of the critical activities of such institutions as the Caisse des Depots and the Crddit Agricole.2 Being neither an arm of the central government nor a bank that serves individuals, the CDC falls into the special category of what might be called an autonomous development bank. Its assets are in the range of $120 billion, most of which comes from the savings accounts which the CDC manages. It owns or controls numerous subsidiaries that operate in the consulting, housing and urban development, and social services fields. It owns real estate and it intervenes in the national and international financial markets. The size of its portfolio on the Paris Bourse is such that its intervention can help redress sharp movements in the market. The CDC uses its assets to help finance sectors of the economy. It made loans of almost 100 billion francs in 1982 to local authorities, to the housing sector, and to industry. Under the 1

See Roger Priouret, La Caisse des Despots: cent cinquante ans d'histoirefinanciere (Paris: Presses Universitaires de France, 1966). 2 See Andri Gueslin, Le CriditAgricole (Paris: Editions La Decouverte, 1985).

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leadership of Robert Lion, 3 the CDC has begun enlarging its role and moving in new directions by investing in new media technologies, intervening more direcdy in the economy, and taking an important role in preparing local governments to take full advantage of the decentralization laws by pushing them toward greater economic intervention in their regions.4 What the results of the widened and more adventurous role of the CDC will be is difficult to say. Questions can certainly be raised about its new directions, about the extent of its multifarious involvements, and about whether it can act as a regular (competitive) bank—which many of its new activities require of it—without being a commercial bank. The CDC is proud of its independence, all the while being a state institution. A brochure published in 1983 notes that the Caisse des Depots "is headed by a President and Chief Executive Officer who is appointed by the government but can be removed only with the consent of the Supervisory Board. . . . In defining the internal organization and directing operations, he is largely autonomous from the government and from the Supervisory Board, which, however, is kept regularly informed." It may seem odd that an innocuous house publication designed to acquaint the outside world with the CDC should put such a strong emphasis on the institution's independence. Yet the document goes on to observe that "the external controls exercised over the CDC are very limited. Thus, the Minister of Finance has no oversight authority, even though the CDC has always maintained a policy of directing its efforts in accordance with national priorities."5 Given its administrative independence, its enormous financial assets, and its considerable involvement in a diversity of sectors, the question arises as to why the CDC sets such store by its relationship to the notarial profession. Why, in other words, 3

Appointed director general in 1982. Lion is an inspecteur des finances who served as Prime Minister Pierre Mauroy's directeur de cabinet when the first socialist government was formed in June 1981. 4 For more details on the CDC'S new roles, see Le Monde, 6 March 1984. 5 Caisse des Dfyots: Adaptation from Report to Parliament (Paris, 1983), p. 9.

The Profession's Bankers 259 has the CDC gone beyond its legal obligations? Why has the CDC sought to establish a privileged relationship with the notarial profession? In so doing it has become the chief defender of the profession within the state apparatus. I shall analyze this relationship in the following pages. But before that we need to understand the basis for the link between the CDC and the profession. The law of 1816 obliges the notaires to deposit the funds of their clients with the CDC. 6 This is the basis for the link between the CDC and the notaires. The notaires deposit close to 20 billion francs annually with the CDC (Figure 12.1). They receive 1 percent interest on the money (all of it clients' money) they deposit. The 20 billion francs deposited annually is but a fraction of the CDC'S total assets, but in view of the fact that this amount is remunerated at the rate of 1 percent and put to work in order to earn a much higher rate, the notaires' deposits end up being of considerable importance even to a financial institution the size of the CDC. Now, the question may be raised as to why the CDC services the notaires in a privileged manner if the law obliges them to deposit their funds in this institution. Numerous officials, seeking to understand the staunch support that the CDC was providing the notarial profession so as to undermine the government's reform projects, raised precisely this question. "The law is very clear," said one official in the Ministry of Justice, "the notaires must deposit their funds with the CDC. SO why is the CDC so determined to do the profession unnecessary favors?" The CDC sees the issue very differently, or, as its officials like to claim, "more realistically." They maintain that the law is one thing and reality is another, and they cite past experience to 6

When a person engages in a transaction (say, the purchase of an apartment) he or she deposits the money with a notaire, who is obliged to deposit it, if he operates in a town with a population of over 30,000 inhabitants, with the Caisse des Depots. If he works in a town with a population under 30,000, he may choose to deposit the funds either with the Caisse des Depots or with the Credit Agricole. This is the equivalent of an escrow account. The notaire is remunerated at a rate of 1 percent on the funds of his clients.

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prove their point. 7 The CDC believes that if the notaires decided to withdraw their funds and place them in another bank, the CDC would be powerless to do anything about it. As one direc­ tor of the CDC put it, "Suppose they withdraw their funds; what are we going to do about it? Put them in prison? There is ab­ solutely nothing that the CDC can do." Another high-ranking official of the CDC put it this way: "Of course the law says that they must deposit their funds with us. But we can't forget that

FIGURE 12.1. Notarial deposits (in billions of francs, monthly up­ dates). Source: Cause desDipdts et Consignations. 22

ml

7

r

ι D

ι J

ι F

ι M

A

ι M

| _ _ | J

ι

ι J

ι A

ι S

O

ι N

ι D

On at least one occasion, in 1975, when the notaires did not receive the ad­ justment of the fee scale they were after, they threatened to withdraw their funds from the Caisse des Depots. SeeLesEchos, 12 June 1975.

The Profession's Bankers 261 there are banks out there—yes, nationalized banks—urging the notaires to thwart the law. They're not supposed to go after the notaires' money, but who is going to stop them? They're hungry for this money and they're ready to make promises of all kinds." The official went on to observe that "the notaires even have legal ways of putting their money elsewhere, but we don't speak too much about such things and I'd rather not tell you what they are." The CDC therefore competes with other financial institutions—almost all of which are now state-owned—to attract the funds that notaires receive on behalf of their clients. The notaires themselves receive a remuneration on funds that do not belong to them. They have frequently claimed that the 1 percent interest they receive should be increased to 2 or 3 percent. They have always had to be reminded that any increase in the rate of return would mean that the remuneration of the funds would have to go to the owners of these funds—i.e., the clients—and not to the notaire, who is merely an intermediary in the transaction. The question of the interest payment on the funds deposited by notaires has always been a bone of contention. The Extra-Parliamentary Commission for Notarial Reform noted, in the early part of this century, that the Caisse des Depots had lodged numerous complaints to the effect that the notaires were circumventing the law obliging them to deposit the funds of their clients with the CDC. Once again, and in almost every department, the Inspection des Finances has established the blatant and regular violation ofthese laws. Notaires refuse to deposit the required payments in the Caisse. Having developed the habit ofappropriating the interest that legally belongs to their clients for themselves, most look to banks for a better rate ofreturn than that offered by the Caisse [des Depots] .8 The fact remains that the client who makes a payment (generally a deposit for more than three months) to the notaire never receives interest on this money when it is deposited by the 8

Emile Bender, LaRiforme notanale (Paris: Arthur Rousseau, 1913), p. 22.

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notaire in the CDC. The profession does not always express this in unambiguous terms. At the time he was president of the Conseil Superieur de Notariat, Chardon stated categorically in an interview that the interest is paid to the client. "When a notaire keeps money for longer than three months, he must by law deposit it and the interest is paid to the client.'"9 The notaires have continually asked for a higher rate of interest on their clients' money and no suggestion has ever been made by them that any part of this interest should go to their clients. Mutual Cooperation and Cooptation The services that the CDC provides the notaires have led the latter to view the CDC (in the words of one internal CDC document) not as "an ordinary banker, but more like a valued partner." The CDC'S policy consists quite simply in insuring that the 20 billion francs that the notaires have to deposit does not fall into other hands. It therefore does what any bank would do to get into the good graces of a desirable client. It seeks to fidiliser (bind) him. One CDC official put it this way: "The notarial profession is very important to us. There is competition out there, so what we are trying to do is to bind the profession to us." Another official observed, "It's quite simple: We have to have good relations with the notaires so that they willingly deposit their funds with us." Despite the prescriptions of the law, the CDC knows that it has no coercive powers at its disposal. Its only chance of attaining its objective is to pull out all its powers of persuasion. "Since there are huge sums involved," noted one CDC official, "we want to be able to insure that the notaires' funds are deposited with us. That is why we have to draw the notaires close to us." The CDC has to do all it can to create a climate of confidence, and it has no doubt that it is only by serving the profession that it will secure their loyalty and their funds. "Look at the figures," observed an official of the CDC; "there was a sudden jump in deposits after the annual congress of notaires in May. 9

LcFigaro, 25 May 1985 (emphasis added).

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Why? No doubt because the notaires were reassured by the director's speech telling them we wanted to be their partners in their development and evolution. This was reassuring language after what they had been hearing from the government." Lacking coercive powers, the CDC tries to do whatever it can to provide additional services to the profession. "It's important to understand," said a high-ranking official of the CDC, "that we have no control over where the notaires deposit their money. We are not a disciplinary organization. We cannot coerce the notaires. We can only encourage them to deposit their money with us." And so long as the notaires continue to deposit their funds with the CDC, this institution can feel that its policy vis-a-vis the profession is highly successful. "Remember," said one official, "we're only paying 1 percent interest. So we're making an incredible deal." The CDC is aware Of the fragility of the relationship. To a large extent it is an economic one, since the notaires receive advantageous services for depositing their money, and the CDC is pleased to have such large sums on which it is able to turn such a handsome profit. But the danger is always present that "a bank will come along and offer a good interest on deposits, plus this and that service. Why should the notaires continue to deposit their money with the CDC? Our job is to give them a reason for doing so. It's as simple as that." But the CDC-notaires relationship, while it is based on financial considerations, is not held together and has not prospered solely on the basis of a mutually advantageous economic tie. The relationship has a less obvious political basis that is at least as important as the economic factors. Without these political considerations the notaires would be perpetually shopping in the financial mart for greater advantages. In other words, the notaires have not simply let themselves be coopted. In the process of granting the CDC its deposits—in fact, no more than what the law prescribes—they have in turn coopted the CDC. "Of course the notaires have their own reasons for linking themselves to us. They want to use us for their own political end. Fine. Each one gets what they're after." This is how one CDC of-

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ficial explained the unspoken contract that has come to exist between the CDC and the notarial profession. That the profession has a clear political agenda is no secret to the CDC. And it is by responding to this political agenda that the CDC has seen its chance tofidilher the notaires. "The important thing for us is that we follow our long-term strategy of being able to count on the notarial deposits. We're talking about billions of francs. The closer the relationship we have with the notaires, the closer we get to succeeding in our strategy." This CDC official was realistic enough to note, "We understand their political game." But it is evident that the CDC has no compunctions about responding to the notaires' political game. Indeed, it feels that this is a small price to pay for the billions of francs that will keep coming into its coffers. This is how a CDC official explained in 1984 the quid pro quo: "What is important for us is the amount of money they deposit. What is important for them is what the CDC can do for them, and they think that it can do a lot now that Robert Lion, who is close to the socialists, is head of the CDC." The collaboration between the CDC and the notarial profession has intensified in the last few years. As the profession came under heavy attack and was threatened by a series of proposals for reform, it felt that it could no longer count on the official structures whose support had been unquestioned in the past. The Ministry of Justice was now initiating reforms that posed a threat to the wellbeing of the profession. The government appeared to be responding to the more radical elements in the socialist party. Finally, the left now dominated the National Assembly and could be counted on to be hostile to the profession and to give its support to any serious reforms that the government proposed. Where, then, could the profession turn for support? This question was posed at the same time as the CDC was asking how it couldfideliserthe notaires and count on their deposits. The notarial profession was keenly aware that the CDC wanted to be able to count on the notarial deposits. It also became clear rather quickly that the CDC would be willing not

The Profession's Bankers 265 only to provide even more advantageous banking services to the profession but also to assume greater responsibility for the development and wellbeing of the profession. We shall see in a moment what all this implied. But in order for the CDC to accomplish its objectives and show the profession that it was solidly on its side, it had to do the profession's political bidding and become its defender in the state apparatus. Speaking to the profession in May 1983, one of the directors of the CDC suggested that the CDC would only be serving the general interest by extending a hand to the notarial profession. The Caisse des Depots, he said, "is in effect, by the desire of the public authorities, your profession's primary bank. It [the bank] is, I repeat, also entrusted with serving the general interest. This dual responsibility defines our policy: We intend to contribute—even more than in the past and if the notarial profession wishes—to the development of your profession."10 This reassurance was welcomed by the profession, especially as it came at a time when it felt vulnerable in the changed political climate. The CDC then set its machine in motion to accomplish three objectives: augment the services it rendered the profession; propose changes that would strengthen the profession's position; and intervene discreetly on the profession's behalf to thwart the socialist government's projects. Banking Competition: The CDC and the Credit Agricole The law states clearly the conditions under which notarial funds must be deposited in either the CDC or the Credit Agricole, a bank that started out as the farmers' bank but that has gone beyond this limited sector to become one of the largest banks in the world. Only in towns with a population of under 30,000 does a notaire actually have a choice between the two institutions. In towns with a population of over 30,000 the notaire must deposit his funds in the CDC. And yet what the law states and what may take place can turn out to be very different. This 10 Intervention de M. Jacques Delmas-Marsalet devant Ie Congres des Notaires de France, 11 May 1985, p. 5.

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is why the CDC and the Credit Agricole have turned out to be arch rivals, with the notarial profession being the chief beneficiary of this rivalry. Indeed, the rivalry between these institutions centers on who can provide more and better services to the notarial profession. Two state institutions are locked in combat to see which can do more for the notarial profession so as to attract a larger portion of deposits. The two institutions see the combat in the same fashion. One official of the Credit Agricole noted that "we're going to try to strengthen the loyalty of our clienteles. The stakes are enormous. So we have to increase our parabanking services so as to tie the notaires to us." The Credit Agricole is aware that it has to overcome a number of handicaps, the first being that all the legal professions are legal clients of the CDC. If the CDC has the task of preserving and improving an existing client-banker relationship, the Credit Agricole has the unenviable task of almost starting a new one or, in other words, extending the present one far beyond the limits it accepted in the past. Secondly, the law limits the Credit Agricole to a small sector, since it cannot receive notarial deposits in towns with a population of over 30,000. "So we have to fight it out," was how one Credit Agricole official put it. And fight it does, since it does whatever is necessary to insure, at least within its limited sector, that it receives just about all the deposits of notaires. Two features distinguish the Credit Agricole: Unlike the Caisse des Depots, it is a commercial bank, and secondly, it is decentralized (having a cause Hgumak in each department, each of which is independent of the Caisse Nationale de Credit Agricole), whereas the CDC has only rudimentary representation in the provinces. The Credit Agricole is present throughout the country, and the smallest village will sometimes have a branch. This means that the bank knows its clients intimately; it is the local caisse of the Credit Agricole that conducts everyday business in the locality. The local caissefinancesalmost all transactions of farmland, as well as a substantial amount of housing construction. Since all these transactions have to be legalized by a notarial deed, the Credit Agricole is able to affect the fortunes

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of notaires. Those who cooperate with the Credit Agricole— deposit their funds with this bank, take out loans to finance the modernization of their offices—will see more clients coming their way. Those who may prefer the CDC or may prefer to do business elsewhere may end up being severely penalized by the Cridit Agricole. In short, the Crddit Agricole is in a position to pressure the notaires, something that the local causes of this bank have long done. The CDC is not in a position to engage in a similar practice, and has felt that it is subject to what it euphemistically calls unfair competition at the local level. Being a decentralized institution also carries with it a serious disadvantage: An overall policy becomes difficult to establish or, if established, to put into effect. The officials of the caisses rigumales of the Credit Agricole have their way of doing things. Each director of a cause locale tends to operate in a business-asusual manner with a strong personal element characterizing his relationship with the notaires. Now, the notaires are always notables at this local level and, as a consequence, the director of the local Credit Agricole will cater to them. The problem is that he may be little concerned with a policy that the national office is trying to put into practice. The Credit Agricole has become aware that, like the CDC, it must have an overall policy that concerns the notaire's future and the most dynamic sectors that impinge on the notaire's activities. It must then overcome the obstacle of having all the local caisses understand, accept, and implement this policy. As one official of the Credit Agricole put it, "We have to constantly push and encourage the local caisses to do certain things. Some of the directors still think that a good meal with the notaires is sufficient. They don't realize that the politique du petit four is outdated. We have to be more commercial and more aggressive." The ubiquity of the Credit Agricole which results from its decentralized nature places the bank in the paradoxical situation of being close to the notaires but unable to develop an overall policy to cover the profession. What is applied in one region may not be pursued in another. The bank is unable to utilize its chief advantage over the CDC, namely, that it is a commercial

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bank, principally because of its decentralization. The office responsible for developing notarial policy at the Credit Agricole in Paris is insignificant when compared with the army that is at the disposal of the CDC. The few officials at the Credit Agricole headquarters grappling with ways to overcome competition from the CDC are aware of what needs to be done and cause some consternation in the CDC because, as one CDC official put it, "What worries me about these people at the Crddit Agricole working on the notaires is that they are aggressive bankers." Still, the bankers of the national Credit Agricole in Paris (the CNCA) work within the constraints of independent causes regionales.

The CDC, on the other hand, has devised a national structure that is geared to creating and responding to notarial needs. This structure has undergone substantial changes since 1970, with each change reflecting the added importance of the notarial profession to the Caisse des Depots. The last important change, which involved a rather substantial reorganization, took place in 1984. It is an impressive structure, especially when one bears in mind that the CDC is a state institution and that it is in this instance catering to semiprivate interests. In the early 1970s the CDC had a very small office that dealt with the notaires. It gradually dawned on the CDC, particularly after the 1972 decrees stipulating that all money held by notaires for over three months had to be deposited at the CDC, that the notaires were going to become critical for it. Seeing these changes on the horizon, Perroux, then head of the CDC, created a more important structure both, as one CDC official noted, "to take care of our privileged client and to create a privileged client—the notaires." The bureau created to take care of the privileged clients— the Bureau des Affaires Juridiques—came to have about sixty persons. Since the notaires are by far the most important of the legal professions for the CDC, 1 1 it is clear that "we devote most 11 All the other legal professions together deposit only 2 billion francs, as opposed to the 20 billion deposited by notaires.

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of our efforts to this profession," as one of those in charge of the office that responds to notaires noted. In all, about fifty persons in the juridical bureau devoted their full time to the notaires. To this must be added approximately one hundred in the CDC reseau who take care of notarial needs at the local level. According to one high-ranking CDC official, "there are altogether two to three hundred people connected with the CDC who are involved in rendering services to the notaires." The increased volume of activity during the 1970s led to the creation in 1977-78 of a Bureau des Prets and a Bureau des Notaires. The first was responsible for managing the loans made to notaires, and the second for developing an overall policy and strategy with respect to the notarial profession. By the early 1980s, which coincided with a transformed economic situation for the notaires, a less favorable political climate, the arrival of Robert Lion as head of the CDC, and the appointment of Gabriel Aubert, a dynamic civil servant, as head of the office responsible for the legal professions, it was clear that a new structure would be required. The former structure could no longer handle adequately the volume of business generated by the close collaboration between the CDC and the notaires. A reorganization was begun in 1982 and took effect in 1984. In this new administrative setup there no longer exists a specific notarial bureau, since three separate offices were created, each with horizontal responsibilities (managing transactions with the CDC'S clienteles, developing a strategy concerning the CDC'S clienteles). But, although the new structure no longer has a notarial service, it seems clear that "as this sector is going to grow rapidly, we'll develop in effect an even bigger service to handle relations with the notaires." The major reorganization undertaken by the CDC is the result of the growth in the services rendered to the notaires. The new structure gives far greater importance to strategy and to the development of policies and initiatives than to the routine administration of ongoing programs. This is now inevitable in view of the fact that a policy that seeks to solidify the notaires' relationship to the CDC implies involvement in the wellbeing of

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the profession. Hence, what concerns the notaires now concerns the CDC. The Crddit Agricole has also moved in the same direction and for the same reason. If the notaires' privileges are called into question, noted one Credit Agricole official, "our privileges will also get called into question. Our fate is in some measure linked to their fate. What would stop the notaire from having three banks serve him? And if other banks jump in to offer this or that advantage, the notaire won't hesitate to go to them." Neither the CDC nor the Credit Agricole has any illusions that the privileged relationship each enjoys with the notaires is based on tradition or history or law. It is a purely business relationship with substantial political consequences. It is masked by the state garb that both the notaires and the state financial institutions clothe themselves in. The rationalization that the law ties them to one another and that each is but an instrument of the state has sanctioned conduct that in the end has been beneficial chiefly to the participants and not to the larger entity of which they are supposedly a part. A CDC official was not wrong when he summed up the CDC-notaires relationship thus: "It happens that we need them and we are prepared to do things for them. Also, luckily for us, it happens that for their own political reasons they've decided to join forces with us—for now. It suits them and it suits us." Serving a Special Client There are several ways of serving a client. When an institution possesses the resources of the CDC, it is able to serve a privileged client in different ways. It can provide preferred or privileged banking services, which could, to be sure, be provided by other banking institutions. But it can also put at the disposal of the client its own financial and political resources in a way that strengthens the client in the long term. This is more difficult for a private commercial bank to do. The regular services which the CDC provides the notaires are those of a banker serving a privileged client—foreign exchange transactions, purchase and sale of stocks, opening of

The Profession's Bankers 271 personal accounts, loan guarantees. The CDC even covers 90 percent of a bad check given by a client to a notaire. 12 Most of these services may appear unexceptionable for a bank. It should be remembered, however, that the CDC is not a commercial bank and does not service individual clients. It deals with institutions (and only public ones), and since it regards the notarial profession as an institution, it is able to provide individual notaires with the same services that a commercial bank would as a matter of course. One of the key services that a banker provides to a client is loans. And here the CDC has proven itself extremely generous not only in the amounts it grants but in the amount it charges for these loans. For example, Table 12.1 shows that the CDC loaned substantial amounts to notaires. For all these loans, the rate of interest charged was generally 3 to 5 percent below the market rate. When the Caisse de Garantie, the self-financed institution of the profession, wished to purchase its own building—a venture that few in and out of the profession thought necessary—the CDC granted a loan of several million francs at a 10 percent rate of interest, which a commercial banker would have considered an example of the exploitation of a financial institution—in other words, the opposite of usury. The CDC, like the Credit Agricole, makes a point of the fact that many of its services are offered free of charge to the notaires. A rate of interest that is 3 to 5 percent below the market rate represents an important subsidy, and one that benefits the notaires far more than it benefits any of the other legal professions. For one thing, the number of loans made to notaires for starting practices is far greater than that made to all the other legal professions put together. Of the 376 million francs loaned to the legal professions by the CDC in 1983, almost 280 million went to notaires. Similarly, of the 107 million francs loaned by the CDC in 1983 to the legal professions for the transformation 12

This is an important service. If the amount of the check that needs to be covered is less than 10,000 francs, the decision to advance the money to the notaire is a routine one and can be approved locally by the trisoner payeur-£/in(ral.

82,985 88,355 60,979 68,042

151,641 143,603 143,839 174,242

Years

1980 1981 1982 1983

46,041 50,732 33,902 28,560

Construction and development

Source: Caisse des Depots et Consignations.

Modernization ofoffices

Purchase ofoffices

Notaires

64,429 178,900 50,323 94,067 17,321 18,488 10,722 7,790

Modernization ofoffices 9,656 9,340 4,812 3,480

Construction and development

Other legal professions Purchase ofoffices

Loans Made by the Cause des Depots (in million francs)

TABLE 12.1

280,667 282,690 238,720 270,844

Total notaires

91,406 206,728 65,857 105,337

Total other professions

The Profession's Bankers 273 and modernization of offices, over 96 million went to notaires. When one considers that the Credit Agricole is in constant competition to render similar services to the notarial profession, it becomes easier to understand the sizable state largesse that gets pumped into the profession. But the CDC (and the Credit Agricole) does not only subsidize loans to notaires. It also initiates changes for which it assumes the full cost. A notaire who desires to rationalize his management techniques, or who wants to computerize his practice, has only to request the aid of the CDC. This institution will dispatch consultants from one of its subsidiaries—for whose services it will pay heavily—to spend a couple or more days examining the notaire's practice and outlining a program that he can follow. The notaire is never billed for such a service. In order to strengthen the notaires' position, the CDC, like the Credit Agricole, has taken it upon itself to develop strategies for the notaires that will increase their competitive position. It searches for additional markets for them and it tries to prepare them for the conquest of such markets. In so doing, it consolidates its own conquest of a market. Hence the recognition on the part of these state financial institutions that "we have to create needs for the notaires so that they will need us." As one highranking official put it, "The notaires want to use the Caisse des Depots for their own purposes. The CDC knows that but pretends not to be aware of what they are up to. This way it can remain pure. But the CDC is also after one thing only: the notaire's money." The notaires have no illusions about this. "We play games, but the profession and the CDC are both absolutely clear about their respective interests," said the president of a departmental chambre. In creating needs that will cause the notarial profession to become more dependent, the CDC is pursuing its own agenda, one that is independent of the goal that the government has established for the state apparatus. Indeed, in some respects, the state's objectives in this area were not in line with those that its constituent parts had set for themselves. Two choices presented themselves to the CDC: either go along with the state's policy,

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or continue to pursue its own objectives regardless of whether they clashed or were in accord with what the state was trying to do. In the following chapter we shall see how the CDC prepares the notaires for the future, how it adroitly manages to present itself as both an integral and as an independent part of the state, and, finally, how it reacted to the government's reform projects.

CHAPTER 13

Planning the Future: TheNotaires and the Caisse des Depots If my son were to tell me tomorrow that he was going to be a notaire I wouldn't be especially happy about his choice. But at least I'd know that his future was secured. There are worse things than being part of such a protected profession. —HIGHER CIVIL SERVANT

The notarial profession is the most coddled and protected profession in the country. I sit here and support it in every way because that is my job. IfI were out there, I'd probably also think that the whole thing is absurd and a scandal. — H I G H E R CIVIL SERVANT

The Caisse des Dopots is more than a mere passive banker to the notarial profession. For the pastfifteenyears the CDC has been consolidating its link to the profession, reorganizing its administration to meet the ever expanding services it provides the notaires, and intervening on behalf of the profession in the governmental and bureaucratic spheres. In short, a clientistic relationship has developed that is far more significant than a relationship based on a legal tutelle. The reason for this is that, like all clientistic relationships, this one is based on a commonality of interests which assures both sides of tangible advantages, and in which the state institution bears no responsibility for the profession's proper conduct. Consequentiy, the CDC is free to pursue its objectives unhampered by the obstacles that often face a state institution endowed with regulatory authority. The CDC never interferes in the profession's way of conducting its affairs. It neither has nor seeks policing powers. Indeed, its policy has been not to want any supervisory powers over the profession. It loans millions of dollars every year to the profession, but it does not even determine whether a notaire ought to receive a loan. It prefers to leave that decision to the profession itself, which merely transmits it to the CDC. In maintaining no supervisory or disciplinary powers over the notarial profession, the CDC can more easily 275

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pursue its objectives, which involve, above all, being perceived as a partner of the profession. The CDC thus intentionally places itself in the ambiguous position of being a full-fledged partner of the profession while being part of the state's machinery. The Search for Markets In addition to the advantageous banking services that the CDC provides the notarial profession, it has assumed a greater responsibility for defending the profession and for contributing to its development. Noting that "notaires today feel threatened by the projects for reform which they attribute to the ministries of Justice and Finance," the CDC viewed these reforms as arriving at an inopportune moment in view of the declining real estate market and the consequent decline in the notaires' profits.1 The CDC thus embarked on a policy of assuring the notarial profession that it could be counted upon to be a loyal ally. It began, in effect, planning the future of the profession. The projects that the notaires were considering undertaking to strengthen their position in the legal marketplace were all put forward by the CDC. As M. Aubert, at the time head of the Bureau of Notaires at the CDC, put it, The Cause des Depots is more than a bank for notaires. These days, we offer notarial practices all the professional services that could be provided by a banking institution. We are also tuned into the profession to be able to respond to its needs and to put products or pilot services on the market, as we have already done for technical assistance andguarantees on notarial mortgage loans.2 It was natural that the profession should seek as many assurances as possible from the CDC in the post-1981 period, particularly because a socialist was named to head the CDC in 1982. But Robert Lion, the new director general of the CDC, understood from the start the CDC'S need of the profession and became active in consolidating the relationship between it and the 1 2

Caisse des Depots, "Note," 28 October 1982, p. 6. Caisse des Depots, occasional publication, n.d.

Planning the Future

277

profession. He praised the profession for "the outstanding ef­ forts toward openness and innovation that have characterized your profession, especially during the last decade." 3 Lion made it abundantly clear that, if there was to be a change in CDC pol­ icy, it was going to be in the direction of greater cooperation between the two institutions, both of which were there to serve the public interest. "For my part," noted Lion, "I would hope that these special relations could witness new developments in the near future. You, like we, are responsible for a public serv­ ice. We should cooperate so as to serve the general interest to­ gether." 4 At the 79th Congres des Notaires de France, held in Avig­ non in May 1983, the CDC showed its commitment to the goal of creating an even closer relationship with the notarial profes­ sion. It unveiled a plan that would allow the profession to con­ solidate and even extend its position in the juridical world. This project involved entering the new juridical market that would be created by the decentralization laws, the creation of inter­ professional firms which would give the notaire access to a larger market, and the full-scale entry into the world οϊίέΐέτηαtique. DECENTRALIZATION: A NEW MARKET

The most highly publicized reform of the newly elected socialist government was, in addition to the nationalization of industry and banks, the decentralization of state powers. Whereas the reform had been presented by the government as a break with a long tradition and as a major step toward greater democracy in the society, for the notaires the reform offered the possibility of an important new market. The CDC did a great deal to push this potential market on the notaires. An internal CDC document of 28 February 1983 observed that "this important partner of the CDC is confronted with two sorts of difficulties today": its image de marque had de3 4

Robert Lion, "Notre partenaire: Ie notariat," editorial, ibid. Ibid.

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teriorated and it was now the object of attacks; secondly, since the real estate market had fallen on hard times and since the notaires' profits had declined, "the notarial profession is looking to diversify the profession's operations." The CDC saw the services that the notaires could provide local governments as a way out of both of these difficulties. The project that the CDC put forward was also seen as providing insurance for the CDC against what the new local budgetary freedoms might lead to. The CDC is the major lender to local governments. It therefore has a particular interest in and responsibility for insuring that local governments can handle their new freedom. The CDC is anxious to see that the new powers granted local governments do not lead to the kinds of fiscal problems that afflict many American cities. "Lion's view," said one CDC official, "is that decentralization might lead cities into catastrophic situations, and we could end up with many New Yorks [of the 1970s]. If this happened, it would be a failure for the decentralization law and for this government. The question became: What can the CDC do to prevent such outcomes?" It was evident that the CDC itself could not on its own insure that all municipalities were cognizant of the new laws and knew how to apply them. "The problem we face," said an official, "is that we have only a limited number of legal experts, and what the local authorities need are consultant jurists, not litigation experts, to advise them." In helping local governments to manage their new autonomy competendy, and in order to play an ever greater role in stimulating the local economy, the CDC developed a project that could both offer a new market to the notarial profession and consolidate its own relationship with the profession. The CDC thus developed a project that it believes indispensable—insuring the proper application of the decentralization law—and that serves at the same time its other purposes. The project proposed that the notaires organize to fill the need that the new decentralization law created. They would be undertaking a new function: that of consultant. They would be paid for this task separately from the deeds they draw up, ex-

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peering clearly that any deeds that resulted from the advice they proffered and for which they were remunerated would be drawn up by them. This was a new market, and the CDC offered it to the notaires. 'The Caisse des Depots," said Delmas-Marsalet when he unveiled the project to the notaires, "since it does not have a body of legal experts at its disposal throughout the country, therefore needs a partner in the area of legal advice. I hope that the notarial profession, which enjoys a special relationship with the Caisse des Ddpots, can be this partner. I propose this to you today."5 The notaires "jumped at this chance," as one CDC official put it. The CDC did not merely suggest that the notaires look into this new market. It proposed to finance the training of notaires for this purpose. It proposed to use the regional delegates of the CDC to establish links with the local authorities and to notify them of the existence of the new expertise at their disposal. It proposed, in other words, to undertake the responsibility for organizing and preparing the notaires to launch themselves into and capture a new market. The CDC, being part of the state apparatus and having its own local networks, was in a position to execute a project of this kind. The CDC decided to move quickly in order to insure that the notaires were well placed to take advantage of the new market. There were early signs that lawyers were attempting to make inroads into this sector, though they apparently did not go about it in an organized way. The project was developed in consultation with the professional organizations of the notarial profession. Three pilot projects are currently under way, in Brittany, Franche-Comte, and the Pays de la Loire. The preparation of the groups in each region is undertaken by the CDC, which has carefully worked out the areas in which notarial expertise can be used by the local authorities. The CDC is also involved in establishing the means and levels of remuneration for the notaires engaged in this venture. 5 Intervention de M. Jacques Delmas-Marsalet devant Ie Congres des Notaires de France, 11 May 1983, p. 6 (emphasis in original).

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This project is intended to encourage the notaire to diversify his competence so as to enlarge his potential markets and to become more competitive with legal consultants (conseillers juridiques), lawyers, tax experts. What this new activity calls for him to do is to provide a service which has nothing to do with his legally defined role. Time and again the notaires were told by the CDC that the project involves both collective action by the participating notaires in a competitive area and consultation as opposed to drawing up deeds. Hence, it involved diversification and the lure of a new market. The CDC presented this as a market that the notaires were well placed to fill; the aim was to create a group of legal experts which would be at the service of local authorities. The CDC was not always certain whether to emphasize its own lack of a corps of legal experts or to present the project as a manifestation of its desire to aid the development of the profession. The fact remains, however, that there existed a number of solutions to the problem of providing local governments with legal expertise. A high-ranking CDC official acknowledged that "we could have undertaken this project without the notaires. We could even have created a special subsidiary to do the job. No matter what the circumstances, this is a job we would have done. So why did we end up doing it with the notaires? Simply because we want to create an even closer link with the profession. It helps them to improve their image and they will renvoyer I'ascenseur" (do us favors in return). The CDC was preoccupied with improving the notaires' image and with giving them access to a new market. Robert Lion told the notaires: "For my part, I believe that this cooperation will be such as to offer important services to local governments and to improve your profession's image in the eyes of local governments as well as businesses, to the degree to which the notarial profession proves its competence in this situation."6 Giving the notaires access to a new market and improving their 6

Robert Lion, "Les Trois Propositions de la Caisse des Depots pour contribuer a !'evolution de la profession notariale," suppl. no. 6 to VIP, 83/4, p. 6.

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image in the society were objectives that could be accomplished simultaneously. Serving the local authorities only shows the esteem in which they are held. It is, of course, not an altruistic undertaking, since the ultimate purpose is to give the notaires hold over a new activity. "We are creating a wholly new area," said a CDC official, "and one which will permit the notaires to improve their image and which will also lead to more activity in their traditional roles [legalization of deeds]." The creation of this market was welcomed by the profession. They did not seek it and they did not initiate the plans to go after its conquest. This was done by the CDC. "What has happened," explained a CDC official, "is that the notarial profession quickly realized that decentralization opens a big field for them because the mayors are going to need help. There's been a very quick adaptation of the profession to fill a need that others didn't see. Once we showed them the way, they grabbed it and decided to exploit it." The CDC did not undertake this project lightly, for it faced from the start opposition that it had to take into account. The first to raise objections were some of its own subsidiaries, because they feared that the notaires would provide them with serious competition. In effect, the CDC gave up a pilot project in the Rhone-Alpes region because the strength of the subsidiaries in this area was so strong that it was not feasible to experiment there. The CDC also faced opposition from the trasoriers payeursgenemux and from the prefects, both of whom had lost a great deal as a result of the decentralization law. The former had been the main advisers (particularly in economic matters) of local authorities. They feared being displaced completely by the notaires. The latter were the main legal advisers to local authorities. They now feel that the decentralization law has shifted more power in the direction of the CDC. They have therefore been trying to build bridges to the tUUguos regionaux of the CDC.

The CDC overcame this opposition because it believed that much was to be gained by the experiment. There was also

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little it could do to compensate for the loss of power that the decentralization law inflicted on certain institutions. The CDC is therefore fully committed to forging ahead with this experiment, recognizing that whether it succeeds or not, in the end (as one CDC official put it) "the notaire will play a role he wouldn't otherwise have played, the local authorities will gain by the new expertise they will have acquired, and the CDC will get its dividends." INTERPROFESSIONAL COOPERATION

The second proposal made by the CDC for strengthening the notarial profession was the creation of interprofessional offices. Underlying this project is the belief that today's "consumer of legal services" has specific needs that generally extend beyond one profession. " 'Interprofessionalism' consists in gathering together, within a single organization and often under one roof, various professionals such as notaires, lawyers, accountants, bailiffs, legal advisers, surveyors, and many others." 7 The purpose of such professional firms is to attract the clients of one profession to someone of another profession working under the same roof. Setting up such firms has a number of advantages, among which are "flexibility, smoother operation, savings in terms of management and competition, and better service for clients."8 Such complex interprofessional organizations do not spring up by themselves. Nor are the notaires likely to take the initiative in establishing them. Their creation "requires both a financial investment and a strong organizational capability."9 The CDC proposed, in the event that the profession manifested an interest in such an organization, to provide "ourfinancialcooperation as well as our teams of management engineers."10 It proposed to get the experiment started by giving "help for these 7

Ibid., p. 9. Intervention de Delmas-Marsalet, p. 10. 9 Ibid. 10 Ibid. 8

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interprofessional services in the initial stages," and by insuring that "this help would be characterized by the best possible financing."11 The CDC is offering its aid to a group that it considers a privileged client, even a partner. While stating that "the Caisse des Depots does not intend to artificially create a monopoly over the development of 'interprofessionals' for the exclusive benefit of the notarial profession," the state organization justifies its action thus: "Nonetheless, as we have certain responsibilities toward your profession and a special relationship with it, we can help you take the initiative in this domain."12 The creation of interprofessional firms is a project that originated in the CDC with the objective of strengthening the notarial profession. Working in partnership with other professions may sometimes be preferable to competing with them. It is even possible for such firms to band together and constitute a monopoly in certain areas, so that to see a tax expert or a lawyer or a notaire one may have a choice between a long journey to another town, with all the inconvenience that that involves, and the interprofessional firm in town. The notaire, furthermore, would also improve his image, since he would show that he is no longer the individualist preferring to work in isolation. The profession would confirm "spectacularly, in the public's eyes, its dynamism and ability to adapt."13 This is not a project that has the unanimous approval of the profession. It is recognized that it will elicit the interest of some notaires and not of others. For one thing, some notaires run a thriving business and may already enjoy something close to a monopoly. They are likely to derive little benefit from joining forces with other professions. Secondly, some notaires believe that cooperation with other professions is likely to prove extremely complicated, since there is no single statute that covers such an organization. Each profession operates under its 11

Ibid. Ibid. 13 Ibid., p. 11.

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own set of guidelines, and some notaires believe that until a legal statute can be developed to cover the interprofessional firms, such firms will create more problems than they are likely to solve. Finally, the notarial profession is the only one that guarantees its clients against losses due to the faults of its members. Consequently, many notaires wonder how the guarantee would work in the case of an interprofessional firm. They certainly do not want to bear the responsibility for unfortunate acts committed by a partner exercising another profession. The CDC recognizes that this initiative is not for every notaire, just as being a consultant for local authorities is not for everyone either. However, the view it takes is that the notarial profession works under a diversity of conditions and if its own initiatives satisfy different kinds of notaires, then most notaires will derive some benefit from one or another CDC initiative. COMMUNICATIONS TECHNOLOGY

The third area selected by the CDC to encourage the adaptation and competitiveness of the notarial profession lies in the area of technological advancement. Over the past decade, both the CDC and the Credit Agricole have encouraged the profession to invest heavily in the new computer technology. Indeed, the Crddit Agricole sees the future relationship with the profession as depending on the outcome of its competition with the CDC over who can provide more technological aid to the profession. "The battle of tomorrow between us and the CDC," observed a Credit Agricole official, "is over the area of informatiquer For its part, the CDC has increased dramatically its loans to the profession for computerization of offices. The loans that the CDC makes available to notaires for the modernization of offices do not, of course, reflect what the CDC actually spends on helping the notaires modernize their operations. It not only grants them preferred rates of interest, but it also refrains from charging them for consultants that it provides to advise them on the kind of system that responds best to their operation, and on setting up this system. The CDC contracts this work out to one

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of its subsidiaries and none of the cost is passed on to the notaries. The CDC now proposes to help finance new methods of communications (taUmatique). The initial use of computers helped rationalize management, particularly in the areas of accounting and information storage. Now the idea is to go beyond this initial phase and to use the computer technology for communication and rapid acquisition of information. In the initial phase, the computer served to make the notarial office more efficient; in the phase of the telematique, the aim is to make the profession as a whole more competitive with other professions. It will enable each notaire, by the access he has to centrally stored information, to serve his clients more efficiently. For example, taUmatique is now enabling the notaire to reenter the real estate market and compete with real estate agents. It no longer is necessary to travel to a particular region where one wants to buy property and ask a local notaire what is available. One's local notaire can put out a search and indicate what is available in a matter of seconds. The uses of the telematique are innumerable and the CDC believes that its widespread use will eventually give the notaires a competitive edge in a number of areas. The CDC has therefore proposed to put its expertise and its resources at the service of the notarial profession to help its members enter the age of technological communications. "In this important area for the future of the notarial profession, we shall put suitable financing at your disposal and we shall offer you our experts' advice. The precise nature of this financing and the type of help offered by our experts will be defined once your new needs have been studied and in consultation with your profession's organizations."14 In assuring the notarial profession of its commitment, the CDC official placed this cooperation within the context of service to the general interest: "The Caisse des Depots is ready—as far as it is concerned and if the notarial 14

Ibid., p. 12.

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profession so desires—to follow the evolution and development of this profession in the service of general interest."15 The CDC: A State Apart? To what extent does the CDC consider itself an integral part of the state apparatus and committed to pursuing state policies elaborated by a particular government, and to what extent does it pursue policies that are of its own making and that may run counter to government-defined policies? The question is worth posing because the dominant view of the French state gives an a priori answer, and because its applicability goes beyond the CDC.

The CDC acts as a banker to the notarial profession. Beyond that, it is engaged in helping the profession plan its future. It initiates policies and directions and it commits its resources to their execution. The CDC is out to render the notarial practice a competitive enterprise. Its concern with the legally defined sector of the profession—the legalization of deeds—is minimal. Its efforts are directed toward finding ways for the profession to escape its monopoly. That it is the profession's monopoly over the legalization of contracts that makes it part of the public service is of little concern to the CDC. The CDC'S position is that if the notarial profession is to prosper—and it has to prosper if it is going to continue depositing large sums of money with the CDC—it must come to consider itself more and more as a business enterprise. This means searching for clients, maintaining markets, reentering previously held ones, encroaching on others. It means being ever ready to operate in a competitive world, but with one difference: the protection and backing of state institutions in all endeavors. The question arises as to whether the CDC is transcending the role that the state assigns it. On one level, the CDC has a duty to encourage the efficient use of funds and the financial health of institutions that it has some responsibility for. It is a state financial institution and its sphere of action can be as large as it 15

In VJP, 83/4, p. 23.

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wishes it to be. On another level, however, the CDC is also bound to subsume its own policies in broader ones that cover the collectivity. The conflict that arises is between rational action by an institution—that is, the satisfaction of long-term goals—and the dictates of a government policy that may run counter to the long-term objectives of this institution. This is a classic form of conflict that state institutions experience. The CDC faced such a conflict, though there was never any indication that the experience was actually seen as a conflict. The CDC considers the notarial profession to be part of the state apparatus. This is clearly a rationalization that allows the CDC to do whatever it views as being the most efficient means of accomplishing its goals. Similarly, the constant references to the "general interest" which both the CDC and the profession are serving together is also a rationalization that affords a legitimizing basis for its actions. But is not the CDC acting rationally? By helping a profession that is endowed with a stategranted monopoly, by encouraging the modernization of a profession that carries the state seal, the CDC accomplishes one of its missions. It is not realistic to expect it to do otherwise. State policies are more often than not government policies that owe their existence to a particular constellation of factors—the conjuncture—and are therefore susceptible of changes and reversals. The CDC is then forced to opt, as do most state institutions with such resources, for long-term policies of its own, and ones that cannot be as easily reversed as government policies. This is particularly the case where policies have been determined over a certain length of time and to which the CDC is committed. In such instances the CDC is likely to pursue its policies with remarkable force and efficiency and is not likely to be daunted by a government policy that calls for it to act in a different way. In its policy with respect to the notarial profession, the different parts of the CDC, as well as the CDC'S subsidiaries, are called upon to cooperate in the attainment of clearly articulated objectives. The division in charge of the implementation of these objectives places itself in the position of either request-

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ing the cooperation of another division16 or simply purchasing services from subsidiaries.17 Where the CDC may manifest greater hesitancy about objectives, then it is not likely to be able to pursue goals with the same force and may be more susceptible to outside pressures. Problems may arise not merely between one division and another, but more often than not within a division. The staff in the field is often reluctant to follow policy changes, decided upon in Paris, that involve some changes in their functions. When the Aitigues rigionaux of the CDC are told they ought now to take a more active role in the creation of firms and employment at the local level, they view this as a direct challenge to their authority. They prefer to see themselves in the traditional role of distributors of credit in response to requests made by local governments. The heads of the Caisses Regionales of the Credit Agricole respond in a similar way when they are called upon to interrupt their business-as-usual routine and assume a more dynamic role. Suffice it to say that the CDC acts with remarkable efficiency when its goals are clearly articulated and when there is little dissensus within the institution about these goals. Attracting and preserving notarial funds is such a goal. The lack of disciplinary powers and the lack of responsibility for policing the profession is not an accident. The CDC avoids making any judgements on its own with respect to the integrity of individual notaires, to the capacities of those seeking loans to purchase an office, or to the prospects of those seeking loans to modernize their practices. All decisions are made by the profession, whether at the local or at the national level, and once approved are transferred to the CDC. The CDC merely executes what the notaires have approved. The soundness of this practice may be 16 In the pilot project involving the participation of notaires as consultants to local governments, the office in charge of developing the project has had the cooperation of the Division of Local Affairs because the overall objectives of the CDC in this policy area are transparent. 17 A number of the CDC'S subsidiaries have extraordinary technical expertise, especially ones whose task is consulting in the computer and organization fields. These subsidiaries sell their services to other divisions of the CDC.

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questioned, but it is not difficult to see why the CDC has made a policy out of noninterference in the way the profession conducts itself. By being merely a banker to the profession, the CDC establishes a relationship in one dimension and so avoids all the thorny issues that arise regarding the competence, the honesty, and the utility of the profession. The relationship is left as uncomplicated as possible because the CDC wishes to preserve its role as banker to the profession. Indeed, it even emphasizes that as a banker it observes the secrecy that characterizes all bankerclient relations. If the CDC'S interests in acting as the principal banker to the notarial profession and in not wishing to exercise any control over or responsibility for the conduct of the profession's duties are understandable in light of the CDC'S overall interest, why should the profession tie itself so closely to the CDC? If the profession can obtain the same advantages elsewhere, why invest so heavily in this relationship? The question is legitimate, because the relationship, at any rate in its present form, is recent. For the CDC, as we have seen, the policy pursued is one dictated by rational considerations. Once these considerations were recognized in the 1970s, a change in orientation toward the notarial profession took place. The profession responded slowly at first, but as the CDC continued to demonstrate a desire to pursue a policy that would privilege the profession, the latter began to derive greater advantages. But the advantages for the profession are not merely monetary, although the advantages of having a state institution the size of the CDC in search of rendering the profession services cannot be underestimated. Indeed, the CDC places advertisements in VIP, the profession's official publication, reminding the notaire that it is there to serve him. The advertisements are either of a general nature, such as merely announcing, "The Caisse des Depots offers notaires a wide range of services according to their professional needs,"18 or give specific informa18

Advertisement placed in VIP, 81/4. CDC advertisements are placed regularly in all of the profession's publications.

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tion regarding particular services offered to the notaires by the CDC.

The State Undermining the State The profession regards the CDC as a state institution that lives in part off providing its members services, that seeks no control or policing powers over the profession, and that is not without influence in the politico-administrative structure. After 1981— that is, after the left came to power—the relationship between the CDC and the notarial profession both developed in terms of banking and extrabanking services and became a much more political relationship. The threat posed to the profession by a left-wing government, by a more reformist-minded Ministry of Justice, by a Ministry of Finance intent on breaking monopolies that contributed to inflation, and by a general anticaste sentiment within the left forced the profession to seek allies where it could find them. The CDC turned out to be a critical political ally in a critical period for the profession. The CDC was only too ready to help the profession, since providing it with political support or with loans at preferential rates were alike: The end result was to tie the profession closer to the CDC. The profession's leaders continued to speak in public and to their members about the new state that was "pro-union" and "antiprofessions."19 But the leaders, and particularly the president of the CSN, realized that different parts of the state would continue seeking their interests and acting pretty much autonomously. The CDC was the one important institution that had no interest in damaging the notaires. Quite the contrary; its interest lay in protecting them and in creating a climate conducive to their prosperity. Hence, the CDC took the notaires on as clients, and in addition to becoming their banker it also became their lawyer. The case it was obliged to plead went counter to what the state was trying to accomplish. In the world of politics, there is no court. The only weapons open to an administrative agency defending a client are lobbying, noncooperation, halfThese terms recurred repeatedly in interviews with notaires.

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hearted implementation of new regulations, and sabotage. The CDC did not need to use all these weapons, but it did what it could to persuade the government not to carry out its original projects for reform. In the first place, the CDC sought to reassure the notaires that the state was not uniformly hostile to the profession. It or­ ganized meetings across the country with the notaires to assure them of its continued support. The organization of these meet­ ings was a remarkable act of public relations that was most ef­ fective. The meetings held in the various departments were always presided over by the trtsmier payeur-βέηέταΐ (TPG), who is the main link between the CDC and the notaires on the local level. But the TPG is above all known as the representative of the Min­ istry of Finance. Hence, a certain confusion was created in the minds of the notaires from the start. This was done deliberately. This is how a CDC official explained the purpose of having the TPG preside over the meetings. "It's an excellent thing that we are able to be represented by the TPG in the provinces. This helps a lot when we organize meetings with the Chambres des Notaires. They see the state represented by the Caisse des De­ pots and the Ministry of Finance. This creates a certain ambi­ guity in the minds of the notaires, and we use it to the full." The notaires who participated in such meetings became slightly confused because they also were aware that the Ministry of Finance was responsible for a number of reforms (which in­ clude the introduction of a more competitive pricing system) that they did not view favorably. Also, the CDC'S concerns were not always exactly the same as the Treasury's, since the former was concerned with the overall wellbeing of the profession while the latter was only concerned with the profession's taxcollecting function. Nonetheless, the presence of the TPG as president of the meeting with the notaires of a departmental Chambre allowed the CDC to present an image of a state that was actually working on their behalf. What could be a more powerful image of the state than the Ministry of Finance? These meetings sought to reassure the notaires that they were being

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defended against the unfavorable reforms that the government was preparing. They thus contributed to creating a distinction between the government and the political authorities on the one hand and the state apparatus on the other. The CDC multiplied the number of such meetings in the provinces following the reform projects that the government was preparing in the post-1981 period. "We try to show them in such meetings that we're on their side. When they're attacked by politicians or by a governmental official, some notaires immediately think that the state is out to get them. We try to counter these fears by showing them that an important part of the state is on their side." The CDC also organized these meetings so that the notaires were fully aware that the CDC had numerous services to offer them. The CDC was there to obtain the good will of the notaires. "Actually," noted one official, "this is not very difficult because when they see the TPG up there with his aides, it's a pretty impressive representation of the state and we can get our message across fairly easily." The presence of the TPG allowed for the use of an important symbol in what a CDC official responsible for such meetings called "une operation de relation publique." The meeting was intended both to sell the CDC to the profession and to counter the threats posed by the government's reforms by assuring the notaires that they had strong allies in the state. In such a meeting the TPG himself set the tone by generally noting the close relationship that exists between the CDC and the notarial profession. "You should realize," noted one TPG in his opening remarks, "that in any case, those who are here, officials of the Caisse des Depots or the Treasury [that is, himself], are your natural allies, your old partners in a mission which conforms to the general interest."20 After giving the collaboration 20

All quotations from the meeting between the CDC and the Chambre des Notaires are taken from one such meeting with a chambre in a western department. The presentation by the CDC was generally the same at all such meetings. What may vary is the political adroitness of the TPG. In the instance I cite, the TPG was fully cognizant of his political role.

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among the CDC, the Ministry of Finance, and the notarial profession a noble mission—that of working together in the service of the general interest—the TPG underscored the point that the CDC and the Ministry of Finance were not impartial bystanders: "In a society experiencing radical change, and at this time of the year, we all sincerely hope for the success of the notarial profession." The TPG'S political savvy is unsurpassable. "At this time of the year" referred to the reforms that the government was preparing and the TPG'S need to let his audience know that the part of the state that they had before them did not share the government's projects, which had the profession in a profound state of agitation. The phrase "we all hope" was reassuring because of the ambiguity of the use of the word "all." The TPG was a representative of the Treasury, which is part of the Ministry of Finance, and the Treasury's position was not identical with the ministry's policies, since the ministry was heavily implicated in the preparation of the reform of the profession's fee scale. Hence, the TPG used the ambiguity involved in his presence as the representative of the Treasury, an ambiguity that allowed him to be considered the representative of the Ministry of Finance in the same way that the CDC used the ambiguity implied in the presence of the TPG to indicate a solidarity between the CDC and the Ministry of Finance in all matters concerning the notaires—a solidarity that did not in fact exist. The ambiguity involved in who represents what institution and who speaks for whom is so evident that it cannot be ignored. The CDC official who tells the notaires in such a meeting that his institution is subject to banking regulations, which means it observes secrecy and confidentiality, cannot be oblivious of the fact that the TPG'S role cannot involve secrecy. "M. Ie TPG," the CDC official says before the gathering, "you wear two hats: You represent the Ministry of Finance, but you also represent the Caisse des Depots. So in a sense your right hand has to ignore what your left hand is doing. It's in reality an ambiguous situation." This makes light of what is, in effect, a remarkable situation: one arm of the state (the CDC) claiming that it

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observes banking rules and mores and guarantees total secrecy in front of an arm of the state that is responsible for tax collection. The TPG'S introduction was followed by a long expose by a high-ranking CDC official whose purpose was to indicate to the notaires that they were privileged clients and partners of the CDC and that they both had an interest in working together. Since many of these notaires were not aware of the strength of the CDC, the official spelled out the nature and power of the CDC. He let them know that it is an autonomous institution ("In the Third Republic it happened a director general of the CDC said no to a minister of finance, and this caused more than one government to fall"), and "With assets of 1,000 billion francs (larger than the state budget) it is the biggest financial institution in the world" and "It receives a triple-A rating in New York, which is higher than what the French state receives today." The real weight of the CDC established, it became important to explain relations between the CDC and the notarial profession. This was usually put in the traditional noble context: "The Caisse des Depots must. . . reconcile its role as the notaires' primary banker with its public service function. Continually intervening on behalf of the notarial profession which itself is invested with a general-interest-role mission . . ." Relations between the CDC and the notarial profession began in 1816 and had a regulatory character for a long time. In more recent times the relationship has evolved into one where they are merely seen, according to the CDC, as having "des intfrets communs." For the CDC'S mission now consists in promoting and defending the profession, and it is unambiguous about this objective: "Aware of the responsibility that derives from the special nature of this collaboration, the Caisse des Ddpots's desire to contribute to the profession's development. . . ." Conclusion The new mission of the CDC, which is but an expression of its objectives as an institution, has been interpreted rather broadly

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in recent years. The post-1981 relationship between the CDC and the notarial profession sought to bind the profession to the CDC and to place the full weight of the CDC behind the profession. In reality, this has meant defending the profession and undermining the reforms that the government was preparing. The CDC multiplied its meetings with the profession, took note of the notaires' objections and their desires, and took these as its own. It thus placed itself in a position where it was obliged to divorce itself from the government's policies. The CDC intervened at strategic moments and places to defend the notaires and to undermine the reforms being prepared. It came gradually to be recognized within the politicoadministrative corridors of power—and certainly within the CDC—that the CDC had an important hand in the government's failure to push through its original reform projects. The CDC is right to refer to the notarial profession as "notre partenaire."21 In addition to carrying out an offensive strategy which consisted in helping the notarial profession to prepare itself for the future, the CDC simultaneously used defensive tactics in order to ward off attacks on the notarial profession after 1981. It intervened on the profession's behalf to attempt to dilute the government's projects. Its interventions were not confined to any particular sector of the administration nor to a particular level in the administrative hierarchy. The interventions occurred at the ministerial level as well as at the level of the bureaucracy where the details of the reform were worked out. Perhaps the most effective pressure was that which was brought to bear on the Ministry of Finance. The relationship between the CDC and the Ministry of Finance is such that it is possible to consider the former merely a constituent part of the latter. Hence, when the CDC indicates that a certain reform is likely to hurt it rather badly or is likely to mean that the Treasury's revenues will be substantially reduced, the Ministry of Finance has to be particularly attentive. Given that the Treasury's resources were strained to the limit in 21

This was in fact the title of the director general's speech before the Congres des Notaires at Avignon, 11 May 1983.

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the post-1981 period, the CDC'S case carried considerable weight. The ministry subsequently pushed with less vigor a reform that it had originally been strongly committed to. This clearly had an influence on the government and on the rest of the bureaucratic apparatus. The waning of the Ministry of Finance's enthusiasm had a contagious effect, and all the original projects that the government had prepared were simply dropped. The CDC did not boast openly that it had had a strong hand in undermining the reform. But, in the end, what was a general failure of the state was considered a victory for the CDC, and, of course, for the notaires.

PART FIVE

Conclusion

CHAPTER 14

Centralization and the Failure of a Reform

This study has focused on the workings of what is generally regarded as the quintessential centralized state. The literature on state structures has assumed that centralized states, because of their greater coherence, come to have greater capacities than decentralized ones in asserting their independence from society. This assumption is a byproduct of the desire to regard the state as an independent actor. As James G. March and Johan P. Olsen observe, "The argument that institutions can be treated as political actors is a claim of institutional coherence and autonomy. The claim of coherence is necessary in order to treat institutions as decision makers."1 Yet the claim can dispose neither of the complexity that characterizes an organizational society nor of the imperative of deciphering this complexity. "Simple notions of 'strong' and 'weak' states are crude and misleading," notes John Ikenberry.2 That this is the case is brought out in our case study. State and Society: A Triangular Relationship A study of the state needs to be concerned with more than the existence of administrative institutions. Moreover, the strength or autonomy of a state cannot be confused with, or be assumed to derive from, administrative capacities. This is probably the single most important confusion that one finds in the spate of state-centered studies. A state cannot be studied independently of the society in which it functions, and any study of the state must also be a study of the society. 1

'The New Institutionalism: Organizational Factors in Political Life," American Political Science Review 78 (1974), p. 738. 2 'The Irony of State Strength: Comparative Responses to the Oil Shocks in the 1970's," International Organization 40:1 (Winter 1986), p. 106.

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The bulk of analyses of state power, whether pluralist or statist in orientation, have been based on rather formalistic or institutional approaches to the study of politics. The understanding, for example, that France possesses a "strong" state because "the French state is centralized. . . united and controls an atomistic society" whereas the American state is weak because it is "decentralized . . . divided and is controlled by a pluralist society"3 is based on straightforward expositions of institutional structures. It may or may not represent an accurate description of the French and American states. While the intellectual concerns of the statists may differ from those of their antecedents, as does the vocabulary, the evidence that is offered to explain, for example, how "different structures lead to different policies"4 is derived basically from the formal structure of administrative institutions. Empirical work that goes beyond institutional analyses would have some difficulty concluding that "in France with its non-competitive, differentiated jurisdictional spheres, the state bureaucracy seeks to establish the direction of policy through decree. In the United States with its competitive, overlapping jurisdictional spheres, the state bureaucracy seeks to establish consensus through representation."5 An entire social and political system is defined by this contrast, which is based on widely held notions about two societies which in fact may have only tenuous links to reality. In order to assess the capacity of a state to act "upon its preferences" and to act autonomously "even when its preferences diverge from the demands of the most powerful groups in civil society,"6 we need to go beyond a simple analysis of admin3

Peter J. Katzenstein, "International Relations and Domestic Structures: Foreign Economic Policies of Advanced Industrial Societies," International Organization, 30 (1976), p. 17. 4 Ibid., p. 21. 5 Ibid., p. 18. 6 Eric Nordlinger, On the Autonomy of the Democratic State (Cambridge: Harvard University Press, 1981), p. 1.

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istrative structures, however insightful they are. 7 A state needs to be viewed as constituting a multitude of organizations inter­ acting with one another and each separately interacting with civil groups. This interaction helps to some extent to shape and to define the state's preferences, which in turn shape and define the state's relationship to civil groups. Diagram 14.1 depicts these multiple relationships that serve to define what ultimately became state policies. A state's preferences in democratic polities are not for­ mulated in a vacuum. Diagram 14.1 indicates that regardless of the type of administrative organization that the state has at its disposal, it does not follow that the multitude of state organi­ zations that go to form the totality of the state's administrative capacity will act to insure that the state's preferences (as they are, say, defined by government policy) will actually be put into effect. Hence, the state's organizations will themselves contrib­ ute to shaping the state's preferences, whether as a result of con­ siderations of bureaucratic politics, or because they represent powerful client groups, or because of considerations of ideol­ ogy. In all cases, the interaction between civil groups and state organizations and the impact of both on shaping what become the state's preferences serve to determine what the state will or will not be able to do. This is precisely why the state appears

DIAGRAM 14.1 Governmental policies

1

.

I

!

/ \

J

Civil groups

ι

State organization-* *- State organization-*—· And insightful such works are, particularly Katzenstein's above-cited essay and Stephen Skowronek's Building a New American State: The Expansion of Na­ tional Administrative Capacities (Cambridge: Cambridge University Press, 1975). 7

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able to implement its preferences more easily in certain policy areas than in others. States are clearly neither uniformly "strong" nor uniformly "weak." To seek to define a state in this way is to rely on institutional and formalistic analyses and serves to move us further from an understanding of the political and policy process.

What determines whether a state will be strong or weak in given policy areas? Can it be assumed that a state has a coherent set of preferences that it will seek to implement? These two questions are obviously related, since a state that defines its policy preferences and that can generally succeed in getting them implemented will be acting as a "strong" state. It seems clear that states in modern industrial societies do not have a set of coherent or identifiable preferences. This is because governments and priorities change. Also, the change in the relative strength of the partners in the triangular relationship described above occasions a different set of preferences over time. Policy preferences always emanate from an interactive, dialectical process among the set of partners described above—the party in power, organized interests, and public agencies. Hence, a state is strongest when the goals of the party in power and of the bureaucracy converge with those of the organized interest. Advanced industrial societies are less likely to be able to act as strong states when the issue areas involve short-term economic policies. For these involve above all redistribution, and a redistributive policy is seen as taking from one group to give to another. A democratic state is always stronger when it takes on the role of defender or arbiter of a society, and generally weaker when it seeks to redistribute power and wealth. The distinction, then, among advanced industrial societies is not whether they are administratively centralized or decentralized. The distinction should be made between issue areas and sectors, on the one hand, and policies on the other. To be sure, a centralized administrative structure may help facilitate the implementation of a policy. But it may complicate the formulation of a policy. Care, then, must be taken to separate the

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twin processes of formulation and implementation of policies; autonomy in one does not guarantee autonomy in the other. A state-centered approach to the study of the policy process is useful precisely because it can illuminate the extent to which the state has the means to impose its will—once that is clearly defined—and the extent to which it is unable to do so. The most accurate conclusion that one is likely to reach is that state power or autonomy varies across sectors, and that there is no predetermined constellation of factors that renders a state either a prisoner of civil society or wholly independent of that society. In effect, an examination of state power in different societies would reveal the existence of sectors where state power is evident in the state's ability to impose its will; sectors where the state is unable to impose its will, or where it concedes its authority; and, finally, sectors where the state's power is shifting and indeterminate. It is important therefore not to substitute a formalist approach for the necessary empirical investigations, the lack of which has led to conclusions about the degree of power of different states that are based on institutional analyses and that deviate considerably from the reality of power. One cannot help agreeing with the statement that "if the state were a less complex entity, the task of statist-oriented scholars would be easier."8 Bearing in mind the remarks above regarding the highly complex and ever changing relationship between the state and the society, we must return briefly to examine the elements of the particular case we have analyzed that contributed to the failure of the reform project. Governmental

Strength

The socialist government that came to power in 1981 failed to carry out a reform that it proposed and that it judged necessary first for social and then for economic reasons. This was not the result of an inability to see a bill through parliament, for the 8

Howard H. Lentner, 'The Concept of the State: A Response to Stephen Krasner," Comparative Politics, 16:3 (April 1984), p. 374.

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government's project was thwarted long before it could be presented to the National Assembly for discussion. The government's failure to carry out its reform was the result of its inability to overcome the resistance of a well-entrenched clientistic group. Like so many such reform projects drawn up by numerous governments, this one remained merely a project, and the issue of implementation became moot as the government accepted its defeat by the notarial profession. The government that proposed the reform that we analyzed in detail was not one that stood on shaky ground. In fact, no government in the Fifth Republic had quite the potential for control of the political institutions that the socialist government came to have between 1981 and 1986. The socialist party was in control of the presidency, the government, the parliament, and presumably the vast nationalized sector and the bureaucracy. The government had gradually moved to appoint its own loyalists to the key positions in the public sector, loyalists who tended to have a greater political commitment than those normally appointed to such positions.9 In addition, the project proposed by the government for reforming the offices ministerkh was one that was likely to appeal to the socialist party's electorate and probably to an even larger segment of the population. The notaires, in particular, have never had an appealing public image. The resentment that the public feels at being obliged to go through a notaire for the purchase of property or for securing a mortgage or settling a will is widespread. This resentment is heightened by the fact that the client generally feels that he has been charged a large sum by an intermediary who was not necessary for consummating the transaction in question. Even though a considerable portion of what the client pays the notaire goes to the state in the form of one tax or another, the fact remains that the client's perception is generally one that sees the notaire as having profited unjustiy from a parasitic monopoly. The resentment goes beyond indi9

See Pierre Birnbaum, ed., Les Elites socMistes nu pouvoir, 1981-1985 (Paris: Presses Umversitaires de France, 1985).

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viduals and is shared by businesses, particularly large corporations, which often end up paying substantial sums to notaires for work that could have been carried out at a fraction of the cost by their legal departments or by their own lawyers. Added to the control of the major political institutions by the socialist party and the likely support that the government's project would have received from public opinion was a third factor: The proposed project conformed to the socialist party's ideology and would thus have assured the government of strong support from the left. The notaires constituted in the public image, as well as in the image of the left, the prototypical example of a privileged group whose wealth depended on the existence of private property and on the transmission of fortunes from one generation to another. The socialist government of 1981 seemed to want to do away with a host of practices that it considered relics of a bygone age. There were many persons in the government and the parliament who took the view that monopolistic practices that depended on state authority and private wealth were incompatible not merely with a socialist state but with the twentieth century. The notaire is not alone in this category. A finger is frequendy pointed at the lawyers who plead before the Conseil d'Etat. These avocats au Conseil d'Etat purchase their practices and enjoy a monopoly in pleading before the state's highest administrative court. This group has long been considered a relic even within the liberal professions and the legal profession, but it is a more discreet and less wellknown group by virtue of the fact that fewer people need have recourse to its services than to the services of notaires. Finally, the notaires are, for historical and ideological reasons, firmly implanted on the right of the ideological spectrum. Hence, in taking away the privileges of this group, the socialist party would have lost little support and might have gained additional supporters. All these factors coalesced to give the socialist government a chance to push through a structural reform that would have had considerable symbolic and tangible importance. Why, then, was the socialist government unable, or un-

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willing, to see its project through to a successful conclusion? The answer lies partly in the way the socialists governed, but more importantly in what we have discovered in the course of this study. First, the regulation by a central administration (the tutelle) of a sector is often juridical and hollow. Secondly, a centralized state is often more easily permeated by a societal group than a decentralized state in which power is widely dispersed. Hence, a clientistic relationship between a private group and a central agency of the state is a more common phenomenon than has hitherto been allowed for. It is also more effective in restricting the state's capacity for independent action. Finally, it may certainly be the case that France possesses a centralized administration and a "strong" state, but the picture needs to be completed by a more realistic assessment of the society, which is far better organized (hence, stronger) than Tocqueville and his successors down to the present day have been willing to concede. Private groups in France today are often well organized, have little interest in changing the society, manifest few destructive or suicidal impulses, seek to gain and maintain incremental advantages for themselves, and have learned to influence the state in much the same way that interest groups do in other western societies. These changes are a reflection of the transformations of the society in the postwar era. They call for a reassessment of the traditional images and descriptions of both the state—its central nature, its power, its capacity for independent action— and the society, which it is no longer possible to describe as weak and unorganized. In analyzing how the centralized state functions in France, we have also shed light on the adaptation of social forces. Such adaptation accounts both for the transformation of the postwar society and for the strength of the society vis-a-vis the state. In other words, the fact that French society has not been a soctiti bhqute since the Second World War, that economic and social groups have been remarkably successful in integrating change within their organizations without having had to disappear and be born anew under a new guise, is part of the explanation for the hitherto unrecognized strength of the soci-

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ety. The case of the notaires shows all too well how a rigid and backward group was able to revitalize itself. In this respect its story is that of many other groups in the society, and the tale explains the modernization of French society during the past four decades. The changes that have come about in many institutions have taken place gradually, and hardly ever as a result of crisis. In fact, the changes occasioned by an external crisis and imposed by a higher authority rarely ever lead to profound and enduring transformations. The changes that I am referring to are the ones that have required gradual but continual evolution, and that in the end account for the strength of the society. The periods of "routine," when studied more closely, will reveal the makings of the hidden and enduring changes in the society. That the centralized state does not function according to the textbook (or Tocquevillian) manner has been made clear. Tiat the adaptation of economic and social groups accounts for the dynamism of the society which has imposed constraints on the state is also evident from our analysis. A third factor needs to be introduced, one that is specific to the reform project in question: the nature of socialist rule. Priorities Any new government establishes a set of policy priorities. These priorities may represent a response to a critical economic or soci.il situation, or they may indicate the application of a party program, or they may be intended to signal a decisive break with the ideology and policies of the opposition. Whatever it is that determines the ordering of a new government's priorities, the fact remains that certain measures are valued above others. How much of the new government's program will end up being translated into actual policies generally depends on the political and social costs of the top policy priorities. When the socialist government took power in 1981 there was general agreement that two actions would take precedence: nationalization of industry and the financial sector, and the decentralization of administrative power. The government had

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not elaborated detailed plans for the implementation of those two projects. Nonetheless, no sooner had the socialist government assumed power than it set about taking over the major industrial groups and the banks and decentralizing the state administration. It invested heavily in these two measures, both of which devoured considerable political capital. In one sense these two measures were intended to signal a sharp break with capitalism and with the centralization of political and administrative power. They would do for the socialists of 1981 what the Matignon agreements did for Leon Blum and his party in 1936. They would also consolidate the faith of the party's electorate and activists. In another sense, however, they were, despite their "revolutionary" appearance, measures that had origins in Gaullism. Indeed, the socialists justified nationalization by invoking the precedent set by de Gaulle at the Liberation. As for decentralization, in addition to de Gaulle's own efforts, the right had for almost two hundred years been as committed to it—or as ambivalent about it—as the left. In short, both were what might be called safe revolutionary measures. What mattered more than the policies themselves was their perception by the society. The socialists believed that the electoral triumph of 1981 gave them a mandate to effect radical transformations in the society. They moved at a rapid pace to transfer private ownership of industry and the banks to the state. They also accompanied these early measures with a rhetoric that was more menacing than reassuring. Hence, the perception of the society was that of a party and a government bent on a long series of radical structural reforms. Yet the socialist governments of 1981-86 stopped short of carrying out major structural reforms. To be sure, the French socialist party has generally been loath to see itself as a social democratic party. Nonetheless, while in power it mostly sought to reassure the middle class and the business community, even if in the end it failed to gain their confidence and their votes, and succeeded in losing the support of part of its own electorate. It succumbed to the classic dilemma of social democratic parties that seek enduring structural reforms and at the same time have

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their eyes fixed on elections.10 The government became particularly concerned to disprove popular images and fears that socialism could not be democratic. Governing, and to be seen to be governing democratically, has been one of the major preoccupations of Franqois Mitterrand. This is sometimes regarded as his major contribution both to the socialist party and to the country. 11 His rapid move to appoint the opposition leader, Jacques Chirac, as prime minister after the socialist party lost its majority in the legislative elections in March 1986 had to be seen as the socialist president's strict respect for the French constitution. In view of the fact that the nationalization and decentralization reforms proved so costly for the government, it could not assign a high priority to subsequent reforms that sought the revamping of institutional structures. But, given the party's organizational base, the government could not abandon its belief in its desires and intentions to do away with privileges and archaic social structures. In other words, neither the party nor the government was prepared to question its commitment to its socialist ideology, even if the government was not about to conform to it. Hence, the government embarked on reforms for which it would not ultimately be willing to pay the price. The private-school issue was an example of policy trying to keep pace with an ideology toward which the government was at best ambiguous. When reality struck—and demonstrations with a million participants is reality that even the most obstinate cannot ignore—the government withdrew its project. It is difficult to estimate the cost of this abortive measure, but it surely contributed to the abandonment of other projects, including the reform of the offices ministenels. The government had gone out on a limb in backing a reform that was seen to threaten both the private (mostiy religious) schools and people's liberties. It 10 See Adam Przeworski, Capitalism and Social Democracy (Cambridge: Cambridge University Press, 1985), chaps. 3 and 5. See also Adam Przeworski and John Sprague, Paper Stones: A Htstory of Electoral Socialism (Chicago: University of Chicago Press, 1986). 11 See Serge July, Les Annies Mitterrand (Paris: Grasset, 1986).

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was ultimately forced to withdraw its project. The consequences of this one experience were more far-reaching than the socialists could realize at the time. The government was henceforth obliged to be less adventuresome and to be more cautious, and other groups that felt menaced now became more outspoken and aggressive. The reform of the offices ministerieh was not an issue on which the socialist government would choose to stand or fall. It was never accorded a high priority, at least not explicitly. But it was not without its importance, for the socialists, while they were in the opposition and when they came to power, spoke out against the privileged castes, the high-rolling liberal professions, the equality of chances, and the redistribution of wealth. Implicitly they knew that the liberal professions (which included the offices minutirieh) would have to undergo some reforms. They did not know what sort of reforms were mostly needed, nor what the goals of such reforms should be. 12 The issue was complicated by the fact that each of the liberal professions fell under the jurisdiction of a different ministry—architects under the Ministry of Urbanism; doctors under the Ministry of Health; notaires under the Ministry of Justice. Hence, a reform encompassing the entire gamut of liberal professions was not feasible. When the government established the Delegation Interministerielle pour les Professions Liberates, whose task was to propose a reform for all of the liberal professions, it signaled that such a reform was not among the highest of priorities. Nonetheless, since it was left to each ministry to pursue its own direction with respect to the wards under its jurisdiction, the Ministry of Justice set about preparing a reform within its own sphere. It elaborated plans for a reform of the offices minutoriels. The plans were developed into specific projects, all of which raised the ire of the groups concerned. While therefore 12

This was the case with the nationalizations and with decentralization. Although the socialist party had no shortage of working groups to study all issues affecting the different sectors, few detailed projects were worked out.

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the issue was not a priority for the government, it began to assume some importance for the Ministry of Justice. In due course, the ministry pulled back in the face of the pressures, abandoned its plans for reforming the offices mintsttriels, and claimed that the issue was never a priority either for the government or for it. Why, then, was so much energy expended and so mach capital wasted? Contextual

Constraints

No structural reform is undertaken in a political vacuum. When a government in France does articulate its priorities, specific reforms become in some sense decentralized. The task of the head of the government, the prime minister, becomes that of arbitrating conflicts among competing ministers. In other words, the task of governmental leadership gets transformed into dealing with political choices that the head of the government may have had no hand in defining. The process of bureaucratic politics takes over, a process that is vastly complicated because of the competing interests, loyalties, and ambitions of two executives (a president and a prime minister) and their respective staffs. The heavy emphasis that has been placed on the presidential nature of the regime, at least until 1986, has tended to obscure the dysfunctions in the policy process that derive from the existence of a dual executive system, even when this system had presidents and prime ministers from the same political party. Where each minister is left to develop his own priorities, what takes place in one minister's sector inevitably affects the projects of a minister in another sector. A new political context is always being created, and new projects depend on the context in which they are introduced. The reform of the offices ministeriels would probably have experienced quite a different reaction had it been introduced immediately in 1981. Indeed, one official who was involved in the long-drawn-out negotiations with the notaires came to the conclusion that a governmental bill presented to parliament in early 1982 would have sailed through and, more important, would have obliged the groups in question to adapt to a new situation. Even the notaires them-

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selves recognized that had they been forced to adapt to a new context of the kind proposed by the socialist government they would have done so without undermining the basis of their profession. In not moving swiftly to put a reform into effect, the Ministry of Justice allowed the notaires to mobilize themselves and, perhaps more important, saw the political context drastically change between 1982 and 1984. What was possible in 1982 was no longer possible in 1984. This was in large part due to other issues assuming a preponderant importance and placing the socialist government on the defensive. In addition to the economic problems that confronted the government, the private school issue turned out, as we noted, to be very cosdy for the left. The government, in attempting to revive an issue from an era that was thought to be bygone, misjudged the passions that this would unleash. The vast demonstrations that took place across the country in 1984 did more than force the government to retreat on this one issue. It forced it to tread gingerly where other groups were concerned, for it could not risk causing further scares. It was therefore to the advantage of many groups to join forces with the antigovernment movement in the private-school issue. The notaires were not unaware of the fact that they would be rescued by the government's blunder in the school-reform project. And rescued they were. As one official of the national notarial organization (the CSN) put it, "The government's incredible error [referring to the private-school project] is going to save us. Now they won't dare attack other conservative groups." The notarial organization began going on the offensive by encouraging its members to use their local influence, by taking a less conciliatory stand with the government, by alarming opposition deputies, by bringing pressure to bear on the government through government agencies, socialist deputies, and parliamentary commissions. It undertook the kind of offensive that the French call tout azimut, a term used to describe prevailing French nuclear strategy. With the legislative elections looming, the government abandoned any project that risked smacking of the private-

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school issue. The time had come to reassure, not provoke, the middle class. The need to appear reasonable, to avoid giving the impression that any middle-class group was the target of reform, and to manifest a commitment to the existing institutions—this is what came to predominate as a result of the private-school fiasco. Mastery of the Bureaucracy Reform of the bureaucracy was a major goal of the socialists before coming to power. To be sure, they had no detailed plans to reform the administration, aside from vague ideas about democratization. Reform of the bureaucracy never developed into a priority goal because the use of the bureaucratic apparatus for the implementation of socialist goals was seen as being more important, at least in the short run. The socialists moved to appoint loyalists to key positions, even though they maintained a number of officeholders from previous governments. 13 In addition, the appointment of party activists to key positions that were previously reserved for civil servants strengthened the potential control of the government over the bureaucracy. In reality, the government never fully mastered the bureaucracy. Ministers were allowed to develop their own projects, but the problem of coordination at the planning stage of reforms was never resolved. Hence, individual bureaucracies were generally able to go their own way. Central control was not exercised. It could not be exercised resolutely because at the heart of the French politico-administrative system lies a competitive system engendered by the existence of a dual executive. What this entails in practice is a constant attempt by ministers and their bureaucracies to circumvent decisions handed down by the head of the government—the prime minister—and to appeal the decision by going to the Elysee Palace. Trying to 13 See Ezra N. Suleiman, "From Right to Left: Bureaucracy and Politics in France," in Suleiman, ed., Bureaucrats and Policy-Making: A Comparative Perspective (New York: Homes & Meier, 1984), pp. 130-32. See also Birnbaum, ed., Les Elites socialistes.

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guess where Matignon and the Elysee stand on a particular issue involves a whole set of games that are played in the interministerial committees.14 Whatever is decided and subsequently arbitrated by Matignon is not always considered a closed matter. It often happened that the Elysee's intervention either was solicited by a displeased minister or it developed a viewpoint on an issue that was different from that of the prime minister and his staff. It sometimes happened that the president's staff appropriated for itself as many dossiers as possible, always claiming that the new issue was of particular interest to the president. It also occasionally happened that the president learned by chance that a particular decision was either simply appropriated from the prime minister or taken against his own wishes. In this case, there are instances of his reprimanding his staff and returning jurisdiction to the prime minister.15 Nonetheless, this does not avoid the dispersed or displaced energies that are wasted by the continual conflicts between the two teams over policy options, over jurisdictions, over responses to the media, over authority vis-a-vis members of the government. Though the president may occasionally have contravened his staff, it nonetheless was the case that he always intended it to be understood that he was the head of the government. President Mitterrand even went so far as to amend, for no particular reason, a policy proposed by his prime minister. Pfister recounts the occasion when Prime Minister Mauroy had made his recommendation to the government that a three-month wage and price freeze be implemented. The president went along, but, "to 14

Thierry Pfister, A Matignon tm temp de I'unum de la gauche (Paris: Hachette, 1985), pp. 122-32. 15 See the example cited in ibid., pp. 125-26. There are also examples of Giscard d'Estaing discovering by chance that a collaborator had taken a decision against the wishes of his prime minister (and, as it turned out, against his own wishes) and proceeding to rectify the situation. Still, these are not the most common cases. More common are conflict and competition between the staffs of the two executives.

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show clearly where supreme authority lay,"16 he decreed that the wage and price freeze should be prolonged an extra month. Moreover, on one occasion Mitterrand even disowned Prime Minister Mauroy in a cabinet meeting. 17 Genuine conflicts may arise between the prime minister and the president over specific policies to be adopted. But this is not what occurs most frequently, nor is it what influences the policy process in a continuous manner. Rather, the existence of two teams vying to make an imprint on the policy process in the name of the prime minister and the president created dislocations in the process that were not evident in the past. Even when the conflict between the president and the prime minister has been recognized, the tendency has been to place this in the context of a conflict among individuals that does not do serious harm to the policy process because the staffs of both executives belong to the same networks.18 Underplayed in this view of the policy process are the structural dislocations engendered by competing teams both for setting the agenda of policies and for determining the content of policies. The ultimate decisions may not accord well with strict notions of rationality. When the prime minister arbitrates in a dispute against a specific minister because he considers the minister's project unsound for budgetary reasons, and this minister appeals to the president of the republic, who rescinds the prime minister's decision for reasons of glory, friendship for the minister, or weakness for the minister's sector,19 the decision-making process is far from behaving rationally. 16

Ibid., p. 251. Ibid., p. 291. 18 Ezra N. Suleiman, "Presidential Government in France," in R. Rose and E. Suleiman, eds., Presidents andPrtmeMinisters (Washington, D.C: American Enterprise Institute, 1980), pp. 121-32. 19 lack Lang, who was minister of culture from 1981 to 1986, was known as a minister who rarely accepted a decision against him by the prime minister. He appealed to the Elysee; to the president, with whom he enjoyed a close relationship; and to the president's weakness for the cultural sector. As a consequence, he did not always accept the authority of the head of the government (the prime minister), and his reputation as a successful minister grew over thefiveyears. 17

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Another reason why the importance of the networks within the teams of the two executives has been downplayed is that these networks were originally based on the civil service corps to which almost all the staffs of the president and prime minister belonged. In view of the importance which the political parties have assumed in French politics, the displacement, even to a modest extent, of civil servants by party militants in the staffs of members of the government has undermined the networks and exacerbated the conflicts between the president and the prime minister.20 It is important to understand that the introduction of political elements into the civil service is the consequence both of the desire of higher civil servants to seek political careers and of the presidential and party systems.21 It is perhaps paradoxical that the control by a political party of all the key political institutions does not obviate the intergovernmental conflicts, whereas the sharing of power by two political parties does so to a much larger extent. In the period of "cohabitation," or coexistence between a socialist president and a conservative government, the period that began after the 16 March 1986 legislative elections, the conflicts between the teams of the two executives had little effect on the policy process. The reason for this is that there was, contrary to what had been the general prediction, less room for conflict, because it was now indisputable that the government determined policies and not the president. No minister could do under cohabitation what had become a regular practice under the previous socialist governments; the prime minister was the chief executive and his 20 On the politicization of the civil service, see Francis de Baecque and J.-L. Quermonne, Administration etpolitique! sous la V'Republique (Paris: Presses de la Fondation Nationale des Sciences Politiques, 1981). See also Birnbaum, Les Elites socialistes. 21 The presidential system forces civil servants to place their bets on a presidential candidate. The party system requires the parties to reward party activists. On both these points, see Ezra N. Suleiman, "Hauts fonctionnaires: Ie mythe de la neutraliti," Le Monde, 27 February 1986, and 'Toward the Disciplining of Parties and Legislators," in Suleiman, ed., Parliament and Parliamentarians m Democratic Politics (New York: Holmes & Meier, 1986), pp. 79-105.

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arbitration was final. The president may have the power to refuse to sign an ordonnance, but he cannot refuse to sign a law, he cannot instruct ministers to adopt policies, and, above all, he cannot arbitrate conflicts among ministers. Only the prime minister controls the ministers of the government. Aware of the ways in which a prime minister's authority is compromised, Prime Minister Jacques Chirac warned the ministers in his government at the first meeting he held with them that under no circumstances were they to have recourse to the president. Only die minister of defense and the minister of foreign affairs would be permitted to move freely between the Elysee and Matignon. Chirac was not about to see his authority as prime minister undermined as it had been in 1974—76 when Giscard d'Estaing was president and he himself was prime minister. The ultimate consequence for the policy process of the conflicts between the two teams representing the president and the prime minister is that even when the problems of coordination in the policy process are overcome, there remain serious problems in following through on policies. Deciding on the policies that are to be adopted often results from the resolution of conflicts between the two staffs. Unless the president's staff has a particular stake in a policy, the follow-up function reverts to the prime minister's staff, which, having had to succumb earlier to the heavy hand of the Elysee, may not pursue this particular policy with enthusiasm. Hence, it often happens that policies that are decided upon only as a result of a major conflict within the politico-adrninistrative system are left unattended to after the decision has been taken. The effect of this is to create an atmosphere of a wavering political will. The various bureaucracies responsible for the application of a decision will quickly get this message, which they will translate to mean whatever it is that suits their own bureaucratic interests. Many a reform has fallen by the wayside because the policy process is geared to handle only the small fraction of reforms that a government chooses to single out as the recipient of the largest share of its determination. The reform of the offices minhtariek was a long time in the

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making. The political context was changing; the determination of the prime minister's and the president's staffs began to waver. The groups themselves, as well as the bureaucratic agencies, sensed that there were divergent views within the government on how hard to push for this reform. They also sensed that the Ministry of Justice was exhibiting slight signs of ambivalence. Consequentiy, the state agencies supporting the offices ministinds were emboldened to pursue their own interests, and they did so knowing that disregard for the government's project could be had with impunity. Each of the agencies that did not favor the reform and that supported the offices minutarieh in their resistance to the projected reforms realized that in playing for time they would succeed in forcing the government to drop its projected plans. The conclusion is inescapable: The socialist government was unable to master the bureaucratic apparatus to a sufficient degree to allow it to break down bureaucratic resistance to proposed reforms. It is not that the bureaucracy resisted socialism and socialist reforms. The directors of the key central agencies had been appointed by the socialist government. It is rather that these newly appointed officials gave precedence to the bureaucratic interests of their organizations over the government's projects. Because the energies of the staffs of the prime minister and the president were consumed to a large degree by conflicts, some of which concerned the content of policies and much of which did not, the follow-up on the reform project drawn up by the Ministry of Justice was practically nonexistent. Neither Matignon nor the Elysde followed the development of the project with any intensity. This large vacuum came to be exploited by the bureaucratic agencies opposed to the reform. Limiting Publicity on Reform I noted at the outset of this work that one of the reasons for the difficulty encountered in conducting the research for this study was the paucity of available material on the notarial profession and on the government's proposed reform. The entire debate revolving around the issue of reform, as well as the negotiations

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between the government and the notarial profession, was confined to the corridors of power. At no point was this project, which involved a structural reform of some significance, debated in the public arena. Public debates of issues are not only considered democratic, but they are also often incorporated into political strategies. The assumption is that an informed public can be persuaded to support a particular side. Now, this was especially necessary in the case of the socialist government's proposed reform, because the projects conformed very closely to the opposition's claim that the economy needed liberalizing. The reform projects' central features—price competition, more liberal entry into the profession—were measures designed to curtail a monopoly. Had the socialists pushed through their project, they would have been seen to be acting in accordance with the precepts of economic liberalism. Then, too, they would have been carrying out such reforms against groups that were in any case not part of their electorate. This now brings us to the heart of the conservative dilemma: Committed to a liberal economic program, to reducing the role and power of the state, the right in France, if it is to be true to its programs and rhetoric, is obliged to push through reforms that strike at the heart of its own electorate. Its program calls for letting the market, rather than the state, do more to determine the distribution of resources. Yet this would require the adoption, in the case of monopolies, of some of the socialist projects. This may be yet one more paradox of politics or, at any rate, of French politics. The major conservative party in France—the Gaullist, RPR party—has been unable to initiate refarms that are genuinely liberal and market-oriented because its tradition pulls it in the direction oiatatisme and because of a reluctance to alienate its own electorate and supporters. Liberalism may have been a convenient bandwagon to jump on while in opposition; it proved something of a handicap for the RPR once the party came to power. The RPR'S allies in the UDF, the Parti Republicain (PR), are slighdy more serious about the majority's liberal program.

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Serious structural reforms almost always entail the risk of alienating a core of a party's supporters. In the French case, this may explain why it is difficult to come across such reforms. But there are examples—few, to be sure—where a genuine commitment to a philosophy overrides a political leader's political considerations. Anthony King has argued that Mrs. Thatcher has had a keen sense of what she wishes to accomplish and has been willing to go against groups that are longstanding supporters of the conservative party. This does not mean that she sometimes does not let political considerations oblige her to hold back on a reform. But even here, she consciously chooses to be in contradiction with her own philosophy, even if she regrets this. But by and large she appears to stand out as a leader in her determination to make policies conform to a particular philosophy.22 One example of Mrs. Thatcher's actions that is striking and that may be compared with the actions of French conservatives is her reform of a group that is essentially conservative and that bears a striking resemblance to the notaires in France. Gtvsso modo, what Mrs. Thatcher did was to apply the French socialist project to the same group in Britain. She managed to pass a bill in the British parliament that seriously compromised the monopoly of the solicitors in conveyancing, a monopoly very much akin to that enjoyed by the French notaires. The solicitors resisted the initial attempts to jeopardize their monopoly, but in the end had to accept the compromises which are to be found in the Administration of Justice Act of 1985. One of the reasons that a proposed reform was accomplished successfully by a conservative government against a conservative group in Britain, but could not be accomplished by a socialist government against a conservative group in France, is that the issue became one of public debate in Britain. In France, both the government and the group chose to keep it confined to memos, lunches, and smoke-filled rooms. 22 Anthony King, "What Mrs. Thatcher Has Done to Beer," paper presented at the Annual Meeting of the American Political Science Association, Washington, D.C., 1986.

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In excluding public opinion from any involvement in its proposed reform, the socialist government indicated to the notarial group that it was prepared to follow the patterns of concertation established by former governments. More important, it deprived itself of the support of public opinion. It neither tried to educate nor to mobilize public opinion. In Britain, on the other hand, the project that sought to compromise the solicitors' monopoly in conveyancing was throughout a public debate. The project originated not as a government bill but as a Private Member's bill. It became a public issue from the outset. It did not cease to be a public issue when the Private Member's bill was withdrawn so that the main provisions could be incorporated by the government into the larger Administration of Justice Act. In fact, the member of parliament responsible for die original Private Member's bill subsequently wrote that his only weapon was publicity, which "reinforced the impression diat this was a fight between the people and a vested interest."23 Any government knows that public opinion may be mobilized on certain occasions to insure support for specific measures. In France, important projects are sometimes decided by a few officials, or even just by the president. The Charles de Gaulle airport in Roissy was built at enormous cost at a time when the need for a third airport was highly questionable. At no point was the public brought in to debate the issue. The diird London airport was not built, because of public scrutiny of the project.24 The building of the Pompidou museum; the building of La Villette, the new opera house at the Bastille; the transformation of the Louvre, all these were either the prerogative of the chief of state or prerogatives of a few officials. The considerable funds needed for these projects were quickly found and quietly committed without the public or their representatives ever having a chance to debate their utility or advisability. 23

Austin Mitchell, MP, "A House Buyer's Bill: How Not To Pass a Private Member's Bill," Parliamentary Affairs, January 1986, p. 6. 24 See Eliot J. Feldman and Jerome J. Milch, Technocracy versus Democracy: The Comparative Politics of International Airports (Boston: Auburn House, 1982).

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Such habits, which characterize a part of the policymaking process in France, cannot easily be cast aside when a government suddenly decides it needs to mobilize public opinion. In the private-school issue that proved so cosdy to the government an attempt was made to mobilize public opinion, but the mobilization proved detrimental to the government's wishes. The government clearly lacked experience in handling public opinion. Besides, in this particular instance, public opinion was spontaneously mobilized against the government's project. To be sure, the socialists lacked experience in governing, but they also shared the same distrust of public opinion that the right has exhibited. Informing and educating public opinion, as distinguished from hurried public-relations campaigns to foster support for a specific measure, were not in the socialist repertoire. To be sure, time is of the essence in most instances in politics, and the luxury of long preparation for public support is not available. But in many instances it is available. However, the policy requires consensus within the government, preparation before launching into the political arena, and a follow-up that insures the steady movement toward the stated objectives. It requires also faith that the public is educable. In the end, a debate that is confined to ministerial offices and working gastronomic lunches weakens the government and strengthens the private group. It also leaves the bureaucracy sheltered both from public opinion and from the government it is ostensibly serving. The bureaucracy thus remains free to pursue its own clientistic relationships with private groups, relationships that may be easily established and are certainly difficult to break in a centralized polity. The appeal to public opinion, the enlargement of the arena of debate, could have done for the French government what it did for those who sought to end the conveyancing monopoly of solicitors in Britain. Policymaking and

Centralization

A centralized state has evidentiy failed to carry through on a proposed reform that ran counter to the interest of an ostensi-

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bly private group. What are the implications of this as far as policymaking in a centralized state is concerned? In the first place, it has to be remembered that a state is dependent on structures that have a past. Any attempt by the political authorities which control the state apparatus to do away with long-established patterns of interaction between private groups and the state is akin to a major transformation in the way the state conducts its relations with the society. When the socialists came to power in 1981 it was understood that after the initial sweep of reforms there would be a pause. Having mobilized public opinion and the bureaucracy to support the major reforms—nationalization of industry and banks, decentralization—there followed the process of reassuring the middle classes that the basic social and economic institutions could continue to function without threat from the government. Hence, the government would cause limited ruptures in the normal way that the state conducted its relationship with the society. But the pause came to mean economic responsibility only, since it was followed by the social dislocations engendered by the private-school scare. Secondly, a state may be administratively centralized without being administratively coherent. A government does not dispose of a readily available and malleable administrative machine. To dispose of an integrated policymaking machine is a task. Mastering the bureaucratic apparatus is no less a task in a centralized administrative system than in a decentralized one. To overcome the resistance of individual bureaucracies, to mobilize different agencies in the service of a single task, and, finally, to insure the implementation of a political reform are the defining ingredients of a policy process. Once this is understood as a process, it becomes clear that it is not a given and cannot be assumed to exist simply because the charts of the administrative structure indicate that the administration is centralized. The policy process that we have examined through our case study suggests that when the structure is centralized, the process of coordination, of mobilization, and of implementation may be much harder to achieve, given that a central agency

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may have so much at stake in the status quo ante. In such a case it may be much harder to break the clientistic relationship be­ tween a private group and an administrative agency. In the case of President Reagan's attempts to achieve policy coordination in the federal bureaucracy, this was done essentially by appoint­ ing to high positions officials committed to Reagan's programs, and by leaving top positions vacant for long periods. 25 Since in any case bureaucratic clients had been distributing their efforts among legislative committees and different levels of the govern­ mental (federal and state) bureaucracies, it was not as difficult as might have been expected to break ties between the bureau­ cracy and the regulatory agencies. This was not at all the case in France, where a client might be wholly dependent on one or two central agencies. Hence, the impulse for collusion is much greater. The potential for control of the administrative agencies and for their mobilization in the service of a common policy is apparently (or potentially) greater under a centralized system. In reality it may be more elusive. Third, a party's ideology may encourage the kind of clientism that it needs to break in order to introduce its new set of policies. This is especially the case with social democratic par­ ties, which feel a need to show their commitment to democratic norms and so encourage negotiations. The Ministry of Justice entered into lengthy and innumerable meetings with the notaires and expected to gain greater legitimacy as a result of at­ tempting to arrive at an agreement over the new policies to fol­ low. Such governments try to avoid giving the impression that they are proceeding in undemocratic ways. In acting as the guardian of democratic institutions, in advocating a more de­ centralized and democratic political system, and in encouraging greater participation, the government may perhaps lend legiti­ macy to the corporatiste groups that it sees as impediments to so25

See Richard P. Nathan, 'The Reagan Presidency in Domestic Affairs," in Fred I. Greenstein, ed., The Reagan Presidencyν An Early Assessment (Baltimore: Johns Hopkins University Press, 1983), pp. 48-81.

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cial progress. This is an important consequence of the rhetoric (and the process) of decentralization. The State and Private Power Emphasis needs to be placed on the state's role in encouraging die development of a societal group which leads to a clientistic relationship and which in the end leads to severe constraints on die power of the state to effect changes in the group's position in the society. State capacities are therefore greater when the state seeks to strengthen societal groups than when it seeks to reform them after it has endowed them with strong organizational capacities and granted them privileges. The clientistic relationship that exists between private groups and bureaucratic agencies, and the effect this may have on subverting an agency's mandate 26 or in subverting democratic norms, 27 has long been recognized. And yet a centralized state has been seen as a mechanism for coordinating policies and for preventing private groups from unduly influencing public policies in their favor. That the centralized state may be more inefficient than a decentralized state, or that it may not allow for the same degree of citizen participation, may or may not be the case. But its central characteristics have generally been thought to be its capacity for setting policies, coordination in the policy process, and efficient implementation of policies. But that is an administrative view of the world, one that leaves out thepolitical process. A number of recent studies have moved, some more explicitly than others, from this administrative and static view of the policy process in a centralized state. Such studies have recognized that clientism is part and parcel of the policy process and, as a consequence, hardly depends on the precise structure 26

Philip Selznick, T.VA. and the Grassroots (New York: Harper [Torchbooks], 1966). 27 Grant McConnell, Private Power and American Democracy (New York: Alfred A. Knopf, 1966).

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of the state.28 Indeed, once the policy process is recognized to be a derivative of the political system, it becomes understandable why an array of obstacles to policy coordination are possible in a centralized state. Studies on local politics,29 on transportation policy,30 on the petroleum industry,31 on education,32 on agriculture,33 and on the media,34 as well as on other sectors, have recognized either the extent to which the state's clients shape public policies or the degree to which the state is unable to effect the changes it wishes to implement. Jean-Noel Jeanneney recendy noted in a book on communications policy that one cannot escape the conclusion that "the popular philippic speeches against a too visible, too powerful state fall completely flat. Too much state is not a problem here, but rather its excessive timidity."35 To be sure, the groups in question shape policies to different degrees, so that the state's autonomy depends on a number of variables—its set of priorities, the contextual conditions, its capacity for mobilizing political support, and, perhaps most important, the nature of the policy issue in ques28

See Jean G. Padioleau, L'Etat au concret (Paris: Presses Universitaires de France, 1982), and Quand la trance s'enferre (Paris: Presses Universitaires de France, 1981); Douglas Ashford, Policy and Politics in France: Living with Uncertainty (Philadelphia: Temple University Press, 1982). 29 See Jean-Pierre Worms, "Le Prefet et ses notables," Sociolqgie du Travail, 8:3 (1966), pp. 249—75; Jacques Rondin, Le Sacre des notables (Paris: Fayard, 1985). 30 See Elliot J. Feldman, Concorde andDissent: Explaining High Technology Project Failures in Britain and France (Cambridge: Cambridge University Press, 1985). 31 Harvey B. Feigenbaum, The Politics of Public Enterprise: Oil and the French State (Princeton: Princeton University Press, 1985). 32 John Ambler, "Equality and the Politics of Education," in Ambler, ed., The French Socialist Experiment (Philadelphia: Institute for the Study of Human Issues, 1985), pp. 116-14. 33 See John T. S. Keeler, "Agricultural Reform in Mitterrand's France," in Ambler, ed., The French Socialist Experiment, pp. 60-92. 34 Valerie Rubsamen, 'The Media and the State in France," unpublished Ph.D. dissertation, Princeton University, 1987. 35 Jean-Noel Jeanneney, Echec a Panurge: I'audiovisuel public au service de la difference (Paris: Editions du Seuil, 1986), p. 38.

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tion—whether it is an issue involving redistribution or a more all-encompassing issue that affects several groups, all indirectly. The case of the notaires is not without its peculiarities. The fact that the profession is a semipublic institution obviously gives it an advantage not available to other groups when dealing with the state. Nonetheless, the notaires share a number of characteristics with other groups: self-transformation, the development of a powerful organization, the creation of a clientistic relationship with a central bureaucratic agency. All this leads to an interactive mode of policymaking that results in compromising what might be unhampered state action. In view of this, the case of the notaires, despite its own particular characteristics, is sufficiently representative of numerous cases involving the relationship between the state and organized interests to compel us to call into question the conventional view of the state-society relationship in France. Can we, then, speak of state interests or preferences, as opposed to simply policies that governments adopt? A state-centered approach requires that states and state preferences be divorced from a tie to an ephemeral leadership and be considered in Rousseauistic terms, that is to say, as the embodiment of an overarching will that is not merely a representation of the sum total of interests in the society. How, then, to distinguish between a government policy and a state policy?36 It is possible to speak of a state independent of its government, because it has a stability of rules, laws, structures, and procedures. But the interaction of the state with civil society as well the interaction 36 That even so committed a statist as Theda Skocpol can slip into using the terms "government" and "state" in an interchangeable way shows how difficult are both the analytical and the practical distinction between them. "Government itself was not taken very seriously as an independent actor, and in comparative research, variations in governmental organizations were deemed less significant than the general 'functions' shared by the political systems of all societies." See "Bringing the State Back In: Strategies of Analysis in Current Research," in Peter Evans, Dietrich Rueschemeyer, and Theda Skocpol, eds., Bringing the State Back In (Cambridge: Cambridge University Press, 1985), p. 4. Clearly, Skocpol does not mean to refer to the government of the day, but to the enduring entity of the state.

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among administrative organizations is what in the end structures the interests or preferences of a state. This is why concentration on the state does not obviate the need to explore the class or group basis of state actions. In the case of the French state, the emphasis has, since Tocqueville's time, been placed on the strength and capacities of the state. Little account has been taken of the transformations in the relationships between the state and society.37 There has been a tendency to see, as Jack Hayward notes, an "active French policy style which emphasizes the will of the actor rather than the inertial constraints that inhibit innovation."38 Once we begin to move, however, beyond the accepted conventional wisdom, propagated by politicians and legal scholars, and beyond the formal aspects of state structures and begin to examine the political and policy process, it becomes evident that the definitions of state interests most often derive from a dialectical process with private groups. There can be no such thing as a study of the state—its autonomy, its capacities, its interests— without a deeper understanding of the relationship between the governmental and administrative structures on the one hand, and between both these structures and civil groups on the other. Only the cumulation of such empirical studies will allow us to speak with any degree of assurance about the state. If states can be said to be propelled by a "logic,"39 that logic can be uncovered by an analysis of the various forms of interaction between 37

For an analysis of the development of the role of the state, see Blandine Barret- Kriegel, Le Chemin de I'ttat (Pans: Calmann-Levy, 1986), esp. pp. 255-66. See also Franco Ferraresi, 'The Institutional Transformations of the Post Laissez-faire State: Reflections on the Italian Case," in S. Clegg, G. Dow, and P. Boreham, eds., The State Class and the Recession (London: CroomHelm, 1983), pp. 129-52. 38 Jack Hayward, The State and the Market Economy: Industrial Patriotism and Economic Intervention in France (Brighton: Wheatsheaf Books, 1986), p. 213. See also Helen Mdner's paper ("Resisting the Protectionist Temptation: Industry and the Making of Trade Policy in France and the U.S. in the 1970's," unpublished, October 1986) questioning the traditional view of the French state on the basis of a comparative study. 39 See Pierre Birnbaum, LaLogique de Vitat (Paris: Fayard, 1982).

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the political authorities of the day, civil groups, and bureaucratic agencies. If we examine the process of the formation of states and the gradual development of societal powers, what is striking is the increasing affirmation of the latter. Although this may be regarded as the natural consequence of the democratic process, it is above all a process that is encouraged by the state. The democratic process requires the state to have interlocutors and intermediaries. This is why the state has encouraged the formation of organized private groups. It needed them both to fulfill important functions and to act as its "legitimate" interlocutors. 40 The logical consequence of this process was the development of corporatist modes of interaction. But whether the process by which the state strengthened private groups led to corporatism or not, it did create a situation whereby the strengthening of societal groups eventually compromised the state's own power. The failure of the government to reform the offices ministeriels is a consequence of the state's past policies to strengthen these groups. It was in large part through the efforts of the state that the notarial profession acquired its modern organizational strength, modernized its modes of operation, and gained its adaptive capacities. As Sarfatti Larson has noted with respect to the formation of professions and the monopolies they come to possess, "once state-backed monopoly was obtained, it represented the ultimate sanction of market control by a group of professional 'producers' and a proved means, thereafter, of protecting themselves against undue interference by the state."41 Similarly, once the notarial profession had succeeded in effecting its own transformation, the rapport deforce between it and 40

The state bureaucracy has always preferred to interact with more powerful private groups, considering them more representative and hence more legitimate. See Ezra N. Suleiman, Politics, Power and Bureaucracy m France (Princeton: Princeton University Press, 1974), pp. 337-45. 41 Magali Sarfatti Larson, The Rise of Professionalism: A Sociological Analysis (Berkeley and Los Angeles: University of California Press, 1977), p. 53 (emphasis in original).

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the state changed. Before this change got under way, the state was in a position to crush that backward profession, and contemplated doing so. Instead, it chose to work toward its renewal. So well did the state succeed that it is no longer in a position to dictate to the group. Hence, the relationship between the notarial profession and state typifies the cyclical historical process through which the state's strength ultimately leads to symbiosis with and possibly dependence upon private groups.

Glossary

Acte administratif An administrative decision of a general character undertaken by a governmental (national or local) authority. Does not require notarial legalization Agent d'affaires A broker dealing mainly with land and housing business Agent de change Stockbroker Agent immobilier Real estate broker Arreti An administrative decision by a governmental (national or local) authority Authentication Legalization. A legalized deed is one that fulfills all the legal requirements Avocats au Conseil d'Etat Lawyers who have a monopoly on representing cases before the Conseil d'Etat Avoue An official who performs the function of a trial lawyer with respect to the certification and deposition of documents before certain courts. A law of 1972 abolished this office (except with respect to the appellate court); it is now integrated within the profession of lawyers Chambre Departementale des Notaires Organization of the notarial profession at the local (administrative) level of the department Circulaire Ministerial interpretation of a governmental decision Commissaire-priseur Auctioneer (another office ministeriet) Concours A national examination that leads to entry into the administrative (sometimes semipublic) sector Conseil Constitutionnel Highest court in constitutional matters Conseil d'Etat Highest appeal body in administrative law matters, concerning decrees, executive orders, and lawsuits where the government is a party Conseil Regional des Notaires Organization of the notarial profession at the administrative level of the region Cour de Cassation One of the three highest courts in the French legal system. It is the final court of appeal in civil and penal matters Courtier Broker Decret A governmental decree 331

332

GLOSSARY

Droit Ae presentation The right of the seller of an office ministirkl to present his successor to the state for approval Etude (notarial) A notarial practice Greffier Clerk of the court Huissier An ojficier ministariel charged with the authority to insure the execution of legalized deeds Licence en droit Equivalent to a B.A. law degree Matignon The prime minister's office Numerus clausus The right to exercise a profession not being permitted to go beyond a fixed number Offices ministeriels A group of professions whose members buy and sell their offices but who are named by the state to the office Ordonnance Decree law passed by a government after parliamentary passage of enabling legislation Projet deloi A bill presented to parliament by the government Proposition deloi A bill presented to parliament by a deputy or a parliamentary group RuedeRivoli Ministry of Finance Sous seing prive A legally valid agreement between two private parties Syndic A person granted the power to act in the name of an individual or a group Syndic Ae copropriete A representative of the owners of a building empowered to carry out day-to-day management and legal matters in the name of the owners Tutelle Administrative control over the public sector (local authorities and public agencies)

Index

Abbaye de Senanque seminar, 1976, 122,125-28 acte administratis 56-57, 331 Administration of Justice Act 1985 (U.K.), 10, 320-21 administrative-political consensus, 235 agents d'affaires, 84, 102-103, 331 agents de change, 37, 40, 331 Almond, Gabriel, 14 Alsace-Lorraine, 10, 70-71,185 ancien rigime, 34, 35, 36,44,158, 236 anti-semitism, 160,161 n. 11 Armand-Rueff Report, 38, 85, 91ff., 107-109, 111, 133,173,188-90, 195 Assemblee de Liaison, 110, 163 associations d'arrondissements, 120 ateliers, 112,125-29 Aubert, Gabriel, 269,276 Aussedat, Maitre, 91,121 authentificatton, 39, 77, 331 avocats a la Cour de Cassation, 40 avocats au Conseil d'Etat, 305, 331 avoues, 40, 331 Badinter, Robert: cabinet personnel, 250; outlines reforms, 197-99; reassures notaires, 47, 198,216; reform of notaires not highest priority, 244, 249; relationship with Chardon, 28,240 n. 11; retreats on reform proposals, 208-209, 217,245-46; thanks Syndicat des Notaires, 156 Balzac, Honore de, xiv, 30, 100,177 banks, 102, 260-61

Barre, Raymond, 160,189-90,192, 195,198 Belgium, 10 Bender, Emile, 60, 237, 254,261 Bercy, Maitre, 110 Blum, Leon, 308 Bordeaux, 135 Bourse, Paris, 257 Boyance, P., 68 Brittany, 279 Caisse de Garantie des Notaires, 6 6 68,213,271 Caisse des Depots et Consignations (CDC), 2 5 0 , 2 5 1 , 2 5 3 , 2 5 6 - 9 6 ; as banker to the notaires, 143, 146, 256-74; as defender of the notaires, 265, 276-95; Bureau des Affaires Juridiques, 268; Bureau des Notaires, 269,276; Bureau des Prets, 269; tttUguts rtgionaux, 281, 288; encourages interprofessional cooperation, 282-84; encourages notarial diversification, 277-82; encourages notarial modernization, 143,284-86; independence from government, 258; internal organization, 258, 2 6 8 69; services to notaires, 143, 262— 63, 269,270-73 cautionnement, 40 centralization, 16ff., 241, 2 5 2 , 2 9 7 330 Centre de Recherches, d'lnformation, de Documentation, et d'Organization Notariales: see CRIDON Centre National d'Enseignement Professionnel Notarial, 133

333

334

INDEX

Centre National d'Informatique (CNI), 1 4 3 - 4 7 , 1 5 7 Chaine, Louis, 1 0 7 - 1 0 8 , 1 6 2 , 2 4 2 Chambre de Discipline, 66 Chambre de Paris, 1 3 8 , 1 4 3 , 1 5 8 61,166 Chambres Dcparrmentaks, 141, 1 4 8 , 1 4 9 , 1 5 1 , 1 5 8 - 6 1 , 331 Chardon, Paul, 1 6 2 - 6 4 , 2 6 2 ; advocates modernization and diversification, 9 9 - 1 0 6 , 1 1 5 , 1 6 3 - 6 4 ; in favor of greater liberalization, 105-106; opposed to egalitarianism, 173,179; opposed to greater liberalization, 207, 213-14, 225; opposed to socialist reforms, 207, 213-14,223-25,228,230,231 n. 8 1 , 2 4 0 , 2 4 6 ; relationship with Badinter, 28, 240 n. 11; success in blocking reforms, 238; view of state-notariat relations, 2 3 4 , 2 4 5 46 Charles IX, 36, 37 Charrier, H., 54, 74-75 Chirac, Jacques, 309, 317 Clemenceau, Georges, 84—85, 86, 201 clientism, 1 8 , 2 4 1 , 2 5 1 - 5 2 , 2 7 5 , 325-26 commissaires-priseurs, 33, 41,251, 331 Commissariat General du Plan, 109, 121,130-31 Commission Extra-Parlementaire de la Reforme du Notariat (1913), 237,254,261 Commune of 1871,48 computerization, 1 1 4 , 1 3 6 , 1 3 9 - 4 0 , 143-47,273,284-86 concertation, 216, 245^46, 254 Conference du Plan, 109-16, 1171 8 , 1 2 1 , 1 3 0 - 3 1 , 1 4 3 , 146-47 Conseil Superieure du Notariat (CSN), 145,148-64; creation of,

148,158; criticized by notaires, 150-53; encourages modernization, 114; funding, 149; lobbying tactics, 153-56,216, 230,241; organizes seminars, 117; presidency, 162-64; relations with Chambres Ddpartementalcs, 1 5 8 61; relations with Conference du Plan, 110-12; relations with the CRIDON, 136,141; seen as distant, 123,151; size and budget, 14950 Conseils Rdgionaux, 148, 331 conservative government of 1986, 231 n. 82, 3 0 9 , 3 1 6 - 1 7 Constitution of 1791,41 contracts sous seingprive. 5 6 , 9 9 , 3 3 2 contrat de programme, 2 1 7 , 2 4 4 Cordier, Maitre, 164, 246 corporatisme, 19-25 Cour de Cassation, 40, 205, 331 courtiers, 37, 40, 331 Credit Agncole, 257, 259, 265-73, 284; caisses regionales, 266-67, 288 CRIDON, 1 3 3 - 4 3 , 1 4 7 , 1 5 7

Darlan, 6 4 - 6 5 Darmon, 202 Dassault, M., 222 DATAR, 1 1 2

de Closets, Francois, 2 1 , 1 7 9 , 1 8 4 de Gaulle, Charles, 85, 189, 308 de Gayffier, A., 173 de la Grasserie, Raoul, 86,132 decentralization, 277-78, 307-308, 310 n. 12 Decree of April 29, 1986,232 Decree of March 1 1 , 1 9 8 6 , 2 3 2 deeds, 113-14,133 Dejoie, Maitre, 203 Delarue, 68 Delegation Interministerielle au Professions Liberales, 193, 310

Index 335 Delmas-Marsalet, J., 265 η. 10, 279 Delors, Jacques, 192 Desjonqueres, M., 129 droit deprisentatum, 29, 80-82, 83, 199-209,251,331 Durand de Champagne, Frere, 36

Journal Officiel, 134 Journee de Maillot, 152-53

Easton, David, 15 Ecoles de Notariat, 133 Elysee, 313-14 etat providence, 18 Etats Generaux 1560,1576, 1588, 36

Lapeyre, A., 135,136-37,139, 140-^1,142 Larson, S., 165, 329 Latin America, 10 Lattes, 122-23 Lefevre, P., 69 Legrand, E., 64 Lesourne, Jacques, xvi n. 8 Levesque, 118-24 Lille, 135 Lion, Robert, 258, 264, 269, 27677, 278 loi de 6 octobre, 1791, 37,41 loi de 25 Ventose, an XI (1803), 39, 55,58,151,161,175,236 loi des finances, 28 avril 1816,40, 41, 58, 259 loi Quillot, 180 loisAuroux, 180 Lorraine, see Alsace-Lorraine Luchaire, Francois, 193,202-203 Lyon, CRIDON, 135,136-38 Lyon-Caen, Pierre, 250

fixed fees, 46, 218-28, 232, 246, 247-49,251 Franche-Comte, 279 Fra^ois I, 36, 37, 85 fraud, 63-75,168 Giscard d'Estaing, Valery, 314 n. 15, 317 Great Britain: abolition of solicitors' conveyancing monopoly in, 10, 320-22; legal system in, 54 greffiers, 33,40, 332 groufes de travail, 139 Harvard Business School, 163 Hayward, Jack, 328 Henri IV, 37,85 Hoffmann, Stanley, 6 Hug, M., 83 huissiers, 33, 37,40,109,251, 332 Ikenberry, J., 299 Institut Notarial de Formation Con­ tinue, 133 inventeurde sites, 211-12, 217,279 Italy, 10 Jeanneney, Jean-Noel, 326 Jeol, M., 182-84 Jeune Notariat mouvement, 152, 157

Kahn, H., 129 King, Anthony, 320 Krasner, Stephen, 14, 15

McConnell, Grant, 16-17 Magnan, Jean-Louis, xv March, James, 299 Marillac, 36 Masson, J.-L., 185 Matignon, 314,332 Matignon agreements 1936, 308 Maubrey, M., 151,234 Mauroy, Pierre, 185,187-88, 31415 Mendras, Henri, xvi Michel, J.-P., 184-85 Ministry of Finance, 242--13,247-

336

INDEX

Ministry of Finance (cont.) 50, 258, 290-93, 295-96; 1978 report: Professions payees au pourcentage, 190-93,196; proposals for reform of the fixed fee, 2 2 0 22,224,227-28 Ministry of Justice: as defender of the notaires, 28, 241^13, 248, 250; as ministry with tutelle, 28, 154-55,215-16,241-55; lobbied by the CSN, 154-55, 216-17; perceived as newly hostile under the socialists, 28, 229, 238,250, 264, 276, 290; proposes reforms, 194, 201-33, of droit deprtsentation, 201-209, of fixed fees, 2 1 8 28,232, of numerus clausus, 2 0 9 15; relations with unofficial notarial organizations, 157; scbemapour une Mutton, 201, 209, 210,218, 229 Mitterrand, Frangois, 309, 314-15 Mosca, xiv Mousnier, R., 35—36

Nantes, 135 Napoleon, 39,236 National Consumers' Organization, 185-86 Nationalizations of 1982, 307-308, 310n. 12 notaires: activities outside statutory monopoly, 9, 75-80; ambiguity of legal status, 29, 41-59, 205; as arbitrators, 39^10, 76, 175; as drafters of contracts, 8, 39, 1 0 1 , 1 3 3 34; as investment advisers and bankers, 73, 77, 261—62; as local government consultants, 278-79; as nigociateurs, 95; as personal and family advisers, 50-52, 76, 84, 93-94, 99, 176; as real estate agents, 77,127-28; as tax consult-

ants, 96,137-38; as tax collectors, 44-^5, 177, 242; competition from other notaires, 212; competition from other professions, 55, 100-102, 167, 212, 280; cooperation with other notaires, 112-15; cooperation with other professions, 282-84; decline in numbers of, 214-15; education and qualifications, 70, 7 8 - 7 9 , 9 6 , 1 3 2 - 3 3 ; entry to the profession, 9, 70, 7 8 79,159-61 (see also droit deprisentation); extent of statutory monopoly, 8-10, 33; fear of socialists, 6 1 - 6 3 , 1 7 8 - 8 1 , 237-38; fees, 46, 76 n. 38, 189-92,218-28, 232, 246, 247-49, 251; fraud, 63-75, 168; geographical distribution, 210 n. 37; high cost of indemnification, 45, 84-85; high price of office, 76; in crisis, 60, 64, 71-75; in other countries, 10; inability to respond to changing circumstances, 91-106; income levels, 97, 178-79; marketing, 115-16; modernization, 30, 1 0 7 - 3 1 , 1 3 2 4 6 , 1 6 6 - 6 7 , 2 8 4 - 8 6 ; opposition to liberalization, 53-54; opposition to nationalization, 42^44, 50-51; organizational ethic, 16769; political affiliations, 174—75, 305; professionalization, 165-67; prosperity linked to real estate market, 6 0 - 6 1 ; reaction to economic conditions, 71-75; reform of legal status proposed by CIemenceau, 84—85, 86, 201; reform proposed by socialist government of 1981: see socialist government; research facilities: see Centre National d'Informatique, CRIDON; right to choose a successor: see droit de presentation; self-image, 53, 93-98, 175-76; socioprofes-

Index 337 sional origins, 79; urban/rural distinctions, 95-97, 166-67,21On. 37 notmre consul, 84 notarial clerks, 135-36,138-39 numerus clausus, 9 , 4 3 , 4 6 , 1 8 3 - 8 4 , 209-18, 332

Rico, F., xvi n. 7 Rioufol, J., xvi n. 7 Rivero, ]., xvi n. 8 Roissy airport, 321

Salats, Yves, 144, 145, 204-205, 225-26 Schumpeter, Joseph, xiv offices a clienteles, 35-37 offices ministeruls, xv, 29, 33-34, 332; Second Republic, 236-37 Selznick, Philip, 243 projects for reform, 84, 181-82, SEMA survey, 9 2 - 9 8 , 1 0 2 - 1 0 3 , 1 0 9 , 189-91,196 114-16, 133 officteuse, 76-77 seminars, 116-31 Olsen, J., 299 sinistra, 65,69 (see also fraud) Skocpol, Theda, 14, 327 n. 36 Pareto, V., xiv Socialist government 1981-86: Paris: chambre departementale, 138, criticism of notaires: on economic 143, 158-61, 166; CRIDON, 135, grounds, 186-88,197-99; on 138 grounds of social justice, 184— Parsons, T., 165 85; Parti Republicain (PR), 319 projectfor reform of: droit deprisenParti Socialiste (PS): attitude to notation, 201-209, 251; fixed fees, taires before 1981,178-84; 218-28,232, 246,247-49, Groupe de Droit Civil, 179 251; liberal professions, 193, Pays de la Loire, 279 310; notaires, 196-233, 251; Perroux, Franqois, 268 numerus clausus, 209—18, 251; Pey refute, Alain, 173 private schools, 309-10, 312; Pfister, Thierry, 314 proposes greater liberalization of notarial profession, 194-95; reaPoisson, J.-P., xv sons for inability to reform the noPrefects, 281 taires, 234—55, 303-30; worrying private school reform, 309-10, 312 to notaires, 6 1 - 6 3 , 1 7 8 , 2 3 8 procureurs, 37 Socialist Party: see Parti Socialiste Programme commun, 180 Spain, 10 proportional fee, 189, 222—23,232 state, the, and the policy process, 234-36, 297-330; protective role Rassemblement pour la Repubhque of, 18, 25, 28-29; theories of, xiii, (RPR), 319 3-8,13-25,299-303 Raynaud, P., xvi n. 8 Sully, due de, 36 Reagan, R., 324 Syndicat de la Magistrature, 182, Real, Conseiller d'Etat, 175 229 revolution of 1789, 34, 37,48, 236 Syndicat National des Notaires, 151, Rhone-Alpes, 281 156-57 Richelieu, Cardinal, 36

338

INDEX

syndics, 251, 332 System de Documentation Notarial Informatique (SYDONI), 139 Taine, H., 42 Tarif: see fixed fees Thatcher, Margaret, 320 Theureau, L., 33 Third Republic, 34, 35, 5 0 , 2 3 7 Tocqueville, Alexis de, 3--4, 20 tr(soriers payeurs-gineraux, 281, 2 9 1 94 Turgot, A.R.J., 38 tutelle, 18, 28,42-43,45^6, 155,

161,215,241-55 Union pour la Democratic Fran^aise (UDF), 3 1 9

United States of America, 10, 21, 27, 54, 300 venality of office, 3 4 - 4 1 , 4 6 , 4 8 , 4 9 50, 58-59, 80 (see also droit de presentation) Ventose, 151 Vichy regime, 86 n. 72, 148,161 n. 11 VIP, 184 n. 29, 289

Library of Congress Cataloging-in-Publication Data Suleiman, Ezra N., 1941Private power and centralization in France. Bibliography: p. Includes index. 1. Notaries—France. 2. Decentralization in government—France. I. Title KJV187.S85 1987 306'.2'0944 87-45540 ISBN 0--691-07753-3 (alk. paper)