A Unitary Judiciary?

France is a unitary nation-state that does not formally recognize distinct regional, cultural, racial, ethnic, or linguistic minorities, although the constitution (Constitution of France 1958, Art. 72.3) broadly acknowledges the existence of “overseas populations.” The Jacobin tradition inherited from the revolutionary period values a highly centralized form of governance in which policy decisions and personnel assignments are made from the capital with limited regional autonomy. The judiciary is centralized administratively with strong control from the top. Wherever they are located, the courts are staffed by judges, prosecutors, and other personnel appointed, rewarded, and disciplined by national authorities headquartered in Paris. Collectively, overseas courts rely on a staff of 343 magistrats and 925 support personnel directly managed from Paris (Ministère de la justice 2017). The overseas judiciary aspires to be strictly identical to its metropolitan counterpart, regardless of the territory’s legal regime and degree of autonomy. With a few exceptions, the exact same judicial organization found in the metropole is replicated overseas. The court of last resort for all courts, be they overseas or in the metropole, is the Cour de cassation in Paris.

The French judiciary is a career judiciary in which judges and prosecutors typically begin and end their professional employment as magistrats (Lasser Reference Lasser2004). Until 1958, when the current constitution was enacted, the corps was bifurcated between a colonial and a metropolitan track, which reported to different ministries. Two distinct cadres of magistrats were trained, recruited, and managed separately. The status of colonial magistrats was inferior in many respects. They lacked independence and tenure protection, living under constant threat at the discretion of the local colonial governor, who could legislate on certain issues; create new courts; appoint, transfer, demote, and remove magistrats at will; withdraw cases from a court or a judge and reassign them to another; and give individual instructions to prosecutors (Durand Reference Durand2004a, 244). They were also subject to various forms of discipline in the hands of the appellate court and the ministers of justice and the colonies (Jouhaud Reference Jouhaud1958, 33). It was not until the postwar Constitution of France 1946 (Art. 84) that all judges, whether serving in the metropole or not, were granted tenure.

The dichotomy between a metropolitan and an overseas judiciary no longer exists. With the 1958 merger of the two corps, a unitary organization emerged. Entry-level recruitment into the judiciary now proceeds through a single postgraduate school, the National School for the Judiciary. There is no specialized track for those wishing to serve overseas. The vast majority of magistrats are selected straight out of law school through a series of written and oral tests. From the beginning of their 31-month-long training, students are inculcated into the norm according to which the career of a magistrat, like that of military personnel, is characterized by professional mobility, which may include mainland and overseas service.

Despite the enduring pull of the unitary and centralized judiciary model, some measure of legal pluralism exists in certain overseas regions (Uimonen Reference Uimonen2014). To some extent, this pluralism is a legacy of the empire, given that the colonial state recognized a special personal law applicable to colonized subjects alongside the French common civil law applicable to citizens and colonists. In New Caledonia, the Wallis and Futuna Islands, and Mayotte, the constitution still consecrates the existence of a separate personal status. Unless they opt in, indigenous islanders are not subject to the Civil Code (Trépied Reference Trépied2012). In New Caledonia, legal pluralism has found a new, decolonial dimension, reflecting years of political struggle by the Kanaks (Uimonen Reference Uimonen2014). The 1998 Nouméa Accord, calling for progressive decolonization, instituted an official acknowledgment of “Kanak identity” and “custom.” The government had recognized the existence of a parallel customary law system since the early 20th century and made unsuccessful attempts to codify it. In 1982 native “customary assessors” were called for to help judges to apply customary law on matters of personal status and land law, but they began to officiate only after the accord.Footnote ⁵ These are Kanak representatives in charge of identifying and explaining the relevant customary law to predominantly white metropolitan judges adjudicating civil matters according to custom (Trépied Reference Trépied2016). As a white judge who served in New Caledonia during the first years of implementation of this dualist legal regime declared, “I had the impression of leading an episode of judicial decolonization.”Footnote ⁶

By contrast, Mayotte’s legal status change to a département in 2011 could be described as an episode of judicial recolonization. Following a highly critical Senate report (Sénat Reference Sénat2008), the system of Qadi courts that had functioned since France first occupied the island in 1841 was abrogated.Footnote ⁷ Until then, the Mahori community had retained the right to use these community courts of Islamic law, which had jurisdiction for civil disputes involving separate personal status. The proceedings were conducted in both French and Arabic, presided over by 18 Qadi judges. Since the abolishment of the Qadi courts, questions of personal law are decided by the mostly white metropolitan judges sitting on the regular bench, based on a perfunctory knowledge of Islamic law and local customs. Citizens who previously used the Qadi courts must now travel longer distances to solve their disputes, at a greater cost, and using a language, French, that many have not mastered (Carayol Reference Carayol2011).

As Sharafi (Reference Sharafi2008) has pointed out, the shift toward nonstate law and legal pluralism should not be “romanticized,” and the New Caledonian example could be seen as a return to the colonial practice of recognizing and appropriating the practices and customs of colonial subjects. But it is also clear that the disappearance of Qadi justice in Mayotte resulted in eliminating any meaningful application of Islamic and customary personal law (Blanchy and Moatty Reference Blanchy and Moatty2012).

A Second-Class Judiciary?

Since the colonial era, overseas judicial posts have persistently been depicted as unattractive, be it because of their remoteness and “isolation,” a supposedly insalubrious climate, the difficult family-life decisions and organization that relocating requires, the perceived low status of overseas courts, or the antagonistic relations with the local staff, bar, and litigants. Throughout the 20th century, the ministries successively in charge of managing overseas courts routinely lamented the shortage of candidates for judgeships and other positions—prosecutors, attorneys, clerks, and bailiffs (Durand Reference Durand and Royer2003, 67). These days, the dearth of applicants affects certain regions, while others are in very high demand. The Antilles, French Guiana, and Mayotte are considered “particularly difficult” (Union Syndicale des Magistrats 2017, 181) because they are economically depressed and have a high crime rate and because visible tensions exist between white metropolitans and racially diverse locals. It is there that a few metropolitan magistrats reported having been attacked while on the bench for carrying on a “classist justice, or a colonialist justice.”Footnote ⁸ By contrast, Réunion was depicted by research subjects as a widely popular destination for which competition for posts was tight, raising the question whether the lack of indigenous peoples makes it more attractive to white metropolitans.

Because overseas assignments have historically been unpopular, the judiciary built in an incentive structure in terms of promotions, compensation, and other benefits to encourage applications. A stint overseas provides a significant career boost for metropolitans, who often take on greater responsibilities overseas than in the metropole in part because there are fewer competitors for high-level posts. Overseas service accelerates seniority in the corps and eligibility for promotions and retirement benefits as the time spent there is weighed more heavily. Those who serve overseas for at least 3 years gain priority for certain posts upon their return to the metropole. By contrast, native overseas magistrats who wish to serve in their homelands do not benefit from any form of precedence. Overseas rotations are also lucrative as magistrats enjoy significant salary raises, a remoteness allowance in some regions, lower income taxes, more vacation time, and subsidized vacations (Union Syndicale des Magistrats 2017, chap. 5). As a guidebook compiled by one of the leading unions of magistrats notes, “Historically, the ‘colonial’ administrator enjoyed the right to be provided an accommodation by the state. This right persists in overseas collectivities and the département of Mayotte under the form of a conditional contribution to rental costs” (Union Syndicale des Magistrats 2017, 189). This is one of the rare instances in which the judiciary explicitly and publicly recognizes its colonial lineage. Strikingly, it is not to denounce it but to frame it as a historical incident justifying a continued housing benefit. In other words, when the memory of colonialism surfaces, it is from the perspective of the colonizer and to reinforce privileges.

White Metropolitan Magistrats on the Bench

A replication of the racialized colonial rule is at work within the contemporary overseas court system, in which the professional hierarchy reproduces the continuing racial hierarchy (Allen Reference Allen2005). Despite variations among different territories, overall, white metropolitan judges, prosecutors, and senior registry members preside over courts predominantly staffed by employees who reflect the racial and ethnic makeup of the local population (Farcy Reference Farcy2011). The bar is more or less diverse depending on the region but by all accounts far more diverse than the bench. A retired white metropolitan chief judge reported that among the 100 magistrats working for one of the overseas courts he sat on, perhaps “four or five” were native to the island, while the support staff “was overwhelmingly native.”Footnote ⁹ Likewise, a native overseas judge lamented that at her overseas court, “out of a total of 103 magistrats, there are two natives.”Footnote ¹⁰ The other 101 magistrats are not only metropolitan but also white, leading her to exclaim, “Can you imagine the picture it gives to a very mixed-race, Black, Creole-speaking population that feels misunderstood because my colleagues don’t understand them?” According to her, the disparity leads to “a colonial judiciary…. People tell me all the time: it’s a white justice rendered by whites.” In addition to the striking racial imbalance, the high turnover of the magistrats, who typically serve for 3–5 years, compared to the staff, which tends to be permanent, contributes to the perpetuation of a justice performed by transient metropolitan emissaries, much like during the heyday of the empire.

This depiction is supported by the government’s own data. In the late 2000s, the Ministry of Justice set out to calculate the number of magistrats native to the overseas areas (Karam Reference Karam2010, 7). Two data points were used: magistrats’ places of birth and requests for extended vacations in overseas regions. On the basis of this information, 73 magistrats were identified as possible native overseas citizens out of a total of 7,900. This figure suggests that less than 1% of the magistrats are overseas natives when overseas citizens represent 4% of the French population and the majority of those residing overseas. In 2010 Guadeloupean businessman Patrick Karam, a champion of the overseas regions, prepared a report on the fate of native overseas citizens in the judiciary, decrying that in 2010, out of the 73 native overseas magistrats, only 20 served overseas and only one chief judge was a native of the overseas territory where he officiated (Karam Reference Karam2010, 7).

An Anglo-American reader may wonder why the judiciary did not conduct a more fine-grained survey of its personnel, asking directly whether they identify as native overseas citizens. This type of investigation is fraught in France, where the law prohibits the collection and analysis of “sensitive data,” defined as including race and ethnicity (Penal Code, Art. 226-19). The judiciary does not gather racial or ethnic information about its employees (Cohen Reference Cohen2018). Even the census does not collect such information, with the consequence that the precise demographic composition of the population as a whole remains unknown (Simon Reference Simon2008). As an exception mirroring the exceptionalism of colonial law and overseas France, in 1983 the data protection agency (Commission nationale de l’informatique et des libertés) authorized the census to collect data on “ethnic origin” in those overseas regions governed under the principle of legislative specialty on the ground that such data would be “useful” given the “socio-demographic characteristics of overseas territories.”Footnote ¹¹ So far New Caledonia is the only territory where the deviation has been implemented—it is also the only overseas territory officially embarked on a decolonization process.

In short, while official quantitative data on the racial and ethnic makeup of both the overseas population as a whole and the judicial personnel are missing, the Karam report and my qualitative research suggest that a massive disparity exists between magistrats’ races and ethnicities and the populations they serve. Access to the judiciary is laden with obstacles for overseas natives, as the recently founded Association of overseas magistrats (Association des Magistrats Ultramarins) seeks to make known. Created in 2015, it is the first minority organization to emerge from the judiciary. Its main goal is to point out the multiple difficulties overseas citizens experience in becoming magistrats, which are examined in the next section.

Overseas Natives off the Bench

Two interrelated phenomena conspire to keep native overseas magistrats off the bench. First, the initial hurdles to access to the judiciary are such that overseas citizens may be deterred from even considering a judicial or prosecutorial career. Second, the few who become magistrats are actively discouraged—and sometimes even prevented—from serving in their homelands.

Native overseas citizens have scarce options for a quality legal education on their own soil. This reflects the fraught history of law schools in the colonies as metropolitan universities sought to maintain their monopoly over legal education (Tabuteau Reference Tabuteau1987, 159–62). The first overseas law school opened in Réunion in 1825, only to shut down a few years later owing to harsh regulations and metropolitan hostility that made its functioning close to impossible. Students were required to complete a course of study in the metropole, some 5,800 miles away, to become eligible for the bar, which dissuaded them from beginning their studies back home. Today, five overseas regions have a law school, but none offers a preparatory course for the Judiciary School’s entrance exam. Given the minuscule chances of admission without adequate preparation, applicants must travel thousands of miles to the metropole to attend one of the prep courses, often at great financial and personal cost. To make matters worse, overseas law faculties, predominantly comprising white metropolitans, are not supportive of students’ interest in a judicial career (Karam Reference Karam2010, 8). A native overseas judge thus confided that as an undergraduate she approached a white metropolitan professor about her plan to become a judge, only to be told, “My poor dear, don’t even think about it, you’ll never succeed.”Footnote ¹²

Despite these obstacles, every year several dozen overseas citizens sit for the entrance exam. They have the choice of traveling to the mainland at their expense or taking the test at home. The latter option is not without pitfalls. A rule mandates that all candidates sitting for the written portion of the exam complete their assignment contemporaneously. Applicants who live in time zones distant from Paris must therefore take the test at night. The oral portion of the exam is conducted via videoconferencing, which is perceived as unfavorable for candidates interviewing remotely. Yet more hurdles lie ahead for those who are admitted. After 31 months of schooling in Bordeaux, they are required to complete their initial internship in the metropole, while metropolitan graduates have the opportunity of interning close to their home base.

Further, once native overseas magistrats receive tenure, they are not assured an appointment in their homeland. Should they obtain one, they are expected to hold it for a term of years before requesting their next assignment in the mainland. As several research subjects observed, the High Council of the Judiciary (Conseil supérieur de la magistrature), an independent body in charge of judicial discipline, transfers, and promotions, has an antilocal recruitment policy for overseas courts, summed up in the adage, “Overseas after overseas does not hold” (Outre-mer sur outre-mer ne vaut). The phrase means that magistrats may not obtain two or more overseas assignments one after the other. Instead, they need to return to metropolitan France for a few years before being allowed back overseas (even if the practice seems to have relaxed in recent years). For instance, a trial judge in Réunion who becomes eligible for promotion may not seek an appointment on the Réunion appellate court but must apply for appellate judgeships in the metropole.

The use of rotation systems is not uncommon in career judiciaries in which judges enter the judiciary at a young age, spending their career in a series of 3- to 5-year rotations around the country (Ginsburg and Garoupa Reference Ginsburg and Garoupa2009, 250). Three main rationales are usually at play. First, preventing judges from being identified with any particular court location is supposed to foster independence and prevent corruption. Second, periodic movement is thought to ensure loyalty to the central bureaucracy rather than to the local community. Finally, rotations are presented as a measure of equalization among judges given that some regions are more desirable than others.

In France, not only is the practice of lingering more than 5 years at any given post frowned on, but it also precludes any career advancement given that mobility is one of the single most important factors in promotions (Conseil supérieur de la magistrature 2014). The more willing the magistrats are to move, the higher and faster they rise in the judiciary’s ranks. This norm leads ambitious magistrats to strategically request transfers from court to court every 2–3 years early on in their careers. But it penalizes two categories of magistrats in particular: (1) those who are primary caregivers, the majority of whom are female, and therefore lack the ability to easily move to a different region and (2) native overseas citizens for whom mobility could mean settling thousands of miles away from home, rather than 10, 50, or 300 miles as for metropolitans.

The combination of the rotation system with the “Overseas after overseas does not hold” maxim results in massive disparities between metropolitan and overseas magistrats. In practice, true geographic rotations (which one could call “diffuse mobility”) have decreased in the metropole in favor of sham geographic rotations (or “concentrated mobility”) within a single region. An example of true diffuse mobility would be for a Parisian to transfer to courts located in different regions of the country, say, from Paris to Marseille to Lille to Strasbourg. Concentrated mobility, by contrast, consists in spending one’s career commuting to different courts within or in close proximity to Paris (e.g., Bobigny, Créteil, or Versailles). A judge could claim a high degree of mobility, allowing him or her to progress in the hierarchy, without having ever moved.

Concentrated mobility is not an option overseas. This is due in part to geography, as overseas territories are so spread out that one cannot commute from one to another, and in part to institutional reasons, as the High Council for the Judiciary commends alternating metropolitan and overseas appointments. As one of the native overseas judges I talked to commented, “If you wish to have a normal career, you cannot advance in rank from overseas to overseas. You are obliged to do a stint in the metropole.”Footnote ¹³ The same High Council for the Judiciary that allows magistrats to transfer from court to court within a small radius in the mainland refuses to do the same overseas, making it hard to justify their policy in noncolonial, nonracial ways.

The other native overseas judge I interviewed, outraged by this discrepancy, examined the career paths of the magistrats who graduated with her in the 1990s. She found that out of a class of about 150, “80% of my colleagues stayed and got promoted to their regional appellate court. 80%! Can you imagine? It means that in the mainland, careers are regional.”Footnote ¹⁴ By contrast, native overseas magistrats are held to stricter standards, which often conflict with their personal lives and aspirations. For instance, I was told the story of a native overseas prosecutor who found himself unable to take a post in the mainland because his wife was a business owner who could not relocate. He resigned from the judiciary and joined the bar. “He could have stayed,” explained his friend, “but he would have remained a line prosecutor all of his life…. He told himself, ‘Since I won’t have a normal career, I’d rather join the bar.’ He was able to become a prominent member of the bar.”Footnote ¹⁵

During my fieldwork, I wondered about the origins of the “Overseas after overseas does not hold” policy. Could it be a remnant of the colonial regime, during which magistrats native to the colonies were denied tenure on equal terms with white metropolitans? When I asked white metropolitan research subjects, not a single one pointed to colonialism or at least not explicitly. Instead, my question elicited some of the most stunning responses I encountered in this research project. Over and over, I was told that the rule is justified by the need to guard against the danger of “tropicalization.” The next section explores the meaning of this expression.

Antilocalism

Among the white metropolitan magistrats I met who had overseas experience, several offered a description of native professionals that evoked the colonial disparagement of native cadres and administrators. Asked about magistrat-staff interactions at the Caribbean court where she had officiated, a judge observed, “The support staffers were all locals, and the magistrats were predominantly metropolitan.”Footnote ²³ She noted that those staffers trained in the mainland were “qualified,” while the others were “perfectly incompetent…. Because it was an island, they were recruited internally in … [name of the island]. We recruited people who had hardly graduated from high school.” To rationalize the dearth of native overseas magistrats, another judge who served in two overseas regions reiterated this account of local incompetence: “It’s a bit like for doctors; there aren’t many local doctors either. So do we look for people based on their competence, or do we look for people based on their origin? That’s the dilemma.”Footnote ²⁴ These statements echo 19th-century colonial tenets such as that against recruiting judges among native Creoles because of their supposed poor knowledge of French law and insufficient emancipation from former masters or planters in general (Farcy Reference Farcy2011, 12). They also resonate with the policy adopted following the 1848 abolition of slavery in the colonies, according to which indigenous peoples were to be integrated in the colonial administration but only in subaltern tasks, while whites monopolized management positions (Hélenon Reference Hélenon, Weil and Dufoix2005, 232–33). Beyond the judicial context, these sentiments more generally reflect the biases against overseas citizens that still pervade French society (Aldrich and Connell Reference Aldrich and Connell1992).

Centralism and unity were also offered as justifications for the underrepresentation of overseas natives on the bench. A white metropolitan judge thus declared, “We don’t ask ourselves the question whether a magistrat in [overseas region x] is from [overseas region x] just like in Normandy we would not ask whether a magistrat is Norman. France is a unitary state. Americans govern by community, but there’s no communitarianism in France. It would be as if someone asked me whether a magistrat is tall, blond, dark-haired, or Jewish. That’s not the issue.”Footnote ²⁵ As the quote suggests, particularly the remark about blond versus dark-haired magistrats, this judge could not fathom the pertinence of my research question. In his French republicanist worldview, magistrats are disembodied and interchangeable cogs in a judicial machine (Lasser Reference Lasser2004, 37). They have no relevant racial, ethnic, linguistic, religious, or regional forms of identity. The very act of inquiring about these forms of identity was offensive to him as it implied that magistrats are not infallibly neutral and impartial “mouthpiece[s] of the law,” to use Montesquieu’s famous characterization of judges as logical creatures. Another white metropolitan judge sitting overseas expounded on this vision:

Here again, the exclusion of overseas natives is vindicated using a color-blind, universalist ideology (Gotanda Reference Gotanda1991; Cohen Reference Cohen2018). The argument has come full circle: on this view, native citizens’ absence from the bench is not due to bias. To the contrary, it is the judiciary’s very impartiality that explains their rejection. The argument’s fallacy is obvious: if race, ethnicity, and other markers of identity really do not matter, why would a bench entirely composed of locals and “people of color” raise “a question of professional ethics, of all sorts of social risks”? Conversely, why would a bench composed of 99% white metropolitans in the mainland not raise similar problems? The inconsistency in the way in which native overseas and metropolitan magistrats are treated betrays the persistence of color-blind discourses as mechanisms of racial and colonial subjugation.

Metropolitan Magistrats on a Mission

A second subordinating ideology transpires in some metropolitan magistrats’ representation of their role overseas. A few see themselves akin to travelers departing on a stimulating voyage to an exotic destination. To the question why he requested a post in one of the most unpopular overseas regions, a white metropolitan judge responded, “I find this country beautiful. I love the beauty of this land. I love the forest, the rivers.”Footnote ²⁷ Later in the conversation, when he reflected on how he would inspire younger generations of magistrats to follow suit, he commented, “The Judiciary School must explain that it is beautiful.” Another white metropolitan judge’s departure from the mainland was motivated by the thrill of novelty: “Initially, I left because I thought that [overseas] we could exercise exciting functions in very different locations.”Footnote ²⁸ This fascination with unfamiliar lands and the promise of adventure mirrors the colonial enthusiasm for missions to conquer and tame the uncivilized.

The judicial institution has inculcated the idea that magistrats posted overseas bear the duty to behave as exemplary representatives of the state, which is understood to mean that they should not “go native,” that is, put down roots or become enmeshed in local communities (Burbank and Cooper Reference Burbank and Cooper2010, 12). Before leaving the mainland, they must attend a few days of orientation at the continuing education branch of the Judiciary School in Paris. According to a white metropolitan judge’s recollection, corroborated by my own observations, the training “draws attention to a number of specificities common to the overseas, in particular the weight of the media overseas, insularity … given that we no longer have our points of reference, we are really on an island, with the populations’ very strong attachment to their island, and also a few pieces of advice and admonitions relative to remoteness, the promiscuity that may exist between people.”Footnote ²⁹

The orientation is taught quasi-exclusively by white metropolitans—of the couple dozen speakers I observed, only one identified as a native Black overseas judge. The main content of the instruction is common to all territories, with a few hours devoted to the specificities of each region. This lumping together may be a way of defining an alien world, environmentally and culturally distinct from Europe. The resulting imaginative geography assumes that overseas territories have a high degree of unity, constituting a homogeneous other. As a native overseas judge summarized, “It is metropolitans who explain to metropolitans how to live overseas.”Footnote ³⁰ Karam’s (Reference Karam2010, 20) report criticized the program for promulgating “coarse visions and clichés identical to those which were already inculcated thirty years ago.” Perhaps in response to this critique, in 2017 the Judiciary School in Bordeaux instituted a dedicated training for graduating magistrats nominated overseas for their first post (École nationale de la magistrature 2017b).

“The Language of the Republic Is French”

Overseas courts are a major vector of linguistic imperialism, by which I mean not only the cultural hierarchization of French over native overseas languages but also its frequent mandatory use in court proceedings, even when litigants’ mother tongue is not French. All French citizens, whether metropolitan or overseas natives, are in principle required to use French in court documents and hearings. The constitution does not recognize minority languages. In 1992, it was even amended to include the sentence “The language of the Republic is French.”Footnote ³¹ The constitutional court interpreted the amendment to mandate the use of French by public institutions and by citizens “in their relationships with administrations and public services.”Footnote ³²

Overseas, the requirement that citizens use French in all judicial proceedings is applied differently depending on the legal status of the region. In territories that enjoy some autonomy, being administered under the principle of legislative specialty, a relatively tolerant regime allows the use of local languages in certain circumstances. Article 6 of the French Polynesian Code of Civil Procedure (2001), for example, states that any litigant may “seek the assistance of a sworn interpreter at no cost if she does not have perfect command of the French language.” By contrast, in the five départements d’outre-mer governed under assimilationist principles, citizens are expected to speak French in court, despite the fact that large swaths of the population are neither native nor fluent French speakers. One of the native overseas judges I interviewed, herself a native Creole speaker, thus commented:

This account is startling given Article 407 of the Code of Criminal Procedure, which instructs a court to appoint an interpreter “whenever the defendant, the victim, or the witness does not speak the French language sufficiently or if it is necessary to translate a piece of evidence.” Based on my fieldwork, however, it appears that in overseas départements, the recourse to interpretation is at the discretion of the presiding judge. The paradox is that an American or Chinese citizen in a tribunal in Guadeloupe or Réunion who does not speak French would be entitled as a matter of right to an interpreter in a criminal case when a Creolophone French citizen would not. As the judge quoted earlier intimated, many overseas citizens speak Creole or other languages at home. A few minority groups hardly speak French at all, for instance, the Haitians and the Hmongs in Guiana (Hazaël-Massieux Reference Hazaël-Massieux2006, 295). Literacy rates are considerably lower overseas than in the mainland, making it all the more difficult for some litigants to communicate with the courts. In 2011, while 7% of metropolitan citizens age 18–65 were considered illiterate, the figure averaged 20% in Guadeloupe and Guiana and 23% in Réunion and Martinique (Damgé and Jublin Reference Damgé and Jublin2014).

The metropolitan magistrats I talked to, however, tended to minimize the impact of these linguistic policies. They prided themselves on following the laws and principles of the republic by requiring that litigants use French in their courtrooms except in the most limited circumstances. A white metropolitan judge thus recalled, “When I presided over criminal trials, there were people expressing themselves in Creole. There was an interpreter. I agreed to the presence of an interpreter. The interpreter translated their answers into French but not the questions because they had a level of comprehension of French that allowed them to understand very well what I was saying…. In those situations, we let them express themselves in Creole. I want to make it clear that these were people who had been educated in French schools.”Footnote ³⁴ Note the judge’s insistence that he agreed to the presence of an interpreter and that the litigants had been educated in French schools. The subtext here is that native people can speak French but refuse to. The assistance of an interpreter is presented as an act of grace rather than a right or a measure to ensure a fair trial.

Given their assumption that French proficiency is universal, some metropolitan magistrats experience litigants’ requests to speak in their native tongue as political separatist challenges. As a judge posted overseas declared, “Nowadays all small children in [name of territory] learn French, and, besides, everyone speaks French here so the demand for Creole is a separatist claim. We are in a French country, a French département, so it’s normal that people speak French, all the more since everyone speaks it. Those who demand to speak in Creole in court, these are separatist claims, which in my view have no place in our French history. I myself am Breton, so I’m very attached to regional languages, but I don’t confuse everything. Before a French court I must speak French.”Footnote ³⁵ Ironically, Brittany has a long history of resisting the use of French in courts. The French government’s war against regional languages peaked from the end of the 19th century until the 1950s, but in Brittany the issue of court language was alive well into the 1980s. During that decade, some courts still allowed interpreters for Breton speakers, while others refused on the principle that “the language of procedure before French tribunals is the French language” (Abalain Reference Abalain2000, 86–87). The split came to a halt only when the Ministry of Justice intervened to admonish that French is the sole authorized court language.

In the overseas départements, I understand the insistence that French be the sole court language as a symptom of the more diffuse refusal in French society to see them as neocolonies. Everyone is expected to speak French because of the fiction that these regions are an integral part of the nation-state. Allowing linguistic pluralism would be an acknowledgment that, in fact, they are populated by diverse citizens, many of whom are not native French speakers and do not recognize the legitimacy of a metropolitan-led court system on their land. Tellingly, during the colonial period, when it was clear to everyone that the colonies were not France, the judiciary entertained a more generous language policy. Colonial magistrats not only were accompanied everywhere by interpreters but also studied languages commonly spoken in the colonies so as to better communicate with local colleagues and litigants.

Metropolitan magistrats may be correct that some requests for interpretation are acts of defiance against what is perceived as a colonial justice system. Yet when I inquired about the political dimension of language, metropolitans tended to minimize local resistance or to assert that if it existed, it was circumscribed to a couple “problematic” territories. For instance, a judge assured me that while “identity conflicts” are common in the Antilles and French Guiana, they are rare in Réunion, presented as a harmonious “melting pot, which functions quite well”—a surprising statement given the island’s recent history of rioting.Footnote ³⁶ The issue of political protests against overseas courts elicited awkward interactions with research subjects. A white metropolitan judge with long experience in the overseas judiciary became irritated when I inquired about the local resistance to the judiciary. He affirmed that he had witnessed “rejection attitudes” in only one Caribbean Island, immediately adding, “Most importantly, it was rare. You may want to write a striking article saying that the French justice system is beset by this type of difficulties, but be watchful of what I’m telling you, don’t be selective in my account, these remained isolated events.”Footnote ³⁷

* * *

To some extent, this reaction exemplifies the reluctance of white metropolitan magistrats to face the colonial history of the judiciary and its continued subordinating effects. They are disposed to discuss cultural differences and occasionally to denounce overseas courts’ underrepresentation of native overseas citizens, but taking seriously instances of opposition to the justice system crosses the line. This is taboo, I surmise, because an open debate would implicate the judiciary, among other public institutions, as a contributor to continued racial and colonial subordination. The ethos of French magistrats is one of self-sacrifice and service. Trained to see themselves as color-blind agents of the republic (Lasser Reference Lasser2004), fighting in the trenches for the public good, the cognitive dissonance involved in this realization would be massive.

Thus far, the argument has focused on the contemporary overseas judiciary. The next section goes back in time to suggest that the colonial-era judiciary may have been in some respects more attuned to its users and their cultural environment than its present-day embodiment.