Paper's abstract

Pierre Maclouf, The Common Law Tradition's Crisis and New Legal Regulation's Problems
The paper relies upon American legal scholar Mary Ann Glendon's book A Nation Under Lawyers. It analyzes the crisis of the legal system in the USA with a twofold argument: –(a) it is the crisis of a tradition (the Common law's): what is at stake here is a mistaken perspective consisting in confusing the decay of the Common law institutions with its very substance ; (b) this crisis is itself embedded within the more global legal issue which arises from the current problems of regulation, whatever its traditional regime. At this stage, a kind of programmatic failure consists in the attempt to face these problems by borrowing to the American legal system, this latter being then considered without regard to its tradition's crisis. The paper first pinpoints the basic elements of the Common law ; then it shows how the various factors that undermine them are changing and weakening, beyond the Common law tradition itself, the nature, the function and the sources of law as such. It stresses phenomena such as (i) the instrumentalization of law, and (ii) the way everyone's (or every single group's) rights are being substituted for law for all, both phenomena being seen as a "democratization" of law. Similarly, what is described as bold, assertive and thus more "democratic" judging, has often resulted in slowing political and legal processes that were moving in reform directions, thus deferring stable settlements of the issues. So, although law as such is designed to create order, a number of legal practices may end in disorder.Nevertheless, if one takes a critical view of these trends, the Common law tradition may avail most valuable resources to define a new paradigm for regulation.

Key Words : Common law, USA, Glendon
t. 44, 2000 : p. 333-357