Interview with Mr. Jacques Toubon

Former Minister, Secretary General of the Fiftieth Anniversary of African Independence

What characteristics argue in favor of civil law in relation to the requirements proper to West Africa?

This question is important because it summarizes the entire competition that exists today between Civil Law and Common Law. Globalization seems to go together with an extension of Anglo-Saxon law and particularly Anglo-Saxon procedure, which is to say, the prominent role of judges, jurisprudence, and thus, of course, legal professionals and particularly the familiar lawyers and law firms.

Whereas, if you look at the evolution since the 19th century, through colonization or simply through the expansion of world trade since the industrial revolution, we see that many countries far from Europe have adopted continental-type bodies and procedures. And here I would give one little known example that concerns France, which is Thailand, formerly Siam, whose law is modeled on that of France.

I make this comment because ultimately this rise of Anglo-Saxon law in today's globalization is not evident if one refers to the intrinsic nature of the two types of law. Common Law's advance is explained by the influence of the American economic power, which is accompanied by the legal power of legal professionals, academics and judges.

 But if one looks at the characteristics of the law, civil law provides a better answer to what is now the central issue of globalization, namely development. From this point of view, the certainty of the legal environment appears to be a very important component. This is precisely what civil law can bring to fragile economies that have enormous needs for public and private investment.

And this is for one simple reason; this is written law that particularly includes a certification component called authenticity. The cost of legal services, which is to say access to the courts, is less expensive than in Anglo-Saxon proceedings. And I would add another advantage, as concerns us, the French and Europeans, which is the professional networks that practice law civil law (notaries, lawyers, bailiffs). They are extremely powerful and provide not only the security of civil law but also the guarantee of their professionalism. If one wants the new legal structures to be adapted to the requirements of development, it would make sense to turn instead to turn to civil law.

It is certainly generally believed that Anglo-Saxon law is the best for business. But this relates to the large international corporations. However, if I consider the interest of the State, local businesses and African societies, one can say exactly the opposite. I think this is a convincing argument today for the adoption of civil law. We need to make more room for civil law in international bodies such as the WTO, the World Bank or the African Development Bank.

How could this law be implemented? Are we working on or studying the creation of research groups?

 I think the evolution of law specific to development should refer to the example of OHADA, an organization that concerns business law. The OHADA system, which is Francophone in nature, carries civil law jurisdiction and has a training school in Porto Novo, Benin (ERSUMA) and a common “cour de cassation”. What seems crucial to me in this model is that it is not a system tacked onto a reality by an indifferent political will. On the contrary, business leaders are requesting it, especially all those who met during this fiftieth anniversary year. And they are also the prescribers. I watched how they refer cases to the courts. They develop arguments that are often upheld by judges and that mix Anglo-Saxon legal concepts and civil law concepts. This results in a kind of legal creation that I think could support some instruments, such as standard contracts, which are forms that might reflect this status of the law and make things easier. This does not involve research but is actually pragmatic implementation work.

Of course, there is also the question of research. Many academic studies have already been done on this subject, notably by the Germans. In France, we are among the most advanced lawyers in this field.  When I was a member of the European Parliament, I promoted the presence of the French alongside the Germans and British.

As for the OHADA example, the Fondation could try to promote reflection about African law much as there is Asian law and European law. We would certainly have allies in this endeavor. I am thinking particularly of the Germans, who set up an institute to promote German and civil law, and did so well before the creation of the Fondation. With their cooperation, we could try to promote an "African Law" operation and begin the project with a meeting of African lawyers, similar to that of Mediterranean zone lawyers that was organized with the Fondation's assistance. This would indeed be a way to initiate this thinking process concerning the common principles of civil law in Africa.

Could you tell us more about these already existing trade-offs between Common Law and Civil law? Where do you think this ability to accommodate the two court systems comes from in legal professionals as well as individuals?

 Many things in this area still follow the legacy of colonization.  Legal proceedings today are still largely organized along the lines of the colonizing country's legal proceedings depending on the nature of the colonial power. Legal traditions and cooperation follow in this direction, thus somehow in the direction of perpetuating the division between the two systems of law in Africa. But at the same time we realize, when studying the evolution of caselaw, that the courts that belong to the two opposing traditions, have in common a number of issues, and have developed common solutions and answers. Because in the end, African concepts rule. We must take this into account and not produce some kind of confrontation in order to try to defend the positions of Civil Law versus Common Law. For their development, it is in Africans' interest to compromise on both legal and judicial systems in order to arrive at solutions that are as consistent as possible with their needs, and in particular with a need that is essential in Africa, that of securing private investment. So instead of risking Common Law's eviction of Civil Law and in this way fight in its defense, we would have jurisdictional solutions that integrate all or part of the spirit of civil law. This would be win-win for this law.

Specifically, what are the priority needs in matters of Civil law in West Africa?

The needs identified by business investors can be summarized in three main aspects: first, clear and secure procedures, investment codes to determine what is allowed and under what conditions, secondly, clear competitive systems, public procurement that is followed through on, and thirdly (and perhaps now the most difficult) an independent judicial system.

In terms of needs, I can put forward one very specific issue, that of book publishing. The internet cannot be a substitute for paper books in Africa, and facilities and maintenance are expensive and their operation is very uncertain. There is therefore a great need for inexpensive publications. Good policy would stimulate and support local publishing. Publishers within universities should be assisted. The Ministry of Cooperation and the Francophone University Agency have taken action on a program concerning scientific matters. I think we should develop this type of action for the law. Today, publishers like Hachette are increasingly determined to support subsidiaries in Africa and not to ship books by boat. In terms of law in particular, I think we should encourage the publication of law reports. The IDEF (International Institute for the Expression of Law that is French-inspired) has, for example, released the OHADA code with case law memos, and not just the civil law courts but also memos from the English Common Law Courts.  This again demonstrates that there are often common solutions that can come from different ideological approaches.

What could be the role of partners of the Fondation pour le droit continental in support of your activities?

Another means of development, that I think is fundamental, is the creation of a Professorship of civil law in Africa with the support of the Fondation and some patrons. The University of Yaounde works well, and hosts OHADA's Executive Secretariat and would be able to host a university professor. Using this mechanism, we could of course create publications, host lawyers from around the world, thus creating south-south links with legal professionals from South America, Egypt, etc. A sub-Saharan university could bring together a range of talent, produce Masters programs and theses and then expand these skills.

In conclusion, I would say that it is important to understand and distinguish the intrinsic elements of civil law that could effectively operate in developing countries and particularly in Africa. It is a mistake to consider the extension of the Common Law empire as unavoidable as long as the reality on the ground is taken into account.

Remarks gathered by Alexandra Bourré