1. Operational programme
The project "Legaliter aut Concorditer. Comparative studies on conflict resolution in the history of French and Mexican law" will be based on the four research axes of the Centre for Judicial History: Institutional and procedural norms and practices; Commercial norms and practices; Social norms and practices; Penitentiary norms and practices. Thus, a vast thematic field will be covered in a chronological field going from the 16th to the 21st century, privileging a triple comparative perspective:
- In space (France, without forgetting the colonial experiences - New Spain / Mexico)
- In time (Modern times, the contemporary period and the present time)
- With regard to the different legal fields (civil, criminal, social and commercial law).
The project will thus be able to integrate the work in progress of French and Mexican researchers as well as the databases already completed or in progress.
Operationally, the project will be organised into five work programmes, each of which will be co-directed by a researcher from Lille and a researcher from Mexico. They will bring together a team of researchers, ITAs and PhD students from both research units around a specific theme. The work of each team will be presented at an annual workshop organised alternately in France and Mexico. As far as possible, those in charge of the work programmes will try to form Franco-Mexican pairs that will study the same subject separately, but will present common conclusions.
External researchers (from Europe, Mexico or South America) may also be invited to participate in order to bring another perspective on the theme and to allow for more relevant conclusions on the similarity or, on the contrary, the differences observed between French and Mexican norms and practices.
Particular attention will be paid to the integration of doctoral students from Lille and Mexico in the project. They will first be associated to the different work programmes and will be invited (depending on their thesis subject) to provide contributions during the workshops. At the end of the first workshop, we will also consider the possibilities of a thesis on the history of comparative law in the framework of the cotutelle (they will be prioritised by the two units and will be the subject of a search for funding). In order to allow a real synergy between researchers and not to confine the study of alternative dispute resolution to a purely legal approach, a treatment by "legal theme" (family law, contract law, commercial law, criminal law, labour law, etc.) has been rejected. Instead, we intend to define work programmes that are long term (thus allowing for continuity and breaks) and favour comparison between institutions and legal fields. A provisional list is proposed here. This list will be adapted according to the results of the historiographic and epistemological investigation and the availability of sources (in particular documents that can shed light on practices)
Work programme 1 (2022) : Alternative dispute resolution through the prism of legal regulations and legal doctrine.
Before embarking on the study of conflict resolution norms and practices and the relationship between state (judicial) and alternative dispute resolution methods, it is necessary to carry out a historiographical aggiornamento in order to be able to rely on the most detailed and up-to-date overview possible. The first workshop will present these historiographical assessments and will also focus on a genuine epistemological reflection. Indeed, before studying regulations and practices, it is important to define the field of investigation and to ensure that the scope of concepts in French and Mexican law is clearly defined in order to avoid misinterpretation and anachronisms and to eliminate any terminological misunderstanding. This should enable us to study infra- and extra-judicial modes of dispute resolution through legislation (and more broadly the norms in force in both countries during the period studied) and doctrine (legal literature). What importance is given to arbitration, conciliation or mediation? What value is placed on them? Is there state control (e.g. through the possibility of recourse to the courts)? This programme of work will also pay particular attention to the reception of learned Romanesque-Canonical doctrine (under the Ancien Régime) or foreign models (for the contemporary period) and their possible influence on the legislation (and jurisprudence) of both countries.
Work Programme 2 (2023) : Actors in alternative dispute resolution.
This work programme will study both those who use alternative methods for the resolution of their conflicts and those who are called upon or intervene in order to find a non-judicial solution to a conflict. The study of the actors should also allow us to verify whether the historical, political, economic, cultural and social context influences or not
- Those who choose (or are forced) to use alternative dispute resolution methods
- Those who propose, are chosen by litigants or are invested by their peers to find (and if necessary impose) an alternative dispute resolution
- Third parties who can promote or facilitate the reconciliation of the parties and the resolution of their conflict.
In this perspective, it is advisable not to limit oneself to conflicts between individuals, but also to take an interest in public law disputes between local authorities and citizens.Work Programme 3 (2024) : Implementation of alternative dispute resolution: Sources and practices.
Some alternative dispute resolution methods, such as arbitration or conciliation, are strictly governed by what can be described as genuine rules of procedure and give rise to a written record of the terms of the dispute resolution (which may even be the subject of an exequatur). For these, it will be necessary to compare practice in France and Mexico from the 16th century to the present day. Other methods of conflict resolution are more informal and do not necessarily leave a written trace. They derive their reality and effectiveness from family or social pressure, or from the moral authority of the person who has succeeded in bringing opposing opinions together.
Work Programme 3 (2024) : Implementation of alternative dispute resolution: Sources and practices.
Some alternative dispute resolution methods, such as arbitration or conciliation, are strictly governed by what can be described as genuine rules of procedure and give rise to a written record of the terms of the dispute resolution (which may even be the subject of an exequatur). For these, it will be necessary to compare practice in France and Mexico from the 16th century to the present day. Other methods of conflict resolution are more informal and do not necessarily leave a written trace. They derive their reality and effectiveness from family or social pressure, or from the moral authority of the person who has succeeded in bringing opposing opinions together. This workshop will therefore analyse the practice and seek to identify (through sources that are also alternative for the legal historian, such as stories, chronicles, the press, literature, iconography, oral tradition, reports, union documents, etc.) the various written and non-written expressions (and logics) of non-judicial, or even non-institutional, conflict resolution.
The two scientific coordinators of the project will present together the general conclusions of the three work programmes and will identify more precisely the avenues of research for a renewal of the LAI.
If accepted, a renewal of the LAI will focus on alternative dispute resolution across national borders. Finally, in order not to limit the research to domestic law only, we will extend the problematic to international conflict resolution in a last work programme. We will look at conflicts between colonial powers, decolonisation, recognition of political regimes, border conflicts, wars, etc., studying in particular the role of diplomacy - inter-state, international or non-governmental - and contemporary supranational bodies (European, North American or Pan-American).
The history of comparative law is of paramount importance for understanding and improving the way local legal systems have reacted to similar challenges in the past. Legal systems have never been isolated, but interconnected organs of a global network of rules. Today, international institutions, some with legislative powers, others with judicial powers, contribute enormously to the globalisation of law. Legal research has always done so. Both in comparative law and in the history of comparative law, the movement of ideas and rules in today's rapidly changing legal world must be the focus of attention. The traditional history of comparative law focuses on the comparison of particular features of national, mainly European and North American, legal systems as if they were stable and not constantly changing. The classical antagonism between the civil law and common law traditions, in particular, seems to be an unshakeable paradigm, largely denying the fact that, in practice, most legal systems are mixed. The study of law in action in formerly colonised countries could help to critique the current relevance of the civil law/common law dichotomy. The project will focus on the dynamic characteristics of law, based on theories of legal and institutional circulation, transplantation and hybridisation (also between civil and common law systems). Postcolonial studies, which, by criticising a Eurocentric vision, have contributed to the 'provincialisation of Europe', will also be brought into play. The postcolonial perspective asserts that there are no histories other than local histories, and promotes 'border thinking' in order to 'decolonise' academic and political discourses. In summary, our project argues that comparative legal research must be able to explain and understand legal change. For this reason, other networks, in which both research units are involved, will be mobilised: Phaedra (for commercial law) and the Lille-Ghent-Uppsala network in social and labour law.