The Language of Law and Food: Metaphors of Recipes and Rules 2020050517, 2020050518, 9780367747954, 9781003159599, 9780367747961

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Juris Diversitas

THE LANGUAGE OF LAW AND FOOD METAPHORS OF RECIPES AND RULES Edited by Salvatore Mancuso

The Language of Law and Food

This book reconsiders the use of food metaphors and the relationship between law and food in an interdisciplinary perspective to examine how food related topics can be used to describe or identify rules, norms, or prescriptions of all kinds. The links between law and food are as old as the concept of law. Many authors have been using such links in creative ways to express specifc features of law. This is because the language of food and cooking offers legal thinkers and teachers mouthwatering metaphors, comparing rules to recipes, and their combination to culinary processes. This collection focuses on this relationship between law and food and takes us far beyond their mere interaction, to explore different ways of using these two apparently so diverse elements to describe different phenomena of the legal reality. The authors use the link between food and law to describe different aspects of the legal landscape in different areas and jurisdictions. Bringing together metaphors and indirect correlations between law and food, the book explores different models of approaching legal issues and considering different legal challenges from a completely new perspective, in line with the multidisciplinary approach that leads comparative legal studies today and, to a certain extent, revisiting and enriching it. The book will be of interest to academics and researchers working in the areas of law and food, law and language, and comparative legal studies. Salvatore Mancuso is a Professor of Comparative Law and Legal Anthropology at the University of Palermo, Italy, and Honorary Professor of African Law at the Centre for African Laws and Society of Xiangtan University, China. He is also an Adjunct Professor at Loyola University Chicago, John Felice Rome Center, Italy, and a Visiting Professor at the Somali National University, Mogadishu, Somalia.

Juris Diversitas Rooted in comparative law, the Juris Diversitas series focuses on the interdisciplinary study of legal and normative mixtures and movements. Our interest is in comparison broadly conceived, extending beyond law narrowly understood to related felds. Titles might be geographical or temporal comparisons. They could focus on theory and methodology, substantive law, or legal cultures. They could investigate offcial or unoffcial ‘legalities’, past and present and around the world. And, to effectively cross spatial, temporal, and normative boundaries, inter- and multi-disciplinary research is particularly welcome. Series Editor: Ignazio Castellucci; University of Teramo, Italy Editorial Board: Olivier Moréteau – Louisiana State University, US Lukas Heckendorn Urscheler – Swiss Institute of Comparative Law, Switzerland Salvatore Mancuso – University of Palermo, Italy Christa Rautenbach – North-West University, Potchefstroom, South Africa Emmanuel Didier – Avocat and Attorney at law; Docteur d’État en Droit Series Advisory Board: Philip Bailhache – Jersey, UK Sue Farran – Northumbria, UK Seán Patrick Donlan – Thompson Rivers University, Canada Marie Goré – Pantheon-Assas (Paris 2), France Werner Menski – SOAS, London, UK (Emeritus) Esin Örücü – Glasgow, UK (Emeritus) Vernon Valentine Palmer – Tulane, US Rodolfo Sacco – Turin, Italy (Emeritus) William Twining – University College London, UK (Emeritus) and Miami, US Jacques Vanderlinden – Free University of Brussels, Belgium (Emeritus) and Moncton, Canada (Emeritus) Other titles in this series: Law and the New Urban Agenda Edited by Nestor M. Davidson and Geeta Tewari Law and Food Regulatory Recipes of Culinary Issues Edited by Salvatore Mancuso Law and the Language of Food Metaphors of Recipes and Rules Edited by Salvatore Mancuso For more information about this series, please visit: www.routledge.com/Juris-D iversitas/book-series/JURISDIV

The Language of Law and Food Metaphors of Recipes and Rules Edited by

Salvatore Mancuso

First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 selection and editorial matter, Salvatore Mancuso; individual chapters, the contributors The right of Salvatore Mancuso to be identifed as the author of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identifcation and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Mancuso, Salvatore, 1963- editor. Title: The language of law and food : metaphors of recipes and rules / edited by Salvatore Mancuso. Description: Milton Park, Abingdon, Oxon ; New York, NY : Routledge, 2021. | Series: Juris diversitas | Includes bibliographical references and index. Identifers: LCCN 2020050517 (print) | LCCN 2020050518 (ebook) | ISBN 9780367747954 (hardback) | ISBN 9781003159599 (ebook) Subjects: LCSH: Law. | Food. | Culture and law | Food law and legislation. Classifcation: LCC K556 .L36 2021 (print) | LCC K556 (ebook) | DDC 340/.14--dc23 LC record available at https://lccn.loc.gov/2020050517 LC ebook record available at https://lccn.loc.gov/2020050518 ISBN: 978-0-367-74795-4 (hbk) ISBN: 978-0-367-74796-1 (pbk) ISBN: 978-1-003-15959-9 (ebk) Typeset in Galliard by Deanta Global Publishing Services, Chennai, India

Contents

Contributors 1 Introduction

vii 1

SALVATORE MANCUSO

PART I

Culinary metaphors to represent law 2 Analogies and fgures of speech in food and law: the fun side of law!

9 11

CHRISTA RAUTENBACH

3 Le droit louisianais, un gombo qui s’offre en partage

21

OLIVIER MORÉTEAU

4 Les ingrédients et les recettes de la cuisine juridique québécoise: entre mixité et pluralité

39

MATTHIEU JUNEAU

5 Involvement of Polish legal elites in preparing a new draft of the Civil Code, seen as an intellectual feast – menu à la carte or fast food?

48

MICHAŁ GAŁĘDEK AND ANNA KLIMASZEWSKA

PART II

Food as an object of regulation: legal constructions 6 Globalization, Americanization, and the epidemic of human obesity: fnding the legal reason for a symptom of cultural decline JOSEPH P. GARSKE

69

71

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Contents

7 The new prisoner’s dilemma: the right to refuse feeding or force-feeding as a duty?

106

FABIO RATTO TRABUCCO

8 Food as punishment, food as dignity: the legal treatment of food in prison

127

MARIA CHIARA LOCCHI

9 ‘Elusive and fugitive’ – relationships between water, law, culture and survival

144

FRANCINE ROCHFORD

10 Does the EU legislation on the protection of farm animals protect their welfare?

159

MOA NÄSSTRÖM

PART III

Consumer protection aspects

191

11 Intellectual property law: Europe adopts a European patent with unitary effect and Unifed Patent Court

193

ALICE PEZARD

12 La procédure participative avec avocat, un nouveau mode de règlement amiable des litiges au service du consommateur ? 204 SYLVIE BISSALOUÉ

13 Product liability from a comparative perspective: what kinds of protection?

216

DOMITILLA VANNI DI SAN VINCENZO

Index

227

Contributors

Sylvie Bissaloué is Lecturer and Researcher at the Institute of Technology of the University of Lyon III, France, at the Faculty of Law of the University of Parakou, Benin, and the Haute École Régionale de Commerce International of the University of Abomey-Calavi, Benin. She is attorney at law at the Lyon Bar in France and is the current legal counsel to the Minister of State in charge of the Planning and Development of Benin. She holds a PhD in private law. Michał Gałędek is Associate Professor of Legal History and Director of Postgraduate Studies on Research Methodology in Legal Science at the Faculty of Law and Administration of the University of Gdańsk, Poland. Joseph P. Garske writes and speaks on topics of legal culture, technology and globalization. He holds a BA in social science (history) from Harvard University, USA, and is Chairman of The Global Conversation. Matthieu Juneau has been a member of the Québec Bar since 2003 and is an LLD student at Université Laval in Québec City, Canada. He holds a frst degree in history from Université de Montréal, Canada. He studied law at McGill University, Canada, where he obtained degrees in both civil law and common law. He holds an LLM from Université Laval, Canada. Anna Klimaszewska is Assistant Professor in the Department of Legal History at the Faculty of Law and Administration and Director of the School of French Law at the same faculty, University of Gdańsk, Poland. She holds a PhD from the University of Gdańsk. Maria Chiara Locchi is Researcher in Comparative Public Law at the University of Perugia, Department of Law, Italy. Salvatore Mancuso is Professor of Comparative Law and Legal Anthropology in the Department of Political Sciences and International Relations at the University of Palermo, Italy. He is also Honorary Professor of African Law, Xiangtan University, China, Visiting Professor at the Somali National University and Adjunct Professor at Loyola University Chicago, John Felice Rome Centre, Italy. He is a member of the International Academy of

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Contributors Comparative Law, and Vice President (Events) of the Juris Diversitas group. He holds a PhD in Comparative Law from the University of Trieste, Italy.

Olivier Moréteau is Professor of Law, frst holder of the Russell B. Long Eminent Scholars Academic Chair, at the Louisiana State University (LSU) Paul M. Hébert Law Center, USA. He is former Director of the Édouard Lambert Institute of Comparative Law at the Université Jean Moulin Lyon 3, France. He holds memberships in the International Academy of Comparative Law, the European Group on Tort Law (Emeritus), the European Centre of Tort and Insurance Law, the Société de législation comparée, the American Law Institute, the World Society of Mixed Jurisdiction Jurists, the European Society of Comparative Legal History and is President of Juris Diversitas. Moa Näsström is currently Associate Researcher in an interdisciplinary project at the Department of Political Science at the University of Gothenburg, Sweden. She holds a PhD in EU law from the University of Leeds, UK, and an LLM in European socio-economic law, also from the University of Leeds. Alice Pezard is a former judge in the Supreme Court of Paris and presently an attorney at law in Paris, France. Fabio Ratto Trabucco is Adjunct Professor in Public Law at the University of Padua, Italy, and Visiting Researcher in several universities of Central-Eastern EU countries. Christa Rautenbach is Professor of Law at the North-West University (Potchefstroom Campus), South Africa, and Secretary of Juris Diversitas. Also, alumnus of the Alexander von Humboldt Foundation in Germany, fellow of the Käte Hamburger Centre of Advanced Study “Law as Culture”, Bonn, and a member of the Academy of Science of South Africa. Francine Rochford is Associate Professor in the Law School at La Trobe University in Victoria, Australia. Domitilla Vanni di San Vincenzo is Associate Professor in Comparative Law in the Department of Law at the University of Palermo, Italy.

1

Introduction Salvatore Mancuso

The chapters in this book represent the attempt of numerous scholars to use the link between food and law to describe different aspects of the legal landscape in different areas and jurisdictions. This book constitutes a partial outcome of the ffth Juris Diversitas General Conference.1 As mentioned in the conference description, the intention of the association in calling this conference was to revisit its culinary origins, expressed in the logo where the Louisianan gumbo is shown, and that represents the diverse and multidisciplinary approach that the association wants to promote for comparative legal studies. As already mentioned in the call for papers, it cannot be doubted that the links between law and food are as old as the concept of law. Babylon, Egypt, Greece, and Rome cared about access to water resources and food, whether it came to trade or protection. Since time immemorial, Bhutan has made sure every citizen has access to a minimum acreage of land to secure food for the family. Historically, in Africa land is managed by the chief of the community to be used by the individuals to produce food not only for their families, but also to contribute to the general needs of the entire community. Whilst religions multiplied food prohibitions and prescriptions, customs redistributed land, shared its occupancy in creative ways, or favored communal property so that everyone had access to food. Laws have multiplied to facilitate food trade, security, safety, traceability, and also to promote and protect food and wine production, using trademarks and geographical denominations. Food intended as a lifestyle symbol and as a palatable opportunity characterized by luxury and exclusivity is a worldwide reality. Restaurants and chefs run after the most important culinary honors and awards to show their ability and recognition. Food recipes are more and more considered as creative efforts and chefs inventing new food solutions ask for some sort of recognition and protection of their culinary achievements. In addition, the language of food and cooking offers legal thinkers and teachers mouth-watering metaphors, comparing rules to recipes, and their combination to culinary processes.

1 “Law and Food. La cuisine juridique” (Lyon, 10–12 July 2017), organized by Juris Diversitas, in partnership with EM Lyon Business School & Université Jean Moulin, Lyon.

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Salvatore Mancuso

This book’s rich collection of essays focuses on this last aspect of the relation between law and food and takes us far beyond their mere interaction, to explore different ways of using these two apparently so diverse elements to describe different phenomena of the legal reality. Merely going through the table of contents is suffcient to see how diversely the interaction between law and food can be imagined out of the legal discipline of food-related matters. By collecting in a separate book all these metaphors and indirect correlations between law and food, the aim was to explore different models of approaching legal issues and to consider different legal challenges from a completely new perspective, in line with the multidisciplinary approach that leads comparative legal studies today and, to a certain extent, revisiting and enriching it. Christa Rautenbach’s essay, that opens the book, deals perfectly with the thread of the present volume. Moving from the observation that analogies and metaphors are regularly used by lawyers and judges to explain how the law operates, the author frstly approaches the two concepts. Then, an analogy is identifed as a resemblance between things otherwise unlike, from which a comparison based on that resemblance is drawn. Moving to the legal context, the author explains how argumentation from analogy is a well-known form of legal reasoning, especially where an earlier decision is being followed in a later matter because of the existence of similarities between the two cases. In the essay it is also well explained how analogies have been used to clarify the law beyond the obvious example of case law reasoning. Here the discourse enters into the use of food as an element from which analogies are created to explain the intricacies of the law. The analysis is not limited to the “technical” discourses on the parallels between law and food, but casts also a glance to the metaphoric references to food and law that often appear in colloquial language too. The essay gives, therefore, a clear picture of some of the possible links between law and food, ultimately illustrating – in this way – the jolly side of the law. Fabio Ratto Trabucco’s contribution examines the issue of fasting as a form of protest by detainees and how a legal system should react to this. The theme is extremely interesting as it raises the need for a balance between the interest in life and physical integrity, on the one hand, and the freedom of acting in any manner that does not contravene the law, on the other, which must be granted in the same way both to the free citizen and to the prisoner. The author offers a comparative analysis of different jurisdictions where the theme has been dealt with, to show how the trend is to force-feed whenever fasting becomes a serious danger to the prisoner’s health. In particular, he underlines how in Italy there have been various bills to regulate the hypothesis of enforcing the prisoner’s feeding, while some judicial decisions have admitted, in certain circumstances and in compliance with specifc guarantees, the possibility of the prison administration to put such coercive treatment into practice; in Israel, the force-feeding of detainees who are on hunger strike was provided by a 2015 law that allows penitentiary authorities to apply for a permit to feed a prisoner at court if a doctor recommends it and there is an imminent danger of serious deterioration of the prisoner’s health; in the United States courts can issue an injunction authorizing the prison authorities

Introduction 3 to forcibly feed a prisoner on hunger strike. The author also reinforces his view noting how the European Court of Human Rights has repeatedly recognized the prevalence of the State’s obligation to protect the integrity of the detained person, and that force-feeding should not always be considered illegitimate. In her contribution, Sylvie Bissaloué analyzes how the protection granted to the French consumer has continued to grow over the years. Consumer protection is clearly a theme strictly connected to food consumption, as a series of normative rules have been adopted in numerous legal systems to offer to the consumer a clear picture of what he is eating or drinking, but goes far beyond it to cover all contractual relations between individuals and professionals, which are normally characterized by an unbalanced contractual power. Focusing on the French system, the author observes how the legislator found it useful to guarantee protection to consumers through a set of rules that derogate from the normal legal regime, with the aim of balancing the contractual power between individuals and retail professionals. Thus, she indicates that the framing of the contractual relationship by imposing on entrepreneurs the obligation of providing information and advice, the prohibition of the so-called abusive clauses and certain commercial practices, the recognition of the “right to a fresh start” for the consumer experiencing fnancial diffculties giving him the possibility to access special consumer credit, have been the frst and most visible measures. Then, the author underlines how consumer protection also necessarily requires a proper mechanism of settlement of disputes, focusing her attention on the participatory procedure – a newborn among amicable proceedings – that requires the parties to negotiate in the presence of their respective lawyers to reach an amicable solution to the dispute between them, to determine to which extent this procedure is relevant to consumer law disputes. Olivier Moréteau moves from gumbo – the typical Louisiana creole dish – that represents a powerful metaphor of the cultural mix that characterizes Louisiana. Extended to law, it allows us to understand how this state of the southern United States, heir to French and then Spanish colonization, was able to adopt a civil code while adopting common law in all other matters, and to entrust the development of law to a judicial system that operates mostly in the same manner as in the neighboring states. His chapter shows how Louisiana codifed yet rejected French positivism, trusting the judge more while abstaining from recognizing the binding force of precedents. The author underlines how the frst Code of 1808, modeled on the draft French Civil Code, was not quite a code, but a digest of pre-existing law, which is supposed to survive codifcation. Even though the previous law was repealed when the Code of 1825 was adopted, judgments on civil law matters combine jurisprudential and doctrinal references with the use of methods of interpretation of the law, but without the authority of the latter being affrmed loud and clear. Moréteau shows how ongoing code revisions refect continuity, while promoting convergence with the law of neighboring states. His chapter is extremely interesting from a comparative perspective, as it shows how in Louisiana continental law can resist common law linguistic contaminations by expressing continental law concepts through a terminology in the English

4

Salvatore Mancuso

language that may be described as “civil law in English”. The recent publication of the Louisiana Civil Code in an English-French bilingual edition gives a clear picture of such contamination giving the possibility to the reader – remaining in the food metaphor – to share in the gumbo experience. Matthieu Juneau’s chapter focuses on Quebec law, which is commonly described as mixed because it is at the intersection of the civil law and the common law traditions, as it has inherited rules and methods from France and England. In some cases, these rules and methods are found in different areas of the law, in other cases they have mixed. His contribution uses some culinary metaphors to distinguish and illustrate some concepts and phenomena specifc to Quebec. Matthieu Juneau uses the food metaphor by considering the above-mentioned rules and methods as culinary ingredients, to discover how this mixture of ingredients has been accompanied by a mixture of recipes, creating a new kitchen (Quebec law) alongside the old kitchens (continental law and common law), making it possible to therefore create new dishes. For the author, cooking, like Quebec law, is heavily indebted to France and England. He considers that law and legal culture borrowed from foreign models but remained indifferent to the legal systems peculiar to the frst inhabitants of the territory, as law and cooking know mixity and plurality in their own way. Moa Näsström’s chapter refers to farm animals, which in EU law are recognized as sentient beings and tradable goods at the same time. Her contribution critically examines the four main directives on the protection of the farm animals – and in particular three species’ specifc protection concerning pigs, laying hens, and broilers – from a zoocentric point of view. The zoocentric perspective focuses on the animals and enables an evaluation of whether the animals’ welfare needs are covered within the directives and if so, to what extent. In order to properly deal with such issue, Moa Näsström deems necessary to draw upon biological and ethological science, while frmly keeping the focus upon the legislation. She demonstrates that while the directives perform an adequate function regarding protecting the animals’ physical needs, they all fail to protect their welfare. The failure stems from the prevalent focus upon biology and the widespread disregard to ethological needs. Moa Näsström therefore concludes that while the European Union’s legislation does indeed protect the farm animals, it does not protect their welfare needs. Joseph P. Garske makes an extremely interesting parallel between Anglophone legal culture and its possible infuence on the diet and health of peoples and regions in the project of globalization. He examines how the underlying values and assumptions of that law – by their very nature – encourage a human pathology of addiction, disease, obesity, and morbidity. His paper examines how underlying values, assumptions, and necessities are manifest in a certain form of legality and are able to determine habits of nutrition and patterns of health across a broad population. He explains how pathological effects, both inevitable and explainable, derive from the common law on which the global idea of rule of law is based. The study employs both a historical and a comparative approach, using the continental legal tradition as an alternative example. It explains how those

Introduction 5 two legal cultures balance their adjudicative and educative elements in different ways, and how those differences began in the medieval era and developed in parallel over centuries. In particular, Garske observes that, from a philosophical perspective, European continental law emerged from a university tradition of knowledge that encompassed all of learning and is infuenced by what historians call the Enlightenment with its optimistic view of human nature. On the other side, common law arose from medieval guilds of trade that, by proprietary technique, dispensed royal justice as a system of commerce, working in camera, upon litigants objectifed by writ, considering cultivation and learning among the public with apprehension. In its modern version, common law became more able to encourage a maximized wealth production and a centralized mode of governance over colonial territories and peoples around the earth. In the global age, an American version of this law became predominant, with the human being as aggregate of rights, its commercial values, and its strict division of legal and academic knowledge. Domitilla Vanni di San Vincenzo’s chapter analyzes English and Italian case law in the matter of tort law by exploring differences and analogies between those two legal systems and focusing on the extraordinary relevance of food in opening up new frontiers of tort liability. The author considers how this strong connection between food and tort law may originate from the deep link existing between food and human life in its different aspects, so that both in common law and in civil law systems it is to be presumed that damages deriving from food packaging defects – by jeopardizing human health – attracted the attention of the courts to become the way through which tort law has broadened its frontiers, increasing the instruments of legal protection and anticipating European Union Directive 1985/374 in the area of product liability and European Court of Justice (ECJ) case law on it. The research discloses that the current legal framework in this area is fragmented and rather unsatisfactory and that possible signifcant differences existing between national consumer laws in the jurisdictions to which the trader and the consumer belong may deter them from cross-border transactions. The author is of the opinion that the sometimes fragmentary and overly detailed nature of EU legislation points to the need for regulatory reforms in parallel with the introduction of a new legal structure. Firstly, instead of directives or regulations, transactions in the internal market could be more appropriate to ensure a coherent and accessible legal framework for consumers. Secondly, the proposal for change suggests that EU action should concentrate on the cross-border context, and more particularly on transactions concluded by distance means, mainly in the context of e-commerce. Francine Rochford deals with water law. She moves from the consideration that lawyers’ instincts are to tame the concept of water, but water requires compromise spatially, temporally, and conceptually. In law, water is mostly categorized as sui generis, changing its nature from public, to personal and potentially to an incident of real property. Scarcity or overabundance of water demands that it be governed differently over time and depending on the nature of the geographical space. Taking a historical and comparative perspective, Rochford’s contribution

6

Salvatore Mancuso

considers the pressures placed on the legal analysis of water law by geography, geology, culture, time, economics, and philosophy too. She concludes that caution, compromise, and a long gaze must be used to understand the nature of water, and the application of ideological fashion to water governance will not survive the next period of critical water shortage or excess. She also considers the current trend to marketize water resources, facilitating the trade and purchase of water without any necessity to consume it, and the periodic failure of the market concept to contain the ferocity of water in its real and cultural incidents. In their chapter, Michał Gałędek and Anna Klimaszewska focus on issues connected with the development of Polish civil law following regaining independence in 1918. They consider the creation of a uniform legal system as the fundamental task aimed at the integration of the Polish society, which had been divided under the rule of various states and their legal orders for over a century. The essay underlines how, until the completion of national codifcation work, four different legal systems functioned in the Polish territories through the codes of the three partitioning states, namely Germany (inter alia BGB), Austria (inter alia ABGB), and Russia, as well as an original mixed legal system, in force in the so-called Kingdom of Poland, which was heavily infuenced by French Law (inter alia by French civil code). Together with the offcial law customs and habits had formed in the individual districts, and the attitude toward the law and the imposing authorities was also different. In their contribution, the authors attempt to answer the questions of what codifcation strategies were pursued by the representatives of the Polish legal and political elite in order to build a new unifed legal system from this veritable mosaic of particular laws, and to effectively implement it into a society that had been raised in different conditions. This leads to the identifcation of the strategy that was adopted for the creation of a new “national codifcation” that could satisfy the criteria of a modern law and, at the same time, that could be easily assimilated into Polish society and adjusted to the socioeconomic conditions of Central Eastern Europe. On a different perspective from Fabio Ratto Trabucco’s contribution, Maria Chiara Locchi’s paper aims at deepening, from a comparative perspective, the legal treatment of food in the context of prison, by analyzing relevant constitutional norms, legislation, and judicial decisions that deal with the ambiguous and multifaceted nature of “prison food” as a service to be supplied by the prison administration and, on the side of prisoners, as both a fundamental right and an instrument of fghting. The starting point of her analysis is that, in prison, nutrition, as an activity essential to human survival and wellbeing, is subtracted from the domain of “liberty” and transferred to the “discretionary power” of the administration. Although the administrative discretion is limited by the fundamental right of prisoners to an “adequate” food, the prison administration is likely to provide nutrition service by pursuing also (and foremost) the system’s effciency and effectiveness, as well as a sort of “moral” idea of (scarce and poor quality) food as a component of punishment. Here the dimension of food as a fundamental right closely connected to the dignity of prisoners is multifaceted, ranging from inadequate food as a degrading treatment violating human dignity

Introduction 7 to a nutrition diet that must guarantee the respect of the right to health, the right to cultural and religious identity and the right to personal thought and ethical beliefs (e.g. a question of vegetarianism and veganism not related to a religious belief). Maria Chiara Locchi also touches upon food as an instrument of fghting inside prisons, with regard to hunger strikes and the many controversial legal aspects raised by force-feeding of prisoners staging a hunger strike. Finally, Alice Pezard deals with the issue of the European patent and its implications on food-related issues. She moves from the European patent created by the European Union with unitary effect, and the set-up of a Unifed Patent Court. The contribution observes that such a new mechanism is the result of a great number of compromises between member states and is considered too complex by some. Nevertheless, she considers it essential within a globalized industrial economy and an instrument able to reinforce legal certainty as well as competitiveness with American and Asian partners. Among other topics, the essay then touches upon the litigations concerning food, recipes, and wine, considering food-related matters an important sector to test the validity of the system and its suitability to protect patentable inventions. This volume captures broad, ongoing, and crucial conversations about different aspects, forms, and the nature of law using metaphors from food and food-related matters. Research on the interrelations between law and food must continue and shall have a comparative perspective to be both critical and constructive. Speaking coherently about these two elements apparently so diverse among them will require a continuous assessment of the continuing changes and developments on how law can contribute to serve excellent “food (and beverages)” in different jurisdictions. This endeavor will also contribute to exploring new possibilities of using law as a food for minds and, consequently, to coin new metaphors and correlations between law and food and – more generally – to use food as an instrument to understand law. The aim of this collection of essays has been to provide original ways on and insight into different aspects of law using metaphors and correlations between law and food. Whatever the type of food (or liquid) used, we hope that the analyses in this volume will be helpful for scholars and students with an interest in comparative law approached in an original way, stimulate new refections on original ways to approach legal research, and provide inspiration to pursue further appetizing enquiries.

Part I

Culinary metaphors to represent law

2

Analogies and fgures of speech in food and law The fun side of law! Christa Rautenbach

Introduction Law can also be fun. The signature dish of Juris Diversitas, for example, is gumbo, which symbolises Juris Diversitas’ interest in “legal and normative gumbos around the world”.1 Gumbo, as the non-scientifc Wikipedia encyclopaedia will tell you, is a stew that originated in southern Louisiana during the 18th century. Several different varieties exist, and it “combines ingredients and culinary practices of several cultures, including French, Spanish, German, West African, and Choctaw”.2 Therefore, this stew denotes the “gumbo of infuences”3 that Juris Diversitas stands for and even encourages. Gumbo is not the only metaphor useful in describing the connection between law and food. The links are as “old as the concept of law”,4 which immediately made me think of a less tasty metaphor used during Biblical times:5 Then I said, ‘Listen, you leaders of Jacob, you rulers of Israel. Should you not embrace justice, you who hate good and love evil; who tear the skin from my people and the fesh from their bones; who eat my people’s fesh, strip off their skin and break their bones in pieces; who chop them up like meat for the pan, like fesh for the pot?’ Then they will cry out to the Lord, but he

1 The blogspot of Juris Diversitas explains the meaning of gumbo as follows: “As gumbo is a cultural hybrid made of many different ingredients, the phrase is also sometimes used with reference to other mixtures. For example, zydeco, a Louisiana musical mix of rhythm and blues, country, Cajun, etc., has been described as having ‘a gumbo of infuences’. In fact, the word ‘zydeco’ is itself a mispronunciation of ‘les haricots’ from the song ‘Les haricots ne sont pas salés’.” See Juris Diversitas blog at http://jurisdiversitas.blogspot.com/p/gumbo.html, accessed on 31 October 2020. 2 See Wikipedia at https://en.wikipedia.org/wiki/Gumbo, accessed on 4 July 2017. 3 Juris Diversitas blog at http://jurisdiversitas.blogspot.co.za/p/gumbo.html, accessed on 4 July 2017. 4 The expression was used in the Juris Diversitas’ Call for Papers for its ffth Annual Conference on Law and Food held in July 2017 in Lyon. See Juris Diversitas blog at http://jurisdiversit as.blogspot.com/p/blog-page.html, accessed on 31 October 2020. 5 Micah 3:1–4, Holy Bible, New International Version, at https://www.biblegateway.com/p assage/?search=mica3:1-4&version=NIV, accessed on 6 July 2017.

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Christa Rautenbach will not answer them. At that time he will hide his face from them because of the evil they have done.

The images that this food metaphor conjures up are horrendous, but they do succeed in illustrating the old nexus between law and food. Food is necessary for life. There is no doubt that it is a communal experience, something shared between people. Just as with physical food, the law affects nearly every aspect of our lives day by day. In whatever form or shape, law helps to ensure a safe and peaceful society by settling disputes between individuals and regulating the relationship between the state and society. The symbiotic relationship between law and food comes as no surprise. While the various topics discussed in this book demonstrate the interconnectedness of law and food in a scholarly context, the aim of my chapter is much more modest. My purpose is only to expound – tongue in cheek – some of the symbolic links between law and food, with the sole purpose of illustrating the jolly side of the law.

Food and/in law Using food analogies in law is an everyday occurrence. An analogy notes a resemblance between things otherwise unlike, and draws a comparison based on that resemblance. In a legal context, argumentation from analogy is a well-known form of reasoning,6 especially where an earlier decision is being followed in a later matter because of the existence of similarities between the two cases. This method of judicial reasoning is particularly visible in common law systems. It is also an essential strategy in South African law, where the courts follow the principle of stare decisis; meaning that the courts are bound by the decisions of higher courts and their own judgments.7 Analogies have also been used to clarify the law beyond the obvious example of case law reasoning. Drawing food analogies is, though certainly not a very scientifc way, a popular way of explaining the intricacies of the law. In other words, analogies between law and food are used as a teaching strategy. One such example is the comparison between a lawsuit and a recipe for a cake. To succeed with a lawsuit (a cake), a lawyer (the chef) needs to prove her/his case by proving the elements in a certain way; thus, s/he needs to follow the recipe. Failure to do so will result in a failed claim (a collapsed cake). I borrowed this analogy from a blog

6 However, some authors argue that the whole process of the analogising is poorly taught by legal educators and thus poorly practised by legal practitioners. See D. Hunter, “Teaching and Using Analogy in Law”, Journal of the Association of Legal Writing Directors, vol. 2, 2004, 151–68. 7 The Constitutional Court confrmed in Camps Bay Ratepayers and Residents Association v Harrison 2011 (4) SA 42 (CC) at para 28 that the doctrine is part of South African law, because it creates “certainty, predictability, reliability, equality, uniformity, [and] convenience”.

Analogies and fgures of speech 13 called “Larry Law Law”.8 Larry is a self-confessed tutor of law school students in the United States. He uses a food analogy to explain claims and defences. This is what he says: Think of claims or defenses as ‘legal recipes’ and elements as ‘ingredients’. You want to win a lawsuit (you want to eat a dish of something yummy). You have to follow the recipe and have every ingredient to have that dish of food. Think of something simple. A root beer foat. The recipe for a root beer foat requires: (1) 12 ounces of root beer; and (2) 1 scoop of ice cream… Now, you can have varying amounts of root beer and ice cream. But you have to have both to say, with a straight face, that you’ve got an ice cream foat… A law school fnal exam is like the TV show Iron Chef. For those of you who don’t know: On Iron Chef, you are given surprise ingredients and a limited amount of time, and have to make dishes using only the recipes (claims and defenses) you have in your head. What is going on in the head of the Iron Chef contestant at the beginning of the hour? She is reviewing the ingredients (what do I have?) and thinking ‘what can I make?’ But to do that well, she needs to have lots of recipes in her head, and she needs to be able to use them actively. She is not holding recipes in her hand to go shopping. … She has to mentally review the recipes in her head and think: what combinations of individual ingredients allow me to create what dishes? What am I going to make? Another cake metaphor is that of Samuel Walker.9 He uses a “wedding cake” metaphor to explain the theory of criminal justice in the United States. According to him, the criminal justice system can be divided into four layers which are comparable to the layers of a wedding cake. Depending on the seriousness of a crime, a case can be classifed as follows. The top level of the cake is reserved for notable cases which are highly publicised and therefore receive the entire muster of criminal justice procedures. The second layer denotes serious felonies made up of serious crimes committed by experienced offenders which usually require jury trials and prison sentences. Cases on the third layer are usually lessor felonies committed by frst-time offenders and thus less deserving of attention.

8 See http://larrylawlaw.com/, accessed 6 July 2017. 9 S. Walker, Sense and Nonsense about Crime and Drugs: A Policy Guide, 3rd edition (Belmont, CA: Wadsworth, 1994), 30–44.

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In contrast, cases on the lowest layer of the cake consist of misdemeanours which include crimes such as shoplifting and disorderly conduct. These types of cases are quickly disposed of in the lower courts and call for alternative sentences such as fnes or community service. Closer to home, and a more extreme example, is the eggshell skull doctrine South Africa received from English law.10 The doctrine is based on an imaginary person who has an exceptionally thin skull, as delicate as an eggshell; looking utterly normal from the outside but incredibly fragile nonetheless. When a person suffers damage or death due to unexpected frailty, such a victim is referred to as an “eggshell skull case”. Once it is established that a person is more susceptible to injury than an average person would be, the offender is liable for the increased damage because of his or her wrongdoing, and the condition of the victim cannot operate as a defence in the offender’s favour. The doctrine is expressed in the maxim: “You must take your victim as you fnd him”.11 Thus, an offender who negligently injures another without making enquiries to the state of health of such a person, cannot be heard to say that he could not foresee that the [injured person] might be in poor health, which might aggravate his injury. Not everyone is healthy; indeed, frailty of one kind or another is so common that it is quite on the cards that the victim of negligence will have some weakness. The fact that the weakness from which he suffers is a rare one need not affect the question, since the details of the occurrence need not be foreseeable.12 In the South African case of Wilson v Birt,13 the plaintiff had an abnormal condition caused by an earlier stab wound to his forehead, which caused the removal of a piece of his skull bone. During the dismantling of scaffolding a pole fell on his head, which caused an injury that aggravated his pre-existing condition. He applied for damages within the scope of his employment. The Court found that the dismantling of scaffolding was a dangerous activity that required the exercise of the duty of care but that the plaintiff was also partly to blame, which was determined at 50 per cent in the circumstances. The next step was to determine the amount of the damage to be awarded, and the question was whether the preexisting condition should infuence the amount to be awarded. The Court held

10 Wilson v Birt [1963] (2) SA 508 (D); Minister of Safety and Security v Sibili [2003] 4 All SA 451 (Tk); Majiet v Santam Limited [1997] 4 All SA 555 (C); E R v GANI [1958] 1 All SA 387 (A); Gibson v Berkowitz [1997] 1 All SA 99 (W); Masiba v Constantia Insurance Co Ltd [1982] 2 All SA 374 (C); Prinsloo v Road Accident Fund [2015] JOL 33849 (WCC); Sauls v Road Accident Fund [2001] JOL 9194 (C). 11 N. J. Van der Merwe and P. J. J. Olivier, Die Onregmatige Daad in die Suid-Afrikaanse Reg (Pretoria: JP van der Walt en Seun, 1985), 207; C. R. Snyman, Criminal Law, 6th edition (Durban: LexisNexis, 2014), 93. 12 G. Williams, “The Risk Principle”, The Law Quarterly, vol. 77, 1961, 179 at 195, cited with approval in Wilson v Birt [1963] (2) SA 508 (D) at 516E-G. 13 [1963] 2 All SA 602 (D).

Analogies and fgures of speech 15 that it was established law that a negligent defendant must take his victim as he fnds him, which in this case meant that14 once the variety of damage which has in fact taken place could reasonably have been foreseen then the fact that the particular plaintiff is peculiarly prone to more excessive injury is not relevant to a decision of the defendant’s liability. Analogous to English case law, South African cases have extended the eggshell skull cases to non-physical conditions such as pre-existing nervous illnesses (socalled “eggshell skull personality”).15 In Minister of Safety & Security v Sibili16 the applicant sued the South African Minister of Safety and Security for damages after a policeman killed her daughter. Despite this being a case that dealt with a delictual claim (a tort claim) based on vicarious liability, the Court was sympathetic toward the previous disadvantaged position of the plaintiff:17 The plaintiff is one of the many disadvantaged in our country and her history is typical of many of those unfortunate ones in society. She was born on 22 May 1958. She was not employed at the time of the shooting. She used to do part-time jobs. In the past she was working at a fsh and chips shop as a cooker. However, it was not so much her history but the fact that she suffered from a heart condition that qualifed her as having an eggshell skull personality.18 Before the shooting she had an ailment, she suffered from a heart condition, and she had a heart attack. As such she can then be described as having had a condition being commonly referred to as ‘a thin skull’, being the term used to describe a person suffering from a condition which would make that person more readily susceptible to injury in some respects, than the normal person. If she would suffer a shock her existing heart condition would make her more susceptible to PTSD [post-traumatic stress disorder] than the ordinary person.

14 Wilson v Birt [1963] 2 All SA 602 (D) 610. 15 See Malcolm v Broadhurst [1970] 3 All ER 508 where the Queen’s Bench Division held that a wife was entitled to compensation for her loss of wages, including a sum “for her nervous disability” during the time she did not work, “because exacerbation of her nervous condition was a foreseeable consequence of injuring her since the defendant must take a plaintiff as he found her and there was no difference in principle between an egg-shell skull and an egg-shell personality”. Emphasis added. And also Gibson v Berkowitz [1997] 1 All SA 99 (W) where the South African Witwatersrand Local Division also applied the doctrine to a post-traumatic condition. 16 [2003] JOL 12112 (Tk). 17 Minister of Safety & Security v Sibili [2003] JOL 12112 (Tk), para 21. 18 Ibid.

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Her precondition – her heart condition – placed her in the thin skull category. When she saw the body of her daughter, she “snapped” because she was “more susceptible to psychiatric injury and emotional shock than an ordinary person and her sustaining PTSD was thus to be expected”.19 Moving away from eggshell skull cases, another illustration of the link between food and law also comes from the United States in the form of the so-called “lemon laws”. The sour or perhaps undesirable taste of a lemon is used in connection with the state laws dealing with the purchase of defective vehicles, which are referred to as “lemon cars”.20 These laws provide remedies for the purchasers of cars which fail to meet the standards of quality and performance and which could not be fxed by the dealer within a certain period. The laws in the states differ, but in general the law requires a dealer to buy back the defective vehicle, to refund the purchase price, or to replace it. Food metaphors were also used in other events of Juris Diversitas. In 2013, Esin Örücü delivered the keynote speech at the annual conference of Juris Diversitas with the theme “diffusion”.21 She used a ftting image of a teabag to explain her understanding of the difference between “diffusion” and “infusion”. Diffusion, according to her, can be compared with the process of dropping a teabag into a cup of tea.22 Infusion, on the other hand, means introducing a modifying element of quality; a mixing process similar to the tea favour spreading all over in the teacup. As time progresses, this favour becomes more vigorous and eventually reaches saturation to complete the mix – thus a fully transformed mixed legal system.23 Örücü is no stranger to food metaphors in the context of mixed legal systems. She employed, for example, the image of a salad to describe the different ways in which laws systems might blend.24 She broadly identifes three types of salads in correlation with mixed legal systems. The frst one is a “simple” mixed legal system where “the ingredients [culture and law] being still in the process of blending but in need of further processing if a ‘puree’ is to be produced”.25 The second

19 Ibid., para 33. 20 For more information on “lemon laws”, see M. C. Jasper, Lemon Laws (New York, NY: Oceana, 2005). 21 Also see her discussion of diffusion and infusion in E. Örücü, “Infusion of the Diffused: Four Circles of Diffusion Infusing the Legal System of Turkey”, in The Diffusion of Law: The Movement of Laws and Norms around the World, eds. S. Farran, J. Gallen, J. Hendry, and C. Rautenbach (England: Ashgate, 2015), 7–24. 22 This makes sense if one considers that the chemical meaning of diffusion “is the movement of a substance from an area of high concentration of that substance to an area of lower concentration”. See https://www.collinsdictionary.com/dictionary/english/diffusi on, accessed on 1 November 2020. 23 Also see the dictionary meaning of “infusion” at https://www.collinsdictionary.com/dictio nary/english/infusion, accessed on 1 November 2020. 24 E. Örücü, “Family Trees for Legal Systems: Towards a Contemporary Approach”, in Epistemology and Methodology of Comparative Law, ed. Van Hoecke (London: Hart Publishing, 2004), 359–76. 25 Ibid., at 180.

Analogies and fgures of speech 17 one is a “complex” mixed legal system where the culture and law elements are different. This mix, she says, resembles the “‘Italian salad bowl’, where, although the salad dressing covers the salad, it is easy to detect the individual ingredients clearly through the sides of the glass bowl”.26 The last category describes the superfcial process of mixing such as the “English salad plate”, where the “ingredients sitting separately, far apart on a fat plate with a blob of mayonnaise to the side into which the different ingredients can be dipped before consumption”.27 The parallels between the diffusion and infusion of tea and laws are also apparent in the development of transplanted law in South Africa.28 Initially, from 1652, a Dutch settlement in the Cape saw the import of Roman–Dutch law principles. Though it remained the law of the land, it was greatly infuenced by English common law after the second British occupation in 1806.29 Today this fusion is a pluralistic mix made up of civil law (Roman–Dutch law) and common law (English law) elements. To describe this process, I have also previously used a food metaphor, namely “potfood”.30 Potfood, known in the colloquial language as “potjiekos”, is uniquely South African. It is a friendly food, to be enjoyed by rich or poor, young and old, city dwellers and country folk. It is the perfect food to serve to a crowd of friends. Potfood is traditionally made around an open fre, preferably in the company of good friends, and with a mixture of meat and vegetables, packed in distinct layers. At the end of the cooking, the layered food has a delicious meaty favour – similar to the process of infusion as described above with the teabag. In the potfood metaphor the meat refers to the South African Constitution31 – the supreme law – and the vegetables symbolise the state and non-state laws which consist of the common law, African customary law, and the

26 Ibid. 27 Ibid. 28 In this context the word “Western” is used as a generic term to refer to the Netherlands and England, the political involvement of both of which in South Africa played a major role in the development of the South African legal system. The “mix” refers to the fusion or mix of Roman–Dutch law and English common law. 29 The Roman–Dutch legal system that existed in the province of Holland during the 17th century forms the basis of South African common law. This system was introduced into South Africa from 1652 onwards. After the British invasion it was proclaimed that the Roman– Dutch law – as it was in force in 1806 – would prevail in the Cape. In spite of the policy to retain Roman–Dutch law in the Cape during the British occupation (1795–1803, and again from 1806 onwards), certain areas of law became anglicised, especially in the area of business, government, and procedural law. The Roman–Dutch infuence is most visible in criminal and substantive private law. With the extension of the British Empire and the establishment of the Dutch colonies, Roman–Dutch law expanded to the rest of South Africa. This situation has continued to prevail, even although South Africa became independent from Britain. On 11 December 1931 South Africa became independent from Britain but the British monarch remained the head of state. On 31 May 1961 South Africa severed all ties with Britain and became a republic, though strong links with English common law remain. 30 C. Rautenbach, “Mixing South African Common Law and Customary Law of Intestate Succession: ‘Potjiekos’ in the Making,” in JCL Studies in Comparative Law: Mixed Legal Systems at New Frontiers, ed. E. Örücü (London: Wildy, Simmonds & Hill, 2010), 222–40. 31 Constitution of the Republic of South Africa, 1996.

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legal norms of unrecognised religious legal systems. As this pot with its mix of laws simmers on – the fre resembling the volatility of the whole process – the Constitutional favour is what makes the end product something to be enjoyed by all. However, one’s taste in food is highly personal, and not everyone might enjoy it, thus refecting the different viewpoints on the success of the South African transformation from an undemocratic state into a democratic one. I recently discovered that my potfood metaphor was not as innovative as I thought. A similar image is used to describe the infux of immigrants with different backgrounds into relatively homogenous societies in the United States. The idea of a “melting pot” is used to describe this phenomenon.32 Its origins and meaning are explained as follows:33 The melting pot is a metaphor for a heterogeneous society becoming more homogeneous, the different elements ‘melting together’ into a harmonious whole with a common culture or vice versa, for a homogeneous society becoming more heterogeneous through the infux of foreign elements with different cultural backgrounds with a potential creation of disharmony with the previous culture. Historically, it is often used to describe the assimilation of immigrants to the United States. The melting-together metaphor was in use by the 1780s. The exact term ‘melting pot’ came into general usage in the United States after it was used as a metaphor describing a fusion of nationalities, cultures and ethnicities in the 1908 play of the same name. Metaphoric references to food and law often appear in colloquial language too. As Tom Coburn, a former senator from Oklahoma once said about the Cut, Cap, and Balance Act of 2011:34 We’ve got to fx our country, and this is the only viable plan right now that will do that, and I will bet you a Porterhouse steak if it lands on his [President Obama’s] desk, he will sign this puppy. His reference to Porterhouse steak must be understood in the context of Porterhouse steaks in the United States. To qualify as an offcial Porterhouse steak, United States law requires that the steak be cut no less than 450 grams, but it may be larger, and it is not uncommon to fnd steaks between 600 and

32 The expression “salad bowl” has also been used. See E. Kolb, The Evolution of New York City’s Multiculturalism: Melting Pot or Salad Bowl: Immigrants in New York from the 19th Century until the End of the Gilded Age (Norderstedt: Books on Demand, 2009), 4; T. Jacoby, Reinventing the Melting Pot: The New Immigrants and What It Means to Be American (New York, NY: Perseus, 2004), 168. 33 See https://en.wikipedia.org/wiki/Melting_pot, accessed on 6 July 2017. 34 N. Ballasy, “Coburn Bet a ‘Porterhouse Steak’ Obama Will Sign ‘Cut, Cap, and Balance’ Bill”, at http://www.cnsnews.com/news/article/coburn-bets-porterhouse-steak-obama -will-sign-cut-cap-and-balance-bill, accessed on 6 July 2017.

Analogies and fgures of speech 19 1300 grams. Thus, betting a Porterhouse steak is a clear illustration of how high the stakes (no pun intended) in a given situation are. There are plenty of examples where the judiciary also indulged in food metaphors. One example is the broccoli saga sparked by Judge Vinson in the United States District Court of Florida, when the constitutionality of the so-called “Obamacare Act”35 was attacked by 26 states and a few other parties.36 The arguments against the Act did not convince Judge Vinson of the federal government that it should be able to require people to buy health insurance because the health care market has unique elements which make it compelling to oblige people to contribute.37 According to Judge Vinson, similar distinctive factors could compel the government to38 require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. On 31 January 2011 Judge Vinson declared the Obamacare Act to be unconstitutional. His reference to broccoli did not end there. A little more than four weeks later, he delivered a clarifcation order at the request of the defendants. Again he used the broccoli analogy and declared:39 I determined…that ‘market uniqueness’ is not an adequate limiting principle as the same basic arguments in support of the individual mandate could be applied in other contexts outside the ‘unique’ health care market, and could be used to require that individuals buy (under threat of penalty) virtually any good or service that Congress has a ‘rational basis’ to conclude would help the national economy, from cars to broccoli [emphasis added].

35 The Patient Protection and Affordable Care Act of 2010 (referred to as the Obama Care Act). 36 See State of Florida v US Department of Health and Human Services, 10-cv-00091, US District Court, Northern District of Florida (Pensacola) at 46, at https://www.crowell.com /pdf/ManagedCare/Florida-v-United-States-Department-Health-Human-Services.pdf, accessed on 1 November 2020. 37 On 23 March 2010, President Obama signed health care reform legislation: The Patient Protection and Affordable Care Act. Pub L No 111-148, 124 Stat 119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub L No 111-152, 124 Stat 1029 (2010). This became known as the Obamacare Act. 38 State of Florida v US Department of Health and Human Services, 10-cv-00091, US District Court, Northern District of Florida (Pensacola) at 46. 39 This was delivered on 3 March 2011. See Order Granting Stay and Motion to Clarify: State of Florida v US Department of Health and Human Services, 10-cv-00091, US District Court, Northern District of Florida (Pensacola) at 4, accessible at https://digitalcommons.law.scu .edu/cgi/viewcontent.cgi?article=1166&context=aca and accessed on 1 November 2020.

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Available to the judge at that time was evidence presented at a Senate Judiciary Committee meeting where the possibility of a “broccoli mandate” had been discussed.40 Testimony at the hearing suggested that the federal government had the power under the constitutional commerce clause41 to oblige everybody to buy broccoli but that “political accountability” would prevent them from doing so. Judge Vinson, however, was not willing to uphold a statute which he regarded as unconstitutional merely because the government “promised to use it responsibilly”.42 That was not the end of broccoli. It landed on the United States Supreme Court menu when it was referred to at least eight times during oral arguments.43 The Court in National Federation of Independent Business v Sebelius,44 took the humble broccoli to new heights by mentioning it no less than twelve times in upholding the government’s power to enact most provisions of the Obamacare Act. These are only a few examples from all over the world to illustrate the legal profession’s fascination with food analogies and fgures of speech.

Conclusion Legal professionals make use of analogies and other fgures of speech linking food to the law in some or other way to make sense of the law. Of course, this exercise is more than just fun and games. Making use of analogies and fgures of speech could be used “fruitfully” to teach abstract concepts and ideas to law students. It is also an effective way of explaining the law to jurors who are generally ignorant of the law. Fortunately, food is no longer (or hopefully no longer) used as a way of forcing prisoners into submission and reformation as advocated by Henry Fielding, a prison reformer in the 18th century. He wrote:45 There can be no more effectual means of bringing the most Abandoned Profigates to Reason and Order than those of Solitude and Fasting; which latter is often as useful to a diseased mind as to a distempered body.

40 Ibid., at note 2. 41 United States Constitution art I, § 8, cl. 3. 42 See Order Granting Stay and Motion to Clarify: State of Florida v US Department of Health and Human Services, 10-cv-00091, US District Court, Northern District of Florida (Pensacola) at note 2. 43 See https://www.supremecourt.gov/oral_arguments/argument_transcripts/11-398-Tue sday.pdf, accessed on 7 July 2017. 44 567 US 519 (2012), 183 L Ed 2d 450, 132 S Ct 2566. 45 Cited in S. Tumin, Great Legal Fiascos (London: Arthur Barker Ltd., 1985), 42.

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Le droit louisianais, un gombo qui s’offre en partage1 Olivier Moréteau

English abstract Gumbo is an emblematic Louisiana creole dish in which solid ingredients such as chicken, duck, sausage or seafood, simmer in a roux of four and fat, in which you can also fnd vegetables and spices, and which is served by being poured on rice. If the roux is a mixture, the other ingredients remain identifable, their natural taste being however modifed by the interpenetration of favors. Symbol of Juris Diversitas, the gumbo is a powerful metaphor of the cultural mix that characterizes Louisiana. Extended to law, it allows us to understand how this state of the southern United States, heir to French and then Spanish colonization, was able to adopt a civil code while adopting the common law in all other matters, and to entrust the development of law to a judicial system that operates mostly in the same manner as in the neighboring states. This chapter shows how Louisiana codifed yet rejecting French positivism, trusting the judge more while abstaining to recognize the binding force of precedents. The frst Code of 1808, modeled on the draft French Civil Code, was not quite a code, but a digest of pre-existing law, which is supposed to survive codifcation. Even though the previous law was repealed when the Code of 1825 was adopted, judgments on civil law matters combine jurisprudential and doctrinal references with the use of methods of interpretation of the law, but without the authority of the latter being affrmed loud and clear. Ongoing code revision refects continuity, while promoting convergence with the law of neighboring states. Expressing the civil law in English while developing a terminology that may be described as civil law in English, Louisiana shows how the civil law can resist common law linguistic contamination. The recent publication of the Louisiana Civil Code in an English-French bilingual edition invites a larger audience to share in the gumbo experience. 1

1 Ce texte a été publié dans les actes des Deuxièmes Entretiens d’outre-mer : La NouvelleOrléans 1718–2018, Regards sur trois siècles d’histoire partagée, dir. Dominique Barjot & Denis Vialou (Paris: Académie des sciences d’outre-mer, 2019), 389. L’auteur remercie l’Académie d’avoir autorisé cette seconde publication.

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Regards pluralistes sur la présence juridique française en Amérique du Nord La Louisiane est davantage connue pour sa culture créole que pour son droit. Berceau du jazz, du blues et de la musique zydeco, c’est une terre de diversité linguistique et culturelle menacée par le rouleau compresseur d’un modèle nord-américain qui tend vers l’uniformité. La métaphore du gombo est à cet égard emblématique, outre le fait qu’elle symbolise Juris Diversitas. Voilà un plat typiquement local qui génère un mélange de saveurs africaines, nord-américaines, antillaises, espagnoles et françaises, sans que la plupart des ingrédients qui le composent ne perdent leur identité. On prépare un roux en chauffant à feu moyen de l’huile de canola et de la farine en mélangeant bien jusqu’à atteindre une couleur chocolat. On introduit les légumes : oignons, poivrons et céleri, en chauffant bien sans brûler le roux. On introduit ensuite les morceaux de saucisse, appelée andouille en Louisiane. On verse ensuite lentement un bouillon de poulet, menant le tout à ébullition. On assaisonne avec un peu de sel, de l’ail et du poivre de Cayenne. On introduit les morceaux de poulet préalablement sautés dans de l’huile d’olive. On ajoute de l’okra, plante que l’on trouve en Afrique occidentale et nommée (ki)ngombo en langue bantoue, d’où le nom de gombo2. On laisse mijoter une bonne heure. On peut aussi mettre du canard ou faire le gombo avec des fruits de mer, en particulier des crevettes qui abondent en Louisiane, en laissant la tête. Notez qu’on ne passe surtout pas la préparation à la moulinette. On sert le gombo sur du riz blanc. Les ingrédients solides restent perceptibles tant à l’œil qu’au palais alors que l’ensemble dégage une saveur unique qui varie selon les ingrédients, les morceaux apparaissant en nage dans la soupe sombre qui reste assez liquide. Le gombo vient donc d’Afrique de l’Ouest, qui a fourni à la Louisiane, certes contre son gré, une grande partie de sa population, battue avec un fouet qui n’est pas de cuisine et brutalement réduite à l’esclavage par des maîtres sans scrupules pour s’enrichir de la production de choses douces comme le sucre et le coton. Qu’elle soit cuisinée par des descendants de colons venus du Canada, de France ou d’Espagne, des arrièrepetits-enfants d’esclaves africains ou de déportés acadiens, de sauvages créoles3, mélangés entre eux ou avec des yankees, ou de boat people venus du Vietnam, la recette est symbole de diversité et de métissage. Elle concentre la force nécessaire à la survie dans une nature généreuse mais hostile et génère la joie de vivre jusqu’à la prochaine épreuve. Et le droit dans tout ça ? Le juriste français le conçoit au singulier et se contente de constater que la Louisiane a adopté le modèle du Code Napoléon. Comme ce n’est qu’une copie, il est tenté de dire : « passez, il n’y a rien à voir ! », car la

2 Dictionnaire historique de la langue française, dir. Alain Rey (Paris: 2010), Vo Gombo ; Oxford English Dictionary, (Oxford: 1989), Vo Gumbo. 3 Nom que se donnent les Indiens Atakapa-Ishak qui se sont appropriés les langues française et créole.

Le droit louisianais 23 copie ne vaut pas l’original4, ou de se moquer : « leurs juristes utilisent de vieilles traductions des traités de droit civil de Planiol, ou d’Aubry et Rau, qui datent de plus de cinquante ans ! ». Cela montre que dans la cuisine juridique comme dans celle qui nourrit, on utilise les ressources que l’on a sous la main. En dehors de Louisiane, le droit louisianais n’intéresse guère que les comparatistes et historiens du droit. Ceux-là viennent observer comment des traditions juridiques différentes, la civiliste issue des droits romain et canonique, privilégiant la règle générale et la codifcation législative, et celle de common law héritée d’Angleterre, préférant la règle précise créée par le juge dans un contexte procédural, se confrontent puis se mêlent, pour former un système mixte ou hybride5. Qui vient se pencher sur la Constitution de la Nation Atakapa-Ishak du sud-est du Texas et du sud-ouest de la Louisiane6 ou songe à vérifer si la Coutume de Paris était vraiment appliquée en dehors de La Nouvelle-Orléans, par exemple dans les communautés acadiennes7 ? La littérature met l’accent sur l’introduction du droit français par la volonté du roi Louis XIV dont le nom fut donné à des territoires immenses aux limites incertaines : le Roi Soleil vieillissant signa en 1712 une lettre patente concédant le développement de la grande colonie au sieur Antoine Crozat et déclarant la coutume de Paris applicable comme loi générale8. On insiste sur le fait que le premier Code civil de Louisiane, adopté en 1808 peu après la cession de l’ancienne colonie aux États-Unis, était plus ou moins une copie du Code Napoléon9. Si en l’année du tricentenaire de La Nouvelle-Orléans, ville fondée en 1718, il est juste de rappeler que la présence du droit français remonte à plus de trois cents ans10, il importe en même temps reconnaître que c’est une infuence limitée, ce qui ne veut pas dire appauvrie. Il y a trois cents ans, la zone d’infuence française en Amérique du Nord pouvait paraître immense sur la carte, alors que très peu de territoires étaient effectivement contrôlés. Des trois régions où la

4 Olivier Moréteau, Le juriste français entre ethnocentrisme et mondialisation (Paris: Dalloz, 2014), 20. 5 Vernon V. Palmer, dir., Mixed Jurisdictions Worldwide, The Third Legal Family, 2e édition (Cambridge: Cambridge University Press, 2012). Initialement centré sur la coexistence de la common law et du droit civil, le concept de mixité sort aujourd’hui du moule occidental: Vernon V. Palmer, Mohamed Y. Mattar, and Anna Koppel, dir., Mixed Legal Systems, East and West, Juris Diversitas Book Series (Farnham: Ashgate, 2015). 6 http://www.atakapa-ishak.org/constitution/. 7 Un auteur, et pas des moindres, aborde la question: Jacques Vanderlinden, “Aux origines de la culture juridique française en Amérique du Nord,” Journal of Civil Law Studies, vol. 2, 2009, 1, p. 13 et s. 8 Alain A. Levasseur, “The Major Periods of Louisiana Legal History,” Loyola Law Review, vol. 41, 1995–1996, 585, p. 586. 9 La légende a la vie dure et beaucoup de Louisianais sont persuadés d’avoir hérité le Code Napoléon, alors que la Louisiane n’était plus française lorsque son Code civil fut adopté. En 2012, année du bicentenaire de l’état de Louisiane, j’ai fait corriger des publications perpétuant cette erreur, laquelle apparait encore dans des livres scolaires. 10 Olivier Moréteau, “Louisiana 1812–2012: 200 Years of Statehood and 300 Years of French Law Infuence,” Louisiana Bar Journal, vol. 59, 2012, 325.

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culture d’origine française reste présente, une a gardé le droit civil en perdant l’usage de la langue française, une autre a gardé la langue, mais a perdu le droit civil, et une seule est arrivée à conserver et le droit civil, et la langue française. On reconnaitra d’abord le sud de l’immense territoire de Louisiane cédé par la France aux États-Unis en 1803, devenu état de Louisiane en 1812, dont le Code civil et les lois ne sont plus accessibles qu’en anglais depuis la guerre de Sécession. Vient ensuite l’ancienne Acadie française, cédée partiellement puis totalement à l’Angleterre à partir de 1712 et dont les colons d’origine française furent déportés par les Anglais en 175511. Les Acadiens revenus dans ce qui est aujourd’hui la province du Nouveau-Brunswick ont lutté pour le bilinguisme, mais si le français est offciellement reconnu, la common law s’impose : elle peut être appliquée en anglais et en français, et est enseignée dans notre langue à l’Université de Moncton. Enfn le Bas-Canada devenu province de Québec, conquis par l’Angleterre en 1763, s’est battu pour rester francophone et possède un Code civil depuis 1866 (Code civil du Bas-Canada) refondu en 1993 (Code civil du Québec)12. Évitons de réduire le Code civil de Louisiane à une simple survivance de la présence diffuse de la France autour du Mississipi. Savourons-le plutôt comme ingrédient incontournable d’un gombo pluraliste tout en reconnaissant son interaction avec les cultures très diverses qui l’entourent. La période coloniale française dura théoriquement de 1682 (prise de possession symbolique par Cavelier de la Salle en descendant le Mississipi13) à 1762, année de la cession de la Louisiane à l’Espagne par le traité de Fontainebleau14. Le territoire s’étendait du Golfe du Mexique aux Grands Lacs, bordé par les Appalaches à l’Est et la chaîne des Rocheuses à l’Ouest. Il est cependant à noter que le premier établissement permanent dans le Sud, le fort Maurepas dans la baie de Biloxi (aujourd’hui dans l’état du Mississipi) ne fut construit par Pierre Le Moyne d’Iberville qu’en 1699. La présence française reste donc sporadique jusqu’à la fondation de Mobile (aujourd’hui en Alabama) en 1702, de Natchitoches et de Natchez en 1716 puis de La Nouvelle-Orléans en 1718. Comme le prouve une

11 Jacques Vanderlinden, Regards d’un historien du droit sur l’Acadie des XVIIe et XVIIIe siècles (Moncton: Université de Moncton, 2008). 12 David Gilles, Essais d’histoire du droit de la Nouvelle-France à la Province de Québec (Sherbrooke: Éditions Revue de droit de l’Université de Sherbrooke, 2014); Marie-Ève Arbour, Fragments de droit québécois et canadien: Histoire, mixité, mutations (Quebec: Yvon Blais, 2012); Guy Tremblay and Denis Le May, Une grille d’analyse pour le droit du Québec, 4e édition (Montréal: Wilson & Lafeur, 2009). 13 Naissance de la Louisiane, Tricentenaire des découvertes de Cavelier de La Salle (Paris: Ministère de la Culture, 1982). 14 Charles Gayarré, Histoire de la Louisiane (Nouvelle-Orléans, LA: Nouvelle-Orléans Publishing Group, vol. 1, 1846 and vol. 2, 1847); François-Xavier Martin, The History of Louisiana (Gretna, LA: Pelican Publishing, 1827, réédité en 1882 et réimprimé en 2000); Marcel Giraud, Histoire de la Louisiane française, 5 vols. (Paris: Perrin, 1953–1974, rééd. Paris: L’Harmattan, 2012); Bernard Lugan, Histoire de la Louisiane française (1682–1804) (Paris: Perrin, 1994).

Le droit louisianais 25 visite aux archives coloniales15 et aux archives notariales16 à La Nouvelle-Orléans, le système notarial fut solidement établi. La justice civile et criminelle était supervisée par un Conseil supérieur fonctionnant comme cour de dernier ressort en appliquant les règles de procédure du Châtelet de Paris17. La période espagnole commence théoriquement par le traité de cession de 1762, lequel devait rester secret jusqu’à la signature du traité de Paris de 1763. La transition ne devint effective qu’à l’arrivée du gouverneur Alejandro O’Reilly à La Nouvelle-Orléans en août 1769. Le Conseil supérieur fut supprimé et remplacé par le Cabildo, et la coutume de Paris remplacée par La Recopilacion de las Indias18, la proclamation du 25 novembre 1769 imposant aussi l’usage de l’espagnol. La Louisiane devait être régie par les mêmes lois que les autres colonies espagnoles. Les lois espagnoles étaient plus nombreuses et complexes que la coutume de Paris (rédigée) et les ordonnances royales françaises19, mais la substance était souvent la même, ce qui permet de dire que le changement juridique fut moins bouleversant que la transition politique. Peu de changements furent faits pendant la période espagnole, ce qui suggère une bonne acceptation par la population qui resta francophone20. Par le traité de San Ildefonso conclu le 1er octobre 1800, l’Espagne restituait la Louisiane à la France, dans ses frontières de 1762. Le traité devait rester secret, de crainte que l’Angleterre, maîtresse des mers, ne vienne s’emparer de la Louisiane, ce qui explique la prolongation de l’administration espagnole jusqu’à la conclusion de la cession de la Louisiane par la France aux États-Unis en 180321. Le préfet Laussat, arrivé le 26 mars 1803, essaya d’établir une justice comme celle qui existait dans les autres colonies françaises, mais ne reçut jamais l’ordre de le faire ni de rétablir le droit français. C’est ainsi que le 30 novembre 1803, il annonça à la population de La Nouvelle-Orléans le transfert aux États-Unis et que, soucieux d’être à la hauteur de sa mission, il organisa une administration transitoire. Quand le 20 décembre 1803, le gouverneur Claiborne prit possession de la Louisiane au nom des États-Unis, il reçut de la France un territoire sous loi espagnole.

La survie du modèle français après 1803 Avec l’achat de la Louisiane, les États-Unis pouvaient enfn contrôler le débouché maritime du Mississipi, dont l’importance stratégique et commerciale n’est pas

15 Le fonds est en cours de numérisation et les documents sont accessibles à partir de, http:// lacolonialdocs.org/search. 16 http://www.orleanscivilclerk.com/research.htm. 17 Henry Plauché Dart, “The Legal Institutions of Louisiana,” Louisiana Historical Quarterly, vol. 2, 1919, 72, pp. 86–91, cite et traduit l’édit du 12 septembre 1719, qui fait référence aux ordonnances royales en matière de justice civile et criminelle. 18 Levasseur, “The Major Periods of Louisiana Legal History,” supra note 8, p. 590. 19 Vicenç Feliú, Dennis Kim-Prieto, and Teresa M. Miguel-Stearns, “A Closer Look: A Symposium Among Legal Historians and Law Librarians to Uncover the Spanish Roots of the Louisiana Civil Law,” International Journal of Legal Information, vol. 38, no. 3, 2010, 295, https://ssrn.com/abstract=1694690. 20 Levasseur, “The Major Periods of Louisiana Legal History,” supra note 8, p. 593. 21 Traité de Paris du 30 avril 1803.

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à démontrer. L’intérêt portait sur le port de La Nouvelle-Orléans et sa région, d’où l’organisation d’un Territoire d’Orléans avec un gouverneur, un secrétaire, et un conseil législatif nommés par le président, le pouvoir judiciaire étant confé à une Cour supérieure22. Les immenses territoires plus au nord (l’acquisition de la Louisiane doubla le territoire des États-Unis) formèrent un district de Louisiane, qui allait être exploré (expédition de Lewis et Clark) et plus tard divisé en territoires qui deviendront des états. En 1803, la population du Territoire d’Orléans était estimée à 43.000 habitants23 dont 8.000 vivaient dans la capitale, la moitié étant de couleur24. En 1807, on comptait 26.000 blancs, 4.000 noirs libres et 23.500 esclaves noirs dans le sud de la Louisiane. La population atteignit 76.000 en 1810 dont 17.000 à La Nouvelle-Orléans. Le chiffre de 60.000, seuil fxé pour que le territoire ait le droit de demander à être admis dans l’Union en tant qu’état fédéré, fut donc atteint assez vite25. L’arrivée d’Américains et de nouveaux immigrants, y compris d’Allemagne et de France26, était porteuse de changement et la question du droit applicable allait se trouver au cœur du choc des cultures et des confrontations politiques. La bourgeoisie créole de La Nouvelle-Orléans lutta pour la préservation du droit de tradition civiliste et gagna la bataille de la codifcation, qui se révéla conservatrice dans sa mise en œuvre.

La lutte pour la préservation du droit civil Si le passage du droit français au droit espagnol en 1769 se ft sans douleur, en raison du fait que les deux systèmes puisaient leur sève dans le droit romain et le droit canonique, une éventuelle transition vers la common law anglo-américaine ne pouvait se faire sans diffculté. Afn de comprendre les enjeux, il est bon de souligner quelques différences entre les deux traditions. La tradition de droit civil, aussi connue sous le nom de romano-germanique27, prône une organisation livresque du droit héritée des ouvrages des grands juristes des premiers siècles de notre ère, puis des codifcations au temps de Justinien puis

22 Loi fédérale du 26 mars 1804, sections 2 à 5, donnait aussi le pouvoir au conseil législatif de créer des juridictions inférieures. 23 George Dargo, Jefferson’s Louisiana, Politics and the Clash of Legal Traditions (Cambridge, MA: Harvard University Press, 1975, rééd. Clark, NJ: Lawbook Exchange, 2009), 9; Martin, The History of Louisiana, supra note 14, p. 300, donne le détail d’un recensement fait par le consul des États-Unis à La Nouvelle-Orléans en 1803, comptant 49.473 âmes dans l’ensemble des territoires cédés, dont 368 pour l’Arkansas et 6.028 pour l’Illinois et Saint Louis. Le compte des tribus indiennes qui suit montre qu’on ne comptait que les blancs. 24 Ce chiffre est contesté et pourrait n’être que de 6.000: Dargo, Jefferson’s Louisiana, supra note 23, pp. 9–10, note 20. 25 Ordonnance du 13 juillet 1787, dite Ordonnance du Nord-Ouest. 26 5.700 francophones blancs, gens libres de couleurs et esclaves, arrivèrent entre le printemps et l’été 1809: Dargo, Jefferson’s Louisiana, supra note 23, p. 10. 27 René David, Camille Jauffret-Spinosi, and Marie Goré, Les grands systèmes de droit contemporains, 12e édition (Paris: Dalloz, 2016), 1re partie, La famille romano-germanique, et 3e partie, La common law.

Le droit louisianais 27 de Napoléon. Le droit est vu comme un ensemble de règles organisées en catégories. Tout droit reconnu dans les codes est présumé protégé par la mise en œuvre des procédures. La common law en revanche est un droit empirique, peu organisé, développé au cas par cas dans lors des instances qui se présentent devant les tribunaux. L’accent est mis sur l’identifcation des recours (on parle en anglais de remedies) plus que sur les droits mis en œuvre. Il est diffcile d’identifer les droits protégés car leur existence est intrinsèquement liée aux règles de procédure : remedies precede rights. Alors que le modèle du droit civil est la loi générale, celui de la common law est le précédent judiciaire, donnant naissance à une règle qu’il est diffcile d’énoncer sans faire référence aux faits caractéristiques de la cause débattue devant le juge28. Dans la tradition civiliste, la procédure est plutôt de type inquisitoire, donnant un large pouvoir au juge dans la conduite de l’instance : le juge, qui a total accès au dossier de l’affaire, en vérife le contenu en interrogeant les parties et les témoins. En common law, la procédure est de type accusatoire (adversarial) : les parties conduisent le procès devant le juge qui n’est pas informé du dossier et se limite à un rôle d’arbitre, veillant à la loyauté des débats. Les témoins sont interrogés puis contre-interrogés par les avocats des parties, jamais par le juge. La vérité des faits est souvent déterminée par un jury populaire dont le rôle est de donner un verdict en faveur de la partie la plus convaincante. Le juge décide ensuite seul sur la base des faits ainsi établis. Tout cela pour dire qu’un juriste formé à la tradition civiliste doit réapprendre son métier pour exercer avec succès dans un système de common law : un changement radical en Louisiane ne pouvait pour cette raison être souhaité ni appuyé par la profession juridique. En outre, les différences ne sont pas seulement méthodologiques, mais affectent aussi la substance des règles applicables29. Si à l’époque les deux systèmes favorisaient la famille légitime fondée sur le mariage, la tradition civiliste autorisait la légitimation de l’enfant naturel par le mariage subséquent des parents, alors qu’elle était impossible en common law : « once a bastard always a bastard » disait-on. La tradition civiliste favorisait le régime de communauté des biens, hérité du droit coutumier wisigoth recombiné avec le droit canonique en Espagne après les grandes invasions30, qui permettait à la femme d’être propriétaire en recueillant la moitié de la communauté au décès du mari. La common law en revanche plaçait la femme sous la dépendance du mari (coverture) et empêchait la veuve de prendre directement le contrôle des biens dont dépendrait sa survie. On

28 Pour une présentation générale de la common law, voir la 1re partie de Olivier Moréteau, Droit anglais des affaires (Paris: Dalloz, 2000), (2e édition en cours). 29 Ces différences étaient connues de la population, au moins à La Nouvelle-Orléans: Dargo, Jefferson’s Louisiana, supra note 23, pp. 20–31. 30 Aniceto Masferrer, Spanish Legal Traditions, A Comparative Legal History Outline, 2e édition (Madrid: Dykinson, 2012), 66. L’importance particulière de la période wisigotique est reconnue par Gustavus Schmidt, Civil Law of Spain and Mexico (Nouvelle-Orléans, LA: Nouvelle-Orléans Publishing Group, 1851, réimpr. Getzville, NY: Hein, 2008), 21–28.

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comprend que plusieurs états de l’Ouest des États-Unis gagnés sur le Mexique, dont le Texas et la Californie, aient plus tard gardé le système de la communauté de biens, parfaitement adapté à une société de pionniers,31 alors qu’ils ont par ailleurs adopté la common law. D’autres exemples ? Alors que la Louisiane, par le biais de la France et de l’Espagne, hérita du droit romain une conception simple de la propriété et du droit des biens, la common law en la matière reste encombrée de notions dérivées de tenures féodales, rendant le droit américain particulièrement complexe dans une société qui s’est pourtant construite sur le rejet de la féodalité. En outre la Louisiane connaissait la réserve héréditaire alors que la common law prône une totale liberté testamentaire. En outre l’esprit du droit civil est que les ressources sont contrôlées par les vivants alors qu’en common law, par le biais des trusts et d’une liberté testamentaire qui n’a de limites que l’imagination humaine, une personne peut contrôler la dévolution de ses biens deux générations après son décès, dans la limite imposée par la règle interdisant une dévolution sur une période trop longue, typiquement de quatre-vingts ans (Rule against perpetuities). En bref, l’adoption de la common law pouvait se révéler porteuse de changements profonds dans la manière d’assurer la gestion et la transmission des patrimoines, ce qui de toute évidence touchait de très près aux intérêts de la population. Le Congrès décida le maintien des lois en vigueur au moment de la cession par la France, sous réserve d’abrogation ou modifcation ultérieure par le législateur du territoire32. Dans l’esprit du Président Thomas Jefferson, il s’agissait cependant d’une solution provisoire. L’entrée de la Louisiane dans les ÉtatsUnis n’était pas sans risque. La rupture de l’unité linguistique et juridique (tous les autres états étaient anglophones et de common law) risquait d’affaiblir une union encore fragile et menacée de l’extérieur. Jefferson, lui-même juriste, était favorable à l’extension de la common law. Il confa pour mission au premier gouverneur, Charles Cole Claiborne, de travailler à une transition vers la common law, tâche que ce dernier, dans une lettre à Madison, décrivit comme la plus embarrassante qui fût33. Il s’opposa son véto à une délibération du Conseil législatif proclamant le maintien défnitif du droit civil en vigueur dans le territoire34. La réaction ne se ft pas attendre. Un manifeste cinglant, signé par les membres du Conseil législatif, fut publié le lendemain dans les deux quotidiens de La Nouvelle-Orléans, exprimant dans un langage vigoureux l’opposition des Louisianais à l’imposition d’un système juridique étranger : « La sagesse de la loi civile est reconnue de toute l’Europe ; et cette loi, les dix-neuf vingtièmes de la population de la Louisiane, la connaissent, y sont habitués dès l’enfance, et ne

31 Jean A. Stuntz, Hers, His, and Theirs, Community Property Law in Spain and Early Texas (Lubbock, TX: Texas Tech University Press, 2005). 32 Loi fédérale du 26 mars 1804, section 11. La section 7 de la même loi étend l’application de plusieurs lois fédérales au territoire, et le droit antérieur n’est maintenu que sous réserve de sa compatibilité avec la loi fédérale et la constitution. 33 Dargo, Jefferson’s Louisiana, supra note 23, p. 199. 34 26 mai 1806, Ibid., 237.

Le droit louisianais 29 s’en verraient pas privées sans désespoir35. » Le manifeste fait plus loin allusion au caractère chaotique de la common law36. Le gouverneur Claiborne n’eut d’autre solution que de céder devant tant de détermination. Ce fut une importante victoire pour la diversité juridique, dans un pays où chaque état fait sa propre loi : le pouvoir législatif du Congrès est très limité et laisse largement le pouvoir d’administrer et créer le droit privé entre les mains des états, sous réserve bien sûr de respecter la constitution fédérale. Le Territoire d’Orléans n’était pas encore un état mais il était évident qu’il allait le devenir dans un avenir proche.

Une codifcation conservatrice Le travail de rédaction d’un Code civil pour le nouveau territoire fut confé à deux juristes éminents, tous deux impliqués dans la vie politique. L’un d’eux, Louis Moreau Lislet, émigré de Saint-Domingue, était d’origine française et avait reçu sa formation juridique en France. James Brown, originaire de New York, était venu s’établir à La Nouvelle-Orléans après la cession. Ils s’acquittèrent de leur tâche en moins de deux ans. La légende veut qu’ils se soient contentés de recopier le Code civil des Français, qui venait d’être adopté à la veille de la création de l’Empire. Les Louisianais sont persuadés que le Code Napoléon était en vigueur en Louisiane, alors qu’il n’était qu’en projet au temps de la cession. La vérité est que non seulement la codifcation louisianaise a eu lieu après la cession de la Louisiane aux États-Unis, mais aussi que le texte louisianais n’est pas une simple copie du Code Napoléon. La différence ne tient pas à la seule addition de dispositions relatives à l’esclavage, empruntant largement au Code Noir37. Le Code louisianais est sensiblement plus long et reprend des règles et institutions inconnues du droit français mais caractéristique du droit espagnol, comme la quarte du conjoint pauvre qui permet à l’époux que le veuvage laisse dans l’indigence d’obtenir le quart de la succession du conjoint prédécédé en pleine propriété38. L’origine des dispositions du Code louisianais reste disputée à ce jour. Il est clair que le Code louisianais emprunte au Code français sa structure et le contenu de très nombreux articles, comme l’a patiemment démontré Rodolfo

35 Texte intégral en français et en anglais dans The Territorial Papers of the United States, vol. 9, 1910, p. 642 et s. 36 Thomas Erskine Holland, Essays on the Form of Law (New York, NY: Butterworths, 1870), 171, décrit la common law comme un chaos organisé par un index détaillé (“chaos with a full index”). 37 Vernon Valentine Palmer, Through the Codes Darkly (Clark, NJ: Lawbook Exchange, 2012). 38 Robert A. Pascal, “Of the Civil Code and Us,” Louisiana Law Review, vol. 59, 1998, 301, repr. in Olivier Moréteau, dir., Robert Anthony Pascal: A Priest of Right Order (Baton Rouge, LA: Claitor, 2018), 129. D’autres exemples portent sur les aliments et le régime de la communauté des biens entre époux.

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Batiza39. Mais il est vrai aussi que le droit français et le droit espagnol étaient largement similaires, notamment en raison de l’héritage commun du droit romain et du droit canonique. Robert Pascal en a logiquement conclu que le code louisianais reprend le droit espagnol, empruntant au code français lorsque les deux droits étaient similaires et codifant les institutions espagnoles qui étaient différentes40. Sa formule selon laquelle le code louisianais est « une flle espagnole habillée à la française » a fait fortune41. La publication récente de la thèse de John Cairns met fn au débat, son étude historique très fouillée montra que sur des points signifcatifs, la solution française a été préférée à l’espagnole, ce qui prouve que les rédacteurs ont fait preuve de liberté de jugement, choisissant la solution à leurs yeux la meilleure42. Ainsi, alors qu’en droit romain et castillan le fls devenu adulte restait sous l’emprise du pater familias jusqu’au décès de celui-ci, le Code civil français, suivant le droit coutumier, le faisait échapper à la puissance paternelle dès sa majorité, solution qui fut préférée par le législateur louisianais43. On retiendra ici trois caractéristiques de la codifcation louisianaise. Premièrement, le caractère doctrinal du code louisianais, qui contient beaucoup plus de défnitions que son homologue français. La société louisianaise de l’époque était peu homogène et il fallait rendre le droit civil accessible à des juges et des juristes formés à la common law, ignorant les concepts de base de la tradition civiliste. Deuxièmement, une partie croissante de la population étant anglophone, il fallait une version anglaise, d’où le bilinguisme. Le code fut traduit en anglais et promulgué dans les deux langues, la loi de promulgation plaçant les deux versions linguistiques sur un pied d’égalité pour rassurer les nouveaux venus. Ce n’est que plus tard que la Cour suprême de Louisiane reconnut la primauté de la version française en cas de discordance entre les versions anglaise et française44. Troisièmement, contrairement à la codifcation française qui avait notamment pour objet d’unifer le droit en faisant la synthèse du droit coutumier qui prévalait au nord de la France et du droit romain prépondérant dans le sud, il ne s’agissait pas d’unifer le droit de la Louisiane mais d’assurer la survie de la tradition civiliste et la continuité du droit. Cela explique l’absence de disposition abrogeant purement et simplement l’ancien droit dans toutes les matières

39 Rodolfo Batiza, “The Louisiana Civil Code of 1808: Its Actual Sources and Present Relevance,” Tulane Law Review, vol. 46, 1971, 4. 40 Robert A. Pascal, “Sources of the Digest of 1808: A Reply to Professor Batiza,” Tulane Law Review, vol. 46, 1972, 603. 41 “A Spanish Girl in French Dress,” Pascal, “Of the Civil Code and Us,” supra note 38, pp. 303 and 133. 42 John W. Cairns, Codifcation, Transplants and History: Law Reform in Louisiana (1808) and Quebec (1866) (Austin, TX: Talbot, 2015). 43 Ibid., 215. Autre marque de l’autonomie du législateur louisianais, la suppression de l’adoption pourtant reconnue en droit espagnol comme en droit français: Ibid., 202–3. 44 Voir l’arrêt Phelps c. Reinach, 1886, 38 La. Ann. 547; Didier Lamèthe et Olivier Moréteau, “L’interprétation des textes juridiques rédigés dans plus d’une langue,” Revue internationale de droit comparé, vol. 58, 2006, 327, pp. 341–42.

Le droit louisianais 31 régies par le Code, comme le ft la loi française du 21 mars 1804 promulguant le Code civil. La loi du 31 mars 1808 adoptant le code louisianais n’abroge le droit antérieur que là où le nouveau texte n’est pas conciliable avec l’ancien droit. Pour marquer cette continuité, il a été décidé lors de l’adoption d’utiliser l’appellation de digeste plutôt que le mot code45. Même si le Digeste contenait certaines formules révolutionnaires promues par le Code civil des Français, comme une défnition radicale de la propriété46 et un principe de responsabilité qui survit encore de nos jours47, sa vocation fut de devenir un acte de continuation du droit antérieur, sans rupture avec le passé. Les conséquences pratiques de l’adoption d’un digeste plutôt que d’un code ne tardèrent pas à se faire sentir. Chaque fois que le nouveau texte se montrait un peu vague, les plaideurs recherchaient dans les anciens textes espagnols une solution plus précise, le juge devant décider si celle-ci était contredite ou non par le Digeste. En l’absence de contradiction, les juges faisaient survivre l’ancien doit, comme ils le frent dans l’affaire Cottin48, où il fut jugé qu’un avorton, terme non défni dans le Digeste, s’entendait d’un nouveau-né n’ayant pas vécu vingt-quatre heures, en application de la Recompilation des lois de Castille. Cela rendait la pratique du droit très complexe, l’idée de simplifcation liée à la codifcation étant perdue. Alors qu’en France, en cas d’ambiguïté du Code civil on s’attache à l’interpréter en recherchant l’intention du législateur, en Louisiane, avocats et juges revisitaient les textes anciens, comparant leurs solutions et s’interrogeant sur leur compatibilité avec le Digeste, ce qui était source de débats sans fn et au fnal, rendait la justice moins certaine qu’avant la tentative de codifcation. Les Louisianais ne trouvèrent pas de meilleure solution que de codifer à nouveau, le texte adopté en 1825, bilingue comme celui de 1808, étant cette fois appelé Code civil de Louisiane. Dorénavant, le droit antérieur était abrogé pour toute matière contenant une disposition dans le code49. Les Louisianais étaient tellement habitués à la continuité qu’il fallut deux lois d’abrogation supplémentaires, lesquelles rencontrèrent l’hostilité judiciaire50. Le Code de 1825 fut révisé

45 Le titre exact est “Digeste des lois civiles actuellement en force dans le territoire d’Orléans.” Le point est très bien expliqué par Richard Kilbourne, A History of the Louisiana Civil Code (Baton Rouge, LA: CCLS, 1987 and Baton Rouge, LA: Claitor, 2008). 46 L’article 1 du titre II du livre II reprend en substance l’article 544 du Code Napoléon: “La pleine propriété donne le droit de jouir et de disposer de sa chose de la manière la plus absolue, pourvu qu’on n’en fasse pas un usage prohibé par les lois.” 47 L’article 16 du titre IV du livre III reprend en substance l’article 1382 du Code Napoléon: “Tout fait quelconque, qui cause à autrui un dommage, oblige celui, par la faute duquel il est arrivé, à le réparer, encore que la faute ne soit point de la nature de celles qui exposent à des peines de police simple ou correctionnelle.” Voir l’article 2315 du Code civil de Louisiane. 48 Cottin c. Cottin, 1817, Martin (Old Series), vol. 5, 93. 49 Code civil, art. 3521. 50 Dans l’arrêt Reynolds c. Swain, 1839, 13 La. 193, le juge François-Xavier Martin déclara que la loi ne peut abroger que le droit positif, le droit naturel échappant à toute abrogation: Olivier Moréteau, “François-Xavier Martin Revisited: Louisiana Views on Codifcation, Jurisprudence, Legal Education and Practice,” Louisiana Bar Journal, vol. 60, 2013, 475, pp. 477–78.

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en 1870 après la guerre de Sécession, afn d’extirper toute référence à l’esclavage51 et procéder à quelques mises à jour. Ce texte ne fut publié qu’en anglais. Les Louisianais, volontiers conservateurs et peu positivistes, aiment la continuité du droit. L’idée selon laquelle on aurait toujours à faire à un digeste reste défendue de nos jours52 bien qu’elle soit discutée53.

La continuité d’un modèle mixte Ingrédient majeur du gombo juridique, le Code civil coexiste avec d’autres aliments importés de la common law et d’autres traditions. Sa substance est en outre modifée par des dispositions venues de la common law. La mixité ou hybridité existe aussi bien en dehors du code que dans le code.

La mixité hors du Code civil Pendant que Claiborne tentait d’imposer l’adoption de la common law, il travaillait en arrière-plan à la mise en place d’un système judiciaire identique à celui des autres états. La Louisiane a des cours fédérales qui appliquent le droit fédéral, inspiré de la common law, et des cours d’état, comme celles que l’on trouve dans les autres états fédérés. Le jury, ingrédient de common law, est utilisé en matière civile comme en matière pénale. Une loi sur la procédure, rédigée par Edward Livingston, fut adoptée dès 1805, simplifant la procédure et suivant largement le modèle espagnol. La procédure fut codifée en 1823 (Code de procédure civile)54, offrant une synthèse éclectique des modèles civilistes et de common law55. La constitution bilingue adoptée en 1812 fut copiée sur celle du Kentucky, renforçant encore les saveurs de common law. En Louisiane, tout ce qui ne relève pas du Code civil appartient à l’univers de la common law, avec un peu de syncrétisme juridique dans le code de procédure civile. Les lois extérieures au Code civil (statutes) sont ponctuelles, détaillées, et peu systématiques, à l’image des statutes des pays de common law. Elles sont compilées selon un arrangement alphabétique dans les Revised Statutes, à l’image de ce que l’on trouve dans les autres états56.

51 Sur la relation entre l’esclavage et le droit civil, voir Palmer, Through the Codes Darkly, supra note 37. 52 Vernon V. Palmer, “The Death of a Code: The Birth of a Digest,” Tulane Law Review, vol. 63, 1988, 221. 53 Olivier Moréteau, “De revolutionibus, The Place of the Civil Code in Louisiana and in the Legal Universe,” in Le droit civil et ses codes: parcours à travers les Amériques, dir. Jimena Ando Dorato, Jean-Frédérick Ménard, and Lionel Smith (Singapore: Thémis, 2011), 1, p. 15. 54 Agustín Parise, “Codifcation of the Law in Louisiana: Early Nineteenth-Century Oscillation Between Continental European and Common Law Systems,” Tulane European and Civil Law Forum, vol. 27, 2012, 133, pp. 146–53. 55 Shael Herman, “The Louisiana Code of Practice (1825): A Civilian Essai Among AngloAmerican Sources,” Electronic Journal of Comparative Law, vol. 12, no. 1, 2008, 3. 56 Sur la relation entre le Code civil et les Revised Statutes, Moréteau, “De Revolutionibus,” supra note 53, pp. 23–24.

Le droit louisianais 33 Si les traditions civiliste et de common law apportent l’essentiel des éléments du gombo, avec des variantes françaises et espagnoles s’agissant de la première, il ne faut pas négliger d’autres apports endogènes et exogènes, même s’ils ne sont visibles que des adeptes du pluralisme radical, lequel ne regarde pas le droit dans la perspective de la hiérarchie des normes mais du point de vue de chaque individu soumis à un réseau de normes multiples, qu’elles soient juridiques ou non au sens strict57. Il existe certainement des rémanences de coutumes africaines, par essence peu visibles, comme les épices qui assaisonnent le gombo. Le fait qu’ils ne soient pas consignés dans les codes ou mentionnés dans les décisions de justice ne saurait prouver leur inexistence, car ils conditionnent culturellement la manière dont les communautés afro-américaines règlent leur vie et les différends en dehors des tribunaux. On parle aussi des Cadiens qui disparaissent et des créoles invisibles58 qui ont indubitablement leurs us et coutumes. L’histoire du droit louisianais vue et vécue par les Cajuns reste à écrire59. On en sait un peu plus sur le droit des tribus indiennes, comme les Atakapas-Ishaks dont les membres francophones se défnissaient comme « sauvages créoles »60. Les boat people venus du Vietnam, nombreux au bord des bayous du Sud de l’état, vivent de la pêche de la crevette et contribuent au gombo aux fruits de mer, tout en nourrissant le pluralisme juridique de manière informelle.

La mixité dans le Code civil Il peut sembler paradoxal de rechercher du pluralisme juridique dans le Code civil lui-même, même si la jurisprudence qui l’applique et l’interprète en recèle certainement des traces. L’article 1 du Code est pourtant ouvert à la pluralité, puisqu’il proclame que « les sources du droit sont la loi et la coutume.” Le Code louisianais a des sources multiples. Le Digeste annoté par Louis Moreau Lislet, dit manuscrit de la Vergne, précise l’origine des dispositions citant abondamment les sources espagnoles mais aussi les auteurs français Domat et Pothier61. Il a été prouvé que les rédacteurs du Code de 1825 ont utilisé, outre le Digeste de 1808 et

57 Jacques Vanderlinden, Les pluralismes juridiques (Bruxelles: Bruylant, 2013); Voir Florent Hardy, “Louisiana 2012: A Bicentennial Celebration of History, Culture and Natural Resources,” Louisiana Bar Journal, vol. 59, 2012, 330, pp. 331–32. 58 Jacques Henry, “Pourquoi les Cadiens disparaissent et les Créoles restent invisibles,” in Mémoires francophones: la Louisiane, dir. Guy Clermont, Michel Beniamino, and Arielle Thauvin-Chapot (Limoges: Presses universitaires de Limoges, 2006), 179. 59 Le récit autobiographique de J. Minos Simon, Law in the Cajun Nation (Prescott, AZ: Prescott Press, 1993), ne semble pas faire état de la francophonie encore pratiquée dans les tribunaux de la région de Lafayette. 60 Constitution accessible sur le site http://www.atakapa-ishak.org/. Voir aussi la constitution de la nation Houma, http://www.unitedhoumanation.org/government-documents. Voir enfn François-Marie Perrin du Lac, Voyage dans les deux Louisianes et chez les nations sauvages du Missouri, par les États-Unis, l’Ohio et les provinces qui le bordent, en 1801, 1802 et 1803 (Paris: Capelle et Renand, 1805), avec un aperçu des usages et coutumes religieuses et civiles des peuples de ces diverses contrées. 61 John W. Cairns, “The de la Vergne Volume and the Digest of 1808,” Tulane European and Civil Law Forum, vol. 24, 2009, 31.

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le Code Napoléon, les écrits de Blackstone, Domat, Febrero, Maleville, Merlin, Toullier et Pothier62, soit un beau mélange de sources françaises, espagnoles, mais aussi anglaises. Les Américains furent les principaux consommateurs des Commentaries of the Laws of England de William Blackstone, publiés à Oxford entre 1765 et 176963. Suite à la création du Louisiana State Law Institute, votée en 1938 par la législature de Louisiane pour veiller l’intégrité du Code civil, la révision du code a été menée titre par titre. Chaque étape de la révision a été préparée par un comité composé de professeurs, juges et avocats. Rien d’étonnant dès lors de trouver, en plus des références attendues aux droits français et espagnol, des emprunts aux codes argentin, éthiopien et québécois ou au droit d’Israël dans la révision du droit des obligations menée sous la férule du professeur Litvinoff64, et des infuences venues d’Allemagne, Grèce et Suisse dans la révision du droit des biens sous la houlette du Professeur Yiannopoulos65. Les infuences de la common law sont encore plus remarquables. L’ajout d’un paragraphe sur la protection de la confance raisonnable (reasonable reliance ou promissory estoppel)66 est parfois critiquée67 bien qu’il soit raisonnable d’y voir l’infuence d’un principe fondateur dans les systèmes juridiques, quels qu’ils soient68. Plus gênants sont des emprunts législatifs aux droits des états voisins formulés dans un style qui est plus celui des Revised Statutes que celui du Code civil. Le style du paragraphe B de l’article 2315 est en rupture totale avec celui du paragraphe A qui est la reprise de l’ancien article 1382 du Code civil français69 : la règle imposant l’inclusion des taxes dans le calcul des dommages

62 Rodolfo Batiza, “The Actual Sources of the Louisiana Project of 1823: A General Analytical Survey,” Tulane Law Review, vol. 47, 1972, 1. 63 Lawrence M. Friedman, A History of American Law, 2e édition (New York, NY: Simon & Schuster, 1985), 102. 64 Shael Herman, “Civil Recodifcation in an Anglophone Mixed Jurisdiction: A Bricoleur’s Playbook,” Loyola Law Review, vol. 58, 2012, 487, pp. 501–4. 65 Tyler G. Storms, “Interview with Professor A.N. Yiannopoulos: Louisiana’s Most Infuential Jurist in Our Time,” Louisiana Bar Journal, vol. 64, 2016, 24, p. 25. 66 Art. 1967. “La cause est la raison pour laquelle une partie s’oblige. Une partie peut s’obliger par une promesse lorsqu’elle savait ou aurait dû savoir que la promesse conduirait l’autre partie à se fer à celle-ci à ses dépens et que cette autre partie s’y est fée raisonnablement. Le recouvrement peut être limité aux dépenses engagées ou aux dommages subis du fait de la confance que le bénéfciaire de la promesse avait placée en celle-ci. La confance en une promesse gratuite faite sans les formalités requises n’est pas raisonnable.” 67 Christian Larroumet, “Detrimental Reliance and Promissory Estoppel as the Cause of Contracts in Louisiana and Comparative Law,” Tulane Law Review, vol. 60, 1986, 1209. 68 Olivier Moréteau, L’estoppel et la protection de la confance légitime. Éléments d’un renouveau du droit de la responsabilité (Droit anglais et droit français), thèse, Lyon 3, 1990, par. 297–304, pp. 338–44, https://digitalcommons.law.lsu.edu/faculty_scholarship/12/. 69 Art. 2315. “A. Tout fait quelconque de l’homme qui cause à autrui un dommage oblige celui par la faute duquel il est arrivé à le réparer. B. Les dommages-intérêts peuvent inclure la perte de la compagnie, de l’affection et des services conjugaux ou familiaux et peuvent être recouvrés par les mêmes catégories de personnes qui auraient le droit d’agir du fait d’un acte délictuel ayant entraîné la mort de la victime d’un dommage. Les dommages-

Le droit louisianais 35 et intérêts est parfaitement inutile dans la tradition civiliste tant la solution va de soi. Les articles qui suivent relèvent plus de la common law que de la tradition civiliste, mais le croisement de l’âne et de la jument donne rarement un pur-sang.

Le dialogue de la langue et du droit Les juristes français ont parfois tendance à considérer les systèmes étrangers comme importateurs du droit et de la culture juridique française (anciennes colonies) ou comme concurrents (common law anglo-américaine)70. L’association Henri Capitant des amis de la culture française et la Société de législation comparée font heureusement la promotion du partage. Partie prenante à ce riche dialogue, la Louisiane est aussi productrice de savoir-faire juridique, notamment par sa riche contribution à l’invention du droit civil en anglais. Son droit civil connait en outre un rayonnement signifcatif, lequel pourrait être amplifé par des projets de traduction.

L’invention et la promotion du droit civil en anglais Le Digeste louisianais de 1808 est le premier Code civil rendu accessible en langue anglaise. Cette première mondiale est à signaler, non pas en raison de son succès (la traduction est généralement reconnue comme médiocre71) mais parce que l’anglais, langue naturelle de la common law, n’est pas adapté aux droits de tradition romano-germanique. Les premières traductions du Code civil français se caractérisent par de nombreux emprunts à la terminologie de la common law72, tout comme les traductions des codes latino-américains produites aux États-Unis au début du XXe siècle73. Au fl du temps, la Louisiane a développé un vocabulaire adapté à la tradition civiliste, se détournant du lexique de la common law et assumant sa singularité.

70 71

72

73

intérêts n’incluent pas le coût des traitements, des services, du suivi, ou des actes médicaux à venir, quelle que soit leur nature, sauf lorsqu’ils sont directement et manifestement liés à une atteinte à l’intégrité physique ou mentale, ou à une maladie physique ou mentale. Les dommages-intérêts doivent inclure toutes les taxes payées par le propriétaire pour la réparation ou le remplacement du bien endommagé.” Moréteau, Le juriste français, supra note 4. E. B. Dubuisson, “The Codes of Louisiana (Originals Written in French; Errors of Translation),” Report of the Louisiana Bar Association, vol. 25, 1924, 143 remarque, p. 149, que “la vigueur, l’esprit, la clarté et le fni de l’original sont perdus dans la traduction” (traduit par l’auteur). Traductions du Code civil français: The Code Napoleon or French Civil Code, Londres, 1827; The French Civil Code, trad. Blackwood Wright, Londres, 1908; The French Civil Code, trad. Cachard, édition révisée, Paris, 1930. Seth Brostoff, “Early 20th Century Perceptions of Civil Law-Common Law Difference: F. L. Joannini’s Spanish-English Civil Code Translations in Context,” Journal of Civil Law Studies, vol. 11, 2018, 105.

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Cet effort n’est pas isolé, d’autres pays comme l’Afrique du Sud, l’Écosse et le Québec exprimant aussi le droit civil en anglais. Pour donner quelques exemples, le Code civil de Louisiane distingue natural persons et juridical persons (plutôt que de parler de legal entities), l’acte authentique est appelé authentic act et l’acte sous seing privé act under private signature, l’obligation solidaire est nommée solidary obligation plutôt que joint and several liability, oxymore anglais issu du langage procédural de la common law. Les auteurs louisianais font leur possible pour promouvoir le droit civil en anglais, conscients du fait que l’utilisation de la langue de la common law dénature les concepts du droit civil lorsque ceux-ci sont utilisés dans les relations internationales et en droit européen uniforme74. Dans leur effort de lutte contre la contamination linguistique et pour la promotion du droit civil en langue anglaise, ils ont contribué avec le Juriscope à la traduction partielle du Vocabulaire juridique Gérard Cornu, publié sous l’égide de l’Association Henri Capitant75 : les 1.600 entrées relatives au droit civil sont maintenant accessibles en anglais dans le Dictionary of the Civil Code76. Le droit français bénéfcie de ce partage de compétences, la dernière traduction anglaise du Code civil français, publiée en 2013 sur le site offciel Légifrance, ayant été élaborée par une équipe louisianaise. Grâce aux efforts louisianais, la France dispose de traductions anglaises fdèles à l’esprit de sa tradition civiliste77, lesquels viennent s’ajouter aux efforts promus par l’Association Capitant78 et la Fondation pour le droit continental. La Louisiane fait en outre rayonner le modèle français dans le monde par les traductions anglaises de monuments de la littérature juridique française, comme le traité de droit civil de Planiol, plusieurs volumes d’Aubry et Rau79, et le maître livre de François Gény80.

74 Alain A. Levasseur, “Les maux des mots en droit comparé – L’avant-projet de réforme du droit des obligations en anglais,” Revue internationale de droit comparé, vol. 60, 2008, 819; Olivier Moréteau, “Les frontières de la langue et du droit: vers une méthodologie de la traduction juridique,” Revue internationale de droit comparé, vol. 61, 2009, 695. 75 Gérard Cornu, Association Henri Capitant, Vocabulaire juridique, 10e édition (Paris: PUF, 2014). 76 Gérard Cornu, Association Henri Capitant, Dictionary of the Civil Code, traduit sous la supervision d’Alain Levasseur et Marie-Eugénie Laporte-Legeais (New York, NY: LexisNexis, 2014); Voir aussi Alain Levasseur, “Ruminations Around the Dictionary of the Civil Code,” Journal of Civil Law Studies, vol. 9, 2017, 427. 77 Voir aussi European Group on Tort Law, Les Principes du droit européen de la responsabilité civile, textes et commentaires (édition française des Principles of European Tort Law), dir. Olivier Moréteau, trad. Michel Séjean (Paris : Société de législation comparée, 2011). 78 Revue de droit Henri Capitant, Henri Capitant Law Review. 79 Alexandru-Daniel On, “Making French Doctrine Accessible to the English Speaking World: The Louisiana Translation Series,” Journal of Civil Law Studies, vol. 5, 2012, 81. 80 Olivier Moréteau, “La traduction de l’œuvre de François Gény: méthode de traduction et sources doctrinales,” in La pensée de Francois Gény, dir. Olivier Cachard, François-Xavier Licari, and François Lormant (Paris: Dalloz, 2013), 69.

Le droit louisianais 37

Le rayonnement du Code civil de Louisiane Phare de la tradition juridique française dans le monde anglophone, la Louisiane rayonne aussi par sa production doctrinale, notamment le Louisiana Civil Law Treatise81 et les Civil Code Précis82. Par d’intéressants jeux d’optique, la Louisiane est depuis deux siècles le miroir du droit civil français en Amérique latine. À Paris, on affrme que les pays d’Amérique latine ont codifé leur droit civil en transposant le modèle du Code Napoléon83. L’infuence française est bien sûr indéniable, mais il serait dommage d’ignorer l’impact du Code civil de Louisiane, principalement sa version de 1825, qui est historiquement la première codifcation du droit civil espagnol longtemps applicable dans une grande partie de l’Amérique latine. L’Espagne n’adopta son premier Code civil qu’en 1889, non sans avoir été infuencée par le code louisianais. L’inclusion du Code louisianais de même que le code français dans les concordances synoptiques publiées en français par Saint-Joseph (1840) puis en espagnol par García Goyena (1852) explique ces effets de miroirs qui incluent d’autres codes européens. L’infuence des codes louisianais va même au-delà, puisqu’on note une infuence au Québec, en Estonie, aux Philippines et en Chine84. Elle sort du domaine de la tradition civiliste, puisque le code de 1825 infuença fortement la rédaction d’un projet de Code civil pour l’état de New York qui, s’il fut rejeté en 186585, servit de modèle au Code civil de Californie86. Ces jeux de miroirs nous ramènent dans les salles de restaurant où l’on déguste le gombo. À La Nouvelle-Orléans, il n’est pas rare que le menu soit bilingue. Le Code civil de Louisiane, purement anglophone depuis la révision de 1870, se déguste à nouveau en français, d’abord sur le site du Centre de droit civil de la Louisiana State University87, et depuis peu en édition bilingue88. Ce travail de longue haleine, qui a mobilisé une équipe de jurilinguistes, repose sur une étude attentive des sources et de l’évolution du droit civil en Louisiane puisque les textes à traduire sont en partie d’origine française, la rédaction s’étalant sur plus de deux siècles89. Alors qu’une traduction allemande vient de paraître, le Centre

81 Philip Gragg, “Louisiana Civil Law Treatise Series,” Journal of Civil Law Studies, vol. 5, 2012, 301. 82 Susan Gualtier, “Louisiana Civil Code Précis Séries,” Journal of Civil Law Studies, vol. 5, 2012, 305. 83 Bénédicte Fauvarque-Cosson et Sara Patrice-Godechot, Le Code civil face à son destin, (Paris: La documentation française, 2006), 26. 84 Ibid., 31–33. 85 Shael Herman, “The Fate and the Future of Codifcation in America,” American Journal of Legal History, vol. 40, 1996, 407; David Gruning, “Vive la Différence? Why No Codifcation of Private Law in the United States?,”Revue juridique Themis, vol. 39, 2005, 153. 86 Rosamond Parma, “The History of the Adoption of the Codes of California,” Law Library Journal, vol. 22, 1929, 8. 87 Louisiana Civil Code Online, https://www.law.lsu.edu/clo/louisiana-civil-code-online/. 88 Code civil de Louisiane, édition bilingue, Olivier Moréteau, dir., avec une préface de JeanClaude Gémar et une introduction par O. Moréteau, Société de législation comparée, 2017. 89 Olivier Moréteau, “Le Code civil de Louisiane, traduction et retraduction,” Revue internationale de Sémiotique juridique, vol. 28, 2015, 155; “La traduction du Code civil louisianais,

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de droit civil à Bâton-Rouge a récemment entrepris l’élaboration d’une traduction espagnole, laquelle permettra de renouveler l’infuence louisianaise dans le monde latino-américain alors que se préparent les codes de la deuxième ou troisième génération. Il ne fait pas de doute que ces travaux de traduction et les publications qu’ils génèrent favorisent le partage d’une cuisine juridique exotique et savoureuse, même si les convives au palais sensible laissent certains morceaux pimentés sur le bord de l’assiette.

exercice historico linguistique,” in Codes, termes et traductions: enjeux transdisciplinaires, dir. E. Bracchi and D. Garreau (Milano: Giuffrè, 2017), 107.

4

Les ingrédients et les recettes de la cuisine juridique québécoise Entre mixité et pluralité1 Matthieu Juneau

English abstract Quebec law is described as being mixed because it is at the intersection of the civil law tradition and the common law tradition: it has inherited rules and methods from France and England. In some cases, they are found in different areas of the law, in other cases these rules and methods have mixed, and this mixture of ingredients has been accompanied by a mixture of recipes, creating a new kitchen alongside the old kitchens. This is how the ingredients and recipes are diversifed making it possible to create new dishes. Cooking, like Quebec law, is heavily indebted to France and England. The kitchen, however, was less impervious than the law and agreed to borrow using both native and imported plants while tapping into the kitchens of newcomers or neighbors. Law and legal culture borrowed from foreign models but remained indifferent to the legal systems peculiar to the frst inhabitants of the territory. Sometimes the ingredients and recipes mix and enrich each other, sometimes they live in parallel. Law and cooking know mixity and plurality in their own way. This chapter uses some culinary metaphors to distinguish and illustrate some concepts and phenomena specifc to Quebec. 1

Résumé Le droit québécois est décrit comme étant mixte parce qu’il se trouve à l’intersection de la tradition de droit civil et de celle de common law : il a hérité de règles et de méthodes provenant de la France et de l’Angleterre. Dans certains cas, on les trouve dans des domaines différents du droit, dans d’autres cas ces règles et méthodes se sont mélangées et ce mélange des ingrédients a été accompagné d’un mélange des recettes, créant ainsi une nouvelle cuisine côtoyant les anciennes cuisines. C’est ainsi que les ingrédients et les recettes se sont diversifés rendant possible la création de nouveaux plats. La cuisine comme le droit québécois sont abondamment redevables à la France et à l’Angleterre. La

1 Ce texte est issu d’une conférence donnée à Lyon dans le cadre du 5e congrès annuel de Juris Diversitas. Je tiens à remercier Lucie Lahaie qui a effectué une partie de la recherche documentaire pour la cuisine.

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cuisine a cependant été moins imperméable que le droit et a accepté d’emprunter en utilisant autant les plantes indigènes que les produits importés tout en puisant dans les cuisines des nouveaux arrivants ou des voisins. Le droit et la culture juridique ont emprunté à des modèles étrangers mais ils sont restés indifférents aux systèmes juridiques propres aux premiers occupants du territoire. Parfois les ingrédients et les recettes se mélangent et s’enrichissent mutuellement, parfois ils vivent en parallèle. Le droit et la cuisine connaissent mixité et pluralité chacun à sa manière. Cette présentation utilisera quelques métaphores culinaires afn de distinguer et d’illustrer quelques concepts et phénomènes propres au Québec.

Texte Le droit québécois est souvent décrit comme étant mixte parce qu’il est à l’intersection ou à la rencontre de deux traditions juridiques : celle de droit civil, héritée de la France, et celle de common law, héritée de l’Angleterre. Cette présentation s’inspire de mes travaux de thèse de doctorat tout en tentant de s’insérer dans le thème de ce congrès dans sa version française : la cuisine juridique. Ceux qui décrivent le droit québécois comme étant mixte le font en pensant tout d’abord à la mixité de ses règles. Cependant, ce qui rend un droit mixte ce sont également les méthodes. De même, une cuisine ne se limite pas aux ingrédients qu’elle utilise mais elle se caractérise également par ses recettes, par la façon d’apprêter les ingrédients. Au Québec, en droit comme en cuisine, les règles et les méthodes, les ingrédients et les recettes, se sont mélangés. Le mélange des règles et des méthodes a conduit à un nouveau droit que l’on décrit comme étant mixte. De même, en cuisine, le mélange des ingrédients et des recettes a conduit à une nouvelle cuisine, mais celle-ci peut très bien continuer à côtoyer l’ancienne cuisine. La cuisine et le droit tirent leurs origines de la France et de l’Angleterre. Et les deux ont été infuencés par la culture d’un puissant voisin. Après un bref historique juridique et une présentation de quelques concepts, j’aborderai la cuisine et puis je ferai des parallèles entre droit et cuisine. Ce sera une occasion d’appliquer les concepts de façon comparée au droit et à la cuisine et d’en tirer quelques réfexions. Le Québec est l’un des rares endroits dans le monde à avoir été conquis par deux puissances européennes. Le droit québécois a reçu les règles et les méthodes de ces deux droits. C’est également le cas pour la cuisine. Quand on parle de réception du droit, on a souvent d’abord en tête les règles de droit, mais c’est tout un système de droit qui est reçu : les règles, les méthodes, la culture juridique. De même, en cuisine, quand une population déménage, elle apporte avec elle sa tradition culinaire. Les Français ont imposé en Nouvelle-France l’ancien droit français2 et puis le roi de France Louis XIV a précisé l’application de la Coutume

2 Matthieu Juneau, La notion de droit commun en droit civil québécois, mémoire de maîtrise en droit (Québec: Université Laval, 2009), [non publié] (en ligne: https://corpus.ulaval.ca/ jspui/handle/20.500.11794/20962), 18–19.

La cuisine juridique québécoise 41 de Paris3, sans tenir compte des traditions juridiques des premiers occupants du territoire. Par la suite, le conquérant britannique, à la suite du Traité de Paris de 1763, a surimposé le droit anglais. Après un essai infructueux, l’ancien droit français a été maintenu, à partir de 1774, sous le nom de « Laws of Canada »4. Cependant, en matière criminelle, le droit anglais a été imposé à partir de 17635. De même, le droit constitutionnel anglais ou britannique a été imposé. Le droit en matière civile a connu de nombreuses réformes dans les années 1840 et 1850. Cela a rendu la codifcation du droit possible. Elle a été prévue par une loi de 18576 et le Code civil du Bas Canada, adopté en 18657, est entré en vigueur en 18668. L’année suivante, en 1867, certaines colonies britanniques se sont unies pour créer une fédération. Le droit criminel relève désormais du Parlement fédéral et la majorité des matières civiles des législatures des provinces. De nombreux autres champs de compétence, attribués à l’un et à l’autre, viennent compléter le tableau. La cuisine n’est pas mentionnée dans ce que l’on appelle le partage des compétences. La mixité sert à décrire, de façon générale, un système juridique à l’intersection de plus d’une tradition juridique. Il faut la distinguer de la dualité et du bijuridisme. La distinction entre un droit criminel d’origine anglaise et un droit d’origine française en matière civile – les textes disent « property and civil rights »9 – devrait être décrite par le concept de dualité plutôt que par celui de mixité. On peut donc parler de « dualité de droits communs ». Le concept de mixité contribue à décrire, dans le cas du Québec, le droit applicable en matière civile, plus large que ce que les Français appellent droit privé, ce

3 Établissement de la Compagnie des Indes occidentales (mai 1664), dans Édits, ordonnances royaux, déclarations et arrêts du Conseil d’État du Roi concernant le Canada. Imprimés sur une adresse de l’Assemblée législative du Canada. Revus et corrigés d’après les Pièces originales déposées aux Archives provinciales, vol. 1 (Québec: De la presse à vapeur d’E. R. Fréchette, 1854), 40–48. 4 Acte de Québec de 1774, (R.-U.), 14 Geo. III, c. 83, reproduit dans L. R. C. 1985, app. II, no 2, art. VIII. 5 Proclamation royale, Reproduite dans L. R. C. 1985, app. II, no 1. 6 Acte pour pourvoir à la codifcation des lois du Bas-Canada qui se rapportent aux matières civiles et à la procédure, S.C., 20 Vict., c. 43 (1857). 7 Acte concernant le Code civil du Bas Canada, S.C., 29 Vict., c. 41 (1865), sanctionné le 18 septembre 1865. 8 Entrée en vigueur le 1er août 1866 par proclamation de Lord Monck, 26 mai 1866, Gazette du Canada, vol. XXV, no 21, à la p. 1824 (en anglais) et à la p. 1877 (en français). 9 Cette expression désigne tout le droit applicable en matière civile et couvre un champ de droit plus large que le droit privé (sur ce sujet, voir Juneau, La notion de droit commun en droit, en particulier aux pp. 30–31). L’expression a d’abord été utilisée à l’art. VIII de l’Acte de Québec et a été reprise par la suite, en particulier au paragraphe 92(13) de la Loi constitutionnelle de 1867 (R.-U.), 30 & 31 Vict., c. 3, reproduite dans L. R. C. 1985, app. II, no 5.

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droit ayant évolué dans ce cadre nouveau depuis 1774 : il a connu une mutation avec l’ajout de nouvelles règles et une évolution de ses méthodes et de sa culture juridique. Le bijuridisme, quant à lui, décrit plutôt la situation du législateur fédéral qui doit tenir compte de l’existence d’un droit de tradition civiliste au Québec et de droits relevant de la tradition de common law dans les autres provinces. Cela a pour conséquence que certaines lois fédérales qui doivent compléter la législation des provinces, par exemple en matière de responsabilité de la Couronne fédérale ou de faillite, ont deux versions selon le territoire d’application – ou en fait quatre versions en raison du bilinguisme des lois fédérales : le droit civil en français, le droit civil en anglais, la common law en anglais et la common law en français. De cette façon, toute loi fédérale peut, ou devrait, trouver application sans créer de confits avec les lois provinciales, en particulier avec le droit civil au Québec. Différents phénomènes mènent à la dualité et à la mixité d’un droit, les plus importants étant la réception, l’emprunt et l’acculturation juridique. La réception correspond à un emprunt massif ou à un transfert massif de droit10, par exemple la réception du droit romain en Allemagne ou celle du droit anglais ou français dans les colonies. L’emprunt correspond alors à des emprunts ponctuels, par exemple une institution particulière11 ou une règle particulière. L’acculturation juridique a été décrite comme un résultat et comme un processus; je préfère la décrire comme un processus. Pour nos fns, retenons la description qu’en fait Norbert Rouland : « En droit, on peut défnir l’acculturation comme l’ensemble des processus suivant lesquels les systèmes de normes juridiques, les comportements des acteurs et leurs représentations sont construits et modifés par les contacts et interpénétrations entre cultures et sociétés »12. Cela pourrait aussi très bien convenir pour la cuisine. En réaction au phénomène d’acculturation juridique, on peut trouver un phénomène de contre-acculturation, par lequel une société tente de revenir vers ce qu’elle considère une version de son droit de laquelle on retire des éléments considérés étrangers. À cet égard, la première codifcation constitue un phénomène de contre-acculturation. Il en sera de même de la deuxième, qui a mené à l’adoption du Code civil du Québec13 en 1991, entré en vigueur en 1994. Avec le fédéralisme, le Canada a un système de territorialité des lois : les lois canadiennes s’appliquent en principe partout au Canada et les lois de chacune des provinces sur le territoire de cette province. Ce n’est pas du pluralisme. En revanche, on trouve un certain pluralisme ailleurs dans la mesure où les droits

10 Michele Graziadei, “Comparative Law as the Study of Transplants and Receptions,” in The Oxford Handbook of Comparative Law, dir. Mathias Reimann and Reinhard Zimmermann (Oxford: Oxford University Press, 2008), 441–75, aux pp. 442–43. 11 Dominique Manaï, “Acculturation,” in Dictionnaire encyclopédique de théorie et de sociologie du droit, dir. André-Jean Arnaud, 2e édition (Paris: LGDJ, 1993), 3–4. 12 Norbert Rouland, “Acculturation juridique,” in Dictionnaire de la culture juridique, dir. Denis Alland and Stéphane Rials (Paris: Presses universitaires de France, 2003), 4–6. 13 L.Q. 1991, c. 64.

La cuisine juridique québécoise 43 coutumiers autochtones vivent en parallèle et ne sont pas reconnus par l’État, avec quelques rares exceptions. Par exemple, en 1980, la cour a considéré une adoption coutumière14. De plus, une loi québécoise toute récente, adoptée le 16 juin 2017, reconnaît l’adoption coutumière autochtone et la tutelle coutumière autochtone15. À part ces quelques cas rares et récents, cette ignorance mutuelle est différente en cuisine. Cependant, pour la cuisine, une partie de l’histoire est semblable. Les colons sont d’abord arrivés dans un pays encore à défricher. Dans un premier temps, les premiers colons français ont effectué des emprunts aux populations locales présentes depuis des millénaires, par exemple le maïs et la citrouille16. Les cuisines autochtones sont cependant variées, avec des différences selon les diverses nations autochtones, les principales différences étant entre les nomades et les semisédentaires17. Dans un premier temps, j’avais cru que les plantes indigènes avaient joué un plus grand rôle historiquement : alors que les recherches montrent que ça a été le cas au début de la colonie seulement par nécessité, les Français établis dans la vallée du Saint-Laurent sont cependant retournés aux traditions françaises après quelques dizaines d’années18. La cuisine à la française s’étend sur une période qui couvre environ les années de 1685 à 178519. Les Britanniques arrivent avec leur cuisine, mais l’effet réel se fait sentir avec un décalage d’environ une génération, vers 1785/1790. Ce que l’on appelle notre cuisine traditionnelle date seulement de la moitié du XIXe siècle. Selon les auteurs, la cuisine canadienne ou canadienne-française daterait de 184020 ou de 186021. Ce qui est considéré comme traditionnel s’est réellement développé seulement à partir de la moitié du XIXe siècle : le porc,

14 Deer c. Okpik, [1980] 4 C.N.L.R. 93 (C.S.). 15 Projet de loi no 113, maintenant L.Q. 2017, ch. 12, Loi modifant le Code civil et d’autres dispositions législatives en matière d’adoption et de communication de renseignements. 16 Yvon Desloges, avec la collaboration de Michel P. de Courval, À table en Nouvelle-France. Alimentation populaire, gastronomie et traditions alimentaires dans la vallée laurentienne avant l’avènement des restaurants (Québec: Septentrion, 2009), à la p. 44; Yvon Desloges, “Les Québécois francophones et leur “identité” alimentaire: de Cartier à Expo 67,” Cuizine, vol. 3, no 1, 2011, (en ligne: https://id.erudit.org/iderudit/1004727ar). 17 Sur les différentes nations autochtones en cuisine, voir: Michel Lambert, Histoire de la cuisine familiale du Québec, vol. 1: Ses origines autochtones et européennes, de la préhistoire au XIXe siècle (Québec: Éditions GID, 2006). Voir aussi: Yvon Desloges, avec la collaboration de de Courval, À table en Nouvelle-France, à la p. 44. 18 Yvon Desloges, avec la collaboration de de Courval, À table en Nouvelle-France, à la p. 44; Paul-Louis Martin, Les Fruits du Québec. Histoire et traditions des douceurs de la table (Sillery: Septentrion, 2002), à la p. 17; Desloges, “Les Québécois francophones”. 19 Desloges, “Les Québécois francophones”. 20 400 ans de gastronomie à Québec/400 Years of Gastronomic History in Quebec City, Textes colligés et commentés par Jean Soulard, recettes de Jean Soulard (Verdun: Communiplex Marketing, 2007), à la p. 66. 21 Desloges, “Les Québécois francophones”.

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l’industrie laitière, incluant le beurre, la culture fourragère, avec néanmoins la pomme de terre dès le début du siècle22 et la tomate vers 187023. Le voisinage immédiat des États-Unis a également joué – et ici c’est vrai pour le droit et pour la cuisine. À tel point qu’un auteur écrit : « La cuisine canadienne doit tout aux traditions culinaires françaises pratiquées au début du XVIIIe siècle et aux méthodes culinaires anglaises et américaines »24. Cette citation, écrite pour la cuisine, est frappante dans la mesure où on constate des phénomènes semblables ailleurs dans la culture canadienne-française, plus tard québécoise, et en particulier pour le droit. Puis enfn la cuisine québécoise connaît une ouverture sur le monde, surtout à partir de 1967. L’Exposition universelle, dite couramment l’Expo, dont on souligne les 50 ans cette année, a joué un grand rôle dans l’ouverture sur le monde, à plusieurs points de vue, en particulier pour la cuisine25. Cette diversité en cuisine à partir de 1967 ne connaît pas d’équivalent en droit. En plus de l’ouverture sur le monde, il existe un retour ou une redécouverte des plantes indigènes ces dernières années, peut-être grâce aux efforts de quelques chefs cuisiniers infuents (et animateurs de télévision), et cela a eu une infuence auprès d’une partie de la population. Il n’y a rien de semblable pour le droit. Par ailleurs, les infuences ont également joué dans l’autre sens, soit des Européens vers les autochtones. Un exemple de ce changement a été le travail du métal et l’apparition du chaudron. Cette ouverture pour la cuisine est ancienne, dès le XVIIe siècle, avec l’utilisation de produits « locaux », à savoir autochtones ou aborigènes, plus en raison de la nécessité (sans vouloir dire que ce n’était pas l’ouverture à une réalité, ces gens ayant quand même tout quitté et traversé un océan, épopée plus périlleuse qu’aujourd’hui – il fallait quand même une certaine ouverture). Mais a suivi assez rapidement à cela un retour aux produits « français ». On pourrait parler de « contre-acculturation ». L’arrivée des Britanniques, eux aussi venus avec leurs produits, a provoqué d’autres bouleversements, mais seulement après une trentaine d’années. Et c’est à partir du milieu du XIXe siècle que l’on peut parler de la cuisine canadienne-française traditionnelle. Cette cuisine est le produit d’une mixité, même si après plusieurs dizaines d’années, les « habitants », sur leurs fermes, n’en avaient pas conscience, une bonne partie de ce que l’on considère comme traditionnel étant ici le produit d’un mélange, mais suffsamment lointain pour parfois faire oublier la mixité des origines. Ces changements s’inscrivent dans la longue durée. Dans les parallèles entre droit et cuisine, on remarque que certains changements prennent du temps à s’implanter ou à faire leur chemin. Un bon exemple est le temps pris avant que les juges

22 23 24 25

400 ans de gastronomie à Québec/400 Years of Gastronomic History in Quebec City, à la p. 30. Ibid., à la p. 74. Ibid., à la p. 72. Desloges, “Les Québécois francophones”.

La cuisine juridique québécoise 45 apprennent à interpréter le Code civil. Celui-ci est entré en vigueur le 1er août 1866 – un an avant la Confédération dont on vient juste de célébrer le 150e anniversaire – et on sent le changement seulement autour de 189026. Le changement noté dans la cuisine est semblable : environ une trentaine d’années après la cession du pays. Le sirop d’érable constitue un exemple de la mixité de la cuisine dans la longue durée. Son origine ou sa paternité ne fait pas l’unanimité. On l’attribue aux autochtones, mais ceux-ci ne pouvaient pas faire bouillir l’eau suffsamment pour en faire du sirop. Ils la faisaient chauffer, mais jamais assez. Il a fallu les chaudrons en métal fournis par les Français pour aller plus loin. Et le goût du sucre s’est développé sous le régime britannique. C’est donc ce triple mélange qui a donné le sirop d’érable tel qu’on le connaît aujourd’hui. En droit, les ingrédients et les recettes se sont également mélangés, mais à un degré moindre. Pour voir une pareille diversité dans le droit, il faut regarder ailleurs : dans les sources utilisées pour le nouveau Code civil27, mais surtout pour les règles. Par ailleurs, historiquement, on trouve une telle diversité chez certains juges, par exemple Henri-Elzéar Taschereau, juge de la Cour suprême du Canada de 1878 à 190628. C’est aussi à cette époque que les avocats pouvaient citer une affaire provenant de l’île Maurice devant les tribunaux29. Tout cela va disparaître. La dualité va toutefois perdurer; on en trouve un bel exemple dans un même arrêt du milieu des années 1920 où le juge Rinfret utilise très clairement des méthodes différentes selon les lois à interpréter30 : il utilise des méthodes d’interprétation plus civilistes pour le Code civil et des méthodes d’interprétation tirées du droit anglais pour l’habeas corpus. En réaction à cette diversité, il y a eu une tendance inverse. Dans les deux cas, en droit et en cuisine, ce que l’on a longtemps considéré comme traditionnel remonte en fait au milieu du XIXe siècle. En droit, il y a eu tout un mouvement de nationalisme juridique très fort dans les années 1920 et 193031, prétendant que le droit québécois devait rester pur et fdèle à l’ancien droit coutumier, oubliant totalement les nombreuses réformes des années 1840 et 1850, réformes nécessaires entre autres pour permettre la codifcation. On remarque alors l’importance de ces années ou quelques dizaines d’années du milieu du XIXe siècle dans le façonnement de l’identité juridique et de l’identité culinaire du Québec.

26 André Morel, “L’émergence du nouvel ordre juridique instauré par le Code civil du Bas Canada (1866–1890),” in Le nouveau Code civil: interprétation et application. Journées Maximilien-Caron 1992 (Montréal: Éditions Thémis, 1993), 49–63. 27 H. Patrick Glenn, “Le droit comparé et l’interprétation du Code civil du Québec,” in Le nouveau Code civil: interprétation et application. Journées Maximilien-Caron 1992 (Montréal: Éditions Thémis, 1993), 175–222. 28 David Howes, “From Polyjurality to Monojurality: The Transformation of Quebec Law, 1875–1929,” R.D. McGill, vol. 32, 1987, 523–558. 29 Carter c. Molson; Holmes c. Carter (1885), 10 App. Cas. 664, à la p. 666 (P.C.). 30 Stevenson c. Florant, [1925] R.C.S. 532. 31 Voir sur ce sujet: Sylvio Normand, “Un thème dominant de la pensée juridique traditionnelle au Québec: La sauvegarde de l’intégrité du droit civil,” R.D. McGill, vol. 32, 1987, 559–601.

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Matthieu Juneau

Si la mixité dans la cuisine a des racines lointaines – et la pluralité dans les cuisines a suivi –, la pluralité dans la cuisine vient plus tard : en 1967. C’était l’année de l’Exposition universelle à Montréal. Le Québec vivait ce qu’il est convenu d’appeler la Révolution tranquille. Les changements mijotaient depuis un bout de temps, et subitement, raconte le mythe, la sauce a pris, et la société s’est ouverte. Institutionnellement, l’État est devenu moderne et s’est développé – tant du côté du gouvernement du Québec que du côté du gouvernement du Canada. Ce qui a surtout changé, c’est la société. Elle est en ébullition. Les gens ont faim, les gens ont soif. Et l’Expo arrive. Certes, il y avait des religieux dans presque chaque famille qui étaient partis en mission aux quatre coins de la planète, mais cet étélà c’est le monde qui est venu et qui s’est fait découvrir à une population toute prête à le recevoir et à déguster des plats nouveaux. Certes, il y avait une immigration provenant de divers pays, avec des cultures culinaires variées, mais souvent sans nécessairement qu’il y eût de communications entre les cuisines. La pluralité culinaire ou gastronomique ne provoque pas le désordre social. À partir de 1967, la cuisine connaît une autre forme de pluralité : au quotidien, dans une même cuisine, d’un repas à l’autre. Les frontières entre les cuisines, comme lieu, ont sauté. Il n’y a pas, il n’y a plus de territorialité des cuisines ni de personnalité des cuisines, au contraire du droit. Et il n’est aucunement nécessaire de développer l’équivalent du droit international privé ou des règles des confits de lois. Certains puristes pourraient trouver des confits de goûts : il y a des ingrédients qui ne se mélangent pas! Mais chacun peut laisser aller son imagination et créer les recettes de son choix avec toute une variété d’ingrédients. On est loin du droit. Jamais, au grand jamais, ne pourrait-on se permettre aujourd’hui au Québec de mélanger principes et règles de diverses origines en suivant des règles d’interprétation ou des méthodes de raisonnement tout aussi variées. En 1967, à cet égard, le droit n’a pas changé. La cuisine d’aujourd’hui connaît une grande diversité, selon les classes sociales, le lieu comme la campagne ou la ville, l’origine ethnoculturelle, en allant de la malbouffe au végétarisme, de la cuisine dite de sa grand-mère à celle d’un chef tenant son émission à la télévision, et jusqu’aux enseignements des cardiologues spécialisés en prévention – ceux de l’Institut de Cardiologie de Montréal ayant même publié un livre de recettes32! Le droit ne connaît pas cette variété – ou pluralité, du moins pas sur un même territoire. Certains, très rares, pourraient désirer l’application d’un droit religieux, même personnel, aux membres de leurs communautés – le débat est allé plus loin en Ontario et jusqu’ici cette option a été rejetée. Les nations autochtones revendiquent, dans certains cas, l’application de leur droit, dans le sens de leur droit coutumier, en plus des revendications de propriété sur les terres ancestrales ou des revendications de souveraineté – ici il pourrait y avoir territorialité des lois – les leurs – sur la réserve ou sur leur territoire ancestral, qui leur serait reconnu, ou

32 Fondation de l’Institut de cardiologie de Montréal, 100 recettes pour toi mon cœur (Montréal: Transcontinental, 2012).

La cuisine juridique québécoise 47 encore il pourrait y avoir personnalité des lois pour d’autres domaines juridiques pour tous les membres d’une même communauté ou nation – il restera encore à déterminer les règles de confits, par exemple en cas d’interaction entre deux personnes soumises à des règles différentes. Une fois que cette porte est ouverte, les questions, nombreuses, devront trouver réponse afn de prévenir tous les confits possibles et imaginables, en raison de la diversité des situations. En cuisine, un tel mélange peut surprendre, et s’il n’est pas bon, il ne goûtera pas bon – il n’y a pas de tribunal culinaire ou gastronomique, et heureusement. Du moins tant que l’on n’érige pas de tribunal populaire du bon goût. Outre cela, il n’y a pas de limites à la personnalité des cuisines, à part l’imagination de celui ou celle qui s’apprête à préparer des recettes et à brasser des ingrédients. On peut relativement aisément établir des liens ou des parallèles entre le droit et la cuisine, ou ici entre l’histoire du droit et l’histoire de la cuisine au Québec, mais il faut surtout constater que les deux ont suivi des chemins parfois semblables et parfois différents. Le droit civil québécois, malgré les différentes infuences étrangères, a eu une tendance à se refermer et à se concentrer sur ses caractéristiques comme droit civil. Il y a eu, il est vrai, des épisodes comme celui du juge Henri-Elzéar Taschereau, mais une période de « recentrage » a suivi, comme il y en a eu tant d’autres dans l’histoire du droit et de la culture juridique au Québec. La cuisine a mieux subi, pardon, reçu les diverses infuences et il y a eu une tendance à l’ouverture, accentuée dans la deuxième moitié du vingtième siècle, et se poursuivant en ce début de vingt-et-unième siècle. Je dirais que l’on vit une époque où la cuisine est complètement éclatée, au point qu’il faut parler des cuisines. Rien de tel en droit, du moins sur un même territoire. Si l’on peut parler d’un début de réfexion sur la personnalité des lois dans le domaine du droit des autochtones, on a véritablement dépassé ce stade dans le monde de la cuisine. Au Québec, en droit, il y a véritablement mixité, tandis qu’en cuisine, il y a véritablement pluralité.

5

Involvement of Polish legal elites in preparing a new draft of the Civil Code, seen as an intellectual feast – menu à la carte or fast food?1 Michał Gałędek and Anna Klimaszewska

Background This chapter focuses on issues connected with the development of Polish civil law following regaining independence in 1918. Creation of a uniform legal system constituted a fundamental task aimed at the integration of Polish society, which had been divided under the rule of various states and their legal orders for over a century. Until the completion of national codifcation works, fve different legal systems functioned in the Polish territories – codes of the three partitioning states: Germany (inter alia BGB), Austria (inter alia ABGB), Hungary and Russia, as well as an original mixed legal system, in force in the so-called Kingdom of Poland, which was heavily infuenced by French law (inter alia by the French civil code). The problem was indeed complex. Varied customs and habits had formed in the individual provinces; the attitude toward the law and toward the imposing authorities was also different. In our contribution, we attempt to answer the questions of what codifcation strategies were pursued by the representatives of the Polish legal and political elite in order to build a new unifed legal system from this veritable mosaic of particular laws, and to effectively implement it into a society that had been raised in different conditions. In other words, what strategy was to lead to the creation of a new “national codifcation” that could satisfy the criteria of both a modern law and one that could be easily assimilated into Polish society and adjusted to the socioeconomic conditions of Central Eastern Europe. 1

Introduction On 11 November 1918 the Polish state symbolically regained independence. The reattachment of provinces that had been part of different countries following the partitions gave rise to a unique legal mosaic on the territory of Poland.

1 This publication was prepared as part of the project “Between modernisation and national character. Ideology and axiology of Polish private lawmakers in the 20th century” fnanced by the National Science Centre (Narodowe Centrum Nauki) on the basis of decision no. DEC2016/21/B/HS5/03221.

A new draft of the Polish Civil Code 49 Separate Polish provinces had functioned for an entire century under the rule of various laws, which left a deep mark on the entire shape of legal relations. Besides the social signifcance, this fragmentation of laws also had a specifc legal meaning, which demanded the nascent state to undertake measures aiming to rectify this certainly malign state of affairs. The incoherence and collision between the conglomerate of French–Polish–Russian laws in effect in the territory of the former Congress Kingdom, the Russian law in Eastern voivodeships, Austrian law in Galicia, Hungarian law in Spiš and Orava, and German law in the Western province, called for a quick invention of measures that would make it possible to reconcile these often-contradictory norms. This state of matters engendered problems such as having to rule on the invalidation of a civil marriage in the Congress Kingdom if it was contracted by residents of this region in the Western district, governed by the German provisions of Bürgerliches Gesetzbuch.2 Examples like this abound, as did others, concerning a host of even more basic problems, such as the incoherent organization of courts and state offces.

Unifcation programme and an assessment of the postannexation civil legislation This state of matters gave a strong impulse for the legal elites to initiate a debate on a transformation of the legal systems inherited from the annexing powers. How did they perceive this problem? Let us quote some of the numerous utterances from 1919 that illustrate how the authorities evaluated the legislative state inherited from the partitioning powers in the frst months of Polish independence. Wacław Makowski3, an outstanding penal law expert and at the same time one of the most important fgures in the Ministry of Justice, thus wrote about this matter in the January issue of a fagship Polish legal journal Gazeta Sądowa Warszawska: If the legal physiognomy of a civilized state is the result of a natural development of its legislative life, started when the original customs were forming, and not ending today, but constantly enriched with the new, creative output of today’s generation and legislative institutions, then Poland has found itself in an exceptional situation in this regard. The proper, normal course of legislative creation [and the natural legal development] were interrupted for the entire territory of Poland upon the moment of frst partition” in 1772, while fragmentary, autonomous legislative works taken up from 1830 [...]

2 W. Makowski, W sprawie ujednostajnienia ustawodawstwa [On the Unifcation of Legislation], Gazeta Sądowa Warszawska, Vol. 2–3, 1919, 13–14. 3 Wacław Makowski, professor of the University of Warsaw, held the function of the Deputy Director of the Justice Department of the Provisional Council of State since January 1917, and in early 1918 he began to head the Ministry.

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Michał Gałędek and Anna Klimaszewska only entail one part of the state and just a sliver of legal topics; beyond them are vast lands and numerous issues of which for over 100 years the Polish thought could say nothing, and Polish life was entangled in a sphere of foreign interests and foreign legal creation.”4

A deputy and advocate Zygmut Marek5, along with a few tens of other deputies, diagnosed the situation similarly in a motion calling for the appointment of the Codifcation Commission, submitted in early April: Four legal systems imposed upon the Polish people by foreign states have left deep indentations in the unity of the Polish nation, they have shackled it with foreign decisions and provisions and, over more than one hundred years of their rule in respective parts of the former Polish State, instilled a destructive legal heterogeneity both in the area of public and private law. A united Polish State must do away with this heterogeneity as soon as possible and strive for uniform legal norms in all of Polish lands.6 No wonder that the Polish elites – not only legal, but also political, intellectual, and all others – agreed that this state of the matters had to be remedied as soon as possible. There was a widespread consensus that a makeshift legal unifcation should be carried out immediately, within the next few months, as the noxious legal particularism could not be upheld any longer. Yet there were no ready codes which, in the opinion of the Polish elites, could work as an act to uniformize legislation in the entire country. Owing to this, already in 1919 there emerged a programme supported by the overwhelming majority of political decision-makers: the tasks before the Polish legislator had to be divided into categories of “lesser and greater urgency”.7 At the same time, no one doubted that the drafting of a new Civil Code that could satisfy all standards expected by the Polish legal and political elites required a much longer time. Stanisław Car8, another prominent offcial of the Ministry of Justice and a renowned lawyer, who like Makowski wrote in early 1919, had no illusions that this task could take “perhaps even a few decades of strenuous

4 Ibid., 14–15. 5 Zygmunt Marek, Galician advocate, socialist, from 1919 deputy of Legislative Sejm of the Republic of Poland. 6 Wniosek nagły posła Zygmunta Marka i tow. w sprawie powołania do życia komisji dla stworzenia jednolitego prawodawstwa w Państwie Polskim [Urgent Motion Submitted by Deputy Zygmunt Marek et al. Concerning the Appointment of a Commission for Drafting Uniform Legislation in the Polish State], Druki Sejmu Ustawodawczego Rzeczypospolitej Polskiej, Sejm Paper No. 298. 7 F. Bossowski, O naszych najbliższych zadaniach ustawodawczych [On Our Immediate Legislative Tasks], Kwartalnik Prawa Cywilnego i Karnego, Vol. 2, 1919, 119. 8 Stanisław Car, Warsaw advocate, in the years 1917–1918 a high offcial of the Department of Justice (Civil Law Commission), and from 1918 Head of the Civil Chancellery of the Chief of State.

A new draft of the Polish Civil Code 51 labour”.9 Makowski himself was of a similar opinion. He stated: “This work must be planned for a long time; it will require much effort and skills and we can expect it to one day bear fruit in the form of a new legal life in Poland”.10 How, then, could the problem of unifcation that required immediate intervention, be approached? The voice of Makowski, as a representative of the Ministry of Justice who had followed and co-created its policy since early 1917, seemed particularly signifcant in this respect. He distinguished “two areas: theoretical and practical” as regarded “the issue of unifcation of the law in Poland”. His view was certainly shared by a larger group of lawyers, especially those affliated with the Ministry of Justice. The “theoretical area” entailed work on the ultimate codifcation, whose creation was in the perspective of a distant future.11 The most burning task was to “immediately commence unifcation in the practical aspect, adjusted to the needs of everyday life, which cannot be put on hold until learned lawyers come up with the best way to resolve complex legal doubts”. In particular, he appealed for “immediately [...] coming up with and implementing the foundations of unifcation, creating uniform institutions, which, although not perfectly coherent yet, will facilitate to some minimal extent the proper functioning of the state and social apparatus.”12 Thus already at this stage, in early 1919, the programme of separating works on the preparation of “great legislative reforms” from the provisional unifcation by way of introducing “interim reforms” had crystallized as a task of its own, one that would require intense, time-consuming conceptual work.13 In the early days of independent Poland, Polish lawyers anticipated just how formidable would be the work to accomplish the ambitious goals in connection with staking out the path of social modernization after World War I. They were aware that a new historical era had commenced after 1918 and they acknowledged the ideological breakthroughs that came with it in the felds of social sciences and in the science of law. They understood that they would have to comprehend the psyche and the needs of its nation, newly reunited after over a century of separation and lack of own statehood. All this contributed to their reasonable assessment of the reality and to the accompanying conclusion that the ultimate codifcation should not be carried out hurriedly; that frst and foremost it was necessary to fgure out the direction of the social and legal development of the Polish nation.14

9 S. Car, Pilne zadania prawnictwa [Urgent Tasks of the Law] (Warsaw: Orgelbranda Synowie, 1918), 10–11. 10 Makowski, op.cit., 13. The offcial stance of the Ministry of Justice also addressed the work that had to be done as planned for “a number of years”. Kontrprojekt Ministerstwa Sprawiedliwości [Counter-draft of the Ministry of Justice], Kwartalnik Prawa Cywilnego i Karnego, Vol. 2, 1919, 283–84. 11 Makowski, op.cit., 13–14. 12 Ibid., 14. 13 Compare: L. Górnicki, Prawo cywilne w pracach Komisji Kodyfkacyjnej Rzeczypospolitej Polskiej w latach 1919–1939 [Civil Law in the Works of Codifcation Commisssion in the Republic of Poland in Years 1919–1939] (Wrocław: Kolonia Limited, 2000), 75. 14 Wniosek nagły posła Zygmunta Marka, op.cit.

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The need to uniformize civil law led a part of the elite to the conclusion that a swift ordering of the legal situation in the country would only be possible by way of adopting a chosen foreign code which, despite its clear shortcomings, could temporarily be introduced in the entire territory of the country, provided that those provisions that were in obvious opposition to the crystallizing basic tenets of the would-be Polish civil code would be amended. Here, however, emerged a problem. It was diagnosed by Stanisław Car, who noted that in regard of both civil, substantive, and formal law, there existed “a great variety, stemming not only from the fact that each province is ruled by a different civil code, but also from the fact that these codes were drafted in different, often distant times, as a result of which each one is imbued with a different spirit of the times”. The Napoleonic Code, in effect in the central territories, that is in the former Congress Poland, was according to Car a work “constructed upon the principles of rationalism that marked the end of the 18th century, as well as by a complete, unrestricted freedom of contract”. He believed that the Napoleonic Code was characterized by an outdated, extremely liberal concept, pursuant to which “interference of the state in the sphere of private law relationships is completely excluded”. His opinion of the Austrian Civil Code, in effect in Galicia, was similar: “having been written a very long time ago (1811), it refects the world-view shaped under the infuence of natural law”. The German code, in force in the Western voivodeships of the country, stood apart from the rest. Still, Car was rather sparing in his praises of this work. He acknowledged it as a modern code “drafted very recently”, which “refected the social currents [held dear by Polish elites as well] under the infuence of which modern Germany has shaped and blossomed” and well-thought out as a “synthesis of the philosophical thought of German law”. At the same time, however, he reserved that it was a product of foreign origin, adjusted to the “spirit of the German nation”. Therefore, regardless of his high opinion of Bürgerliches Gesetzbuch, he placed it on a par with anachronistic codes from the early 19th century, concluding that all the codes of annexing powers had both advantages and disadvantages; yet from the point of view of the Polish state thought, they all share one negative feature; to wit, they are not a native creation and do not account for the individual characteristics of the Polish nation. This, in Car’s opinion, meant that “none of the codes have enough absorptive force to be stretched over the entire territory of a united Poland and to force out the other codes”.15 Car’s view was shared by many other lawyers. Among them was also an outstanding Warsaw advocate Ludwik Domański, whose article from 1920 expressed

15 Car, op.cit., 9–10. Compare: S. Grodziski, Komisja Kodyfkacyjna Rzeczypospolitej Polskiej [Codifcation Commission of the Republic of Poland], Czasopismo Prawno-Historyczne, Vol. XXXIII, no. 1, 1991, 47.

A new draft of the Polish Civil Code 53 his belief that none of the heretofore effective legislation satisfes the needs of the Polish nation, especially in the face of challenges posed by the new, upcoming era. Domański argued that “the foreign acts, forcefully imposed upon us and so far functioning in the individual provinces of Poland, do not satisfy the majority of the Polish society, both for their divergences and outdatedness”.16 Next to the Napoleonic Code and Allgemeines bürgerliches Gesetzbuch he also listed the Russian civil law as too anachronistic to choose for the future Polish code. As regarded the German Civil Code, he emphasized its incompatibility with the three remaining systems of civil law in effect on the Polish territories, but he did not elaborate on this thought. All this led Domański to the conclusion that “the adoption of one of the codes effective in our country or in other countries, in the face of changed living conditions all over the world, seems like a particularly diffcult and dubious idea”.17 These opinions corresponded also with the view expressed at the sixth congress of Lawyers and Economists, the frst one held after the war, in September 1920. The Civil Law Section decided to adopt a resolution, proposed by Professor Stanisław Gołąb, which stipulated that “civil acts existing in one province shall not be imposed upon other provinces en bloc and without reservations”.18 The reasons behind this decision may have been compatible with the ones clarifed by Car and Domański, but – and this is noticeable in the content of the mentioned resolution – they were also the aftermath of inter-province antagonisms, on the rise at the time, and more visible in the discussions of 1920 than in the previous year. There were concerns that one province would dominate others if the post-annexation law of this province were to be expanded onto the remaining parts of the country.19 Returning to Stanisław Car’s assessment of whether or not it would be possible to use one of the civil codes inherited from the annexing powers, it must be stressed that his views on the situation regarding the penal law were diametrically different. He believed that, frstly “change of the penal code does not cause such far-reaching disturbances in the legal order of a country as a change of the civil code”. He drew this conclusion from the positive results of expanding the Russian 1903 Penal Code onto the Kingdom of Poland, although he thought it left a lot to be desired, even though one of its indisputable advantages was that it had been “adjusted to the needs of Polish statehood”. This led him to believe that a similar step could also be taken in respect of the remaining provinces of Poland: “it would be easily effected, and it would bring uniform penal legislation

16 L. Domański, O systemie przyszłego Kodeksu Cywilnego polskiego [On the System of the Future Polish Civil Code], Dziennik Urzędowy Ministerstwa Sprawiedliwości, Vol. 2, no. 4–8, 1920, 170. 17 Ibid. 18 Miscellanea Zjazd prawników i ekonomistów polskich [Miscellanea. Congress of Polish Lawyers and Economists], Ruch Prawniczy Ekonomiczny i Społeczny, Vol. 1, 1921, 241. 19 J. Glass, Współpraca poszczególnych dzielnic w budowaniu Państwa Polskiego [Cooperation Between Districts in Building the Polish State], Gazeta Sądowa Warszawska, Vol. 3, 1920, 19. See more: Górnicki, Prawo cywilne, op.cit., 72–74.

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in the entire territory of the country, which in and of itself represents an important goal of the state”.20 There had been no similar precedents in the feld of the civil law, however. Only hypothetically one could presume, as Car did, that extending one selected postannexation civil code onto all the districts could bring about a much deeper shock than in the case of a successful experiment with the penal code. For this reason, according to Car, the legal particularism of provinces had to be accepted as malum necessarium, and only some unifcation amendments should have been made, “for the time being leaving the current civil codes in their respective provinces, despite the serious obstructions that will result from the three different legislations”.21 Car believed that in order for the “three provinces that had for more than a century led a completely separate state life and developed a separate legal awareness to become organically reunited”, it would be necessary to go through with an ad hoc intervention in selected sections of civil law so as to unify some of its aspects, while in the remaining scope district particularism could be maintained until a new codifcation, fne-tuned to the needs of the Polish nation, could be implemented. According to Car it would be necessary to unify those areas of the civil law that “overlap with the public interest [...] immediately in the very near future”. He did not clarify, however, how this was to be understood. Among the sections that “overlapped with the public interest” he listed succession law, marital and family law, as well as what he called “the rights of married women”.22 The deputies who moved for the appointment of the Codifcation Commission, led by Zygmunt Marek, had a narrower vision of the catalogue of these areas. They too knew that “besides [...] the great [future] codifcation of civil and penal law, we must immediately undertake the task of uniformizing the law for the meantime, that is until the great legislative reforms are implemented”. It was clear that it was required “by the needs of everyday life to immediately do away with the blatant discrepancies stemming from the different legal systems of the former annexing powers”. In their opinion the group of matters that called for urgent legislative uniformization and modernization included: personal law, and especially the rules concerning legal age, legal capacity and the capacity to perform acts in law, and equalization of the rights of men and women.23

20 Makowski, op.cit., 12. 21 Car wrote his article before the incorporation of the eastern territories and Spiš and Orava. Therefore, he mentioned just three, not fve legislations. 22 Ibid., 11. Car had in mind a draft that the Ministry of Justice was working on, whose purpose was to guarantee equal rights of men and women in all districts of the Republic, which meant primarily an amendment of the Napoleonic Code and other laws that regulated women’s civil rights in the former Congress Poland. See: R. Kuratów-Kuratowski, O zdolności prawnej mężatek [On the Legal Capacity of Married Women], Gazeta Sądowa Warszawska, Vol. 28, 1919, 261; M. Gałędek and A. Klimaszewska, ‘Crippled equality’: The act of 1 July 1921 on civil rights for women in Poland, Acta Poloniae Historica, Vol. 113, 2016, 231–60; A. Klimaszewska, Searching for national components in building own legal culture – The debate on the legal situation of women in interwar Poland, Studia Iuridica, Vol. 80, 2019, 170–80. 23 Wniosek nagły posła Zygmunta Marka, op.cit.

A new draft of the Polish Civil Code 55 A more extensive unifcation programme was presented by Franciszek Bossowski, who proposed a catalogue of matters requiring immediate attention that was very different from the one put forward by Car and by the deputies.24 In his article from early 1919 entitled “On the Immediate Legislative Tasks” he emphasized that, on the one hand: “economic consolidation of the Polish State requires [...] unifcation of [only] this part of the private law which is covered by the civil and commercial codes, and contains sections of such importance for the economic transactions and credits as bonds, pledges, etc.”25 The pressure to unify certain parts of civil law as soon as possible, characteristic of the frst months after unifcation in 1919, seemed to abate as time passed. The elites, having lived through the practical inconveniences brought by the extant legal particularism of provinces, seemed to adapt to this state of affairs and to arrive at the conclusion that it may last longer than had been anticipated without as serious social and economic harm to the country as they had feared before. The lawyers, whose voice for obvious reasons dominated in the public discourse on legal reforms, exhibited a natural tendency to overestimate the effect that legal instruments have on everyday life. As it turned out, their catastrophic visions of problems that were supposed to ensue as a result of legal fragmentation of the provinces did not have to turn into reality. Tellingly, none of the resolutions adopted by the Civil Law Commission at the Congress of Lawyers and Economists held in September 1920, concerning the future codifcation, addressed directly the need to unify selected sections of civil law. Yet one condition had to be met, as expressed in the Commission’s conclusion: “The Congress believes it a matter of utmost urgency to introduce uniform international private law and [perhaps even more so] interprovince law”.26 This resolution was adopted at the motion of Professor Fryderyk Zoll, initiator and executor of this frst unifcation part.27 The adoption of interprovince confict-of-law rules as a provisional measure turned out, at least in the short term, suffcient counterbalance to the fragmented civil legislation, which could thus be maintained while waiting for the new Polish civil code.

Preliminary assumptions regarding the civil codifcation Why was it not possible to draft the civil code in a hurry? It had to meet certain requirements that a draft written immediately could not satisfy. Let us take a

24 Professor of Roman and civil law. Prior to World War I Franciszek Bossowski received his Ph.D. from the Jagiellonian University in Krakow. In the two interwar decades he was affliated with the University of Vilnius, were he held, among others, the function of the dean of the Faculty of Law and Social Sciences. 25 Bossowski, op.cit., 125. 26 Miscellanea Zjazd prawników i ekonomistów polskich, 241. 27 We believe that the breakthrough in thinking about the problems of unifcation may have been inspired by an article published by “Gazeta Sądowa Warszawska” in the summer of 1919: F. Zoll, Nasze zadania najbliższe w dziedzinie międzynarodowego i międzydzielnicowego prawa prywatnego [Our Immediate Tasks in the Area of International and Interdistrict Private Law], Gazeta Sądowa Warszawska, Vol. 21, 1919, 201–4.

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closer look at the slogans, visions, and certain seeds of the programmes for civil law codifcation that emerged in discussions during the frst few years after the establishment of an independent Polish state. Centre stage was taken by seemingly related desires for the civil code to stipulate laws “compatible with the spirit of the nation, its psyche and its needs”.28 This way it would refect the “true will of Polish citizens”, in the words of the deputies who put in motion the establishment of the Codifcation Commission in spring of 191929. This will – determined from the perspective of needs and psyche – at frst had to crystallize. Meanwhile, after over a century of national and state disintegration, socioeconomic processes aiming to reunite the country were just gathering steam in 1919. The Polish elites needed time to learn the diffcult skill of running and administering their own independent state. Moreover, warfare with Soviet Russia on the Polish territories did not end until the signing of the Treaty of Riga in 1921. All this was compounded by war damages and the diffcult, sometimes critical, economic situation caused by 1923 hyperinfation. Thus, normalization was still far ahead. The awaited legal unifcation, even if only partial, could hasten this process, but it could not replace it. It would be just the frst step. In these particularly diffcult circumstances of the frst years of independence, the need to identify the socio-economic expectations of the new country came to the fore in the discussion about the future. Yet, it would take a lot more time for the situation in the country to stabilize, which was a necessary prerequisite for the code regulations to refect the normal conditions of life. Also the foundations of the state existence, such as the political system, were not determined until the 1921 Constitution, while the borders and the national and social structure of the country would not be laid down until 1922. Wacław Makowski and Stanisław Car noticed this problem in the very frst days of independence, even before the appointment of the Codifcation Commission, and they suggested that it may have been too early to take up the task of drafting a codifcation. Makowski wrote: “It cannot be ignored, as this task must not only facilitate a normal system of legal, political and economic relations in the country, but will also affect the mentality of the nation and the entire social life.”30 Car in turn observed that the process of unifcation, if it is to wipe out all traces of stitches left by the old borders and to be permanent, should take place by way of internal coalescence, full reciprocal diffusion of cultural, mental, economic, and stateorganization values31

28 L. Górnicki, Pogranicza systemów prawnych, w szczególności pozaborowych, w pracach nad kodyfkacjami prawa cywilnego i handlowego w II RP [Legal Systems, Especially PostAnnexation, in Works on the Codifcation of Civil and Commercial Law in the Second Republic of Poland], Acta Universitatis Wratislaviensis, Vol. 3799, Prawo CCCXXIV, 2017, 132. 29 Wniosek nagły posła Zygmunta Marka, op.cit. 30 Makowski, op.cit., 14. 31 Car, op.cit., 2.

A new draft of the Polish Civil Code 57 Meanwhile, Polish society was just setting out on this path, and this meant, as Ludwik Domański wrote, that elaborating [...] an entirely new system [of civil law], one better ftted to the modern requirements of social life [...] is not possible while we do not yet know how this tremendous breakthrough brought about by the great war will end, whether it will transfgure the social system or change it only partially in line with the pre-war postulates that are now gradually turned into reality. One thing seems certain: the pre-war order of things is not coming back, because “exhausted and impoverished by many years of war, our country demands improved living conditions, and the great majority of our society sees the only rescue in social reforms, in rebuilding or even completely changing the social order”.32 For all these reasons, the Polish legal elites agreed that it was “expedient to codify civil law in the shortest time possible”, which they expressed in a resolution adopted at the all-national Congress of Lawyers and Economists in 1920. Right away, however, they reserved that it could not take place “with detriment to soundness and integrity of legislative works”.33 Also Alfons Parczewski, Dean of the Faculty of Law and Administration and the Stefan Batory University in Vilnius, pointed out the diffculties associated with the preparation of a civil code.34 His voice, however, stood apart from the voice of other quoted lawyers. Parczewski spoke up a few years later, in 1925, in new, seemingly normalized political and socio-economic conditions. He also noted that: “codifcation of civil law deeply affects the tissue of social life, and thus it should account for its entire body, while expressing a uniform legal thought of the nation”.35 Despite the passage of some years, he still had doubts as to the whether the time was right for codifcation: “Is this era, whose end we cannot foresee at the moment, suitable and proper for the creation of such a momentous work as the Polish civil code should be?”36 He was not certain, indicating that “the legal psychology of the times” may still not be “suffciently calm and rational” for such a task to begin. Yet he pointed to different problems of young Poland than his colleagues who had participated in the discussion a few years prior. He thought that the codifcation efforts could be frustrated, on the one hand, “by insuffcient unity of the legal world-view” of Polish jurists and, on the other hand, by the

32 Domański, op.cit., 170. See also: J. Bekerman, Czy kodeks, czy nowele [Whether to choose a codex or novels], Gazeta Sądowa Warszawska, Vol. 7, 1920, 49–50. 33 Miscellanea Zjazd prawników i ekonomistów polskich, op.cit., 241. 34 When Adolf Parczewski left the University of Warsaw in 1919, he became the frst dean of the Faculty of Law and Administration of the Stefan Batory University, and later he took over the function of rector. 35 A. Parczewski, Uwagi nad kodyfkacją prawa cywilnego w Polsce [Remarks on the Codifcation of Civil Law in Poland], Rocznik Prawniczy Wileński, Vol. 1, 1925, 1. 36 Parczewski repeated the same question he had asked in 1920, which means that a few years later it still stood for him.

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“ill-prepared legislative factors in modern Poland”.37 Parczewski’s conclusions were a refection of the heated political disputes that shook Poland in those times, on the eve of the May Coup of 1926, making it impossible to bridge political gaps in order to reach a consensus in the most important issues. The civil code was certainly one of such issues. This, of course, does not mean that political antagonisms were something new among the Polish legal elites. Disputes over the vision for a new Poland and the path it should follow polarized society even before the war. After the war and regaining of independence, they only infamed in the midst of the struggle for political power. The main axis of political divisions ran between the nationalist right and the socialists, that is the two strongest formations. The national democrats focused on the aspect of national consolidation and Polonization, which went hand in hand with repressing ethnic minorities, while the socialists concentrated on the transformations of the social structure. In both cases, the civil code was to serve as an important tool in the pursuit of these ideological goals. The framework of socialist thinking was refected in, among others, the words of Ludwik Domański, who stressed that Poland was facing imminent social and democratic changes spurred by the “breakthrough brought on by the worldwide war”. The nationalists did not oppose these slogans. They however believed that accents should be distributed differently, so as to give national goals priority over the social ones. Hence their more intense retrospective search for the spirit of Polishness in the historical tradition and in catholic values.38 The national code, as fruit of native legal thought, could serve as one of the strongest binding agents of the nation. Owing to this, drafting the code as an original work, one that would stand apart from the foreign codes, especially by way of accounting for the specifcity of the national spirit and by imbuing it with a unique character, was very much desired by the Polish nationalists. The civil code, as a body of laws that “deeply affects the tissue of social life” and does so on multiple levels39, could serve this purpose better than any other act of law, coming second to the constitution only. This was pointed out by Alfons Parczewski, who noted that the need for codifcation is not quite as explicit as one might think. He asserted that “the strongest [...] motive that directly drives the codifcation efforts in general, and especially in the feld of civil law, has been and still is of political nature”. In his article, he referred to historical examples of other countries, summing up his considerations with the statement that “the idea of national unity” has usually been the “banner” and “the strongest factor in codifcation initiatives”. At the same time, however, he believed that codifcation constitutes only “a […] symbol of political unity and centralization”.

37 Ibid., 2. Compare: Z. Radwański, Kształtowanie się polskiego systemu prawnego w pierwszych latach Drugiej Rzeczypospolitej [The Formation of the Polish Legal System in the First Years of the Second Polish Republic], Czasopismo Prawno-Historyczne, Vol. 21, no. 1, 1969, 39–41; Górnicki, Prawo cywilne, op.cit., 71–72. 38 Compare: Górnicki, Prawo cywilne, op.cit., 83–85. 39 Parczewski, op.cit., 1.

A new draft of the Polish Civil Code 59 If [he explained] the aim is to accomplish true external political or even national integrity, strength of the state presented outside of the country, a strong internal organization and consolidation, all these are possible to achieve even if there are divergences and differences in civil law within the territory of the country.40 Parczewski thought it a mistake to believe that “economic development of a great and wealthy society requires codifed civil law”. He pointed to the examples of Great Britain and the United States; two countries that towered over other states, including European ones, in terms of wealth and economic growth despite not having civil codes. According to Parczewski, not only national codifcation, but even “uniform legal regulation of social relations and economic transactions within the state” were not at all a sine qua non condition for wellbeing and prosperity, against the above-quoted opinions expressed by lawyers in the frst years of independence. The absence of a uniform code does not have to lead to “complications and chaos in social relations” or to “obstruction of economic life at every step of the way”.41 He argued: “provided that there are actual factors at work that determine or give rise to the external power of a state and the internal wellbeing of the society, diverse civil laws within the territory of this state do not have to pose an obstacle to the political and social welfare of the nation”.42 The lawyers who held dear socialist ideas, including Ludwik Domański, favoured a sociological approach to law, believing it to be the most modern and refreshing perspective, one that could best respond to the challenges of the new times. They were especially keen on the thought of Léon Duguit and the concept of “social solidarity”, which could serve as a foundation for the new civil code. Domański, who was an avid advocate of these ideas, at the same time noted that Poland differed from Western Europe. He pointed to individual freedom, rooted deeply in the body of the Polish society back in the day, when the West was just beginning to demand its rights, [which] became a heritage of all social spheres after the collapse of the PolishLithuanian Commonwealth.43 Combining solidarity and liberty ideas, Domański called for the authors of future civil code to remember primarily that “the Polish nation [by its nature] desires [above all] social freedom and demands that measures be devised to protect and advance it, especially by professional lawyers”.44 However, he did not elaborate on how this combination of social solidarity with liberty could translate into concrete

40 41 42 43 44

Ibid., 30. Ibid., 3. Ibid., 31. Ibid. Domański, op.cit., 170.

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principles and characteristics of civil law institutions. He did, nonetheless, list some theoretical assumptions that the future code authors should use as guidelines, which summed up “the course of history of the civil law development until now, as well as of the legal and social doctrines”. He believed that the following should be kept in mind: (1) the law is not an abstract construct, but a “product of social relations” (which was a veiled critique of the method adopted by the authors of the BGB); (2) “civil relations, thanks to individual freedom guaranteed by acts of law from the 19th century, have developed so much that now they constitute a nexus of varied and interdependent interests and strivings”; (3) “owing to the connectedness and interdependence of interests, regulating civil relations from the position of individual freedom, in isolation from the whole of legal and social relations [as done in the 19th century], is no longer possible”; (4) “the legal connector in civil relations are mutual obligations rather than subjective rights, and the obligations that come with them”; (5) the exercise of rights in the subjective meaning is conditional upon the exercise of obligations”.45 Leaving aside the socialists’ problems with specifying far-reaching goals of social and economic policy or the goals of nationalist politics that the new civil code was meant to achieve, it must be underscored that the expectations from the code were high, perhaps even excessively so. Legal elites seemed accepting of the fact that they, along with the entire society, would have to wait patiently for the national law to come through if it could live up to their ambitions of having a code as good as the most valued, Western-European ones. As Alfons Parczewski put it, the Polish civil code should be a “monumental work” designed to “last decades, or even centuries”.46 In order for this to be possible, the code had to be modern, that is not only adjusted to the needs of contemporary Poland, but also based “on the latest fndings of legal knowledge”.47 As follows from the above-quoted opinion, none of the post-annexation codes guaranteed this result, except for Bürgliches Gesetzbuch, which was found “incompatible”. On the other hand, getting to understand the “spirit” or the “psyche” of the Polish nation was not possible without frst conducting sociological and anthropological studies. “The codifcation commission [...] should subject its works to the experiences of the past and to the guidelines of the science for the future.”48 – wrote Ludwik Domański, and the statement was representative for majority of the legal elites to accept, even if they were on the other side of the political scene. Yet matters were not quite so simple. The idea to base the civil code “on the latest fndings of legal knowledge” concealed another problem, one noticed also by Domański. In his article reviewing the latest trends in global science of law, he arrived at the conclusion that they were very much disparate, even regarding the path of the future legal development, and that this fundamental problem

45 46 47 48

Ibid. Parczewski, op.cit., 1. Makowski, op.cit., 13. Domański, op.cit., 170.

A new draft of the Polish Civil Code 61 “is solved in various ways […]: some purport that civil law is subject to gradual socialization, others claim that the autonomy of individuals is expanding, while the duties of individuals toward the general society also increase.” This situation led Domański to the conclusion that “the great abundance of theories and sociolegal doctrines, often antipodal to each other, makes it very diffcult to choose from among them”.49

Codifcation work methods How, then, were the works on the code drafts supposed to look in order to accomplish the goals set therein? In 1919, when key decisions in this regard were made, the relevant organ, that is the Ministry of Justice, according to the lawyeroffcials employed there, such as Wacław Makowski – would “not be able to fnd among its staff as many frst-rank professionals originating from all departments of the country as needed for the completion of these works”. For this reason, ministerial offcials were leaning toward the concept of establishing “a separate organization, which [...] unburdened by day-to-day chores, would be able to devote itself solely to this work” which “will require much effort and skills”.50 It is no surprise, then, that the ministry backed Makowski’s idea to entrust codifcation works to “scientifc societies, universities and [private initiative of] individual scholars”.51 As Makowski clarifed, this institution should not form part of any of the ordinary links of the state life, as it is to be appointed for a special purpose and in such circumstances both its organization and scope of activities should be specifcally tailored to its needs. The person heading this institution should remain in close contacts with the government without being its member [...]; he should be apart from its political character and responsibility and only watch over the legal scope and continuity of its works, regardless of any changes in the government. Moreover, the unifcation institute or committee [...] should entrust the job to the most outstanding representatives of legal theory and practice from all of Poland. Its members should thus include the most renowned university professors, practicing lawyers, judges, offcials and administrators. 52 Thus, there was a consensus at the Ministry of Justice that the codifcation should be the effect of work carried out outside of it, a fruit of “strenuous labour and effort of choice Polish lawyers from all districts of the country”.53 The parliamentary response to these proposals was an urgent motion submitted by Zygmunt Marek and a few dozen of other deputies on 1 April 1919, in

49 50 51 52 53

Ibid., 171. Kontrprojekt Ministerstwa Sprawiedliwości, 283. Makowski, op.cit., 13. Ibid., 14. Car, op.cit., 10–11.

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which they called for the appointment of the Codifcation Commission.54 The motion’s authors stressed that their intention was to create a codifcation body that would accomplish this “regardless of political currents and with undisturbed autonomy”, and that it had to be the “fruit of work of outstanding Polish professionals”. Only such a composition of the Codifcation Commission guaranteed that works would be conducted “without party squabbles, in peace engendered by the authority of science, yet with account for social development”.55 These “outstanding Polish professionals” were to be represented exclusively by legal elites: “learned men” – legal theoreticians and practitioners, but not by representatives of other social sciences.56 The desired qualifcations were covered in more detail in a memorandum submitted at the same time by Lviv lawyers. Galician jurists envisaged that only outstanding lawyers with specifc knowledge and skills could become codifers. In their opinion, neither a theoretician nor a practitioner had to turn out to be a “good codifer”. They argued that a seasoned practitioner may draft bad laws if he lacks the capacity to synthesize and generalize, which is a requirement of proper legislative technique devoid of casuistry.57 Also a scholar did not necessarily have to be the best ft for the job, because “laws are not literature”, and even an academic “with the deepest knowledge of the subject matter” may not have suffcient talent to “express thoughts precisely, both succinctly and clearly” or to “grasp the entirety of a subject in short, concise sentences”. On the other hand, however, it was representatives of academia who were to serve as the expert force in the editorial works, as codifcation, at least in the frst stage, was to be a sort of a “theoretical work”, consisting of “indicating common guidelines and staking out the long-term route for the general legislative reform in Poland”.58 This method of conducting codifcation works had already been laconically addressed by authors of the motion to appoint the Codifcation Commission, submitted on 1 April 1919. They were of the opinion that drafting the future code would require, frst of all, “a comparative compilation of legal principles and provisions heretofore effective on the Polish territories” and thus,

54 M. Gałędek, The beginning of the debate on the codifcation of Polish law after the First World War: The issue of the Codifcation Commission autonomy in the light of political declarations, Studia Iuridica, Vol. 80, 2019, 214–216. 55 Sprawozdanie Stenografczne Sejmu Ustawodawczego [Stenographic Report of the Legislative Sejm], 44th Session of 3 June 1919, XLIV–5. 56 Wniosek nagły posła Zygmunta Marka, op.cit. 57 Memoriał Wydziału Prawa i Umiejętności politycznych Uniwersytetu, Towarzystwa Prawniczego i Związku Adwokatów Polskich we Lwowie w sprawie techniki ustawodawczej [Memorandum of the Faculty of Law and Political Skills of the University, Legal Society and Association of Polish Advocates in Lviv Concerning the Legislative Technique], p. 1. In other words, authors of the Memorandum observed that a competent legislator should ensure the proper form of legal provisions by expressing his will in a “clear” manner, “consistent with the wording of the provision”, and the regulations themselves cannot “be internally contradictory” or “create diffculties of application”. Ibid., 2. 58 Makowski, op.cit., 13.

A new draft of the Polish Civil Code 63 importantly, in their vision the work was to be based only upon the legal systems inherited from the annexing powers and it was to consist in “deciding which of the few provisions governing the same issue should be given priority over others”.59 This corresponds with the above-mentioned proposal of the authors of the Lviv memorandum, who did not think that the future codifers would necessarily have to be familiar with legislations other than the ones formerly in effect in Polish provinces. This is characteristic of the 1919 utterances of lawyers, who usually assumed that the codifcation work should be primarily based on the analysis of legislations of the annexing states, and, as Wacław Makowski poetically put it, its elaboration would consist in “combining this mosaic into a single picture, a single whole subjected to a common guiding thought and functioning as one”.60 Later proposals, expressed also after the Codifcation Commission had already began its work, went beyond the analysis of post-annexation codifcations, which is logical, seeing as they were ultimately deemed outdated and incompatible.61 Already participants of the Congress of Lawyers and Economists, held in September 1920, departed from the idea of modifying and combining the effective code regulations. They decided to adopt a general resolution stipulating that the codifcation should be a result of “thorough and in-depth works”, as the “new civil code is to be constructed upon autonomous foundations, in line with the signifcant needs of the nation”.62 How could such autonomous foundations be laid, however? A certain vision is presented already in the motion for the appointment of the Codifcation Commission. Although its authors assumed that this work would only consist in “deciding which of the few [post-annexation] provisions governing the same issue should be given priority over others”, they also established that these decisions should be determined by the “signifcance and consequences of each provision for the present and for the future social development”.63 Thus, their wish was for the newly drafted law to be modern and compatible with the new reality, rapidly changing in the wake of World War I. In their opinion, a codifer could not lose from his sight the direction “of development of relations in the Polish State”, so as to ensure that “a given norm, deemed correct in theory, does not run again the actual will of our society”. This, however, gave rise to a certain problem. As the authors of the motion noted: “today we are not yet able to tell what social forms our life will take on; the only thing that seems certain for the time being is that we are at the very beginning of social transformations”.64

59 Wniosek nagły posła Zygmunta Marka, op.cit. 60 Makowski, op.cit., 14. 61 F. X. Fierich, Rzut oka na najważniejsze zadania prac kodyfkacyjnych [A Glance at the Most Important Tasks of Codifcation Works], Kwartalnik Prawa Cywilnego i Karnego, Vol. 2, 1919, 457. 62 Miscellanea Zjazd prawników i ekonomistów polskich, op.cit., 241. 63 Wniosek nagły posła Zygmunta Marka, op.cit. 64 Ibid.

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As we know, Ludwik Domański held a very similar view of the dynamically changing reality. He argued that “the codifcation commission [...] should subject its works to the experiences of the past and to the guidelines of the science for the future.” Moreover, as already stressed in this text, he frmly believed that the contemporary world was characterized by a “great abundance of theories and socio-legal doctrines, often antipodal to each other”. For these reasons, work on the civil code could prove a complex, formidable task. Yet he believed that the exit from the maze of modern currents and strivings should be sought by the codifcation commission, as shown by the authors of the latest codes in synthesis, and the manner of synthesis should be grasped by studying how civil legislation has been developing in all the countries and where its progress is expected to lead in general, and especially in our country.65 In order to turn this vision into reality, the spectrum of comparative research had to be signifcantly broadened to include other countries, and the focus should be not so much on their regulations, but rather on the ongoing processes of legal development. According to Domański, the model to follow within this area should be the Swiss codifcation works concerning Zivil Gesetzbuch. Domański also indicated the need to draw from past experiences, in which he agreed with Alfons Parczewski, who had called for the preparation of the civil code to take place not only “in light of comparative remarks”, but also with account of “historical perspective, usually adopted for any codifcation work”.66 These appeals for the law to be approached in a dynamic perspective, with attention to its historical evolution and anticipation of its possible future advancements, as well as for the ongoing socio-economic transformations and the “spirit of the nation”, required much broader research than a mere comparison of civil law regulations in effect in other countries. Within this context, it becomes clear why the authors of the Lviv memorandum argued that any good codifer “must know history of law, native and foreign laws, and a Polish codifer must also be familiar with elements of the Old Polish law and with legislation of annexing powers, so as to ensure that the edifce of new law fts into the existing landscape”.67

Conclusion Immediately following the establishment of an independent Republic of Poland, the thinking of Polish legal elites about the upcoming reform of the civil law inherited from annexing powers was based on the idea of dividing the tasks into two parts, regarding unifcation and codifcation. Participants of the public debate

65 Domański, op.cit., 170. 66 Parczewski, op.cit., 1. 67 Miscellanea Zjazd prawników i ekonomistów polskich, op.cit., 241. See more: Michał Gałędek, Codifcation processes in Polish comparative jurisprudence (1814–1831 and 1918–1939), The Journal of Comparative Law, Vol. 16, no. 1, 2021 [forthcoming].

A new draft of the Polish Civil Code 65 thought it harmful to maintain the legal particularism of provinces any longer than it was necessary, although their concerns gradually began to abate as the time passed. As a result, they abandoned the initially considered plans of immediate unifcation, concluding that none of the foreign codes should be extended to cover all of Poland, and there was no other method to carry out a quick unifcation. The legal circles decided that inter-province private law, adopted in 1926, would suffce as a temporary counter-measure against the problems connected with conficts of law. In the remaining scope, they quickly began to adapt to the fact that legal particularism of provinces would have to be upheld until codifcation could be accomplished in the desired shape. In other words, they accepted that unifcation could after all be combined with codifcation without any excessive adversities caused by the extended time period throughout which the postannexation codes would have to continue in effect. The change of the original concept was favoured by the adopted action plan, according to which Codifcation Commission would not wait until the entire civil code was elaborated. Instead, it would frst focus on those parts of it that required unifcation most urgently. The priorities included especially the sections that governed economic transactions in the country. As a result, in 1933 the codifers issued the Code of Obligations and the Commercial Code. Prior to that, in 1924 and 1926 respectively, they drafted the Act on Bills of Exchange and Cheques and the Copyright Law. The pressure to work just as quickly in other areas, such as marital property and succession law, tapered off. It was partially caused by the fact that these areas of law regulated foundations of the country’s social life, and thus they sparked much more heated ideological and political disputes. As a result, the inability to reach a consensus delayed works as well as put the ready drafts at a risk of rejection. Such was the case of marital law of 1929. Despite the initial concept that had called for immediate unifcation, utterances of prominent representatives of the legal world who spoke up in the discussion concerning civil law reform in the early years of independence, indicate their rather realistic assessment of the situation. From the very beginning the debate participants made ambitious plans for drafting an original codifcation, tailored to the socio-economic level of development of the country. They were aware that it could not be adjusted to the socio-economic relations from before World War I, nor to the tumultuous times of post-war chaos and destruction. It was clear to them that they had to wait for the situation to normalize, for some new order to emerge, in the meantime beginning processes of internal consolidation of the nation and making arrangements for the political foundations of the country. Thus they accepted that the civil code would not be ready for a long time, especially since the plan for preparatory works was quite ambitious in itself. They were to entail (and they did) a broad spectrum of legal comparative research on civil codes of other countries, without limitation to those best-known, partially assimilated codes inherited from the annexing powers. The analysis of the directions of development of contemporary socio-economic life and legal doctrines in the world, especially its sociological currents, was deemed equally important. The Polish legal elites closely followed the global tendencies to homogenize civil law

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institutions and principles in individual countries, especially in the areas that dealt with economy. In order to understand this trend better, they actively participated in international lawyers’ congresses. The Polish codifcation programme was based on two principal pillars: (1) to create the civil code in parts and to adopt them without waiting for the others to be ready, and (2) to precede the elaboration of normative material with comparative and theoretical studies. The concept of preparing the metaphorical “fast food”, that is a law that was to accomplish unifcation as soon as possible even at the price of substandard quality, which at the beginning of the reforms seemed inevitable, was ultimately rejected. Based on experiences gained throughout the initial phase of works, the Polish lawyers realized that legal particularism of provinces, even in an area as important as civil law, may be retained also in a longer time perspective without serious detriment to the country’s internal life. On the other hand, what may have seemed an overly ambitious programme for the preparation of a gourmet dish combining diverse ingredients (institutions and principles of civil law of various origins, creatively modifed and mixed together), involving an in-depth understanding of the secrets of foreign cuisines (civil laws of other countries), following a thorough identifcation of consumer needs (the modern Polish nation), ended with a success. The programme of drafting a Polish civil code as a work merging different parts prepared largely independently of each other was accomplished, although works were not fnished until after World War II, in a nascent political and socio-economic reality. Nevertheless, the majority of materials had been elaborated by the Codifcation Commission in the two interwar decades.

Bibliography Bekerman J., 1920, Czy kodeks, czy nowele [Whether to choose a codex or novels], Gazeta Sądowa Warszawska, Vol. 7, pp. 49–50. Bossowski F., 1919, O naszych najbliższych zadaniach ustawodawczych [On Our Immediate Legislative Tasks], Kwartalnik Prawa Cywilnego i Karnego, Vol. 2, pp. 119–127. Car S., 1918, Pilne zadania prawnictwa [Urgent Tasks of the Law], Warsaw: Orgelbranda Synowie. Domański L., 1921, O systemie przyszłego Kodeksu Cywilnego polskiego [On the System of the Future Polish Civil Code], Dziennik Urzędowy Ministerstwa Sprawiedliwości, Vol. 2, no. 4–8, pp. 161–173. Fierich F. X., 1919, Rzut oka na najważniejsze zadania prac kodyfkacyjnych [A Glance at the Most Important Tasks of Codifcation Works], Kwartalnik Prawa Cywilnego i Karnego, Vol. 2, pp. 455–480. Gałędek M., 2019, The beginning of the debate on the codifcation of Polish law after the First World War: The issue of the Codifcation Commission autonomy in the light of political declarations, Studia Iuridica, Vol. 80, pp. 119–134. Gałędek M., 2021, Codifcation processes in Polish comparative jurisprudence (1814–1831 and 1918–1939), The Journal of Comparative Law, Vol. 16, no. 1 [forthcoming].

A new draft of the Polish Civil Code 67 Gałędek M., and Klimaszewska A., 2016, ‘Crippled equality’: The act of 1 July 1921 on civil rights for women in Poland, Acta Poloniae Historica, Vol. 113, pp. 231–260. Glass J., 1920, Współpraca poszczególnych dzielnic w budowaniu Państwa Polskiego [Cooperation Between Districts in Building the Polish State], Gazeta Sądowa Warszawska, Vol. 3, pp. 18–20. Górnicki L., 2017, Pogranicza systemów prawnych, w szczególności pozaborowych, w pracach nad kodyfkacjami prawa cywilnego i handlowego w II RP [Legal Systems, Especially Post-Annexation, in Works on the Codifcation of Civil and Commercial Law in the Second Republic of Poland], Acta Universitatis Wratislaviensis, Vol. 3799, Prawo CCCXXIV, pp. 111–146. Górnicki L., 2000, Prawo cywilne w pracach Komisji Kodyfkacyjnej Rzeczypospolitej Polskiej w latach 1919–1939 [Civil Law in the Works of Codifcation Commisssion in the Republic of Poland in Years 1919–1939], Wrocław: Kolonia Limited. Grodziski S., 1991, Komisja Kodyfkacyjna Rzeczypospolitej Polskiej [Codifcation Commission of the Republic of Poland], Czasopismo Prawno-Historyczne, vol. XXXIII, no. 1, pp. 47–77. Klimaszewska A., 2019, Searching for national components in building own legal culture – The debate on the legal situation of women in interwar Poland, Studia Iuridica, Vol. 80, pp. 170–180. Kontrprojekt Ministerstwa Sprawiedliwości, 1919, [Counter-draft of the Ministry of Justice], Kwartalnik Prawa Cywilnego i Karnego, Vol. 2, pp. 281–284. Kuratów-Kuratowski R., 1919, O zdolności prawnej mężatek [On the Legal Capacity of Married Women], Gazeta Sądowa Warszawska, Vol. 28, pp. 261–265. Makowski W., 1919, W sprawie ujednostajnienia ustawodawstwa [On the Unifcation of Legislation], Gazeta Sądowa Warszawska, 2–3, pp. 13–15. Miscellanea Zjazd prawników i ekonomistów polskich, 1921, [Miscellanea. Congress of Polish Lawyers and Economists], Ruch Prawniczy Ekonomiczny i Społeczny, Vol. 1, pp. 237–246. Parczewski A., 1925, Uwagi nad kodyfkacją prawa cywilnego w Polsce [Remarks on the Codifcation of Civil Law in Poland], Rocznik Prawniczy Wileński, Vol. 1, pp. 1–69. Radwański Z., 1969, Kształtowania się polskiego systemu prawnego w pierwszych latach Drugiej Rzeczypospolitej [The Formation of the Polish Legal System in the First Years of the Second Polish Republic], Czasopismo Prawno-Historyczne, vol. 21, no. 1, pp. 31–67. Sprawozdania Stenografczne Sejmu Ustawodawczego [Stenographic Report of the Legislative Sejm], 1919. Wniosek nagły posła Zygmunta Marka i tow. w sprawie powołania do życia komisji dla stworzenia jednolitego prawodawstwa w Państwie Polskim [Urgent Motion Submitted by Deputy Zygmunt Marek et al. Concerning the Appointment of a Commission for Drafting Uniform Legislation in the Polish State], Druki Sejmu Ustawodawczego Rzeczypospolitej Polskiej, 1919. Zoll F., 1919, Nasze zadania najbliższe w dziedzinie międzynarodowego i międzydzielnicowego prawa prywatnego [Our Immediate Tasks in the Area of International and Interdistrict Private Law], Gazeta Sądowa Warszawska, Vol. 21, pp. 201–204.

Part II

Food as an object of regulation Legal constructions

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Globalization, Americanization, and the epidemic of human obesity Finding the legal reason for a symptom of cultural decline Joseph P. Garske

Background One ominous trend in human health and disease occurring in the global age is the growing worldwide incidence of morbid obesity. There are many ways to understand this phenomenon, including the one possible choice of understanding it as a symptom of cultural decline. More specifcally, it may be understood as a crisis resulting from the abnegation of traditional cultures by a transcending mode of legal rule that imposes a single prescriptive order on all persons and things in all regions of the earth. This chapter describes traditional culture as cultivation in thought, word, and deed, with the end of personal self-control, self-reliance, resourcefulness, and as a basis of harmony within family and locality. It explains culture as embedded knowledge handed down through generations, including habits of thought and being instilled in mind and body. Based in ultimate values of sacredness and respect toward human existence in the universe, it is anchored in a frm practicality and strong ties of personal obligation. To address these topics, the chapter discusses how the two Western traditions of law, Civilian and Anglophone, have converged to provide a juridic basis for global governance. It discusses how, historically, the two legal methods have created different patterns of life around the world, and how the current Anglicization of global law may inevitably contribute to the decline of local culture. It explains how these effects could result in pathological habits of food production, distribution, and consumption. In addition, the chapter discusses the particular strand of Anglophone legal development that is most dominant in the global project and most infuential in the atmosphere of thought and behavior being created. That is an Americanized legalism with its distinct collegial purposes and underlying values. The chapter concludes by explaining how characteristic patterns that distinguish the American mode of existence do not provide the benefts of traditional enculturation, and when enforced by Anglophone legal methods and its concentrated aim of wealth production, they work in adversarial relation to such traditions. The corporatizing of labor, atomizing of families, individuating of persons, and the immersive atmosphere of electronically transmitted sound and image are

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all fatal to the indigenous. One symptom of a dramatic global decline in the level of personal cultivation is the worldwide crisis of human obesity.

Globalization, Americanization, and the epidemic of human obesity: fnding a legal explanation for a symptom of cultural decline Global crisis There are many ways to understand the twenty-frst century crisis of human obesity, a crisis that is following on the advancing project of globalization. One way to understand it is from the perspective of the legal regime that is shaping the global project, and that provides a foundation for the human conditions that are coming to exist. There are obvious reasons to assume that a standardized program for imposing order on persons and things across every region of the earth might also have a signifcant impact on sources of nutrition, habits of consumption, and general standards of health. In fact, it seems impossible that the legal basis of global governance would not have such an impact (WHO 2000; Jacobsen 2008). Viewed in this way, the spread of obesity might be understood as an effect of the displacement of more traditional modes of existence by a transcendent and authoritatively regulated way of life. The problem could be explained as resulting from the abnegation of organic local cultures, and their displacement by the impersonal instruments of rule that underlie global governance. The increase of obesity might have to do with an availability of food resources that has shifted from locally produced to industrialized and mass-marketed replacements. It might be viewed as an educative problem for populations newly immersed in an atmosphere of electronically transmitted sound and image, with its artifcially created appetites. In addition to these might be the generalized impact of corporatizing labor, atomizing families, and the legal individuating of persons. The project of globalization involves both historic traditions of Western law, Civilian and Anglophone. Although both have long had infuence around the world, it is with the growing predominance of an Anglicized global law that the incidence of obesity is reaching crisis proportions. This fact is signifcant, because the countries where the two different laws prevail have long had different dispositions toward traditional cultures generally, and food cultures specifcally. Comparing the two atmospheres of Civilian and Anglophone can also reveal a marked difference, for example, in patterns of cultivation and learning that occur within the two types of jurisdiction. Also, historically, the Civilian approach has encouraged an environment of social and material equity among its various populations. By contrast, the Anglophone realm has premised its regimen of order on different assumptions; it has excelled in competitive productivity, and takes pride in its strict policy of individuation (Habermas 2008: 147). However, when examining the incidence of human obesity in the project of globalization, an additional factor must be added to the fundamental differences

The epidemic of human obesity 73 between the two predominant Western traditions. It is that the particular version of Anglophone legal method being employed globally carries with it the attributes of American values and material aspirations. Thus, it not only has the fundamental Anglophone elements, but also certain specifc ways of shaping an atmosphere of human existence that resists deep enculturation. It assumes legal authority to be unquestioned and the complex reasoning of law to be properly inaccessible to public understanding. It regards the legal personality as unanchored by embodied knowledge – the restraints of manner and custom – leaving each person to default patterns of thought and behavior within the limits of an ordered freedom. It shapes a personality adapted to continuously changing external stimuli within an immersive atmosphere of transmitted sound and image. To the extent these traits have come to refect the American way of life, they are deeply connected to the legal premise that underlies it. It should be no surprise that, as an Americanized legal regime is extended across the earth, certain trends of health and nutrition, including certain pathologies – in particular, the phenomenon of morbid obesity – would follow. Probably in no country of the world is the form of governance, the way of life, the values and aspirations of its people, more avowedly identifed with its legal foundation than America. Yet, curiously, this harbinger and hegemon of globalization, which represents the dream of freedom and opportunity to multiple millions around the world, also has the distinction of being the original source of one major crisis of health that is sweeping every continent. Americans are known to have a troubled relationship with food and the body for reasons that are undoubtedly complex. But it is inconceivable that these stigmata of American life cannot be infuenced by the Rule of Law upon which its foundation rests. The only real questions concern in what way and to what extent this is true (Pottier 2007). There are scientifc ways to measure and analyze the impact that an American version of Anglophone law might have on patterns of living, on habits of food consumption, and nutrition in the global age. However, what follows will be an attempt to explain the global epidemic of human obesity as a question of principle rather than evidence. The approach taken will not be a conventional scientifc one based on empirical proof or statistical data. Instead, it will attempt to defne certain relevant characteristics that are basic to the nature of the two Western traditions of law. That is, characteristics, which if removed, neither of the two traditions would be either, characteristically Civilian nor Anglophone. Based on these descriptions, it can be shown that by its very nature, Anglophone law in general and its American version specifcally, will have a deleterious effect on the global level of culture – an effect that reveals itself in an array of pathological symptoms, including a global crisis of human obesity (Schlosser 2012; Lustig 2012).

Traditional culture Since the beginning of human history, or according to anthropologists and archeologists, since long before recorded history, nearly all peoples who have ever lived on the face of the earth have done so in an atmosphere of traditional culture.

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That is, until the last two centuries, when human conditions began to change around the world – especially in the twenty-frst century age of globalization and technology, when distinctive national cultures are being homogenized, and the last vestiges of indigenous culture are rapidly being extinguished. Moreover, the remarkable thing about the great variety of these patterns of living over centuries and across continents was that despite their separation in distance and time, despite having different languages, different costumes, despite living in different climates and topographies, certain basic elements common and essential to that way of life were almost universally present among them (Geertz 2000). For purposes of contrasting a traditional way of life with that shaped by the project of globalization, it is useful to examine those cultural elements that provide its foundation. Reduced to its fundamental and universal elements, culture in this sense refers to cultivation in thought, word, and deed. It was an instilled pattern of being and an approach to maintaining harmony among persons. Traditional culture was passed down in a spirit of reverence or solemnity, an awe of the sacredness of human existence and the eternity of the universe. But it was also grounded in a clear practicality and the ties of obligation. Viewed this way, culture had a great deal to do with the potential of each human being to be strengthened in self-reliance and self-control, as well as the virtues of truthfulness and courage. It had a great deal to do with treating others with courtesy and respect. These habits of thought and behavior could be so deeply imbued as to shape the common character and identity of an entire people. But these cultures were not merely attributes of the mind, of thought and belief; instead, they were grounded in human physicality. First of all, they were handed down from generation to generation through the ancestral family – the biological connection being the strongest human bond in nature. Added upon that was a second aspect of what is sometimes called embodied knowledge, a kind of knowledge that involves not only the mind but also the refexive attitudes of the body. On a basic level all persons have such deeply imbued knowledge; the ability to walk, the ability to speak intelligibly, for example, are both complicated processes that require patient and repetitive coordinated learning of mind and musculature over time. Eventually, like the native language, they become, as it were, second nature, done automatically without conscious thought. In a similar manner, in traditional societies certain behaviors and habits of thought are deeply instilled from earliest childhood. It is by this accustomed way of living that a people can interact among themselves in harmony without the necessity of an authority presiding over them (Counihan 1997; Wiley 2009). These ways of behaving and speaking usually have no necessary moral consequence. They are not questions of right or wrong; they are merely conventional. For example, the greeting of elders, the ritual of marriage, matters of propriety and dress, preparation of food, and the offering of prayer. Like the score of a symphony or the choreography of a ballet, it only works if all those taking part make the same harmonious sound or do the same coordinated movement. Just as each traditional society speaks a different language it also has different customs and behaviors – but they are intended for the same general purpose. In each tribal

The epidemic of human obesity 75 environment, the greatest care is shown in training from childhood, not merely out of sentiment, but out of self-interest. After all, the family, the tribe, or nation is built on this foundation, as it were, from the ground up. Its future may eventually depend on the courage and resourcefulness of any one of its young members who had been properly trained to adulthood. Historically, the great weakness of the tribe and village was their inevitably small size; they were vulnerable to natural catastrophe and later to imperial conquest. A second problem was, that because of language barriers, a lack of understanding between peoples could lead to mistrust and confict. It was in answer to these defects and this type of threat in the ancient world that there arose the great humane philosophies. The frst of these universal teachings was that of Zoroaster around 600BC, an infuence that culminated in the rise of the Persian Empire under Cyrus the Great, and one of the great outpourings of art and learning in human history. Actually, the teachings of this great sage were not necessarily novel or original. The effect of his message was to distill from the many local variants, the common principles of cultivation that underlay them all. Then, with the newly originated technology of alphabetic script, recorded by ink brush on paperlike substances, his writings were carried to every region, bringing the possibility of peace and harmony to a population of millions. As the teachings of Zoroaster were committed to memory across an entire continent, Persia developed the frst great mnemonic civilization of the ancient world (Frye 1963: 56). In the century after Zoroaster, by a different expression of universal principles but with the same written method of dissemination, the teachings of the Buddha spread across India, the teachings of Confucius and Lao Tzu spread across China and East Asia, and the doctrines of Heraclitus and Socrates spread across the Greek Mediterranean world. Much later, teachings of the Prophet Mohammed were collected in a book of Recitations, or Quran, with a similar effect. In each case the inscribed text provided the means to a larger and more important purpose: the committing to memory of the sacred, the aphoristic, and poetic teachings. The result amounted to a cultivation of mind and body, including what was called by the Stoics, the hegimonikon and, by the Daoists, the heart-mind, of every person. Combined with the connections of familial descent, each of the ancient teachings instilled an ethos, a code of conduct, an affrmation of life, a knowledge embedded literally in the memory and musculature of each person. This provided the basis of harmony across a wide territory and a multitude of peoples, whether or not they were ruled over by any regimen of authority (Hadot 2002).

Philosophical Latin To understand in a fundamental way the two Western traditions of law and their distinguishing characteristics, it is useful to return to their beginnings. That is, to their near simultaneous beginnings nearly one thousand years ago. Historians mark the origin of what became the modern civil law tradition with the founding of the University of Bologna, Italy in 1088. At that school, the frst of the great universities of Europe, the ancient Roman Code of Justinian was studied, its

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provisions simplifed and adapted to the rather backward conditions of medieval Christendom. Out of those studies a common law was developed for the whole of the Christian realm called the jus commune. This legal regimen included both the religious and the civil dimensions of Ecclesia and Imperium. At that time, it would have been diffcult to determine where questions of jurisprudence ended and questions of theology began (Radding 1988). Over centuries, the business of the universities – including, for example, Paris, Oxford, Cambridge, and Orléans – came to include not only law, but also theology, philosophy, and the inherited teachings of the Ancient Greeks and Romans. From the standpoint of governance, this inclusive approach to knowledge was the great virtue of the jus commune and represented an aspect of its operation that continued into the modern age. It was that the theological and philosophical principles, as well as the classical studies, along with doctrines of law, comprised a single continuum of knowledge that was disseminated with remarkable uniformity to the educated public generally. Because the atmosphere of law and the atmosphere of learning were fully assimilated to one another, they came to permeate the consciousness of all ranks of the population in every region of the Latin world (Bellomo 1995). Even into its modern incarnation, when both the university and the law became avowedly secular, and its underlying premise became strictly philosophical and ideological, these holistic patterns of the legal atmosphere remained in place. Moreover, academic study continued to be framed in a context of ultimate values of which the university was custodian. Although the scholar was the central fgure of the law, and although he occupied an honored place at the university, it was understood that the learning of the law was related to all other knowledge. Because the scholar presided over the work of all judges and advocates, he provided the crucial link between the metaphysical realm and the locally ordered way of life. Also, because the legal order was based on universal principles, it could, in theory at least, operate equally among every rank and status, noble or common, rich or poor, or among any people of the earth. However, for the regimen of law to remain credible and effectual required the widest possible circulation of this foundational knowledge among the entire population. In fact, the unifed approach to knowledge and the wide dissemination of learning became, in effect, the basis of an entire way of life. It was an important contributing factor in the reputation of Europeans for intellectualism, philosophical innovation, cultivated manners and customs, as well as highly developed artistic expression (Lesaffer 2010: 338).

Collegial English Although the tradition of Anglophone law began almost exactly simultaneously with the beginning of the Continental law, the circumstances of its origin were very different. Historians often date its birth from the time of the Norman Conquest of England in 1066. In the wake of that tumultuous event, King William I imposed a unique type of kingship with a very centralized form of rule over the

The epidemic of human obesity 77 Anglo-Saxon and Celtic populations. In the carnage of battle, tens of thousands of innocent victims were slaughtered; whole regions were systematically depopulated. The arable land was seized and granted as estates to the Norman warriors, who then comprised an alien nobility. But on the island of Great Britain, only England and Wales fell under Norman rule. Scotland would escape the conquest and, in its legal development followed the Continental model of law (Babington 1995). From the outset, England was ruled as a servile kingdom, mostly by absentee kings, and useful primarily as a source of revenue. Evidence of the early policies survive in the Domesday Book, a record maintained of the periodic confscations taking place at that time. Also, to administer the kingdom in his absence, William established what would become three Royal Courts of Justice located in London. Initially, they were presided over by judges who had been trained in the jus commune at Bologna. Their primary concern was with disputes between members of the nobility over questions of possession and title to land. Land was important at the time because it was the primary form of wealth in the medieval world. To aid in the administration of these courts, the judges gathered to themselves a retinue of messengers, scribes, wardens, and servants who carried out the mundane tasks of the court system. In the fashion of the time, these men came to organize themselves into guilds of trade to further their own commercial purposes and to exclude unwanted competition. However, in 1166, exactly one century after the conquest, in a dispute over jurisdiction, King Henry II expelled the trained jurists, then granted to the guildsmen an exclusive monopoly of trade in litigation within the Royal Courts. They were to disdain the Latin jurisprudence and instead administer justice according to the Royal Will and in the coarse dialect of Norman French. From that time forward, the guildsmen received fees and gratuities from the litigants while a revenue of fnes, forfeitures, and bails fowed into the Royal Treasury (Baker 2002). Within each court the judge, wielding the authority of the king, acted as oracle of the law. Over generations and centuries, and in the absence of close oversight, the Royal Court lawyers grew in stature, power, and wealth. Although the jus commune continued to be taught at the universities of Oxford and Cambridge, and although other courts operated by that scholarly method within the kingdom – the ecclesiastical, heraldry, and Chancery courts, for example – the Royal Courts of Justice were completely insulated in their work. The guildsmen disdained the Latin scholars as unwelcome rivals attached to Romanist principles. Within the guild courts an esoteric Anglo-Norman dialect survived, as over time, the procedures conducted there became unintelligible to all, except those admitted to the closed fellowship. From the beginning, the nature and basis of the law guilds and their practices were very different from the work of the scholarly lawyers. First of all, their basic foundation was fraternal, and as with all medieval guilds of trade, their unifying ethos was guided by internal consensus among the members. The central fgure of the Royal Courts, the judge, pronounced his decisions, which were recorded as what amounted to specifcally created increments of law. Most importantly,

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the growing independence of the courts rested not only with their grant of royal authority, but also with their access to aggregates of wealth that existed in the kingdom. Removed in their work from the learning of the university and insulated from moral questions of philosophy or religion, the values that shaped their work were essentially utilitarian. In fact, the entire practice of the Common law, as a system of trade, depended on an absolute division of knowledge between those who administered the courts and those members of the public who sought justice there. As with any other guild of craftsmen during the medieval era, the purpose of the law guild was to enrich its members by perpetuating its commerce, especially by excluding unwanted competition and maintaining privily the secrets of their trade (Tiger 1977; Potter 2015).

Printed books A major turning point occurred in Latin Christendom beginning around 1500, with what historians usually describe as the beginning of the modern era. There were many elements that brought profound change, but none were more crucial than the scientifc and technological developments occurring at that time. Among the most important of these were what came to be called the Three Great Inventions: maritime compass, gunpowder weapons, and printing press. The compass brought an advance in navigation, exploration, and the discovery of fabulous riches. New weaponry made the old mounted warfare of sword and lance obsolete, producing a new kind of total war. Finally, printing brought the spread of literacy and new ideas, as well as divisions of opinion and belief (Misa 2004; Eisenstein 2012). Each of these innovations in its own way also had an enormous consequence for legal methods and the legal atmosphere, both in Europe and in England. One immediate effect was the mass publication of law books and an increase of innovative legal scholarship, as it also became possible to standardize legal administration over wide territories. Even more than that, because of the feature of moveable type, simply by changing the order of alphabetic characters, books of law could now be published in languages other than Latin. Thus, legal enclaves and distinct jurisdictions began to develop which were administered in their own locality by their own legal language – the beginning of the modern nation (Lebvre 1997). But there were two other developments that had an enormous impact on law and on the entire way of life of that time: the parallel teachings of humanism and Calvinism. During the sixteenth century, these systems of knowledge would have a profound impact, both across the Continent and within England. Over time, the two infuences converged, but they did so in different ways in the two locations. Humanism, or more properly, the studia humanitatis, was a course of training in manner and speech based on writings by the ancient Roman authors Cicero and Quintilian. Their program of instruction began with the young boy and continued into early manhood (Martines 1968: 78; Eton 2016).

The epidemic of human obesity 79 But the effect was much more than merely refned manner and elegant speech. It also taught a sophisticated sense of self, as well as a conviction that men, even without divine assistance, could reshape affairs of the world. Although its teachings were religiously agnostic, it instilled a strong sense of civic duty and personal obligation. Yet, because the particular techniques and skills it taught were non-moral in nature, and could be employed for purposes either laudable or nefarious, the tradition eventually divided into two strands, the Machiavellian and the Erasmian. Over time, the newly trained umanisti – courtier, advocate, or diplomat – replaced the old warrior nobility in the councils of state, kingdom, and commonwealth. Cultivated as a being of entitled superiority, he was the Universal Man, the ideal of the amateur generalist (Viroli 1998: 75; Gilmore 1963). Beginning around 1550, a second educative infuence began to circulate across Europe, the doctrines of John Calvin. Although usually remembered by historians as a religious fgure, Calvin was actually trained as a lawyer, and lived at a time when the two realms of law and religion were considered to be two sides of the same coin. In his ambitious plan, he attempted to combine both elements in an entirely new mode of Christian governance. He rejected the existing foundations of Ecclesia and Empire, just as he rejected the ancient Greek and Roman models. Instead, he based his proposed theocratic rule on another pattern with which most persons had some familiarity – the Respublica Hebraeorum – the example of Rabbinic Judaism based on Talmudic legalism (Nelson 2010; Junius 2015). However, the Calvinist version of this polity was remorselessly harsh and punitive in its application. Its theology was based on the premise that the mass of human beings was predestined to lives of corruption and perversion. Only an elect, or elite few were chosen by God to be ministers and magistrates to instruct and rule over the multitude of depraved sinners. The teachings of Calvin led to one of the bloody episodes of human history, as Europe and England were plunged into a century of civil and religious confict. Quite literally, millions of people died for their religious beliefs or as their customary patterns of living were forcibly uprooted. It was a time of witch trials, torture for heresy, execution by crushing under the stone or burning at the stake. When Calvinism reached England – in the form of Puritanism – its legalistic methods of torture and execution found a new means of application in the Royal Courts of Justice (Rosenblatt 2008).

Explicit civilian The modern development of the Civil law tradition can be understood as occurring by increments and stages through the seventeenth and eighteenth centuries. First was the impact of the Three Great Inventions along with the spread of humanism and Calvinism. One permanent effect of this phase was that the ability to print law books and legal codes in multiple languages allowed a solidifcation of regional jurisdictions, each with a uniform centralized authority. The result was a second historic turning point that came with the signing of the Treaty of

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Westphalia in 1648, the symbolic birth of the modern nation-state. Europe was broken into territorial domains, each administered in its own language, by its own law, and its own religion. This event fxed the map of modern Europe in a pattern that still approximates the reality of the twenty-frst century. However, the process of consolidating each of these polities and the Ramist work of imposing a national religion acceptable for each one of them often provoked riot and rebellion among the populace (Ong 1983). This led to a repudiation of the divisive Calvinist infuence, its dogma of human depravity and its harsh punishments. In the humanist spirit there began to emerge the idea of a non-religious and more humane educative basis of governance. The most famous of these early proposals were from the philosophers Descartes in France and Bacon in England. Theirs were among the frst credible attempts at constructing a secular methodus, of philosophical reason or empirical science as a basis of governance, free from sectarian hatred and violence. Following on this change of environment, and infuenced by Erasmian humanism, the late seventeenth century witnessed a profound change in the estimation of human nature and human possibility – and a changing opinion within the legal environment. A new tradition, beginning with the optimism of Leibniz and Wolff in Germany, continued most famously by the bon sens and volonté générale of Rousseau in France. This affrmation of human potential came to be embodied by the Sun King, Louis XIV of France, and what historians call the Enlightened Despots, including Frederick the Great of Prussia, Maria Theresa of Austria, and Catherine The Great of Russia. The new attitude spreading across Continental Europe reached into Scotland as the philosophy of Common Sense. The general premise of all these doctrines was that, if members of the common population were allowed access to culture and learning, they would to a great extent be able to govern themselves. The institutions of judicial authority would exist mostly as a supplement to this fundament basis of unity and order (Rousseau 2012). A second element that became part of the Civilian tradition was what historians came to call Enlightenment values. These were non-religious, but not necessarily anti-religious principles. Most of all, they were expressed in ultimate terms and were concerned with an affrmative view of human nature and human destiny in the universe, especially in three ways: all human beings were alike in the essential properties that made them human, the principle of equality. All humans had the capacity to learn and progress, the principle of perfectability. Finally, each person had the capacity of understanding and refection, the principle of reason. These doctrines came to be deeply imbued as the basic premise of the Civil law tradition. Their dissemination among all levels of the population provided an ideological basis for legitimate government (Lesaffer 2010: 398). It is from this period, beginning in the late seventeenth and continuing through the eighteenth century, that the Continental legal tradition took on its modern foundational elements. Most obviously, law came to be manifested in the explicitly defned structure of the nation-state. Each territorial state had defned borders, with sovereignty over its internal affairs, and the recognized right to enter into relations with the other nations. By the twentieth century, nearly the

The epidemic of human obesity 81 entire habitable territory of the earth came to be apportioned into state structures of governance. Over time, principles of reason and humanity had become the basic assumptions that underlie their existence, with instruction in these ideals replacing religious faith as the main content of civic education. Although no nation-state, or its legal institutions, operated perfectly according to those principles and ideals, it was essential that they at least appeared to do so.

Obscure Anglophone The teachings of humanism and Calvinism, the impact of the Three Great Inventions – maritime wealth, destructive war, and the ability to centralize governing authority – had equally important consequences in England. In particular, their convergence brought a clash between the Common law and the Civilian jurists – yet it resolved itself in a very different way from events on the Continent. The early effects could be seen in the dispute between Francis Bacon, the highest legal offcer of the monarchy and Edward Coke, the most powerful judicial authority of the Common law guildsmen. In the contest, Coke was able to disgrace Bacon, jail him, and banish him from public life – thus ending the possibility that Civil law would ever be adopted in England. Secondly, and equally important, Coke, who had deep commercial ties to the City of London, restated the doctrines of the Common law to engage not just the landed wealth of the medieval nobility, but the monetary wealth held by the new magnates of fnance and trade (Tiger 1977). Combined with those legal developments, the impact of Calvinist Puritanism led to the overthrow of the English monarchy in 1649. In its place, the Commonwealth was established as a military theocracy under its Lord Protector, Oliver Cromwell. Until that time, the guildsmen of the Royal Courts had comprised merely a single department of monarchical government. But with the establishment of the Commonwealth, they actually entered for the frst time as an infuential part of the governing structure itself. However, that episode disintegrated into a chaos of death and destruction, especially across the rural areas where most of the English population lived. After the tenured farmers were forcibly expelled from their lands, their villages and churches razed to the ground, all was consolidated into vast estates for the rising mercantile nobility. The urban centers were overrun by the dispossessed and destitute, as a widespread campaign of trial and torture for witchcraft and heresy began. All of these policies were carried out under the newly enlarged jurisdictions of the Common law courts and with scrupulous adherence to legal propriety. During this period, the deep scholarly, artistic, and architectural culture of the British Isles almost completely disappeared (Baker 2002). After the theocratic rule of the Commonwealth ended in disarray, the monarchy was briefy restored in 1660, but the convulsions only ended with the Glorious Revolution of 1688. If the Treaty of Westphalia was the defning event in the formation of modern Europe, the Glorious Revolution was its equal in shaping the character of modern England. At that time, the Anglo-Scottish King James II

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was overthrown and the Dutch Stadtholder, William III, was invited to London by a newly empowered parliamentary alliance of judicial authority and merchant wealth. The new king arrived with the understanding that his prerogative would be circumscribed by the authority of the High Court of Parliament, Lords and Commons. What resulted was a famously unwritten constitution, an organic union in which converging elements of both Common and Civil law became integral, with the House of Lords as its highest judicial forum. A re-founded royal dynasty and an entitled nobility of the recently enriched were united with an elevated gentry. This unique governing foundation combined familial descent, inherited wealth, and fraternal loyalty (Coquillette 1999: 363). In England, the Machiavellian strand of humanism, with its cultivated manner and speech, became the basis of rule by class superiority. At the same time, relations with the pauperized multitude continued to be defned by the Calvinist doctrines of subordination, as well as a strict policy of enforced illiteracy. The stark division of class was marked by opulence and splendor above, destitution, squalor, and disease below. In order to control this multitude of impoverished and ignorant, a series of ordinances were enacted by Parliament, imposing death by hanging for over three hundred offences from petty theft to trespass. In the exigency of the moment, King William launched a massive church building program, headed by the great Isaac Newton. Although an impassible gulf separated the royal, noble, and gentle from the multitude of simple, all royal subjects would at least be joined in a common religion. Divided into High Church, with its impressive regalia and ritual, and Low Church, with its moralistic preaching, the Established Church of England and its evangelical offspring once again provided the educative foundation of British governance (Colley 2012: 11; Thompson 1990; Hay 1975).

Imperial realms Viewed as an organic structure with authority descending from above, the essential nature of Anglophone rule could be described as one of rank and status. The ranking was by class, with members of the ruling strata all sharing in the same type of education and training, but being distinguished among themselves by divisions of heredity and affliation. In terms of rank, the hereditary peerage was, by birth, essential to the mechanism of rule. Among those of the fraternal orders were men who held a particular status within the legal order and some, by virtue of their acceptance into a professed discipline, were permitted to administer the courts of law. As for the illiterate multitude, they had no rank, only status, their dispersed families no longer recognized as holding tenure. Each male commoner was strictly individuated as a legal subject, while until the late nineteenth century women had no existence in the Common law. Nonetheless, the idiosyncratic Common law was adequate for the internal affairs of an island kingdom where that law had developed from medieval times as part of its custom and topography. But the larger world of the nineteenth century was changing, especially with the technical innovations of steamship,

The epidemic of human obesity 83 railroad, and telegraph. For purposes of imperial rule and the requirements of long-distance fnance and trade, the quaint ritual and regalia, the antiquated writs and forms of English law, were almost useless. In fact, most of the foreign holdings of the Empire were administered by costly military garrisons and ineffcient colonial offces, both dependent on the Royal Navy for protection. Moreover, the earlier phase of British imperial rule had employed a large measure of Civilian Scottish and Germanic legal methods through the infuence of the Stuart and Hanover Dynasties. Now an ascendant Reformist Party in London objected to those foreign intrusions. In the evolving world of geopolitics and imperial rivalry, they sought a new basis by which the hereditary and collegial virtues of English law could be preserved, but combined with modernized instruments for long distance regulation and enforcement (Armitage 2009). By the mid-nineteenth century these problems were especially acute, because the inventions of transport and communication were bringing new imperial rivals into confrontation with Britain. Although the British had the advantage of long experience in colonial rule and a vast overpowering navy, still the modern Continental empire had one distinct advantage: its method of law based on abstract principles and, nominally, at least, on ideals of human equity, was much more adaptable to foreign regions and peoples than was the parochial English method. The oracular nature of Anglophone law also made it untranslatable, while the principles of Civil law could be applied in any language. Moreover, as a law based in universal principles, and at least a nominal respect for human values, it could, to a workable degree, be adapted as an overlay to indigenous customs and cultures. By contrast, in the face of native language and custom, English colonial policy was reduced to a choice between eradication, subjugation, or expulsion (Metcalf 2010: 66).

Changed empire The British answer to these geopolitical realities came on two levels, and it was an answer of profound consequence. First was a re-conception of imperial rule on the most fundamental level. Because the lords and proconsuls who presided over the empire conceived of themselves as being the equivalent of modern Romans, it was quite natural that their attempt at reconsolidating imperial rule would follow on the ancient Roman example as well. Thus, during the nineteenth century, the British came to re-establish their empire, not as an Imperium, a realm ruled by military force. They instead came to think of it as a Dominium, and like their Roman predecessors after the third century AD, re-aligned the instruments of rule to ft this strategy. Their focus would no longer be on the mundane purposes of public order and sustenance, the typical preoccupations of conventional government. Instead, their new structure of rule would focus a strict attention on the production and aggregation of wealth, as the basis of Empire shifted from militarism to economism (Armitage 2009; Seeley 1971; Poovey 1998). Moreover, this fundamental reconstruction required a transformation in juridic practices as well. That change came by the effort of three pivotal fgures who

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would have a deep impact on Anglophone law – especially in its economistic application – these were John Austin, Robert Lowe, and Sir Henry Maine. Among these men, the decisive fgure was Austin who, in his reconstructed approach to legal rule, provided three essential elements: a premise, an ethos, and a method. The premise was that law was simply the command of the sovereign, and the sovereign was any entity having the power to impose its will – this was known as legal positivism. The ethos was that legal questions had no necessary relationship to questions of morality or questions of right or wrong. Issues of law were simply to be decided by the internal logic of the legal process – and only according to empirically verifable fact, philosophical positivism. The third element Austin provided was what came to be called Abstractionism or Formalism. Moving from an oral to a textual basis of legality, his approach opened the labyrinthine possibilities of juristic inventiveness. This innovation, more than any other, transformed the Common law – once ridiculed as a law without books – into a science of infnite complexity and prolixity, symbolized, in fact, by the modern law library and the book of law (Austin 20015). Following on Austin, Robert Lowe contributed to the world of Anglophone legal abstraction its single most useful instrument for the long-distance ordering of persons and things. By this contribution, Lowe came to be known as the father of the modern corporation, or perhaps more specifcally, father of the extra-territorial, multinational corporation. This wholly created entity had many of the virtues of the state without the inconvenience of territorial limits, of public scrutiny, or of political instability. It could be perpetual in existence. It could mobilize the talents and substance of many members, including an army of laborers. Its principal investors were culpable for its actions only to the extent of their monetary investment. Importantly, it was a persona fcta, with all the rights of a legal personality in its relations toward human persons. Most of all, unlike the state, the corporation was not distracted by responsibilities of public order and sustenance. Instead, it was a mechanism whose single purpose was the most effcient possible aggregation of wealth (Cutler 2003; Micklethwait 2003) Finally, after the contributions of Austin and Lowe, Sir Henry Maine might be said to have created the ways by which the old hereditary and collegial basis of the law could be successfully brought together to engage the new world of legal abstraction and the complexities of modern commerce. He did this by posing a number of dualities that would describe the workings of a newly conceived Anglophone realm: ancient and modern, organic and abstract, oral and textual, collegial and principled, and most of famously, status and contract. By the reasoning of Maine, the workings of English law were able to correlate the hereditary and fraternal at home with the impersonal tentacles of fnance and trade reaching around the world. His idea of contract was particularly important because such written documents were the means by which non-human corporations interacted with their human counterparts. The enforceable contract became something like an enacted statute, and in the world of corporatized labor and monetized personal relations, no anchor to public stability could improve upon the enforceable obligations of contracted debt (Diamond 1991; Kostal 2005).

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American reconstruction When the American colonies originally separated from British control, they quite naturally retained the legal forms inherited from colonial practice – equal parts English and Scottish law. The English Common law remained predominant in the maritime centers that maintained close commercial ties with Britain after the Revolution. At the same time, the Scottish Civilian tradition provided more accessible citizen courts, and was more widespread inland and on the frontier. It was less expensive, and operated on Common Sense principles inherited from what historians call the Scottish Enlightenment. But coincident with events leading up to American independence, a third infuence had appeared in 1765, the Commentaries of William Blackstone. Blackstone had extracted from the ambiguities of English tradition a body of principles, making the law understandable to public and practitioner alike. Although the Commentaries were scorned in London, they had an enormous impact in America, producing three generations of citizen lawyers who had apprenticed while reading them – Jefferson and Lincoln were the most notable examples (Horwitz 1979). Beginning in the early nineteenth century, another important infuence in the American legal atmosphere appeared in the form of innumerable small colleges, mostly sponsored by Anglo-Protestant denominations. Their purpose was to provide a broad course of study and to produce young Christian gentlemen. Yet, following on the Continental and Scottish approach, they also taught the principles of moral philosophy, which at that time, were considered to be an academic preparation for male citizenship generally, as well as preliminary training in jurisprudence for those who might later become lawyers (In such cases, they would learn the technicalities of law as apprenticed clerks). But by mid-century, the infuence of the Protestant college was overtaken by a second wave of legal education sweeping the country. German universities had become recognized around the world as centers of culture and learning, including the discipline of legal studies. Their highly developed secular and scientifc approach ft as a compatible overlay to the spirit of Blackstone and the common sense atmosphere that prevailed in American legal practice. However, all of these dominant infuences were interrupted by the American Civil War and the project of Reconstruction that followed (Edwards 2015; Schake 2017). As the constitutional reconstruction of the British Empire developed, perhaps the most successful application of its Austinian legal method actually occurred beyond imperial boundaries. That was its reception as the domestic legal paradigm for a nation recently torn by the ravages of fratricidal confict. Although little known among the American public generally, legal positivism was enthusiastically embraced by a small but highly infuential faction of jurists and practitioners located in the coastal centers where English maritime law remained important. It found an especially receptive Anglophile stronghold among the Brahmans of Boston and at the old Ramist center of Puritan learning, Harvard College. The process of assimilating the new legal premise into the governing institutions of the United States would require several decades to complete, beginning with the

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period of Reconstruction that followed on the Civil War. By the last decades of the nineteenth century, a complete Anglicization of American legal methods on the new economistic model had taken place. The project was carried out under the aegis of its two most famous proponents, Christopher Columbus Langdell and Oliver Wendell Holmes, both from the law school at Harvard (Feldman 2000: 83; Tulloch 1988). To understand the transformation of American law from the English perspective, it is best viewed within the context of worldwide British imperial policy at the time, and best understood in terms of social hierarchy. In fact, a similar transformation had been embarked upon some years earlier in India which had become the imperial laboratory for innovations of law and education. But still, the American situation was unique, and Langdell began the process in 1870 with three targets for elimination: the Blackstonian citizen lawyer, the commercial vehicle of the Scottish trust, and the law library flled with Civilian readings. In those measures he succeeded, but he was not able to construct a legal rule based in hereditary descent or class distinctions of manner and speech on the English model. Instead, he began constructing an American fraternity as a facsimile of the guild of trade – based on an exclusive commerce in legal procedures, on principles of restricted membership, and on fraternal loyalty. The process followed closely on the subaltern Macaulayism employed in India, beginning in 1858, with the training of Brahman natives for legal administration under the Raj (Metcalf 1964: 249; Stern 2011).

Fraternal destiny Beginning with a group of young novices, Langdell introduced the law as a proprietary science that could only be learned from printed books. But his approach would disdain the conventional methods of lecture and explanatory text. Instead, the main tool of instruction was the Benthamite chrestomathy that presented in highly abstracted form brief excerpts on topics of contract and incorporation. The process was purposely fraught, with close instruction and interrogation under conditions of group duress in which the instructor held absolute control over both content and form of exchange. One object of this immersive training was to reshape the mind by instilling what had come to be called the Utilitarian calculus of fact. The students were led in parsing a carefully redacted list of judicial rulings from England, identifying within them the reasoning by which they had each been decided. The method excluded any other valuation or consideration of circumstance from the larger range of context, sensibility, or humanity. The result was a consciously adopted outlook – logical and factual – both unquestioning and non-refective, that provided the basis of a new identity and a re-socialization into the fraternity of legal trade. Only after graduation, and after proving his conformity to the new mode of thought, would the novice, on his own time, learn by rote memorization the technical details of legal practice for admission to the legal caste (Kimball 2015: 470; Horwitz 1992; Maitland 2003).

The epidemic of human obesity 87 Initially, this drastically changed approach to legal education and its shift from citizen lawyer to professional lawyer met with controversy and resistance. The mechanical Utilitarian approach to ordering human affairs, including its nonmoral and value-free reliance on objectifed fact, could be especially troubling to the beginning lawyer. Without a philosophic perspective or the guidance of conventional values and norms, facing the human implications of his work, the newly trained lawyer was traversing a kind of existential wilderness. He lacked a frame of reference in which to place himself and his actions. To an extent, this defciency was flled by a majestic conception of law set forth by the English Hegelian A.V. Dicey, expressed in the ethereal phrase, Rule of Law. But for American students at that time, it was still diffcult to feel a tangible connection to this lofty purpose extended from across the Atlantic. The answer to this dilemma was provided by Oliver Wendell Holmes who provided an alternative to purely abstracted logic. He also framed the new legal enterprise in heightened ideals, but he did it in an empirical way. During what historians call the Golden Age of Fraternalism, in the pattern of the Freemasons, Odd Fellows, Woodsmen, Grangers and numerous other orders resurgent at the time, Holmes reaffrmed the pledged fraternity as the foundation of American law (Moore 2011; Cosgrove 1980). But another way to understand the contribution of Holmes is to examine events in England where Utilitarian legal change had convulsed, not only imperial law, but also domestic practice as well. In a certain way, the division that emerged between Langdell and Holmes was a repetition of legal confict taking place in London. Although the Benthamite valuation of empirical fact would remain basic to English law, Common law practitioners were rebelling against the encroachment of Germanic abstractionism into their law, and what appeared to be a fundamental threat to their trade in litigation. With the Indian Contract Act of 1872 and the Judicature Acts, beginning in 1873, that faction was successful in assimilating the work of Civilian type courts – including the Equity and Admiralty Courts, for example – into the Common law jurisdiction. Both Langdell and Holmes had been maritime lawyers, but Langdell had been trained as a proctor according to the Austinian mechanical logic of abstraction. The younger Holmes, by contrast, followed the new premise established by the Judicature Acts and that allowed a wider range for judicial practicality (Pollock 2015; Bell 2007: 92). Nonetheless, Holmes rejected a holistic or philosophic view of law, especially as set forth in the widely popular German methods. At the same time, he barely mentioned the Common Sense approach to adjudication in his writings. Instead, he advocated a large view of the American fellowship, and its guiding role, as American destiny unfolded in a modern imperial world. His attempt to consummate the legal transformation began with the appearance of his most famous book, The Common Law, published in 1881. In fact, much of the import of the work was its argument against the more conceptual German approach that had come to prevail in American law, and refected somewhat in the purely logical approach of Langdell. Instead, drawing from English sources, Holmes presented his topic in a language that conveyed high purpose and a vision for the future, but on a foundation that ft the American situation. The effect of his writings was to

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remove legal questions from both a moral context and a context of abstract logic, to a deliberative consensus that was, in turn, based on an ethic of fraternal ideals (Holmes 2009; Gordon 1992: 72). Because Holmes embraced what might be called a sublimated or exalted view of Anglophone law it is diffcult to determine with certainty his practical motives. Nonetheless, the effect of his work was to anchor a disciplined American brotherhood within the broader English tradition of hereditary entitlement and class superiority. For Holmes, the center of gravity for Anglophone law appeared to be the High Court of Parliament and its supreme judicial council, the Law Lords of the House of Lords. Beneath their august oversight he had helped create an American profession with an economistic view of geopolitics and imbued with a Herbert Spencer understanding of human history. His efforts were rewarded as, more than any country of the world, America came to exist beneath the unquestioned authority of a legal fellowship that presided through the balanced instruments of state and corporation. Those were the two primary institutions by which order was maintained and wealth was created, both essential to a leading role in the imperial world of the late nineteenth century (Benton 2016; Mickelthwait 2003). Instead of regarding the Common law as merely one instrument of an organic hierarchy, as it was regarded in England, Holmes considered the legal brotherhood to be the foundation of an American way of life. His purpose was to weld that brotherhood into a self-conscious class of ethical superiority, of a form that might be called High Puritan. To the extent possible, it would be established on the English patterns of familial descent and inherited property, after all, Holmes was a Boston Brahman. This aspiration eventually was manifest in a social caste of what came to be called the WASP, the White Anglo-Saxon Protestant. But, to construct a fellowship of national scope, he had to be more geographically inclusive. Although the WASP Establishment came to be concentrated in an Anglophile elite of law and banking residing in the Northeast, it came to be replicated in every aspiring town and city across the country (Posner 1996). Holmes published his last major work, The Path of the Law, in 1897, just before his appointment to the United States Supreme Court. This short book most clearly expressed his mature trans-Atlantic vision. Its guiding ethos was neither Enlightenment ideals, nor Common Sense principles, nor moral philosophy, nor metaphysics – for him, those ideas had become relegated to merely antiquarian or academic interest. Instead, Holmes was working to construct the American part of a worldwide brotherhood. Its guiding purpose was not found in philosophical speculation or enthusiasms of human possibility. Instead, it would secure the realistic benefts of evenly distributed justice based on high purpose. Its beneft to the wider public would be utilitarian and verifable by a compilation of social fact (Pohlman 1984).

Divided knowledge Every legal culture has two aspects, the adjudicative and the educative, the coercive and persuasive. A legal regime might impose itself temporarily by sheer brute

The epidemic of human obesity 89 force, in terrorem. But to establish stability and continuity over time, the public must come to understand it in terms of the beneft it confers. They must be taught the habit of compliance. Langdell and Holmes had succeeded in launching an irreversible process of Anglicization and professionalization within the practice of American law. They now faced the diffcult task of bringing the public to acquiescence in this new method of legal rule, of teaching them its benefts, and instilling in them the habit of compliance. Developing a mode of thought by which the public would embrace these innovations came to be a monumental undertaking that extended far into the twentieth century (Hawkins 1972; Eliot 1898). The frst diffculty was that the new approach to law created a fundamental division of knowledge as the basis of American government. While the citizen lawyer was being replaced by the professionally affliated lawyer, law was being converted from an intelligible, reasonable, and easily accessible process into an obscure science of foreboding complexity and increasing cost. Moreover, one of the three constitutional branches of governance was now being appropriated as the exclusive domain of a closed fraternity whose members made a trade of its procedures. An understanding of the inner workings of law was now, for practical purposes, closed to the public. However, the solution to popular resistance against these developments was not merely the removal of legal knowledge from the public. Instead, the eventual solution provided a way of thinking that made this barrier to public understanding beneath a stratum of privileged functionaries seem appropriate and natural (Ringer 2000; Oleson 1979: 19). As it occurred, the re-founding of American judicial institutions coincided with two other innovations related to the educative climate in the United States. The most widespread was a great program of church construction, especially of the mainline Anglo-Christian denominations – Episcopal, Presbyterian, Methodist, and Baptist. Religious structures of monumental proportion would eventually come to exist in every city and town across the nation, with Philips Brooks of Harvard setting the example. But even more important – and on certain levels related to the resurgence of church construction – was the re-founding and expansion of American colleges and universities that began around the turn of the twentieth century. Many aspiring institutions sought to replicate the atmosphere of Oxford or Cambridge, often with a High Church pretension. Once again, these educational innovations followed on the recent Macaulay plan for Indian universities at Bombay, Madras, and Calcutta (Metcalf 1964: 92). The former classical and philosophical approach to character formation was discarded. More specifcally, the Germanic combination of classical, scientifc, and secular learning that had come to predominate in American colleges was now set aside. In its place an emphasis on practical and scientifc studies remained. But, most important was a fundamental reorientation of the university toward what came to be called intellectual learning in the form of liberal education, based on an Anglo-centric course of historical and literary study. Most importantly, the university founded on a division of knowledge was the custodian of every branch of learning except the science of law. Although the American law school came

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usually to be placed within the precincts of the larger institution, it operated as an enclosure, separated from conventional scholarship and teaching – again, Harvard showed the way (Ratner-Rosenhagen 2012). The purpose of the new regimen was not merely to convey an understanding of America as following on its English cultural and constitutional ancestry. More centrally, the purpose was – like that of the law school – to develop in the student a particular way of thinking. It was not the aggressive and confdently persuasive calculation of the lawyer. Instead, it most prized the diffdent attitudes of detachment and objectivity. These two opposite types, the legally dominant and the legally compliant, formed perfectly the matching contours of a new educative regimen. The two halves of divided knowledge, however, had to be brought into harmony by some enveloping paradigm. Once again it was an adaptation of the British model that provided a solution (Dewey 1899; Kimball 2015: 384). The resurgence of mainline Anglo-Christianity provided an atmosphere that synthesized religion, national allegiance, and an affnity toward Britain. However, the British tradition of an Established Church was not acceptable in America, where an immigrant population represented many denominations. Eventually, a consensus was reached on something called the Judeo-Christian tradition. But beyond the rather anemic form of American religiosity encouraged, for example, by William James, there was still needed a more fundamental and substantial enveloping premise of ideas that would unite the two levels of profession and public. It needed to be constructed with the pretensions of serious philosophy and as a credible alternative to the Continental forms of thought that had so many followers. The utilitarian ethic worked in Britain, but it was essentially the philosophy of a foreign status quo (Sutton 2014: 47, 79). There was needed a rationale expressed in the idiom of the intellectual, a mode of thought not predicated on the universality of knowledge, that accepted a division of knowledge, resting not on ultimate values, but on values limited within an authoritative context. The answer arose, once again, at Harvard, beginning around 1870 with the writings of a philosophic prodigy, Charles Sanders Peirce, whose work had become known to both Langdell and Holmes. A specialist in logic, his interest in utilitarianism and concern with philistinism led him to explain a mode of thinking he deemed aptly suited to the nineteenth-century Gilded Age in America. This mode of thought was early called instrumentalism, and for Peirce may have been intended to be more a descriptive condemnation than a prescriptive endorsement. Whatever his purpose, by the early twentieth century, his original ideas came to be popularized in a form unrecognized and disavowed by him – the uniquely American philosophy, pragmatism. Its most famous proponent was a professor of education, John Dewey.

Practical philosophy Perhaps the most notable thing about the version of pragmatism advocated by Dewey was what it was not, and what it was not in three important ways. First it was not a philosophy of ultimate values or meanings. It did not, for example,

The epidemic of human obesity 91 emphasize questions about the larger purpose of life or human existence; in that sense, it followed the English utilitarianism. Nor did it operate in the realm of philosophical conjecture about the nature and purpose of government. For Dewey, those were settled questions: American democracy was the ultimate form of government and destined to be emulated across the world. Finally, the philosophy of Pragmatism was not about self-cultivation, not about aphoristic wisdom for the living of life. Instead, it was a philosophy of action within a given set of external and material conditions that provided an enormous personal freedom. But, taken from the American legal perspective, this idea of pragmatic freedom had very specifc meanings (Arnold 2006). Other ways of living – for example, among traditional peoples – depended on the instilled knowledge of custom and culture as the basis of harmony and way of life – from the ground up, as it were. Even the Civil law countries depended on a basis of shared knowledge, whether of theological or ideological principles. They were considered eternal or immutable or universal, and provided a basis of unity. The Civil law would only work if both the public and those who governed understood the rational basis on which the workings of law were constructed. But the American system was now different, because the stability of its institutions rested, not with the public, but with the disciplined unity of those who administered the judicial institutions. Within those established limits, the private person had almost complete freedom to act or believe in any way he chose – the only requirement was obedience to law. Pragmatism did not provide the basis for an American culture – instead, it provided an understanding of American freedom that had no necessary connection with public cultivation. The division between those who bore the obligations of public order and those who enjoyed the freedom it offered was sometimes described as a division between professionalism and populism (Dewey 1989). The philosophy of John Dewey, as a doctrine of action rather than refection, encouraged attitudes that tended to the emotive and the dynamic. It saw the world it described as constantly changing, or progressing. Even the professional consensus that guided the legal fellowship was continually being adjusted to match changing external circumstance. Pragmatism, and the mode of education it provided, was meant for a world of change: it was progressive. In its view, the American way of life was no longer founded on fxed principles, eternal verities, or ancient truths, nor was it grounded in metaphysical assumptions about human existence and the nature of being. Within the enveloping framework of an Anglicized law, the new educative method was based on an atmosphere of continuous social and technological change, and to the extent it fulflled the educative function of an American legal regime, it prepared the public to think in those terms (Muller 1989). Because of this conception of reality, Pragmatism was seen as the solution to and successor to a worldwide challenge: the deeply embedded ancestral cultures. In America and many parts of the world, those patterns of instilled behavior were considered by pragmatists to be the single great impediment to progress. In an important way, culture, in the sense of personal cultivation, became not only

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irrelevant within the American public, it was also frequently denigrated. Because the institutions that shaped American life provided their beneft from the top down, there was little need to think in terms of culture as the basis of national stability. Ways of the past had come to represent a hindrance rather than an asset. Nonetheless, because pragmatism lent itself to simplifed reduction as an uncritical popular philosophy, its teachings ft easily within the amorphous religiosity that had historically surrounded the English legal tradition. The result was an irrepressible combination of simplifed piety, practicality, and a celebrated aspiration toward one undisputable good – the accumulation of wealth. Draped with the mantle of academic respectability by Harvard professor of philosophy William James, America had originated the religion of success (Croly 2014).

World orders Just as the advent of print in the sixteenth century made governance of the nationstate possible, and the innovations of the nineteenth century made the modern empire possible, the twentieth century advent of radio, cinema, motorized transport, air travel, industrial production, and advanced weaponry brought dramatic changes in the ordering of persons and things. One effect was a strengthening of the individual nation-state – a solidifying of the many polities around the world that were based on linguistic, cultural, and ethnic unity. Put another way, this represented the logical conclusion, the high point of development for a Civil law that was both inseparable from, and manifested through, the structure of the state. After all, the nation-state had been born out of a violent rejection of the single universal order of Latin Christendom, the medieval realm presided over by the Roman Church and the Germanic Empire. It had been born out of a failed sixteenth century aspiration for a worldwide imperial realm symbolized by the goddess of justice, Astraea. Finally, at Westphalia in 1648, the nation-state had been born with a rejection of Covenant Federalism and its world theocracy presided over by ministers and magistrates as proposed by John Calvin (Armitage 2009). In fact, the very principles that allowed the modern Civil law to be scientifc and secular made possible its application to either world empires or segregated nationalities. It purported to be founded on universal principles common to all peoples, and on a rationality common to all persons. Because of these underlying assumptions, it was to an approximate degree, compatible with regional custom and, to a passable extent, in concert with each separate national character. Also, like indigenous custom, the purposes of the Civil law were expressed in ultimate terms, purporting to operate for the betterment of humankind. These delineated purposes allowed provision for familial and regional tradition. Most of all, on an immediate practical level, because the Civil law was principle based and could be translated into any language, national languages were widely adopted as basic to the legal structure. Because language was the essential component of any cultural tradition, the result was, to an extent, that a national culture could be refected in the composition of each national law (Habermas 1979; Giddens 1991).

The epidemic of human obesity 93 The twentieth century innovations of radio and cinema opened even greater possibilities for unifying public opinion and mobilizing entire populations for a single national purpose. As the frst half of the twentieth century became a turning point in development of the nation-state, borders were made secure, localities tied together by highway and rail, and governance was more centralized. New methods of production raised the level of material abundance, adding to the signifcance of national sovereignty. But the enormous potentials of power, not only for production, but also for warfare, brought the rise of militant nationalism – and catastrophe. Catastrophe was followed by a realization of the need, once again, for established methods of order, not only within states, but between states (Buzan 2006). These eventualities brought proposals for a structured legal order to resolve disputes and mediate inter-state conficts. Even though modern Civilian practice was not equipped to engage such a project directly, certain of its ideals, and especially its rational principles and predictable methods of arbitration were suited to the purpose of internationalism. A world order of international law gradually developed on that principled basis – but it lacked a structure of enforcement with worldwide extension equivalent to governance on the national level. The founding of two international bodies, the League of Nations, and its successor, the United Nations, both represented steps toward addressing that problem. Despite their weaknesses and failures, they were both founded on an affrmation of human potential, philosophic ideals, and universal principles. Their concept of rights was based in an acknowledgement of the fundamental humanity shared by all persons. But what they offered in idealism and aspiration they lacked in material powers of enforcement and decisiveness. By the late twentieth century, the United Nations was widely perceived to be ineffectual, while at the same time, the viability of the nation-state as a governing structure was coming under question as well (Wendt 1999).

Corporate linguistics However, along with these domestic and external developments of Civil law, countervailing and parallel developments in the realm of Anglophone law were also taking place. After two worldwide wars of the twentieth century, the Englishspeaking powers had prevailed, with their military power unequalled and their productive capacities at the highest level. By the mid-twentieth century, they comprised virtually the skeletal basis of an alternative world order. Central to this overwhelming economic and military power was, of course, the United States. Over decades, Anglophone commerce and industry continued to predominate, its commercial and fnancial methods came to be accepted as conventional, its legal practices came to penetrate even traditionally Civil law countries. Although the nation-state remained the predominant mode of civil order around the world, its territorial domain came to be overlain by an economic stratum that more and more came to be based on methods of Anglophone law, especially in matters of fnance and trade (Crystal 2012).

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Looking to the future of worldwide legal development, two crucial advances followed on this expanding infuence. The frst of these was the rising predominance of the legal construct of the corporation in world affairs, often times at a level above and beyond the reach of the nation-state. From the Anglophone perspective, both the state and the corporation were instruments for ordering persons and things, and both were subject to the presiding authority of an elevated judiciary. The regulation of corporations was relatively straightforward when dealing with purely domestic national questions – however, the situation became more problematic when corporations based in powerful countries had extra-territorial interests. Particularly when the corporation was large, with enormous resources, and was dealing with a small and weak nation. In any contest of interests, the small state could easily be made the victim. In the late twentieth century, a clear pattern began to emerge: the eroding authority of the state and the enlarging power of the corporation (Cutler 2003; Micklethwait 2003). A second important development was the widening use of the English language as the international language of commerce, diplomacy, and arbitration. The spread of English was important from a legal perspective because Anglophone law was a language-based tradition. Unlike the Civil law which was based on translatable doctrines and principles, the Common law was collegial in nature and operated on the basis of internal consensus. As a transcendent law, combining elements of heredity, collegiality, and oracular authority, its methods could not be translated. Its organic construction required that all its members speak English and that the population subject to its authority have at least a basic knowledge of that language. In the confusion of an inadequate worldwide legal structure, there emerged a global view, superseding the realms of nations and cultures, and that also shifted momentum from Civilian internationalism to Anglophone economism (Cohen 2008). In fact, this new realm of unity and awareness had come to employ in its transactions primarily American English, a language that carried with it much more than the mere vocabulary of commerce and law. Using the twentieth century American mode of speech also brought with it an atmosphere of attitude and assumption. As with other languages – correct German, somber Russian, affable Greek, animate Italian, and elegant French – implicitly, the tone and pronunciation, the manner when spoken, brought with it a particular shape of mind and body. On a subconscious level, the proliferation of the American language around the world was bringing an aspect of pragmatic Americanization as well. Not just the recognizable material values and aspirations, but attitudes and outward behavior were also being shaped. Among the subliminal elements underlying this mode of speech was an idea of what came to be called popular culture, a culture of consumption. This transition was nearly as important as the use of English as the language of world affairs. The twenty-frst century variant of global order might never have been possible without this preparatory linguistic turn (Lambropoulos 1993: 215; Williams 2017).

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Artifcial realities There are many ways to understand human conditions in the age of global law, including a view of those conditions as refecting a change in the atmosphere of human cultivation. All explanations must begin, of course, with the incalculable impact of technology and the environment of continuous and rapid change it introduced. One effect was that the Civil law, encumbered by the logic of doctrine and principle, and so completely tied to the state, began to recede in infuence. At the same time, the malleable and adaptable collegial methods of Anglophone law were ideally suited to an atmosphere of constant impermanence and technological advance. They were also the inevitable corollaries of a homogenized global way of life and the disappearing indigenous patterns of living. Viewed a different way, the human condition refected a change in disposition toward the natural world, toward the human being, and toward instilled knowledge and instilled behaviors. To understand the process of globalization as a decline in the level of human cultivation, it is important to examine certain ways in which technology was mobilized within the legal mechanism to create a world which was, in a sense, unreal, or virtual (Lumann 2000). The frst great contribution of technology in this respect was to provide a single uniform educative atmosphere of awareness to match the adjudicative order of global governance. By the developments of computerization, televised transmission, and communication satellites, it had become possible to construct an immersive reality of mediated sound and image able to penetrate virtually every domicile on the face of the earth. Not only was the rising generation of the world population learning to speak the language of global law, English, it was also becoming assimilated to a uniform way of life based on monetized exchange, corporatized labor, and material consumption. Technology provided the educative means by which a uniform mode of global existence could come to be accepted as normal and natural by all peoples of the earth. But as important as its extensive reach, this electronic media also represented an important change of content, a different form of teaching, and a different level of cognition. The printed book, for generations the basis of human learning, especially in the Western tradition of government, was well-suited to publication in a national language, to instill a fxed structure of knowledge in the mind of the citizen. But, because the reality of the global order was now trans-national, and based on the premise of constant change, the old fxed modes of thought were no longer adequate. Moreover, they could be supplanted by cognitive methods that required no brick-and-mortar school, no expensive instruction, and no rote learning of structured knowledge. Now, for purposes of acculturation and legal rule, every person of every age in every country could be immersed in a continuous fow of information. The content provided was not intended to be learned, committed to memory. Instead, it was ephemeral and timely, dealing with events, issues, products, and diversions as they came and went. Moreover, this information could be absorbed by members of the global public without effort in the events of everyday living. Even children could be socialized into the new way of life by mediated

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broadcast. The ubiquitous electronic coverage could include every member of the global public in a single uniform atmosphere of understanding (Ong 1988). Following on this continuing fow of information that made a uniform program of global governance possible was a second change in content that a legally directed technology could now provide; it was a way of viewing twenty-frst century reality, not in natural terms, but in mediated terms. The new technical possibilities were evident, for example, in shaping the public perception of legal authority. Anglophone law was suitable as a basis of global rule – not because it was compatible with the humane elements of the many world cultures. Instead, it was workable because, by its very nature, it was elevated and transcendent in its operation, equally indifferent to all ethnicity and custom. Its legal authority could be equally acceptable to all peoples in all localities, because it could be understood as lacking the stigma of cultural bias. Representations of its legal regimen could be highly abstracted, non-historical, non-ethnic, non-Western, and non-personal. Its overall authority could be portrayed as a virtual paradigm, a Rule of Law, a global authority that was understood to be elevated, self-existent, and self-regulating. Without emphasizing its medieval origin, its English source, or its collegial membership, it could purport to be guided by a purely objective standard of ethics (Dupuy 2000; Quinn 2005).

Human facts Probably the most important example of Benthamite fact, in the panoply of authority reaching across all localities and peoples, was the way it engaged each member of the global public in an impartial and identical way. It was able to do so, frst of all, by redefning the human being as an aggregate of rights, a combination of entitlements that could be enforced against any other legal person, human or corporate. The concept of rights had the advantage of being understood in the public mind as a good or benefcial thing. But, actually, rights were countervailing, often in confict, and viewed from the elevated stratum of judicial authority, were neither good nor bad – they were simply instruments of intervention. Moreover, by excluding the traditional Civilian understanding of the legal person as having a range of innate capacities and potentials, such a conception reduced the human being to a legal object to be acted upon. By the reverse logic of Anglophone global law, the natural human had been transformed into a legal construct in the same way the legally created corporation had been made into an artifcial person. The instrument of rights insured an equivalent legal terrain for all parties, fctitious or natural, within the reach of presiding authority (Dworkin 1978; Honneth 2014; Poovey 1998). Along with the redefnition of the human being as a composite of rights was a second adaptation in terms of status within the legal context. That was the objectifying of each legal personality from the social, familial, or cultural milieu in which he or she was born or resided, by defning each person as an individuated isolate. This familial and social de-contextualizing also reaffrmed the equality of the human person with the created person, the corporation, which had

The epidemic of human obesity 97 no organic or familial existence. In contrast with the long Civilian tradition of viewing persons as part of a social context and as participating in the humanness common to all persons, the English law had the practice of only recognizing the particular autonomous person who appeared before its judicial forum. The effect of this re-conception was to replace familial and social ties between persons with a labyrinth of technique and formulae imposed by an elevated authority. Once again, however, by a reverse of logic, the corporation, with its principals and members, as well as its many employees, was recognized as a single collective legal personality (Wendt 2015: 91; Nussbaum 1995: 79). This practice of objectifying the status of each person as an isolate along with redefning each person as a composite of rights took on a particular signifcance when imposed across every continent as the inescapable premise of global governance. The impact was especially obvious, sometimes catastrophically, in the less developed and non-Western world. As the instrument of rights together with the status of individuation was employed to order relations of persons and things, the authority with which they were administered could easily overpower any local and informal voluntary tradition. Judicially unrecognized custom had no existence in the artifcially constructed and electronically mediated reality. This was particularly true in a system of prescriptive order that extended with impartiality around the entire world, and which, as a practical matter, could make few allowances or exceptions in its general policy of imposing equal enforcement. Inevitably, the vestiges of custom, ritual, and familial bond as the foundation of ordered life among many traditional peoples of the world dissolved into irrelevance. The result could be, at best, a vacuum of local order and, at worst, a descent into chaos and violence. However, the impact of this legal regimen was equally as profound within the advanced nations of the earth, including the European nations where the Civil law had been born. Perhaps the most important effect of this change was that the Anglophone approach to global law, by defnition, changed the foundation of life from ultimate questions of common good and human existence – including principles by which the public could accurately evaluate the legal structure. The new legal regime devolved upon immediate practical questions of individual advantage within a premise of legal oversight that was beyond public understanding, even beyond public awareness. The entire scale of human values was suddenly inverted in the new reality, and the only rational response within that reality was to join with full energy in the concentrated purpose on which it was constructed – the aggregation of wealth in an atmosphere of ordered freedom. The reduction of each person to the dimensions of an existential fact that ft within the defnitions of law was essential to an economism of persons and things, and a mediated atmosphere of cognitive assimilation (Negri 2000; Joerges 2005). But there was one other important impact of this reduction and redefnition of the human being. That was to infnitely strengthen the overarching immanence of legal authority. Just as the global public occupied a realm of rights, those who held rank within the law inhabited a realm of privilege. Similarly, while people of the global multitude had become individuated and their families atomized, in

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relative terms the fellowship of global law enjoyed a collegial advantage wielding its collective strength against each subordinated isolate. Yet, at the same time, this provided a convincing justifcation, a clear logic for the accretion of power; in the absence of cultural restraints and traditional norms, an authority of stable continuity was able to fll the void. In the tumult of continuous and dramatic technological change, the upheaval of families and cultures, this new regimen of Anglophone law conferred an obvious beneft on peoples of the world; it brought order to relations of persons and things by an imposed authority. The beneft it provided was practical and immediate in its consequence – a Rule of Law (Breyer 2015: 89).

Historic convergence The project of globalization in the twenty-frst century can be understood as the culmination of a search that began in the West, a search to construct a method by which all peoples and regions of the earth could fnally be united within one encompassing legal order. In fact, the global structure draws on many elements of both legal traditions, Civilian and Anglophone, going back to their beginnings nearly one thousand years earlier. The Continental side of global law provided, for example, the university and scholar, abstractionism, the encoded statute, and the nation-state – still irreplaceable as a locus of penal authority. The English side of global law had contributed the persona fcta of the corporation, the division of knowledge, the unwritten constitution, the oracular judge, recorded precedent, economism, pragmatism, and Calvinist hermeneutics. But the unifying element of this new construct of global authority was indisputably from the Anglophone tradition: by a common language, it maintained the transcending fellowship of those who comprised its foundation (Crystal 2012). Historically, English law had been established as a hierarchy and, since the Glorious Revolution of 1688 was organized by the ranking of its various members. Lessons had been painfully learned in the seventeenth century during the convulsions of establishing the English Constitution that the Common law – although suitable as a method of legal trade within the guild courts – was insuffcient as a general foundation of government. Its natural insularity, contentious procedures, and malleable collegiality would only endure long-term when presided over by the stabilizing restraint of permanent oversight anchored in a peerage of familial descent and heritable wealth. Since the Glorious Revolution, those presiding Great and Good convened themselves in the House of Lords – the center of Constitutional gravity, and the court of last resort within the kingdom (Palmer 2015; Coquillette 1999: 363). Beneath that august frmament was the second rank of ruling class, those who were not ennobled from birth, but who wielded a strength of numbers and collective wealth to balance against the relatively few who presided over them. These men were united in the various lodges, clubs, learned societies, and honorary regiments that provided close and amicable solidarity. Most importantly, all members of the two upper strata – noble and gentle, hereditary and fraternal – shared

The epidemic of human obesity 99 the same deep training in manner and speech, the same sense of identity and obligation that marked their superiority of person and rank. Included among their number were those who administered all the facets of rule--ministerial, legislative, diplomatic, religious, academic, military, fnancial, and commercial. Also among them were judges and lawyers who, as members of a learned order, administered the technicalities of law (Babington 2015). Geographically distant from England, and subordinate in rank, yet closely following its legalistic tradition, was a third tier in the ruling hierarchy. Originally conceived as a subaltern appendage to the imperial hierarchy of rule, it operated within the various colonies, not by superiority of class, but by a narrow and direct legalism. By accident of history, the American strand of this subordinate level would come to assert a worldwide infuence during the twentieth century. It also brought a highly developed educative model, the consciousness of a pragmatic mind, and a marked facility with contract and corporation as instruments of rule. Its way of thinking was premised on the sanctity of legal institutions and a balanced equilibrium of public freedom with professional obligation. Unlike its British progenitor that had a retrospective mentality of uninterrupted and secure continuity, the pragmatist looked to the future in a world of uninterrupted and continuous change. Less attached to obligations of social rank and more to the commercial possibilities of law, the Americanized professionals were actually reverting back to the original incentives of the medieval guildsmen (Kimball 2015: 475). Because of the great power and hegemonic infuence of America, and because of the successful application of both its legal regimen and its educative method – aided by advances in technology – the reach of its infuence came to be seamless and worldwide. Although the fellowship it constructed was uniformly administered by jurist and practitioner, its members were of diverse national origin. Their rule, based not on social distinction, but on knowledge and affliation and proximity to wealth, relied on no specifc refnement of manner and speech. They were united in the disciplined training of an articulated mind and in the inventive potentials of the legal text. For them, it was enough that they speak the language of law and that they were united in common purpose by the discipline of an enforceable ethic and the promise of material reward (Kennedy 2016: 169). The great virtue of this American strand of legal development was its unique ability to adapt and change, and to integrate new legal precepts and practices, especially those originating in Europe, the traditional fount of Western legal innovation. From the medieval Latin writs and forms adopted as the original basis of legal trade by the guildsmen, to the punitive doctrines of Calvin, to the mercantile restatement by Edward Coke, to the innovation of the nation-state in the seventeenth century, the abstractionism of Austin, the educative methods of Sir Henry Maine in the nineteenth century, and the assessments of Foucault, Habermas, and Derrida in the twentieth century, the history of Anglophone law could be written as an assimilation of Continental ideas. Viewed from the perspective of centuries, the advent of global law would amount to a fnal and widespread

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absorption of the European contribution by a fnally completely transcendent Anglophone fellowship (Litowitz 1997; Carty 1990).

Empiric beings Among both indigenous peoples and the great cultural civilizations of the past, perhaps their most fundamental commonality was that they lived in a realm of the timeless, the ineffable, while at the same time they were bound together by ties of personal obligation. Their way of life was rooted in the hereditary foundation natural to all persons; the blooded connection between parent and child, brothers, sisters, and cousins extended across generations of an ancestral family. Each of its members was deeply imbued in mind and body, manner and bearing, speech and thought, instructed in wisdom, trained in physiognomy. With a common sense of identity, as well as a common sense of obligation, all members of the tribe or village were united. Such people could be highly autonomous in their communal affairs, requiring no authority to rule over them (Geertz 2000). When this way of life was frst universalized by the great philosophic traditions, Zoroastrianism, Buddhism, Confucianism, Daoism, Stoicism, and pre-modern Islam, the result was a human network of millions that spread across whole continents. Following on each of these teachings was a natural consolidation of empire, but not necessarily in the modern Western sense of imperial rule. There were inevitably, of course, lapses into tyranny, cruelty and repression, brutality and enslavement – what might be called Oriental Calvinism. But the distinguishing characteristics that typifed the empires of the East, was that they functioned with a bare minimum of what is called law and virtually without need for a permanent legal caste. The method of those philosophic empires was frst of all to teach the unifying language – whether Avestan, Pahli, Mandarin, Aramaic, Latin, or Arabic – to administer the unifying rituals, to repeat the founding mythologies, and to sponsor the widespread memorization of the fundamental texts by which wrongs were righted and redress was sought. Imperial leaders conducted external relations of trade, diplomacy, and warfare, and if these roles were flled properly, to a large extent, the people within the empire would govern themselves. In effect, they were trained to be their own advocates, their own judicial authority within an atmosphere of transcendent values, norms of custom, and the wisdom of consensus (Hallaq 2010; Kelly 2017). At two points in the last thousand years of Western legal development, what historians came to call the Renaissance and the Enlightenment, a search began to comprehend those ways of living and to appropriate from them elements of reform. There were attempts to emulate the ways of what came to be called the Noble Savage, especially the harmony that prevailed among the Native Americans. Along with that were concerted programs to emulate highly sophisticated teachings of the Orient – especially from Persia, China, and Japan. The Erasmian strand of Humanism carried with it a program to elevate the whole of humanity and to unite all peoples on a universal principle of humanity. Included in this

The epidemic of human obesity 101 plan during the sixteenth and seventeenth centuries was a revival of ancient mnemonic techniques as a crucial instrument of universal enculturation (Yates 2000; Brancaforte 2003). Sixteenth century advocates of the prisca theologia brought a serious proposal to combine the teachings of Confucianism with the rituals of Christianity. Searching the Classical past, an entire philological tradition was born in attempts to restore the Greek fragments of Heraclitus, Pythagoras, Socrates, and Posidonius, and to propagate the Latin teachings of the Roman Stoics Epictetus, Seneca, and Marcus Aurelius. The purpose was neither antiquarian pedantry nor to amass classical learning as an ornament of superiority. Instead, the ancient sources contributed to the doctrines of optimism, volonté Générale, and Common Sense, and were part of an impulse to build a potentially universal way of life founded in a human population of cultivation and learning. Out of this foundation, institutions of law and learning would arise and take shape (Hadot 2002: 55). But, in the age of globalization, such ideas seem remote and quaint, perhaps even laughable, with little relevance to a way of life that is coming to include every locality and each person. The global population now inhabits a realm in which the necessity of wealth production allows little time for contemplating ultimate questions about human life and human existence. It is an existential reality of corporatized labor, monetized relations, mediated communication, orchestrated awareness, atomized families, individuated persons, and contracted debt that demands from its participants a concentrated focus. Nor as a practical matter is there much need for the studied cultivation of harmony among persons or obligation within families. Those traditionally embodied habits of thought and action serve no essential purpose in a way of life that is organized on an entirely different principle (Piketty 2017: 297; Slobodian 2018). The enormous success enjoyed by the project of globalization begins with the elaboration of its highly adaptable and transcendent legal order. But, equally important, has been a constructed atmosphere in which the public has come to understand global developments as the inevitable effect of the technical advances that make them possible. The new regimen of governance holds the promise of an ordered and just world, for centuries the aspiration of Western philosophers and jurists. Moreover, the global Rule of Law of the twenty-frst century rests securely, not only on a mode of presiding authority that has proven itself over centuries, but also on limitless inventions of the mind rather than the determined attributes of nature (Hadot 1995).

Bibliography Armitage, David 2009: The Ideological Origins of the British Empire, Cambridge University. Arnold, Mathew 2006: Culture and Anarchy, Oxford University. Austin, Benjamin 2001: The Province of Jurisprudence Defned, Cambridge University. Babington, Anthony 1995: The Rule of Law in Britain, Barry Rose. Baker, J. H. 2002: An Introduction to English Legal History, Butterworths.

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Bell, Duncan 2007: The Idea of Greater Britain: Empire and the Future World Order, Princeton University. Bellomo, Manilio 1995: The Common Legal Past of Europe 1000–1800, Catholic University Press. Benton, Lauren 2016: Rage for Order: British Empire and Origins of International Law, Harvard University. Brancaforte, Elio 2003: Visions of Persia, Mapping the Travels of Adam Olearius, Harvard University. Breyer, Stephen 2015: The Court and the World, Knopf. Bryce, James [1914] 2015: The Ancient Roman Empire and the British Empire in India, Forgotten Books. Buzan, Barry 2006: From International to World Society: Theory and Globalization, Cambridge University. Carty, Anthony 1990: Post-Modern Law: Enlightenment, Revolution, Death of Man, Edinburgh University. Cohen, Benjamin 2008: International Political Economy, Princeton University. Colley, Linda 2012: Britons: The Forging of a Nation 1707–1837, Yale University. Coquillette, Daniel 1999: The Anglo-American Legal Heritage, Carolina Academic Press. Cosgrove, Richard 1987: Our Lady the Common Law: An Anglo-American Legal Community 1870–1930, New York University Press. Cosgrove, Richard 1980: The Rule of Law: Albert Venn Dicey, Victorian Jurist, University of North Carolina. Counihan, Carole 1997: Food and Culture: A Reader, Routledge Press. Croly, Herbert [1909] 2014: The Promise of American Life, Princeton University. Crystal, David 2012: English as a Global Language, Cambridge University. Cutler, Claire 2003: Private Power and Global Authority: Transnational Merchant Law in the Global Economy, Cambridge University. Dewey, John [1939] 1989: Freedom and Culture, Hackett Publishing. Dewey, John [1899] 2001: The School and Society, Dover Publications. Diamond, Alan 1991: The Victorian Achievement of Sir Henry Maine, Cambridge University. Dupuy, Jean-Pierre 2000: Mechanization of the Mind: Origins of Cognitive Science, Princeton University. Dworkin, Ronald 1978: Taking Rights Seriously, Harvard University. Edwards, Laura 2015: A Legal History of the Civil War and Reconstruction, Cambridge University. Eisenstein, Elizabeth 2012: The Printing Revolution in Early Modern Europe, Cambridge University. Eliot, Charles W. [1898] 2015: Educational Reform: Essays and Addresses, Forgotten Books. Eton College [1834] 2016: The Eton System of Education, Leopold Classic Library. Febvre, Lucien 1997: The Coming of the Book, Verso Press. Feldman, Stephen 2000: American Legal Thought Premodernism to Postmodernism, Oxford University. Frye, Richard 1963: The Heritage of Persia, Mentor Books. Geertz, Clifford 2000: The Interpretation of Cultures, Basic Books. Giddens, Anthony 1991: Modernity and Self-Identity, Stanford University.

The epidemic of human obesity 103 Gilmore, Myron 1963: Humanists and Jurists: Six Studies in the Renaissance, Harvard University. Gordon, Robert 1992: The Legacy of Oliver Wendell Holmes, Jr., Stanford University. Gordon, Robert 2017: Taming the Past: Essays on Law in History and History in Law, Cambridge University. Habermas, Jurgen 1979: Communication and the Evolution of Society, Beacon Press. Habermas, Jurgen 2008: The Divided West, Polity Press. Hadot, Pierre 1995: Philosophy as a Way of Life, Blackwell Publishing. Hadot, Pierre 2002: What is Ancient Philosophy, Harvard University. Hallaq, Wael 2010: An Introduction to Islamic Law, Cambridge University. Hawkins, Hugh 1972: Between Harvard and America: Leadership of Charles W. Eliot, Oxford University. Hay, Douglas 1975: Albion’s Fatal Tree: Crime and Society in Eighteenth Century England, Pantheon Books. Holmes, Oliver Wendell 2009: The Path of the Law and the Common Law, Kaplan Publishing. Honneth, Axel 2014: Freedom’s Right: The Social Foundations of Democratic Life, Columbia University. Horwitz, Morton 1979: The Transformation of American Law 1780–1860, Harvard University. Horwitz, Morton 1992: The Transformation of American Law 1870–1960, Oxford University. Jacobsen, Kathryn 2008: Introduction to Global Health, Jones and Bartlett. Joerges, Christion 2005: Economy as Polity: Political Constitution of Contemporary Capitalism, UCL Press. Junius, Franciscus [1593] 2015: The Mosaic Polity, Acton Institute. Kellendorf, Craig 2002: Humanist Educational Treatises, Harvard University. Kelly, Lynne 2017: Knowledge and Power in Prehistoric Societies, Cambridge University. Kennedy, David 2016: A Word of Struggle, Princeton University. Kimball, Bruce 2015: On the Battlefeld of Merit: Harvard Law School, First Century, Harvard University. Kostal, R. W. 2005: A Jurisprudence of Power: Victorian Empire and the Rule of Law, Oxford University. Lambropoulos, Vassilis 1993: The Rise of Eurocentrism, Princeton University. LaPiana, William 1994: Logic and Experience: The Origin of American Legal Education, Oxford University. Lebvre, Lucien 1997: The Coming of the Book, Verso Press. Lesaffer, Randall 2010: European Legal History, Cambridge University. Litowitz, Douglas 1997: Postmodern Philosophy and Law, University of Kansas. Lumann, Niklas 2000: The Reality of the Mass Media, Stanford University. Lustig, Robert 2012: Fat Chance: Beating the Odds against Obesity, and Disease, Hudson Street Press. Maitland, F. W. 2003: State, Trust, and Corporation, Cambridge University. Metcalf, Thomas 1964: The Aftermath of Revolt: India 1857–1870, Princeton University. Metcalf, Thomas 2010: Ideologies of the Raj, Cambridge University. Martines, Lauro 1968: Lawyers and Statecraft in Renaissance Florence, Princeton University.

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Micklethwait, John 2003: The Company: A Short History of a Revolutionary Idea, Modern Library. Misa, Thomas 2004: Leonardo to the Internet: Technology and Culture from the Renaissance to the Present, Johns Hopkins. Moore, William 2011: Secret Societies in America: Foundational Studies in Fraternalism, Cornerstone. Muller, Detlef 1989: The Rise of the Modern Educational System: 1870–1920, Cambridge University. Negri, Antonio 2000: Empire, Harvard University. Nelson, Eric 2010: The Hebrew Republic, Harvard University. Nussbaum, Martha 1995: Poetic Justice: Literary Imagination and Public Life, Beacon Press. Oleson, Alexandra 1979: Organization of Knowledge in Modern America, 1860–1920, Johns Hopkins. Ong, Walter 1983: Ramus: Method and the Decay of Dialogue, Harvard University. Ong, Walter 1988: Orality and Literacy, Routledge. Palmer, Francis [1907] 2015: Peerage Law in England, Forgotten Books. Piketty, Thomas 2017: Capital in the Twenty-First Century, Harvard University. Pohlman, H. L. 1984: Justice Oliver Wendell Holmes & Utilitarian Jurisprudence, Harvard University. Pollock, Frederick [1909] 2015: The Indian Contract Act, Forgotten Books. Poovey, Mary 1998: A History of the Modern Fact: Problems of Knowledge in the Sciences of Wealth and Society, University of Chicago. Posner, Richard 1996: The Essential Holmes, University of Chicago. Potter, Harry 2015: Law, Liberty and the Constitution: A Brief History of Common Law, Boydell Press. Pottier, Johan 2007: Anthropology of Food: The Social Dynamics of Food Security, Polity Press. Quinn, Malcolm 2005: Knowing Nothing, Staying Stupid, Routledge. Radding, Charles 1988: The Origins of Medieval Jurisprudence, Yale University. Ratner-Rosenhagen, Jennifer 2012: American Nietzsche: History of Icon and Ideas, University of Chicago. Ringer, Fritz 2000: Toward a Social History of Knowledge, Berghahn Books. Rosenblatt, Jason 2008: Renaissance England’s Chief Rabbi, John Selden, Oxford University. Ross, Dorothy 1991: The Origins of American Social Science, Cambridge University. Rousseau, Jean-Jacques 2012: The Social Contract and Other Political Writings, Cambridge University. Schake, Kori 2017: Safe Passage: Transition from British to American Hegemony, Harvard University. Schlosser, Eric 2012: Fast Food Nation, Mariner Books. Seeley, J. R. [1883] 1971: The Expansion of England, University of Chicago. Slobodian, Quinn 2018: Globalists: The End of Empire and the Birth of Neoliberalism, Harvard University. Stern, Philip 2011: The Company-State: Corporate Sovereignty & British India, Oxford University. Sutton, Matthew 2014: American Apocalypse: A History of Modern Evangelicalism, Harvard University.

The epidemic of human obesity 105 Thompson, E. P. 1990: Whigs and Hunters: The Origin of the Black Acts, Penguin Books. Tiger, Michael 1977: Law and the Rise of Capitalism, Monthly Review Press. Tulloch, Hugh 1988: James Bryce American Commonwealth: Anglo-American Background, Royal Historical. Viroli, Maurizio 1998: Machiavelli, Oxford University. Wendt, Alexander 1999: Social Theory of International Relations, Cambridge University. Wendt, Alexander 2015: Quantum Mind and Social Science, Cambridge University. Wiley, Andrea 2009: Medical Anthropology: A Biocultural Approach, Oxford University. Williams, Raymond 2017: Culture and Society, Columbia University/Vintage Classics. World Health Organization 2000: Obesity: Preventing and Managing a Global Epidemic, WHO. Yates, Frances 2000: The Art of Memory, Pimlico.

7

The new prisoner’s dilemma The right to refuse feeding or forcefeeding as a duty? Fabio Ratto Trabucco

Detainee’s force-feeding: a state right? The prisoner’s dilemma is a standard example of a model analyzed in ‘game theory’ that shows why two completely rational individuals might not cooperate, even if it appears that it is in their best interests to do so. It was originally developed by Flood and Dresher in 1950 while working for the RAND Corporation, then Tucker formalized the game with prison sentence rewards and named it the ‘prisoner’s dilemma’.1 In the event of detainees who resort to fasting as a form of protest, there arises another prisoner’s dilemma: quid juris? The topic at issue raises the need for a balance between the interest in safeguarding life and physical integrity, on the one hand, and the freedom of self-determination, on the other, this balance must be regulated in the same way whether in the case of free citizens or prisoners. Is it possible to deprive an individual of his/her right to decision-making, considering that he/she has already been deprived of his/her personal freedom? In other words, it is possible to deprive such an individual of his/her faculty of self-determination? The questions just outlined recall some precedents dating back to the twentieth century. Force-feeding policies were frst introduced by the British government in 1909 to tackle suffragette hunger strikes, causing public unease.2 The suffragettes who were imprisoned while campaigning for women’s right to vote went on a hunger strike and were force-fed until the adoption of the Prisoners (Temporary Discharge for Ill Health) Act in 1913, better known as the ‘Cat and Mouse Act’, whereby debilitated prisoners were frst released, then allowed to recover and eventually re-arrested.3 In the Edwardian period the United Kingdom also

1 Amadae S.M., ‘Prisoner’s Dilemma’, Prisoners of Reason (Cambridge University Press, 2016), 24–61; Poundstone W., Prisoner’s Dilemma (Anchor Books, 1993). 2 Dock, ‘Forcible Feeding in English Prisons. 1910’, The American Journal of Nursing 11 (2014): 1–51; Miller I., ‘Necessary Torture? Vivisection, Suffragette Force-feeding, and Responses to Scientifc Medicine in Britain c. 1870–1920’, Journal of the History of Medicine and Allied Sciences 3 (2009): 333–72. 3 Purvis J., Emmeline Pankhurst. A Biography (Routledge, 2003), 134; Pugh M., The Pankhursts. The History of One Radical Family (Penguin Books, 2001), 259; Pankhurst E.,

The new prisoner’s dilemma 107 used forcible feeding techniques against Irish Republicans during their struggle for independence: during the 1910s, doctors force-fed Republican prisoners in Ireland, controversially causing in 1917, the death of leading Irish Republican prisoner Ashe, who died as a result of complications from such a feeding, while incarcerated at Dublin’s Mountjoy Jail.4 Ashe’s death outraged Irish public opinion so much that force-feeding has never been used again in Ireland since then.5 Although force-feeding was permanently abandoned in Ireland, convicted prisoners continued to be fed against their will in English prisons until as late as the 1970s.6 During the Northern Irish Troubles (c. 1968–1998), mention should be made of the many hunger strike cases undertaken in the Northern Irish jail of Long Kesh (renamed HMP Maze by the British government) between 1980 and 1981 that led the World Medical Association (WMA) to formally condemn the practice as unethical in October 1975 with the Declaration of Tokyo as a set of international guidelines for physicians concerning torture and other cruel, inhumane, or degrading treatment, or punishment in relation to detention and imprisonment.7 Altogether, they ended up with the death of ten convicts who were members of the IRA, the Irish independence movement, and protested against the British government due to the non-recognition of the status of political prisoners.8 Afterward, in the 1980s Italian jails hosted several hunger and thirst strikes against the non-application of the reform of the penitentiary system9 and more recently some cases of detainees on hunger strike that were not force-fed, and then

4 5 6 7

8

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My Own Story (Virago Limited, 1979), 251–52; Pankhurst E.S., The Suffragette the history of the women’s militant suffrage movement, 1905-1910 (Sturgis & Walton Company, 1911), 433. Murphy W., Political Imprisonment and the Irish, 1912–21 (Oxford University Press, 2014), 82–92. Olshansky B. & Gutiérrez G., The Guantánamo Prisoner Hunger Strikes & Protests: February 2002 – August 2005 (Center for Constitutional Rights, 2005). Miller I., A History of Force Feeding: Prisons, Hunger Strikes and Medical Ethics, 1909–74 (Palgrave Macmillan, 2016). World Medical Association, Declaration of Tokyo, Guidelines for Physicians Concerning Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment, adopted in October 1975 by the 29th WMA General Assembly, editorially revised by the 170th WMA Council Session, Divonne-les-Bains, France, May 2005 and the 173rd WMA Council Session, Divonne-les-Bains, France, May 2006, and revised by the 67th WMA General Assembly, Taipei, Taiwan, October 2016, available at http://www.wma.net /policies-post/wma-declaration-of-tokyo-guidelines-for-physicians-concerning-torture-and -other-cruel-inhuman-or-degrading-treatment-or-punishment-in-relation-to-detention-and -imprisonment/ (last accessed on January 14, 2021). Miller I., ‘Starving to Death in Medical Care: Ethics, Food, Emotions and Dying in Britain and America, 1970s–1990s’, BioSocieties 1 (2017): 89–108; Calamati S., et al., Il diario di Bobby Sands: storia di un ragazzo irlandese (Castelvecchi, 2016); O’Rawe R., Blanketmen: An Untold Story of the H-Block Hunger Strike (New Island, 2005); Beresford D., Ten Men Dead: the Story of the 1981 Irish Hunger Strike (Atlantic Monthly Press, 1988); Perico G., ‘I suicidi per fame nelle prigioni dell’Ulster’, Aggiornamenti sociali 6 (1981): 469 ff.; Lattuada A., ‘I suicidi in Irlanda: un caso di coscienza’, Vita e pensiero 10 (1981): 7 ff. Fiandaca G., ‘Sullo sciopero della fame nelle carceri’, Foro italiano 2 (1983): 235 ff.; Fassone E., ‘Sciopero della fame, autodeterminazione e libertà personale’, Questione giustizia 2 (1982): 335 ff.

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were allowed to die.10 In February 1981, in West Germany, imprisoned members of the Red Army Faction launched a collective hunger strike. The neatness of the ethical contest between the prisoner’s right to refuse food against a state’s duty to protect that prisoner’s life was complicated; however, by a discursive layering that made force-feeding the locus for a broader confict on the complex pressures that shaped West Germany’s response to self-starvation in the 1970s and 1980s.11 That being said, the phenomenon of hunger strikes has occurred pretty much everywhere in the world, in the form of both isolated cases as well as mass acts with the purpose of protesting against prison conditions deemed to be unfair. Recent controversies about prisoner force-feeding have renewed debates on the ethical appropriateness of feeding individuals against their will. Critics condemn forcefeeding as it seems to clash with prevailing bioethical principles of patient autonomy, which grant patients the right to refuse medical treatment (or food) if they wish. Forensic medicine defnes a hunger strike as ‘the total, voluntary refusal of food intake without justifed reasons that lasts longer than three days’.12 It follows that a hunger strike is evidently a form of expression of one’s personal ideas. Considering this defnition, hunger strikes, in general terms, are normally undertaken by individuals who are in full possession of their faculties, regardless of the life-threatening risk potentially resulting from doing so. Therefore, medical interventions resorting to force-feeding techniques turn out to be unlawful. Given that the above-mentioned techniques are almost unanimously acknowledged as health treatments, they prove to be infringements of the individual right to refuse medical care, formally recognized in the prevailing medical doctrine.13 It is well known that the only limitation to this individual right exists in the hypothesis of endangerment of public health. In this circumstance, the legislator can lawfully intervene with a restrictive procedure, yet with due regard for human dignity. Undoubtedly, the respect for human dignity and the right to self-determination, especially the right of expressing one’s personal ideas by all appropriate means, prevail over the interest in preserving physical integrity and life itself in general, at least insofar as individual choices do not affect the whole community. Rare cases in which such rights have to be restricted are justifed by the principle that the freedom of controlling one’s body may be limited whenever individuals permanently damage their own physical integrity or engage in wrongdoings against law, public order, or public morality. In all circumstances, legitimate restrictions on individual freedoms rely on the dynamic concept of physical integrity instead

10 Garasic M. & Foster C., ‘When Autonomy Kills: the Case of Sami Mbarka Ben Garci’, Medicine and Law 4 (2012): 589–97. 11 Passmore L., ‘The Ethics and Politics of Force-feeding Terror Suspects in West German Prisons’, Social History of Medicine 2 (2012): 481–99. 12 Allegranti I. & Giusti G., Lo sciopero della fame del detenuto (Cedam, 1983), 6. 13 Luciani M., ‘Salute – (I) Diritto alla salute – Dir. Cost.’, Enciclopedia giuridica XVII (1991): 10 ff.; Romboli R., ‘La libertà di disporre del proprio corpo. Art. 5’, in Commentario del codice civile Scialoja-Branca, ed. Galgano F. (Zanichelli, 1988), 335 ff.; Modugno F., ‘Trattamenti sanitari “non obbligatori” e Costituzione’, Diritto e società 2 (1982): 312 ff.

The new prisoner’s dilemma 109 of the static one.14 That being said, it is necessary to refect on whether the particular status of a detainee may somehow infuence the debate over the thorny issue of hunger strikes. On the one hand, it could be argued that detainees, being deprived of normal channels for self-expression, see hunger strikes as one of the last remaining options they can resort to as a form of protest to give vent to their unrest. By doing so, detainees not only keep up the interest in the objectives they are fghting for but also partially re-establish themselves and precisely that freedom they are denied being prisoners, hence the importance of safeguarding such right of self-expression. On the other hand, there is no doubt that hunger strikes taking place in jails necessarily involve different considerations compared to those arising from hunger strikes that take place outside prison. In the frst case indeed, aspects such as the condition of isolation, vulnerability, and overall deprivation imprisoned strikers have to face cannot be omitted. The question then arises as to whether the Constitution allows or even forces the legislator, depending on how much emphasis is put on each respective interest involved, to grant detainees greater protection compared to all other individuals when it comes to their physical integrity. In some cases, the answer to such a question has turned out to be affrmative. By way of example, it happened when the Italian government attempted to promote a reform by seeking to entitle the Minister of Justice with the power of imposing force-feeding, yet only in given circumstances. From a doctrinal viewpoint, there have been different attempts to discern which regulations within the existing legislation could have been taken into account in order to lawfully justify the implementation of a similar health treatment such as force-feeding.15 It turned out that many sentences formulated by Italian judges were precisely on this page since they acknowledged that, given specifc circumstances and in compliance with given guarantees, prison offcers are entitled to carry out the force-feeding technique.16 Particularly, force-feeding fnds its legislative foundation in the fact that its implementation turns out to be thoroughly lawful when people suffering from mental illnesses are involved.17 It follows that it is likewise lawful to implement measures of physical restraint in order to prevent such individuals from perpetrating self-inficted acts of violence. However, the prevailing doctrine18 disagrees with the approach above outlined, considering frst of all that rational individuals undertaking hunger strikes cannot suffer by defnition from mental disorders.

14 Romboli R., ‘La libertà di disporre’, note 13 at 234 ff. 15 Fiorentin F. & Fiorio C., Manuale di diritto penitenziario (Giuffré, 2020), 198 ff.; Canepa M. & Merlo S., Manuale di diritto penitenziario (Giuffré, 2010), 144 ff. 16 Court of Milan, April 10, 1989, Rassegna penitenziaria e criminologica (1989): 293 ff.; Court of Venice, December 16, 1982, Foro italiano 2 (1983): 237 ff.; Court of Padua, December 2, 1982, Ibid., 238 ff.; Court of Milan, December 13, 1981, Questione giustizia (1982): 309 ff. 17 Lederman Z., ‘Prisoners’ Competence to Die: Hunger Strike and Cognitive Competence’, Theoretical Medicine and Bioethics 4 (2018): 321–34; Konrad N. & Opitz-Welke A., ‘The Challenges of Treating the Mentally Ill in a Prison Setting. The European Perspective’, Clinical Practice 5 (2014): 517–23. 18 Ruotolo M., Diritti dei detenuti e Costituzione (Giappichelli, 2002), 154 ff.

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Speaking of this, the argument that strikers’ psychological equilibrium necessarily ends up being tainted by the physical deterioration as a consequence of the hunger strike itself cannot be held as valid. Indeed, it should be borne in mind that a hunger strike as a form of political protest must be carried out advisedly and with full awareness as to its potential consequences. Secondly, it is argued that a hunger strike should not be regarded as an omissive behaviour consciously protracted over time, but rather as a protest carried out precisely to avoid selfinficted injuries. Last but not least, another argument in favour of the lawfulness of the force-feeding practice relies on the obligation on the part of prison offcers to care for and protect detainees. Specifcally, they must protect them from injuries perpetrated by third parties, which has nothing to do with the deliberate refusal of an individual to be force-fed. Therefore, it is reasonable to support the argument in favour of a balance between, on the one hand, the interest in preserving life and physical integrity of individuals and, on the other hand, the freedom of self-determination, only if it follows the same pattern in both cases of free citizens and detainees. In other words, it appears that the prisoner status does not involve specifc requirements when it comes to handling the hunger strike issue. Indeed, the principle of inviolability of personal freedom affects detainees as well as all other human beings, yet, for the former, it becomes of utmost importance for giving expression to their individual personalities.19 Conversely, the only argument that may lead to the opposite conclusion proves to be weak, that is the argument relying on the interpretation of hunger strikes as a potential epidemic phenomenon.20 Nevertheless, all this does not preclude prison offcers from doing everything they can, by using all legitimate means available, to minimize the risk of hunger strikes. Moreover, it is important to keep in mind that assessing the state of health of detainees is a key procedure in determining whether a detainee is aware enough to go on a hunger strike or not. The pragmatic approach, adopted on different occasions by the European Court of Human Rights (ECtHR), offers grounds for refection as well. This approach is based on the safeguard of detainees’ physical integrity as a state priority, yet within the limits of given circumstances. The ECtHR particularly, declared that force-feeding cannot be automatically labelled as unlawful practice; Art. 3 of the European Convention on Human Rights (ECHR) on the prohibition of torture and inhuman and degrading treatments rather ‘imposes an obligation on the State to protect the physical well-being of individuals deprived of their freedom, for example by providing them with necessary medical assistance’. It goes without saying that medical professionals have to confrm frst of all the ‘medical necessity’ of physical restraint in compliance with health procedures established by law.21

19 Dal Canto F., ‘Lo sciopero della fame in carcere’, Quaderni costituzionali 4 (2009): 906–9. 20 Allegranti I. & Giusti G., Lo sciopero della fame, note 12 at 116. 21 ECtHR, Jalloh v. Allemagne, 4810/00, July 11, 2006, para. 69 ff. See also: ECtHR, Nevmerzhitsky v. Ukraine, 54825/00, April 5, 2005; Ibid., Ciorap v. Moldova, 12066/02, June 19, 2007; Ibid., Rappaz v. Switzerland, 73175/10, March 26, 2013.

The new prisoner’s dilemma 111 Ethically speaking, it is necessary to consider the principles of inalienability of life and its non-transmissibility to third parties. They both hold a prominent place in discussions on the value of life, which, being the most important human value, has never been called into question neither ethically nor juridically. The above-mentioned principles are naturally assigned to human beings who are consequently called to use them wisely in all circumstances. The ultimate goal of human beings consists in achieving their own destiny by taking advantage of the potential deriving from both thinking and executing skills. It follows that the same reasoning also applies to the whole community of citizens, considering that individuals cannot live but jointly. Indeed, the close relationships of both social coexistence and interdependence make sure that subsidiarity mutual ties such as solidarity, collaboration, helpfulness, and mutual assistance naturally arise as a form of interpersonal human bonding. It would then be foolish if individuals showed disinterest in one to another and vice versa; likewise, it would be foolish if individuals refused to help themselves mutually in case of life-threatening situations. Moving now closer to the topic of the present chapter, it is up to the community – therefore to each of its members – to exercise the right-duty to protect endangered lives of individuals, such as in the hypothesis of a suicide attempt by a hunger striker, regardless of the reasons that led that person to such a choice. If an individual attempt to take his/her own life, the duty to intervene in favour of his/her safety is automatically involved and justifed. By doing so, however, there arises the side effect consisting in the entire annulment of the individual power of choice, including self-annihilation. On the one hand, it is common practice to help someone who has decided to end his/her own life even for some unknown reasons; on the other hand, the force-feeding practice of inmates undertaking a hunger strike could lead to legitimate conscientious objections in the medical feld.

Convicts’ force-feeding in comparative perspective Hunger strikes can take many different forms, such as potentially subversive acts aimed at disturbing penitentiary peace in order to assert specifc claims or interfering with the ordinary course of the prison routine. Recently, the Italian Supreme Court confrmed the injunction imposed on a detainee for having taken part in a collective protest. The protest consisted of a hunger strike against inaction on the part of the penitentiary administration. It was no more than a demonstrative confrontational act towards penitentiary institutions, which, due to its seditious nature, could have proven a danger to the internal order of the prison as well as the normal course of prison life, not to mention the real danger of an extensive public health threat.22 Speaking of this, it should be remembered that a draft law aimed at regulating expressly penitentiary legislation on hunger strikes was tabled in Italy after the massive phenomenon of

22 Supreme Court of Cassation, June 26, 2017, No. 5315, Luppino, and 5316, Surace.

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collective hunger strikes in the early 1980s. The draft law was frst presented by the Minister of Justice, then criticized from a doctrinal perspective and ultimately approved by the Senate after having been rejected by the Chamber of Deputies. According to the above-mentioned law, inmates undergoing a hunger strike have to be force-fed following the authorization of both the Minister of Justice and prison health inspector, in the case of ‘imminent life-threatening situations’. The procedure must be carried out ‘under constant medical supervision’.23 In Israel, the force-feeding of detainees who are on hunger strikes was provided by law on July 30, 2015, with an amendment to the Prisons Act.24 The law allowed penitentiary authorities to apply for a permit to feed a convict at court if a doctor recommends it and there is an imminent danger of serious deterioration of the prisoner’s health. The law allows prison commissioners to ask a court for permission to force-feed a prisoner if a doctor recommends doing so and there is an imminent danger of a severe deterioration of the convict’s health. Consequently, the court has to review the prisoner’s mental state, the dangers of force-feeding via a feeding tube and its invasiveness together with the convict’s stance on the matter and other considerations.25 The criteria for granting such requests prevent prisoners from causing irreversible damage to their body or from endangering their own life. If the court authorizes force-feeding, offcials must administer only the minimum amount of nutrition necessary to keep prisoners alive. In addition, offcials are required to use ‘all means at their disposal’ to persuade prisoners to willingly end their hunger strike. Failing that, force-feeding has to take place; the law requires the procedure to be carried out in ‘as dignifed a manner as possible’ and in private. If the prisoner actively refuses being fed, prison offcials will be allowed to use ‘reasonable force’ to make them eat. If the request is authorized, the prisoner can be fed against his/her will and a prison guard can use ‘reasonable’ physical force to ensure the prisoner is fed. The treatment must be administered in the presence of a doctor, as stated by law, and a trusting doctor-patient relationship is presented as the crucial element for securing a successful outcome, preserving the prisoner’s life and dignity with no signifcant political damage incurred by the state.26 The rule prompted strong responses from various statutory entities and local and international NGOs and led to heated debates among Israel’s academia,

23 VIII Legislature, Senate Draft Law No. 1709 of January 15, 1982, by Minister of Justice, approved on February 10, 1983, but never examined by the Chamber of Deputies, which, incidentally, included Article 11-bis (“Coercive rules in the health assistance feld”) in Law No. 354 of July 26, 1975, on penitentiary rules. Parziale M. & Ponti A., ‘Il medico e la alimentazione forzata del detenuto’, Rassegna penitenziaria e criminologica 1 (1983), 147–161. 24 Knesset, Amendment at the Prison Act, available at http://knesset.gov.il/Laws/Data/Bil lGoverment/870/870.pdf (last accessed on January 14, 2021). 25 Lederman Z. & Lederman S., ‘The Land of No Milk and No Honey: Force Feeding in Israel’, Monash Bioethics Review 3–4 (2017): 158–88. 26 Weingarten M., ‘Force-feeding Political Prisoners on Hunger Strike’, Clinical Ethics 2 (2017): 86–94.

The new prisoner’s dilemma 113 media, and general public.27 Even after the amendment was passed, the problems and tensions surrounding it persisted. Thus, when army lawyers were faced with two exceptionally long hunger strikes of Palestinian administrative detainees in late 2015, they did not appeal to the district court as provided for in the ruling, and instead negotiated pleas and deals. Even when the detainees’ lawyers appealed to the Israeli Supreme Court, the state did not raise or discuss the Correction and instead proposed ad hoc compromises to address the cases.28 In September 2016, these various ad hoc solutions were consolidated and systematized when the Israeli Supreme Court rejected all of the appeals seeking cancellation of the rule. The Supreme Court accepted the state’s position that the amendment was a constitutional and proportionate addition to the earlier legislation. The court ruled that the force-feeding impinged on the rights and dignity of inmates only to the extent necessary to fulfll both what the court referred to as ‘the dominant purpose’ of guarding the life of a person in the custody of the state and ‘the secondary purpose’ of homeland security and public order.29 Apparently, the law creates a fair balance between the country’s interest to protect the life of the convict and his/her rights and sovereignty over his/her body,30 yet it should not be forgotten that Israeli doctors refused to feed the Palestinian prisoner Allan against his will; he resumed eating after the Supreme Court temporarily suspended his detention in order to allow doctors to determine any long-term health consequences.31 The Palestinian prisoner protested against his detention because he was suspected of ties to a militant group, as well as to being held with no charges, no lawyer, and no accusations to face in court. Allan might have become a landmark case, but doctors made it clear that they had no intention whatsoever of becoming involved in the matter, calling it unethical medical treatment.32 Indeed the Israel Medical Association (IMA) has taken a principled stance against the law and issued guidance to doctors to refuse to comply with the law.33 It is diffcult to believe that Israeli politicians, who support the

27 Kenny Y., ‘Force and Feeding: From Bioethics to Biopolitics in Recent Israeli Legislation about Force-feeding Hunger-striking Inmates’, in Bioethics and Biopolitics in Israel: SocioLegal, Political, and Empirical Analysis, eds. Boas H., et al. (Cambridge University Press, 2018), 56–75. 28 Supreme Court Rulings 5575/15, 5580/15, and 452/16. 29 Supreme Court Rulings 5304/15, 5441/15, and 5994/15. 30 The law’s explanatory section states that the use of hunger strikes by prisoners “is a known phenomenon that has been going on for years. Sometimes, hunger strikes involve many prisoners who continue with their protest for an extended period of time to the point that they endanger their lives. Such challenges require us to provide an appropriate response and the present law represents this response”. 31 Filc D., et al., ‘“Palestinian Prisoners” Hunger-Strikes in Israeli Prisons: Beyond the Dual-Loyalty Dilemma in Medical Practice and Patient Care’, Public Health Ethics 3 (2014): 229–38. 32 Karni T., ‘Hunger Striking Inmates and Detainees, and Medical Ethics’, Israel Medical Association Journal 3 (2015): 179–81. 33 Siegel-Itzkovich J., ‘New Bill on Force Feeding Prisoners Poses Medical Dilemma for Israel’s Doctors’, British Medical Journal 350 (2015); Ibid., ‘Israel Medical Association Fights to Stop Legalisation of Force Feeding Prisoners on Hunger Strike’, British Medical Journal 348

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law, strive for the lives of prisoners not because they do not care for their welfare, but simply because they do not want them to become symbolic fgures or martyrs. However, Allan ended his hunger strike after the Israeli court issued its ruling. The force-feeding law still remains in force, awaiting a future case and a future debate with Israeli doctors.34 However, in contrast to the position of the WMA and the Ethics Council of the IMA, some authors argue for the forced-feeding of hunger-striking prisoners when their condition reaches a stage of danger of death or permanent injury.35 This position is based on the priority of human life over autonomy, and of a communitarian ethic and is supported by an Israeli District Court decision ordering the feeding of a hunger-striking prisoner, by a Supreme Court decision imposing surgery on a non-consenting prisoner, and in line with Israel’s Patients’ Right Law. In the US, one relevant example is the decision of the Supreme Court of Connecticut on the Commissioner of Correction v. Coleman case issued on May 21, 2009,36 later confrmed on appeal on October 25, 2011,37 that issued an injunction authorizing prison authorities to forcibly feed a prisoner on a hunger strike. The case was criticized by several American leading bioethicists and doctors. Particularly, they criticized the state penitentiary system of Connecticut, especially the fact that the Superior Court declared the practice of force-feeding constitutional.38 This case poses the question of whether the state has the right to force-feed an inmate engaged in a hunger strike. In Connecticut, there appears to be no recorded decision in that regard, insofar as a similar injunction was issued only orally on April 29, 1988, by the judicial district of Tolland with reference to the Warden v. Saia case. However, several force-feeding cases have been recorded at the US Penitentiary Administrative Maximum (ADX) ‘Supermax’ of Florence, Colorado, particularly in 2009 to the detriment of the ‘shoe bomber’ terrorist on the American Airlines fight from Paris to Miami, Reid, yet without any formal judicial injunction issued by a federal court. The defendant in the above-mentioned case recorded in Connecticut, Coleman, was a British man from Liverpool who in 2005 was sentenced to eight years in state prison for having sexually assaulted his wife. She had allegedly been raped two days after Coleman had applied for custody of their children. As a result, he was convicted, yet he appealed, arguing that his wife had falsely accused him of rape in order to gain custody of their children. Nevertheless, the conviction

34 35 36 37 38

(2014); Ibid., ‘Doctors Object to Bill that Would Allow Force Feeding of Hunger Striking Prisoners’, British Medical Journal 347 (2013). Harris E., ‘Hunger Strike Raises Debate about Force-Feeding in Israeli Prisons’, available at http://www.npr.org, August 22, 2015 (last accessed on January 14, 2021). Glick S., ‘Force-Feeding of Hunger-Striking Prisoners’, Harefuah 9 (2014): 554–56. Commissioner of Correction Lantz v. Coleman, 978 A. 2d 164, Conn. Super. Ct. 2009. Commissioner of Correction Arnone v. Coleman, SC 18721, Conn. App. Ct. 2011. Spencer M., ‘Judge Set to Rule on Force-Feeding of Inmate’, The Hartford Courant, November 11, 2009.

The new prisoner’s dilemma 115 was upheld in 2007 on appeal.39 Coleman’s guilt or innocence has been debated extensively elsewhere – while the case due to its complicated nature raises many challenging questions regarding criminal justice, the factual dispute that led to his conviction is best left to the process of legal appeal. In September 2007, Coleman stopped eating solid foods to protest against what he deemed to be a case of corruption within the Connecticut legal system. Sometime later, he started to refuse all liquids and nutritional supplements other than occasional milk, juice, and water during the Christmas season to spare his family his potential death during the holidays. During this time, his weight dropped from 250 pounds (110 kg) to no more than 100 pounds (45 kg). The commissioner of the Connecticut Department of Correction, Lantz, sued for an injunction allowing the prison to force-feed Coleman. Coleman was assisted by the American Civil Liberties Union (ACLU) of Connecticut in presenting his case to Judge Graham of the Connecticut Superior Court in the Judicial District of Hartford,40 yet with disappointing results. Indeed, the court issued an injunction allowing the prison to force-feed Coleman. The ACLU condemned the ruling as ‘fawed at its core because it disregards the choice of a competent individual to refuse medical treatment’. The ACLU lawyer McGuire, who, while representing Coleman, compared his hunger strike to the one of the suffragettes of the early twentieth century and to Gandhi’s protests, said that ‘Mr. Coleman’s hunger strike is a symbolic political speech, stating that his client is entitled to protection under both United States and Connecticut constitutions’.41 The Coleman case pitted several American leading bioethicists and physicians against the Connecticut prison system. Caplan of the University of Pennsylvania, who testifed for Coleman at the trial, wrote in The Hartford Courant: Prisoners do not have many rights while in jail, but one right they do have is the right to protest, including the decision not to eat or drink. As horrible as it is to watch someone starving, although it could be avoided, the state of Connecticut should accept that a rational prisoner may make that decision. I hope that Coleman reaches the conclusion that he has made his point, ending his hunger strike. However, there is no such right as using medical treatments in order to force him not to do so. (Caplan A., ‘Force-Feeding a Starving Inmate Violates Medical Ethics’, The Hartford Courant, April 18, 2010) Moreover, some journalists called for the revocation of the medical licenses of the physicians Blanchette and Ducate, who were involved in Coleman’s forcefeeding.42 Indeed, the WMA’s 1975 Declaration of Tokyo strictly prohibits

39 State v. William C, 103 Conn. App. 508, 930 A.2d 753. cert. denied, 284 Conn. 928, 934 A.2d 244 (2007). 40 Appel J.M., ‘Beyond Guantánamo: Torture Thrives in Connecticut’, HuffPost, March 18, 2010. 41 Shields R., ‘British Man to be Force-fed in US Jail’, The Independent, March 14, 2010. 42 Ibid., note 40.

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physicians from engaging in such practices, described as ‘contrary to the laws of humanity’. The American Medical Association (AMA) has fully embraced this document. When American prison commissioners began force-feeding prisoners in the Guantánamo Bay Naval Base (NSGB, also called GTMO), two-hundred ffty prominent physicians signed an open letter to a leading British medical journal, The Lancet, calling for sanctions to be issued by professional bodies against the medical staff involved in these nonconsensual procedures for the ethical and legal dimensions of medical complicity in torture.43 If the US navy discharged a nurse who refused to force-feed Guantánamo prisoners there was a strong debate on the ethical quandary military nurses face when the duty to follow orders conficts with fundamental values.44 The International Council of Nurses was absolutely clear about the role of nurses and condemned any part in their role in the of force-feeding practice.45 Besides in the Dhiab v. Obama case of 2014, the Preliminary Injunction against force-feeding practices in Guantánamo was denied by District Court of Columbia because the prisoner had not submitted suffcient evidence to demonstrate deliberate indifference on the part of the Government.46 In effect, torture critics have spent many years advocating for a halt to the brutal excesses of the ‘War on Terror’. This began when Bush Jr’s government rejected – till the Hamdam v. Rumsfeld case of 200647 – the UN’s 1949 Geneva Conventions for Al Qaeda detainees as ‘enemy combatants’ concerning the waterboarding torture procedure of prisoners at Guantánamo Bay. Ironically, as progress is fnally being made as to the international struggle against torture, the state of Connecticut launched a radical, pro-torture initiative of its own.

43 Garasic M., ‘Force-feeding, Hunger Strikes, Guantánamo and Autonomy: Replies to George Annas, Charles Foster and Michael Gross’, Journal of Medical Ethics 1 (2017): 1–29; Kalk W.J., ‘Guantánamo Force Feeding Trial: the US is Wrong to Medicalize Hunger Striking’, British Medical Journal 350 (2015); Lenzer J., ‘Nurse Refuses “Criminal” Force Feeding of Guantánamo Detainees’, British Medical Journal 349 (2014); Dougherty S.M., et al., ‘Hunger Strikers: Ethical and Legal Dimensions of Medical Complicity in Torture at Guantánamo Bay’, Prehospital and Disaster Medicine 6 (2013): 616–24; Annas G.J., ‘Hunger Strikes at Guantánamo – Medical Ethics and Human Rights in a “Legal Black Hole”’, New England Journal of Medicine 13 (2006): 1377–82. 44 Olsen D.P. & Gallagher A., ‘Ethical Issues for Nurses in Force-Feeding Guantánamo Bay Detainees’, American Journal of Nursing 11 (2014): 47–50. 45 Hegarty P., ‘Force-Feeding People is Wrong and Nurses Should Play No Part’, Nursing Standard 28 (2014): 1–33; Peters A.K., ‘Force-Feeding is in the Interests of the State, Not Its Prisoners’, Nursing Standard 28 (2014): 1–35. 46 Dhiab v. Obama, 74 F.Supp.3d 16, 19 (D.D.C. 2014). Crosby S.S., et al., ‘Force Feeding at Guantánamo in First Case Brought to US Federal Court’, British Medical Journal 350 (2015). 47 Hamdan v. Rumsfeld, 548 U.S. 557 (2006), stated a 5-3 decision that the military commissions set up by the Bush jr. administration to try detainees at Guantánamo Bay lack “the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949”. Specifcally, the ruling says that Common Article 3 of the Geneva Conventions was violated. Mahler J., The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power (Farrar, Straus and Giroux, 2008).

The new prisoner’s dilemma 117 Among the reasons for this outcry is that force-feeding through a nasogastric tube (gavage) ranks alongside the most unpleasant and downright horrifc experiences that one human being can infict on another one. In contrast to the judgments of the Supreme Court of Connecticut, three US state courts have decided that the state has no right to force-feed an inmate. In the Zant v. Prevatte case of 1982,48 the Supreme Court of Georgia confrmed the court’s decision to deny a petition to force-feed a hunger striker. The state did not claim any of the traditional factors except the duty to preserve the inmate’s health and life. Apparently, the Georgia court erred in not distinguishing the motivation of the prisoner – to manipulate the prison system – from that of patients who refuse treatment.49 In 1993, the Supreme Court of California determined in the Thor v. Superior Court case50 that the state had no authority to interfere with an inmate’s hunger strike. Thor involved a prison physician petitioning the court to allow him to force-feed a quadriplegic patient who decided to die. The court considered four state interests: preserving life, preventing suicide, maintaining the integrity of the medical profession, and protecting innocent third parties. The court considered as well how this would affect the orderly administration of the prison system. In considering the frst four factors, the court underlined that the patient at issue was quadriplegic and had been sentenced to life; the patient’s decision to refuse medical treatment was informed and independent. Eventually, the state of California found no evidence to the effect that such a decision could disrupt the administration of the prison system. The third and last case prohibiting state interference with a prisoner’s hunger strike has to do with the Appeal Court of Florida and to its judgement concerning the Singletary v. Costello case of 1996.51 The inmate went on a hunger strike to protest his transfer to a different prison and to protest the lodging of

48 Zant v. Prevatte, 248 Ga. 832, 286 S.E.2d 715 (1982). Doing so, the court considered that “because the hunger striking inmate therein was not mentally incompetent, did not have dependents who relied on him for a means of livelihood, and the issue of religious freedom was not present, the state had failed to show “such a compelling interest in preserving [the inmate’s] life, as would override his right to refuse medical treatment”. Ibid., at 834. 49 Annas G.J., ‘Prison Hunger Strikes: Why the Motive Matters’, The Hastings Center Report 6 (1982): 21–22. 50 Thor v. Superior Court, Cal. 4th 725, 21 Cal. Rptr. 2d 357, 855 P.2d 375. The court’s holding specifed that “under the Californian law, a competent, informed adult has the fundamental right of self-determination, i.e. to refuse or demand the withdrawal of medical treatment of any form being irrespective of personal consequences”. Ibid., at 732, 21 Cal. Rptr. 2d 357, 855 P.2d 375. The court stated also that “[u]nder the facts of this case, we further conclude that in the absence of evidence demonstrating a threat to institutional security or public safety, prison offcials, including medical personnel, have no affrmative duty to administer such treatment and cannot deny to a person incarcerated in a state prison this freedom of choice”. Ibid. 51 Singletary v. Costello, 665 So.2d 1099, 1101 (Fla. App. 1996). With regard to the case, the court stated that “although the state interest in the preservation of life is powerful, in and of itself, it will not prevent a competent person from declining life-sustaining medical treatment

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complaints against the prison chaplain. At frst, the court recognized the interest of the inmate to privacy and to refuse medical treatment, then it considered the state’s interests in preserving life, preventing suicide, protecting third parties, maintaining the ethics of the medical profession as well as maintaining order in the prison. The court also reckoned that the prisoner expressly stated that he did not want to die, meaning that the state’s interest in preventing suicide was not implicated. Eventually, no evidence was found regarding the other factors; therefore, the court denied the state’s petition. However, the state of Connecticut recognized the importance of security and discipline in a prison environment together with the challenge of maintaining them.52 The majority of state and federal courts pondering the issue of whether the state may intervene in a hunger strike or not contributed to reaching a balance among state interests in the preservation of life, orderly administration of the prison system and the interests of prison personnel as well as the prisoner’s right to self-determination and privacy. Basically, the courts based their decisions on the fact that a prisoner retains only those rights not fundamentally inconsistent or incompatible with the criminal justice system. A prisoner has no reasonable expectation of privacy protected by the Fourth Amendment, and so a right to end one’s life by starvation under the right to privacy does not apply. The state has a compelling interest in preventing suicide and preserving life, whereas to allow a prisoner to starve would adversely affect prison security and order. For one or more of these reasons, they have upheld the state’s right to intervene.53 The fve factors stated in the above-mentioned case law allowing state intervention are: orderly administration and security of the prison system, prevention of the exploitation by the prisoner of the prison itself and the judicial system for his own purposes, preservation of life, protection of prison personnel, and

[…] This is because the life that the state is seeking to protect is the life of the same person who has competently decided to [forgo] medical intervention”. Ibid., at 1109. 52 Washington v. Meachum, 238 Conn. 692, 733–34, 680 A.2d 262 (1996), stated that “Prison administrators are responsible for maintaining internal order and discipline, securing their institutions against unauthorized access or escape and for rehabilitating inmates placed in their custody as far as human possibilities and resources allow them to do so. The Herculean obstacles to the effective implementation of these duties are too obvious and do not need any explication. It is suffcient to remind that the problems American prisons are facing are complex and diffcult to solve, additionally they are not readily resolvable by legislative means”. 53 Ex multis People ex rel. Dept. of Corrections v. Fort, 352 Ill. App. 3d 309, 314, 287 Ill. Dec. 443, 815 N.E.2d 1246 (2004); State ex rel. Schuetzle v. Vogel, 537 N.W.2d 358, 360–61 (N.D. 1995); In re Grand Jury Subpoena John Doe v. United States, 150 F.3d 170, 171 (2d Cir. 1998); In re Sanchez, 577 F. Supp. 7 (S.D.N.Y.1983); Laurie v. Senecal, 666 A.2d 806, 809 (R.I. 1995): Avila D., ‘Laurie v. Senecal’, Issues in Law & Medicine 4 (1995): 469–72. In re Caulk, 125 N.H. 226, 231, 480 A.2d 93 (1984), with dissent that refects on the contradiction of this position compared to the New Hampshire ethos: “Our State motto proudly proclaims the choice to ‘live free or die’. If he can’t opt for the former, I would allow Mr. Caulk to choose the latter”, Ibid., 125 N.H. At 232–33, 480 A.2d 93 (Douglas, Dissenting).

The new prisoner’s dilemma 119 maintenance of the ethical integrity of medical professionals. Superior Court Judge Graham, who presided over the case, wrote: ‘Neither state nor federal freedom of speech guarantees allows Coleman to continue his hunger strike in contradiction to the penological needs of the prison’. In a comparative perspective, it should be highlighted that some countries do not allow the force-feeding of inmates who voluntarily refuse nutrition or hydration, e.g. in Canada, where the Canadian Correctional Service stated: ‘[t]he [correctional service] shall not implement by no means the force-feeding of a rational inmate capable of understanding the consequences of fasting’.54 In the United Kingdom instead, a relevant case was the Secretary of State for the Home Dept. v. Robb of 1995; at that time, it was stated that the right to self-determination was not absolute, but the state must give priority to the prisoner’s right to refuse food.55 There appear to be other countries that specifcally allow the force-feeding of inmates, yet only in some instances. The same applies for the Council of Europe in the Report on the Organization of Health Care Services in Prisons in the European Member States; the report shows that Finland supports the WMA’s Declaration of Tokyo, whereas Spain and Sweden allow involuntary feeding in case of immediate danger to the life or health of the hunger striker. In Italy instead, involuntary feeding is prohibited, unless the hunger striker is no longer aware of the consequences of repeated food refusals.56

The prisoner’s force-feeding in international rulings International authorities suggest that the practice of force-feeding a competent inmate is no less than a violation of international human rights, thus it cannot be condoned by judicial courts. In support of the idea that international law establishes a per se ban on force-feeding a competent inmate who has voluntarily embarked on a hunger strike, I would like to mention the Declaration of Tokyo with the Guidelines for Physicians Concerning Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment in Relation to Detention and Imprisonment57 and the Declaration of Malta on Hunger Strikers, promulgated

54 Corrections and Conditional Release Act, S.C. 1992, c.20, § 89, available at http://laws-loi s.justice.gc.ca/PDF/C-44.6.pdf. 55 Secretary of State for the Home Dept. v. Robb, [1995] Fam. 127, 131–32, [1995] 2 W.L.R. 722. 56 Council of Europe, Organization of Health Care Services in Prisons in European Member States, § 4.6 (1998), available at http://www.coe.int/t/dg3/health/Prisonsreport_en.asp (last accessed on January 14, 2021). 57 Declaration eight of the Declaration of Tokyo provides: “Where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artifcially, as stated in WMA Declaration of Malta on Hunger Strikers. The decision as to the capacity of the prisoner to form such a judgment should be confrmed by at least one other independent physician. The consequences of the refusal of nourishment shall be explained by the physician to the prisoner”. Ibid., note 7.

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by the WMA, which prohibits the force-feeding of competent prisoners who have refused nourishment.58 According to its own statute, the WMA expresses its viewpoint in a way that can be defned as ‘authoritative, being based on the opinions of many medical experts from every region of the world’. Noteworthy are also the declarations of the WMA since they ‘had a great impact on both national and international debates’.59 The WMA, nonetheless, admits that it has no actual powers, nor does it seek to exercise any in regard to lawmaking. It only wishes to ‘provide useful guidance to doctors when the right course of action is being questioned’.60 It is likewise worth referring to some sentences formulated by American judges on the basis of the Declarations of Tokyo and Malta in support of the conclusion that the government’s main interest in maintaining ethical integrity within the medical profession does not favour force-feeding. For the Hill v. Dept. of Corrections case of 2010, the Declarations of Tokyo and Malta offered an insight into ethical concerns medical experts have to deal with when handling hunger strike cases.61 In the re Lilly case of 2009, the state’s interest in safeguarding medical integrity according to the Declaration of Malta turned out to be proscribed through the forcible feeding of inmate patients.62 In the McNabb v. Dept. of Corrections case of 2008, the Declaration of Malta turned out to be in favour of the government interest in maintaining medical ethics without promoting force-feeding.63 These opinions apparently all agree upon the prohibition of force-feeding in accordance with the WMA. However, the above-cited opinions – a concurring opinion, a dissenting opinion and an unreported trial

58 Declaration twenty-three of the Declaration of Malta, Guidelines for the Management of Hunger Strikers, adopted by the 43rd WMA General Assembly, St. Julians, Malta, November 1991, editorially revised by the 44th WMA General Assembly, Marbella, Spain, September 1992 and revised by the 57th WMA General Assembly, Pilanesberg, South Africa, October 2006, and revised by the 68th WMA General Assembly, Chicago, United States, October 2017, provides: “All kinds of interventions for enteral or parenteral feeding against the will of the mentally competent hunger striker are “to be considered as ‘force-feeding’”. Forced feeding is never ethically acceptable. Even if intended to beneft, feeding accompanied by threats, coercion, force or use of physical restraints is a form of inhuman and degrading treatment. Equally unacceptable is the forced feeding of some detainees in order to intimidate or coerce other hunger strikers to stop fasting”, available at http://www.wma.net/policies -post/wma-declaration-of-malta-on-hunger-strikers/ (last accessed on January 14, 2021). 59 Barilan Y.M., ‘The Role of Doctors in Hunger Strikes’, Kennedy Institute of Ethics Journal 3 (2017): 341–69; Caenazzo L., Tozzo P., & Rodriguez D., ‘Hospitalized Hunger-Striking Prisoners: The Role of Ethics Consultations’, Medicine Health Care and Philosophy 4 (2016): 623–628; Irmak N., ‘Professional Ethics in Extreme Circumstances: Responsibilities of Attending Physicians and Healthcare Providers in Hunger Strikes’, Theoretical Medicine and Bioethics 4 (2015): 249–63. 60 Ibid. 61 Hill v. Dept. of Corrections, 992 A.2d 941–42 Pa. Commw. (2010) (McCullough, concurring). 62 In re Lilly, Case No. 07CV392 (Wis. Cir., May 19, 2009), rev’d, 804 N.W.2d 489 (2011). 63 McNabb v. Dept. of Corrections, 163 Wash. 2d 425 (2008) (Sanders, dissenting).

The new prisoner’s dilemma 121 court opinion that was later reversed by the Wisconsin Court of Appeal – not only fail to build a solid majority, but also reveal the absence of an overall consensus concerning the approach of American judicial courts to the Declarations of Tokyo and Malta. On December 6, 2006, the trial chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) by the United Nations in The Hague gave the green light to force-feeding the Serbian politician Šešelj, a cohort of Milošević. They ordered the Dutch authorities to provide medical services with the aim of protecting both health and welfare of the convicted in order to avoid his death. It was also stated that it is no ‘torture, inhuman nor degrading treatment, if there is a medical necessity justifying such practice [⋯...] and if the manner in which the detainee is force-fed does not turn out to be inhuman nor degrading’.64 In the European perspective, the ECtHR has repeatedly recognized the prevalence of the state’s obligation to protect the integrity of prisoners as well as that force-feeding should not always be considered illegitimate ab initio. Art. 3, ECHR, states that the state must protect the physical integrity of inmates, provided that there is a proven medical need justifying such a coercive practice, in accordance with the procedures laid down by the legislator. The ECHR has not banned force-feeding at all. Indeed, force-feeding is specifcally allowed if medically necessary to prevent death or permanent harm. In such cases, the measures to be used have to be moderate. Particularly, in the Ciorap v. Moldova case, the ECtHR stated that ‘a measure which is therapeutically necessary cannot be regarded as inhuman and degrading in principle […]. The same can be said about force-feeding aimed at saving the life of a given detainee who consciously refuses to eat’.65 The court also noted that such medical necessity must be ‘convincingly proved to exist’ and that the ‘manner in which the applicant is subjected to force-feeding during the hungerstrike has to be calibrated to the minimum level of severity envisaged by the [c]ourt’s case law according [a]rticle [two] of the [c]onvention’.66 Mention should also be made of the Herczegfalvy v. Austria case, in which force-feeding turned out to be medically necessary, yet without violating Article three of the Convention.67 Therefore, it appears that the ECtHR determined that force-feeding not only is allowed if medically necessary and, if so, it has to be performed with a minimum level of severity, but also that such a procedure is neither inhuman nor degrading, as pointed out instead by the defendant.

64 Traynor I., ‘War Crimes Tribunal Orders Force-feeding of Serbian Warlord’, The Guardian, December 7, 2006. 65 ECtHR, Ciorap v. Moldova, 12066/02, June 19, 2007, para. 77. 66 The ECtHR decided that force-feeding an inmate amounted to torture, in violation of Article 3 of the convention, because the government did not demonstrate a medical necessity for force-feeding him, and the manner in which it was carried out was unnecessarily painful and humiliating. Ibid., para. 89. 67 ECtHR, Herczegfalvy v. Austria, 10533/83, September 24, 1992, paras. 83 and 84.

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Therefore, it could be claimed that there is no international consensus regarding the state’s right to force-feed inmates, whether it is allowed or not and under what set of circumstances. International rules prove also that the right to refuse nourishment versus the duty of administering it forcedly by a state’s penitentiary administration is apparently the new greatest prisoners’ dilemma: it is not possible to solve such a dilemma, as long as both competent state authorities and convicts respectively impose either force-feeding or hunger strike as a response. Some countries, as Israel, have issued specifc rules managing this dilemma, whereas the most important national and international judiciaries lack a clear answer to the matter since force-feeding techniques appear to prevail widely. Hunger strikes are the ultimate option available to prisoners that have already been deprived of their rights, yet force-feeding denies them the right to protest. Force-feeding is surely a cruel dangerous practice, which, in other words, could be described as a form of torture justifed for reasons of security and public discipline. The practice is common in some countries and such prevalence is likely a result of the tension between the person-as-patient and person-as-prisoner and cannot easily be resolved. A conventional bioethics debate centering on polarizing principles of prisoner autonomy and a duty-to-protect the prisoner from harm is an inadequate framework for this complex issue. Instead, we must examine the prisoner’s intent and his right to freedom of speech. When the prisoner’s intent is to raise awareness and communicate with others, his/her hunger strike is a form of speech. Protest-as-speech is constitutionally protected – even for prisoners – and remains a minimum ethical obligation for society to uphold.68 Force-feeding can be conceptualized as a form of violent care that envisions the modern prison as a civilized disciplinary apparatus. The intense contestation over hunger-striking and the legitimacy of force-feeding reveals competing notions of subjectivity at play – either state-controlled or individually sovereign and inviolable. These, in turn, inform diverse notions of legitimate care; alternately, the preservation of life or respect for intentionality and bodily autonomy.69 Lastly, going back to the prisoner’s dilemma, it should be noted that both state and prisoner cannot fgure out which causes underlie each other’s approach. It follows that, on the one hand, convicts can run the risk of dying as a consequence of a hunger strike; state authorities, on the other hand, can run the risk of violating individual rights for the purpose of safeguarding life through forcefeeding. Consequently, prisoners can stop the hunger strike avoiding death, yet without informing state authorities, the latter instead can opt for force-feeding in order to keep the prisoners under its protection alive.

68 Bendtsen K., ‘On the Force-Feeding of Prisoners on Hunger Strike’, HEC Forum, 2018. 69 Howland C., ‘To Feed or Not to Feed: Violent State Care and the Contested Medicalization of Incarcerated Hunger-Strikers in Britain, Turkey and Guantánamo Bay’, New Zealand Sociology 1 (2013): 101–16.

The new prisoner’s dilemma 123

Bibliography Allegranti I. & Giusti G., Lo sciopero della fame del detenuto (Cedam, 1983), 6 and 116. Amadae S.M., ‘Prisoner’s Dilemma’, Prisoners of Reason (Cambridge University Press, 2016), 24–61. Annas G.J., ‘Hunger Strikes at Guantánamo – Medical Ethics and Human Rights in a “Legal Black Hole”’, New England Journal of Medicine 13 (2006): 1377–1382. Annas G.J., ‘Prison Hunger Strikes: Why the Motive Matters’, The Hastings Center Report 6 (1982): 21–22. Appel J.M., ‘Beyond Guantánamo: Torture Thrives in Connecticut’, HuffPost, March 18, 2010. Avila D., ‘Laurie v. Senecal’, Issues in Law & Medicine 4 (1995): 469–472. Barilan Y.M., ‘The Role of Doctors in Hunger Strikes’, Kennedy Institute of Ethics Journal 3 (2017): 341–369. Bendtsen K., ‘On the Force-Feeding of Prisoners on Hunger Strike’, HEC Forum, 2018. Beresford D., Ten Men Dead: The Story of the 1981 Irish Hunger Strike (Atlantic Monthly Press, 1988). Caenazzo L., Tozzo P., & Rodriguez D., ‘Hospitalized Hunger-Striking Prisoners: the Role of Ethics Consultations’, Medicine Health Care and Philosophy 4 (2016): 623–628. Calamati S., et al., Il diario di Bobby Sands: Storia di un ragazzo irlandese (Castelvecchi, 2016). Canepa M. & Merlo S., Manuale di diritto penitenziario (Giuffré, 2010), 144 ff. Caplan A., ‘Force-Feeding a Starving Inmate Violates Medical Ethics’, The Hartford Courant, April 18, 2010. Cecchini F., ‘La tutela del diritto alla salute in carcere nella giurisprudenza della Corte europea dei diritti dell’uomo’, in Massaro A. (ed.), La tutela della salute nei luoghi di detenzione. Un’indagine di diritto penale intorno a carcere, REMS e CPR (RomaTrE-Press, 2017), 207–253. Council of Europe, Organization of Health Care Services in Prisons in European Member States, § 4.6 (1998), available at http://www.coe.int/t/dg3/health/Pri sonsreport_en.asp (last accessed on January 14, 2021). Crosby S.S., et al., ‘Force Feeding at Guantánamo in First Case Brought to US Federal Court’, British Medical Journal 350 (2015): 1270. Dal Canto F., ‘Lo sciopero della fame in carcere’, Quaderni costituzionali 4 (2009): 906–909. Dock L.L., ‘Forcible Feeding in English Prisons. 1910’, The American Journal of Nursing 11 (2014): 1–51. Dougherty S.M., et al., ‘Hunger Strikers: Ethical and Legal Dimensions of Medical Complicity in Torture at Guantánamo Bay’, Prehospital and Disaster Medicine 6 (2013): 616–624. Fassone E., ‘Sciopero della fame, autodeterminazione e libertà personale’, Questione giustizia 2 (1982): 335 ff. Fiandaca G., ‘Sullo sciopero della fame nelle carceri’, Foro italiano 2 (1983): 235 ff. Filc D., et al., ‘“Palestinian Prisoners” Hunger-Strikes in Israeli Prisons: Beyond the Dual-Loyalty Dilemma in Medical Practice and Patient Care’, Public Health Ethics 3 (2014): 229–238.

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Fiorentin F. & Fiorio C., Manuale di diritto penitenziario (Giuffré, 2020), 198 ff. Garasic M., ‘Force-Feeding, Hunger Strikes, Guantánamo and Autonomy: Replies to George Annas, Charles Foster and Michael Gross’, Journal of Medical Ethics 1 (2017): 1–29. Garasic M. & Foster C., ‘When Autonomy Kills: the Case of Sami Mbarka Ben Garci’, Medicine and Law 4 (2012): 589–597. Glick S., ‘Force-Feeding of Hunger-Striking Prisoners’, Harefuah 9 (2014): 554–556. Harris E., ‘Hunger Strike Raises Debate about Force-Feeding in Israeli Prisons’, available at http://www.npr.org, August 22, 2015 (last accessed on January 14, 2021). Hegarty P., ‘Force-Feeding People is Wrong and Nurses Should Play no Part’, Nursing Standard 28 (2014): 1–33. Howland C., ‘To Feed or Not to Feed: Violent State Care and the Contested Medicalization of Incarcerated Hunger-Strikers in Britain, Turkey and Guantánamo Bay’, New Zealand Sociology 1 (2013): 101–116. Irmak N., ‘Professional Ethics in Extreme Circumstances: Responsibilities of Attending Physicians and Healthcare Providers in Hunger Strikes’, Theoretical Medicine and Bioethics 4 (2015): 249–263. Kalk W.J., ‘Guantánamo Force Feeding Trial: The US is Wrong to Medicalize Hunger Striking’, British Medical Journal 350 (2015): 669. Karni T., ‘Hunger Striking Inmates and Detainees, and Medical Ethics’, Israel Medical Association Journal 3 (2015): 179–181. Kenny Y., ‘Force and Feeding: From Bioethics to Biopolitics in Recent Israeli Legislation about Force-feeding Hunger-striking Inmates’, in Boas H., et al. (eds.), Bioethics and Biopolitics in Israel: Socio-Legal, Political, and Empirical Analysis (Cambridge University Press, 2018), 56–75. Konrad N. & Opitz-Welke A., ‘The Challenges of Treating the Mentally Ill in a Prison Setting. The European Perspective’, Clinical Practice 5 (2014): 517–523. Lattuada A., ‘I suicidi in Irlanda: un caso di coscienza’, Vita e pensiero 10 (1981): 7 ff. Lederman Z., ‘Prisoners’ Competence to Die: Hunger Strike and Cognitive Competence’, Theoretical Medicine and Bioethics 4 (2018): 321–334. Lederman Z. & Lederman S., ‘The Land of No Milk and No Honey: Force Feeding in Israel’, Monash Bioethics Review 3–4 (2017): 158–188. Lenzer J., ‘Nurse Refuses “Criminal” Force Feeding of Guantánamo Detainees’, British Medical Journal 349 (2014): 4712. Lepore J., The Secret History of Wonder Woman (Alfred A. Knopf, 2014), 95. Luciani M., ‘Salute – (I) Diritto alla salute – Dir. Cost.’, Enciclopedia giuridica XVII (1991): 10 ff. Mahler J., The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power (Farrar, Straus and Giroux, 2008). Medaglia V., ‘Il diritto di rifutare le cure: lo sciopero della fame da parte del detenuto’, in Massaro A. (ed.), La tutela della salute nei luoghi di detenzione. Un’indagine di diritto penale intorno a carcere, REMS e CPR (RomaTrE-Press, 2017), 177–206. Miller I., A History of Force Feeding: Prisons, Hunger Strikes and Medical Ethics, 1909– 74 (Palgrave Macmillan, 2016). Miller I., ‘Necessary Torture? Vivisection, Suffragette Force-feeding, and Responses to Scientifc Medicine in Britain c. 1870–1920’, Journal of the History of Medicine and Allied Sciences 3 (2009): 333–372.

The new prisoner’s dilemma 125 Miller I., ‘Starving to Death in Medical Care: Ethics, Food, Emotions and Dying in Britain and America, 1970s–1990s’, BioSocieties 1 (2017): 89–108. Modugno F., ‘Trattamenti sanitari “non obbligatori” e Costituzione’, Diritto e società 2 (1982): 312 ff. Murphy W., Political Imprisonment and the Irish, 1912–21 (Oxford University Press, 2014), 82–92. O’Rawe R., Blanketmen: An Untold Story of the H-Block Hunger Strike (New Island, 2005). Olsen D.P. & Gallagher A., ‘Ethical Issues for Nurses in Force-Feeding Guantánamo Bay Detainees’, American Journal of Nursing 11 (2014): 47–50. Olshansky B. & Gutiérrez G., The Guantánamo Prisoner Hunger Strikes & Protests: February 2002–August 2005 (Center for Constitutional Rights, 2005). Pankhurst E., My Own Story (Virago Limited, 1979), 251–252. Pankhurst E.S., The Suffragette: the history of the women’s militant suffrage movement, 1905-1910 (Sturgis & Walton Company, 1911), 433. Parziale M. & Ponti A., ‘Il medico e la alimentazione forzata del detenuto’, Rassegna penitenziaria e criminologica 1 (1983), 147–161. Passmore L., ‘The Ethics and Politics of Force-feeding Terror Suspects in West German Prisons’, Social History of Medicine 2 (2012): 481–499. Perico G., ‘I suicidi per fame nelle prigioni dell’Ulster’, Aggiornamenti sociali 6 (1981): 469 ff. Peters A.K., ‘Force-Feeding is in the Interests of the State, Not Its Prisoners’, Nursing Standard 28 (2014): 1–35. Poundstone W., Prisoner’s Dilemma (Anchor Books, 1993). Pugh M., The Pankhursts. The History of One Radical Family (Penguin Books, 2001), 259. Purvis J., Emmeline Pankhurst. A Biography (Routledge, 2003), 134. Romboli R., ‘La libertà di disporre del proprio corpo. Art. 5’, in Galgano F. (ed.), Commentario del codice civile Scialoja-Branca (Zanichelli, 1988), 234 ff and 335 ff. Ruotolo M., Diritti dei detenuti e Costituzione (Giappichelli, 2002), 154 ff. Shields R., ‘British Man to be Force-Fed in US Jail’, The Independent, March 14, 2010. Siegel-Itzkovich J., ‘Doctors Object to Bill that Would Allow Force Feeding of Hunger Striking Prisoners’, British Medical Journal 347 (2013): 4565. Siegel-Itzkovich J., ‘Israel Medical Association Fights to Stop Legalisation of Force Feeding Prisoners on Hunger Strike’, British Medical Journal 348 (2014): 3844. Siegel-Itzkovich J., ‘New Bill on Force Feeding Prisoners Poses Medical Dilemma for Israel’s Doctors’, British Medical Journal 350 (2015): 3304. Spencer M., ‘Judge Set to Rule on Force-Feeding of Inmate’, The Hartford Courant, November 11, 2009. Traynor I., ‘War Crimes Tribunal Orders Force-Feeding of Serbian Warlord’, The Guardian, December 7, 2006. Weingarten M., ‘Force-Feeding Political Prisoners on Hunger Strike’, Clinical Ethics 2 (2017): 86–94. World Medical Association, Declaration of Malta, Guidelines for the Management of Hunger Strikers, adopted by the 43rd WMA General Assembly, St. Julians, Malta, November 1991, editorially revised by the 44th WMA General Assembly, Marbella, Spain, September 1992 and revised by the 57th WMA General Assembly, Pilanesberg, South Africa, October 2006, and revised by the 68th WMA General

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Assembly, Chicago, United States, October 2017, available at http://www.wma. net/policies-post/wma-declaration-of-malta-on-hunger-strikers/ (last accessed on January 14, 2021). World Medical Association, Declaration of Tokyo, Guidelines for Physicians Concerning Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment, adopted by the 29th WMA General Assembly, Tokyo, Japan, October 1975, editorially revised by the 170th WMA Council Session, Divonne-les-Bains, France, May 2005 and the 173rd WMA Council Session, Divonne-les-Bains, France, May 2006, and revised by the 67th WMA General Assembly, Taipei, Taiwan, October 2016, available at http://www .wma.net/policies-post/wma-declaration-of-tokyo-guidelines-for-physicians-c oncerning-torture-and-other-cruel-inhuman-or-degrading-treatment-or-punishm ent-in-relation-to-detention-and-imprisonment/ (last accessed on January 14, 2021).

8

Food as punishment, food as dignity The legal treatment of food in prison Maria Chiara Locchi

Prison as a “nomic setting” and the multifaceted character of prison food This chapter aims at deepening the legal treatment of food in the prison context, by considering relevant international and national legislation and case-law that deal with the ambiguous and multifaceted nature of “prison food”. In fact, prison food may be viewed, from the perspective of State authorities, as both a service to be supplied by the prison administration and a component of the punishment (par. 2) and, on the side of prisoners, as both a fundamental right (par. 3), and an instrument of fghting (par. 4). Prison systems and prison law undoubtedly represent a specialised topic of analysis, which is usually addressed by those social scientists, also within the legal studies, who decide to specifcally focus on this highly technical and “separated” feld of study. However, at a closer look, prison law proves to be a privileged observatory for some very relevant social processes and legal categories, and, as a consequence, it becomes stimulating to use the lens of a prison to detect the legal dynamics which also affect general legal systems. Prison law, for example, allows us to detect the shift from the dimension of “rights” to that of “services” or “treatment”, to the extent that in prison it is the role of the State that changes with respect to many human activities which correspond to individual fundamental rights and liberties. While in a free society some of these activities are exercised by individuals in their own sphere of freedom, and the State has the task of setting the limits within which that freedom of action is considered to be legitimate, in the prison context the State must itself create the conditions which allow individuals to carry out those activities, with a consequent expansion of the power and pervasiveness of the role of public authorities with respect to people’s lives. With regard to the legal treatment of prison food, the aforementioned “shift” can be appreciated as a tension between, on the one hand, the qualifcation of the access to food as a fundamental right of prisoners by national and international law and, on the other hand, the understanding of nutrition, within the prison context, not as a manifestation of “liberty”, but

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rather as a service supplied by the administration in the exercise of its discretionary power. In the feld of legal geography, the meaningful neologism of “nomic setting” has been elaborated, in order to identify those determinable segments of the material world that are socially fabricated by way of inscription or assignment of traces of legal meanings. They are invested with signifcance and they, in turn, signify. They confer signifcance onto actions, events, relationships, and situations. They are lived.1 Prison can be conceptualised as a distinctive “nomic setting” – where dignity, freedom, self-determination, hygienic and sanitary needs, and also food, change status2 – to the extent that the legal itself happens or takes place through how settings are performed: imprisonment is performed through the activation of emplaced, signifying nomic traces (rules, rights, no-rights, and so on) that are constitutive of this nomic setting (the rights of authorities to punish, to maintain order; the obligation of inmates and others to comply with these orders), that are generally unavailable in other nomic settings (say, public space), and that are relied upon as reasons, predicates, or justifcations for actions.3 The shift from “rights” to “treatment” within the prison context can be also appreciated in terms of the different balance in the relationship between legal sources (with an increased importance of infra-legislative sources, such as government decrees and ministerial internal regulations) and the major role of both administrative orientations and case-law. In the feld of prison food law this phenomenon is particularly noticeable: in many countries prison food law is not the product of political decisions resulting in statutory laws, thus stressing a peculiarity with respect to the general “food law”. In fact, if food law can be defned as the “result of a complex maze of national, state, and local statutory and regulatory law” aimed at ensuring that the food supplied is “both sanitary and of high quality”, prison food law is “primarily a product of prison law generally […] Where food law is powerful and complex, prison law (and thereby, prison food law) is messy and weak”.4

1 2 3 4

Delaney (2010: 59). Cancellieri and Ricca (2015: 39). Delaney (2010: 59). Naim (2005). In the US, for example, “legislatures have essentially adopted a laissez-faire approach […] It is prison administrators who decide what to serve inmates, how often, and whether they will choose to run their own inspections at all. The only accountability they face is in the courts, as a matter of Constitutional law”. The main legal instrument enforced by the courts is the Eighth Amendment’s prohibition of cruel and unusual punishment, which

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Prison food from the perspective of State authorities Since access to food in the prison environment is not free and is necessarily subordinated to the activity of prison authorities, that activity (and, in particular, the way it is implemented) has many implications; as has been already mentioned, from the perspective of State authorities prison food is mainly conceptualised as both a service to be supplied by the prison administration and as a component of the punishment. As to the frst aspect, prison food must be viewed as the product of a complex “system”, consisting of “food-service catering programmes, self-cook facilities, prison shops or canteens, food shared with visitors, vegetable gardens, and the informal preparation of food in housing units”.5 There are different food policies and models of providing food services in correctional institutions, which vary with national legal systems and peculiarities of correctional settings. For example, the meals can be prepared on site, in the prison’s kitchen, or cooked in another facility, and delivered to the institution to be heated and served; the inmates may be served in a common dining area or allowed to have their meals delivered to housing units and to eat in their cells. Some correctional institutions provide the housing units with kitchen facilities, where inmates can cook for themselves. Although the administrative discretion is limited by the fundamental right of prisoners to “adequate” food, as we shall see in the following paragraph, the prison administration is likely to provide nutrition service by pursuing also, and foremost, the system’s effciency and effectiveness, with the consequent trend to cut the costs of prison food spending. The general decline of the quality of food served in correctional facilities may be often explained in terms of both the increasing industrialisation and privatisation in prison food systems. As observed in a 2016 report from the Prison Voice Washington, the trend toward industrialisation, on the one hand, deals with replacing “cooking from scratch of locally grown food (‘farm-to-table’)” with “an industrial model that damages both health and the environment through the plastic packaging and transporting of highly processed food products”6; on the other hand, the privatisation of food services, which fosters the “economy of food prison” providing for big cost savings and big profts offered to shareholders, is also responsible for highly processed and hastily prepared food. As to the second aspect, within the prison context bad food and/or scarce food may function as a component of the punishment. The idea of providing prisoners with scarce and/or poor-quality food implies a sort of “moral” idea of discipline and punishment inside prisons, which results from practices dating back to the 19th century but is nevertheless in confict with

had begun being accepted in the 1960s in cases involving prison discipline; however, it is only in the 1970s that the judicial scrutiny had expanded to include general practices at a prison. 5 Smoyer and Kjær Minke (2015: vi). 6 Prison Voice Washington (2016: 3).

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the international and constitutional protection of a prisoner’s fundamental rights and human dignity.7 Many US prisons still serve a type of meal colloquially known as “nutraloaf” (or “nutriloaf”), which is made of mixed-ingredient, compressed foods, formed into a loaf and baked; the nutraloaf meal, “is specifcally designed to be both nutritionally adequate and a physical form of punishment (it is said to be tasteless and unappetising)”.8 In recent years at least 22 lawsuits related to punishment diets have been fled, after the Seventh Circuit Court of Appeals, in 2012, held that nutraloaf could serve as the basis for an Eighth Amendment claim when actual injury was alleged9; in particular, the Court stressed that “deliberate withholding of nutritious food or substitution of tainted or otherwise sickening food, with the effect of causing substantial weight loss, vomiting, stomach pains, […] or other severe hardship, would violate the Eighth Amendment”.10 The deprivation of food and drink is also part of the so-called “fve techniques” employed by British forces to interrogate IRA suspects in Northern Ireland in the early 1970’s.11 In the well-known 1978 case Ireland v. the United Kingdom, the ECtHR found that the use of these techniques amounted to inhuman and degrading treatment, which practice was in breach of Article 3 of the Convention: in fact, “they caused, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation”; furthermore, “they were such as to arouse in their victims feelings of fear, anguish, and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance” (par. 167 of the ECtHR’s decision). However, the judges concluded that the techniques did not meet the threshold of severity to fall within the notion of “torture” under that same article, considering that the “special stigma” attributed to “torture” is related to the “difference in the intensity of the suffering inficted” compared to “inhuman and degrading treatments.”12 Lastly, also particularly brutal force-feeding may constitute torture, as the Guantánamo case testifes;13 on the other hand, force-feeding may be seen as a

7 Jimenez Murguía (2018: 17–52). 8 Hostetter (2015: 1169). The prison systems in California, Massachusetts, Minnesota, and New York have banned nutraloaf as a disciplinary tool. 9 The US Constitution’s Eight Amendment prohibits cruel and unusual punishment, see para. 3. 10 Prude v. Clarke, 675 F.3d 732 (7th Cir. 2012). 11 These methods, resulting in techniques of “disorientation” or “sensory deprivation”, consisted of: wall-standing (forcing the detainees to remain for periods of some hours in a “stress position”), hooding (putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation), subjection to noise (during their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise), deprivation of sleep during the interrogations, deprivation of food and drink (subjecting the detainees to a reduced diet during their stay at the centre and during the interrogations). 12 For a critical consideration of the Court’s decision, also in view of a possible reconsideration of the case, see de Londras (2014). 13 Force-feeding involves “inserting a stomach tube into the mouth of a prisoner/patient which is then passed downwards through the throat and oesophagus before eventually arriv-

Food as punishment, food as dignity 131 (necessary) means to preserve the life of prisoners undergoing a hunger strike, as we shall see in the last paragraph of the chapter.

Access to food as a fundamental right of prisoners The right to food – as the right to have a regular, permanent, and free access, either directly or by means of fnancial purchases, to quantitatively and qualitatively adequate and suffcient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensures a physical and mental, individual and collective, fulflling and dignifed life free of fear is sanctioned by several international documents14 and protected by many constitutions around the world.15 In the prison context the right to food needs to be considered taking into account the complexity of the protection of prisoners’ fundamental rights. It is beyond the scope of this chapter to outline the articulated legal framework of international and European norms protecting prisoners’ fundamental rights.16 It will suffce to mention, frstly, that important international

ing in the stomach. The passing of the tube causes most patients to gag, choke, and vomit over themselves. Once the patient has been calmed, liquid food is then poured into the top of the tube, and it descends into the stomach. Digestion is resumed. Force-feeding can also be performed using a nasal tube”, see Miller (2016: 2). The UN Committee against Torture, in its 2014 Concluding observations on the third to ffth periodic reports of United States of America, observed that force-feeding of Guantánamo prisoners on hunger strike “constitutes ill-treatment in violation of the Convention. Furthermore, it notes that detainees’ lawyers have argued in court that force feedings are allegedly administered in an unnecessarily brutal and painful manner”. 14 See the Article 25 of the Universal Declaration of Human Rights and the Article 11 of the International Covenant on Economic, Social, and Cultural Rights, as interpreted by General Comment No. 12: The Right to Adequate Food (May 12th, 1999 – E/C.12/1999/5). 15 Bottiglieri (2015: 119–140). In twenty-three countries the right to food is expressly recognised as a fundamental right, while sometimes it is formulated as a “universal right”, to which everyone is entitled (Bolivia art. 16, Brazil art. 6, Ecuador art. 13, Guyana art. 40, Haiti art. 22, Kenya art. 43, South Africa art. 27.1, Egypt art. 79); the recognition of the right to an adequate food may also be restricted to some specifc groups of the population, as children (Brazil art. 227, Colombia art. 44, Cuba art. 9, Guatemala art. 51, Honduras art. 123, Mexico art. 4, Panama art. 52, Paraguay art. 54, South Africa art. 28.1), students (Costa Rica art. 82), pupils (South Africa art. 82), civil service personnel (Myanmar art. 26). In some constitutions the right to food is sanctioned in view of the protection of other fundamental rights and values, as the right to health or to and adequate standard of living (Belarus art. 21, Congo art. 34.1, Malawi art. 30.2, Moldova art. 47.1, Ukraine art. 48). The right to food may be also qualifed as an objective or a guiding principle of state policies, or indirectly recognised by way of judicial interpretation of constitutional norms dedicated to other principles and rights (as in Ireland or the United States). 16 See the prominent work by Rodley and Pollard (2011). Prisons test the capacity of law to protect the “person” in light of the constitutional paradigm of human dignity: in fact, even

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documents dedicate some dispositions to the administration of justice and imprisonment, therefore impacting on the protection of prisoners’ fundamental rights, and, secondly, that the issue of food and nutrition is signifcantly addressed by instruments of soft law directed to the protection of fundamental right of prisoners. As for the frst level, the Universal Declaration of Human Rights, adopted by the UN in 1948,17 the two covenants adopted by the UN General Assembly in 1966 (the International Covenant on Economic, Social, and Cultural Rights and the International Covenant on Civil and Political Rights18) and the 1984 UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment19 must be mentioned. These international legal documents are integrated by regional human rights instruments: in Europe there is the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1989);20 the conventions are crucially supported by a judicial (the European Court of Human Rights) and non-judicial (the CPT – Committee for the Prevention of Torture and Inhuman and Degrading Treatment21) bodies. Even if prison conditions are mainly a responsibility of national states, the European Union has progressively increased its competencies in both human rights and criminal justice matters, so that today the EU has also reasons to deal with them, as the European Parliament has underlined with many resolutions.22

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18

19

20

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22

if physically restricted, prisoners keep a set of fundamental rights that cannot be suppressed, as the protection of the right to a free development of one’s personality is one of the cornerstone of liberal-democratic states. On the constitutional rights of prisoners within the framework of Western constitutionalism see Ruotolo (2014, 2015). See Art. 3 (right to life, liberty, and security of the prison), Art. 5 (prohibition of torture and of cruel, inhuman, or degrading treatment or punishment), Art. 9 (the prohibition of arbitrary arrest, detention, or exile), Art. 10 (right to a fair trial), Art. 11 (right to be presumed innocent until proved guilty and the prohibition of retroactive penal measures). Beside the protection of rights to life, liberty, fair trial, freedom of conscience, protection from discrimination, arbitrary arrest and imprisonment, ensured to all citizens, the ICCPR solemnly declares that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person” (Art. 10). The Optional Protocol to the Convention, now ratifed by 75 countries, is particularly relevant since it established two important monitoring bodies: the UN Sub-Committee for the Prevention of Torture (SPT) and the National Preventive Mechanisms (NPMs). On the European human rights instruments on prison see van Zyl Smit and Snacken (2009: 10), who, on the enforcement of the ECHR in prison, remark that “applications from prisoners formed a large part of the work of the supervisory organs from their inception”. The CPT was established under the European Convention for the Prevention of Torture with a mandate to undertake visits to all places of detention within States Parties without the need for prior consent. The committee, composed of independent experts, may make recommendations and suggest improvements in order to strengthen, if necessary, the protection of persons visited from torture and from inhuman or degrading treatment or punishment, see Bicknell and Evans (2017: 11). See, for example, the European Parliament Resolution of October 5, 2017 on prison systems and conditions (2015/2062(INI)).

Food as punishment, food as dignity 133 As for the soft law instruments, the UN “Nelson Mandela Rules”23 and the collection of Recommendations adopted within the Council of Europe (and especially the Rec. (2006)2 on the European Prison Rules)24 represent the most remarkable achievements in the feld. The Rule 22 of the Nelson Mandela Rules entitles every prisoner to be provided by the prison administration, at the usual hours, with “food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served”; every prisoner has also the right to have access to drinking water whenever he or she needs it.25 The Rules from 22.1 to 22.6 of the European Prison Rules are dedicated to nutrition, prescribing (in Rule 22.1) that “prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture, and the nature of their work”.26 The dimension of food as a fundamental right closely connected to the dignity of prisoners is multifaceted. A frst aspect is related to scarce food as a cruel and degrading treatment violating the right to human dignity, as some important cases handled by the ECtHR demonstrate. In Modârcă v. Moldova, for example, the applicant challenged several aspects of what could be considered cruel and degrading prison conditions and, among others,27 the strict limitation of daily expenses for food (0.28 euro for each

23 The “Nelson Mandela Rules” were adopted in 2015 as a revised version of the 1957 UN Standard Minimum Rules for the Treatment of Prisoners. 24 See the Compendium of conventions, recommendations, and resolutions relating to prisons and community sanctions and measures, Council of Europe Publishing, May 2017, where it is emphasized that “although these Recommendations are not legally binding, they have been approved unanimously by the Committee of Ministers of the Council of Europe, and therefore represent the political consensus and commitment to good practice among the 47 Member States. They are increasingly referred to in the judgements of the European Court of Human Rights and in the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. Over the years, they have also been increasingly recognised and adopted by service managers and practitioners as refecting the ‘gold standard’ in their respective areas of work, and incorporated widely into that practice”, p. 9. 25 The Rule 114 specifes that “within the limits compatible with the good order of the institution, untried prisoners may, if they so desire, have their food procured at their own expense from the outside, either through the administration or through their family or friends. Otherwise, the administration shall provide their food”. 26 The following rules state the following: “The requirements of a nutritious diet, including its minimum energy and protein content, shall be prescribed in national law” (22.2), “Food shall be prepared and served hygienically” (22.3), “There shall be three meals a day with reasonable intervals between them” (22.4), “Clean drinking water shall be available to prisoners at all times” (22.5), “The medical practitioner or a qualifed nurse shall order a change in diet for a particular prisoner when it is needed on medical grounds” (22.6). The Rule 31.5 entitles prisoners, subject to the requirements of hygiene, good order, and security, to “purchase or otherwise obtain goods, including food and drink for their personal use at prices that are not abnormally higher than those in free society”. 27 Modârcă v. Moldova, May 10th, 2007. The applicant had complained, in particular, that the cell had very limited access to daylight and it was not properly heated or ventilated, that electricity and water supplies were periodically discontinued, that he was not provided with

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detainee). As for the quantity and quality of food, the 2004 Report of the CPT had found that the situation of most of the penitentiaries visited was highly preoccupying with regard to “the absence of meat, dairy products […] in certain places […], the food served was repulsive and virtually inedible (for instance, presence of insects and vermin)”.28 The Court concluded that the cumulative effect of the conditions of the applicant detention and the time he had been forced to endure them had amounted to a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. In Pocasovschi and Mihaila v. the Republic of Moldova and Russia the applicants complained about being held in poor conditions in a Moldovan prison whose electricity and water had been cut off by the separatist “Moldavian Republic of Transdniestria” (the “MRT”).29 The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention by the Republic of Moldova in respect of both applicants. It found, in particular, that, although the municipal authority which ordered the utilities to be cut had been controlled by the “MRT”, the prison itself had been under full Moldovan Government control. The Court also agreed with the domestic fndings that the men had been held in inhuman conditions between September 2002 and April 2004 owing to a lack of water, electricity, food, and warmth. Not only “scarce food” may result in a violation of human dignity, but also “inadequate food” is likely to constitute a cruel and degrading treatment contrary to human dignity. In the US, as we’ve already seen, there have been several lawsuits against correctional facilities, accused by inmates of providing for unsafe and unsanitary food as amounting to “cruel and unusual punishment” under the Eight Amendment. The Eight Amendment may challenge the lawfulness of sanitation or nutrition conditions only if two tests are met: frst, those conditions must be objectively “cruel” and “unusual”, which means they have to be considered as violating “contemporary standards of decency”;30 secondly, a subjective scrutiny must be undertaken, in order to demonstrate that the prison administration knew about the conditions of food supply and they were “deliberately indifferent” to the situation.31 By considering food one of the basic human needs to be guaranteed to prisoners, together with “clothing, shelter, medical care, and reasonable safety”,32 courts have thus positively used the Eight Amendment, but the constitutional protection only arises when sanitation issues are severe and the poor quality of food is such that “normal health” is compromised.

28 29 30 31 32

bed linen or prison clothes and the dining table was close to the toilet. See also Ilascu and Others v. Moldova and Russia, July 8th, 2004, and Harakchiev and Tolumov v. Bulgaria, July 8th, 2014. See the CPT Report of February 16th, 2006, CPT/Inf (2006) 7. Pocasovschi and Mihaila v. the Republic of Moldova and Russia, May 29th, 2018. Hudson v. McMillian, 503 U.S. 1, 8 (1992). Wilson v. Seiter, 501 U.S. 294, 297 (1991). Deshaney v. Winnebago County Dep’t of Social Services, 489 U.S. 189, 200 (1989).

Food as punishment, food as dignity 135 Recently a US District Judge in Michigan dismissed a suit brought by an inmate who complained that Aramark, the former food service provider in Michigan prisons, had violated his rights under the Eighth Amendment by serving spoiled and improperly prepared food.33 The court declared there was no need to address the defendant’s arguments because the prisoner’s allegations failed to state an Eight Amendment claim, to the extent that they constituted isolated incidents of contamination which did not amount to a suffciently serious deprivation. The case-law on the Eight Amendment, in fact, requires deprivations of essential food, medical care, or sanitation, to be “intolerable for prison confnement”; with regard to nutrition, as already mentioned, courts have considered prisoners entitled to food that is “nutritionally adequate for the maintenance of normal health”,34 with the consequence that they must demonstrate that unsanitary conditions “pose[d] an unreasonable risk of serious damage to his future health”.35 The Michigan judge thus incisively concluded that “the food need not be tasty or aesthetically pleasing, so long as it suffces to allow the prisoner to maintain normal health”. In a recent pilot judgment, the ECtHR also dealt with poor-quality food as an aspect of highly preoccupying conditions of detention in Romanian prisons and in detention facilities attached to police stations.36 The Court held that there had been a violation of Article 3 of the Convention, fnding that the conditions of the applicants’ detention, also taking into account the length of their incarceration, had subjected them to hardship going beyond the unavoidable level of suffering inherent in detention. Prison food may also affect another fundamental right of prisoners, namely the right to health. A recent study has demonstrated that, in the US, incarcerated persons suffer a disproportionate number of outbreak-associated foodborne illnesses and that, consequently, better food safety oversight and regulation in correctional food services could decrease outbreaks.37 Excessive weight is another health problem which may arise in the prison context: although “research about eating behaviour and changes in weight during incarceration is incomplete, […]

33 Velthuysen v. Aramark Corr. Servs., Inc., Case No. 2:14-CV-192 (W. D. Mich. January 19, 2017). The plaintiff’s allegations concerned having been served and having noticed, while working in the kitchen, spoiled and improperly prepared food (e.g. “spoiled hamburger meat, moldy bread, cold noodles and gravy, and a bruised orange […] watered-down Ralston and jelly, and moldy toast”) as well as having complained of food-related illnesses (“upset stomach, frequent bowel movements and vomiting […] high fever”) without being able to see a nurse. 34 Boswell v. Meyers, No. 89-2144, 1990 WL 109230 (6th Cir. August 2, 1990) (citing Cunningham v. Jones, 567 F.2d 653, 656 (6th Cir. 1977), and United States v. Michigan, 680 F. Supp. 270, 275 (W. D. Mich. 1988). 35 Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004). 36 Rezmiveș and Others v. Romania, April 25th, 2017. The applicants complained, among other things, of overcrowding in their cells, inadequate sanitary facilities, lack of hygiene, poorquality food, dilapidated equipment, and the presence of rats and insects in the cells. 37 Marlow, Luna-Gierke, Griffn, and Vieira (2017: 1150–1156).

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existing knowledge suggests that many prisoners gain excessive weight while incarcerated and that weight-related health problems are common in correctional settings”.38 A controversial dimension of prisoner’s fundamental rights and liberties that may be called into question by prison food is the right to cultural and religious identity and to personal thought and ethical beliefs. In fact, ethno-cultural and religious identity shapes individual food-related behaviour, with the consequence that dietary requirements constitute one of the many aspects of prisoners’ religious freedom, as delineated by international hard and soft law39. In the context of the ECtHR’s case-law – which allows for those limitations of the freedom to manifest one’s religion or beliefs which are “prescribed by law” and “necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”40 – the issue of religiously-motivated dietary requirements has been addressed on several occasions. While in the past the European Commission held a quite restrictive orientation on the point,41 there are more recent decisions showing a different perspective on this specifc aspect of religious freedom. The landmark decision is the 2010 Jakóbski v. Poland42: the case originated in an application by a Polish national, Mr Janusz Jakóbski, who alleged, under Art. 9 of the Convention, that he had been refused a meat-free diet in prison contrary to the requirements of his faith, Buddhism. While Poland tried to argue that the Buddhist Mahayana branch, the one the applicant adhered to, does not demand vegetarianism, and therefore vegetarianism could not be considered an essential aspect of the applicant’s religious belonging, the Court disagreed with that argument and focused on the respondent State’s “positive obligations”.43 In assessing

38 Smoyer and Kjær Minke (2015: vi). 39 Locchi (2018: 7): “Religious freedom does not only imply a general respect of religious beliefs and moral precepts of prisoners, both in a positive and negative sense (so called ‘noncoercion clause’), but also the principle of non-discrimination on the grounds of religion. Religious belonging must be addressed taking into account its many declinations, such as worship’s collective dimension (e.g. church and service attendance), the use of religious items, symbols and clothing, religious instruction, the impact of religious rituals on hygienic facilities and health care (e.g. possibility to keep the beard clean and trimmed or to shower in a way which is sensitive to one’s understandings of public decency), dietary requirements (in the two senses of the diet provide for by the prison staff and the possibility for prisoners to access a prison shop which stocks in hygienic conditions the food they prefer), the presence and role of chaplains of the different prisoners’ faiths (which should imply the appointment of a prison chaplain, possibly on a full-time basis, or, at least, the access to a qualifed representative of the different religions upon request)”. 40 Art. 9 of the ECHR. 41 See, for example, the X. v. the United Kingdom and D. and E.S. v. the United Kingdom cases on Orthodox Jewish prisoners’ requests to be provided kosher food. 42 Jakóbski v. Poland, December 7th, 2010. 43 In particular, the Court stated that “whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicant’s rights

Food as punishment, food as dignity 137 whether the prison authorities had struck a “fair balance” between the interests of the institution, other prisoners and the particular interests of the applicant, according to the second paragraph of the ECHR Art. 9, the Court conceded that a decision to make special arrangements for one prisoner within the system may indirectly affect the quality of treatment of other inmates, since that decision can have fnancial implications for the custodial institution. Nevertheless, it is precisely in light of this argument that the Court “is not persuaded that the provision of a vegetarian diet to the applicant would have entailed any disruption to the management of the prison or to any decline in the standards of meals served to other prisoners”, to the extent that “his meals did not have to be prepared, cooked, and served in a prescribed manner, nor did he require any special products”.44 Therefore, the Court concluded that there had been a breach of Art. 9 of the Convention.45 The respect of religiously-motivated dietary requirements of prisoners is one of the main features of the capacity of prison systems (and of prison religious assistance, in particular) to be responsive to multi-religious demands, that is to say to adapt to the growing religious pluralism refected by prison population in Western countries where immigration of people from other cultures is present.46 Other relevant aspects of religious assistance which are mainly affected by the possible unequal treatment of majority and minority faiths concern attending religious rituals or services, accessing to spaces appropriate to the needs of the different faiths and receiving chaplains’ assistance. By using a comparative parameter based on the responsiveness of prison systems to multi-religious demands we’re able to identify two macro-models in the European context:47 a frst model includes pluralistic oriented systems,48 while the second one, which is internally highly differentiated,

44

45

46

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under paragraph 1 of Article 9 or in terms of an interference by a public authority to be justifed in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole”. Jakóbski, cit., para. 52. The Court also mentioned the European Prison Rules, whose Rule 22(1), as already mentioned, recommends that prisoners should be provided with food that takes into account their religion. The same reasoning as adopted in Jakóbski was later reiterated in Vartic v. Romania (N. 2), December 17th, 2013. The case was far more complex compared to Jakóbski: Mr. Vartic was diagnosed, while in prison, with chronic hepatitis C; his request to be provided with a vegetarian diet, in accordance with his Buddhist faith, was reinforced by the claim that such a diet was ideal also in the light of his decease. Although the prison doctor had recommended to honour Vartic’s request, prison authorities found bureaucratic reasons not to accommodate his claim. It is important to stress that the existence (or the non-existence) of a multi-religious assistance in prison, as well as the way in which it is implemented, is also conditioned by the multidimensional relationship between State and religion(s) and by the role and meaning of the principle of secularism in each country. See, from a sociological perspective, Becci (2015: 4–5). Some European countries have undergone deep reforms oriented to implementing a pluralistic and multi-confessional religious assistance, for example England and Wales, the Netherlands, Belgium.

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refers to systems mainly focused on one confession.49 In England, especially with the increasing religious diversity of the prison population since the mid-20th century, the recognition of religious freedom and principle of non-discrimination by both the Human Rights Act and the Equality Act50, the English “Prison Service Chaplaincy” has been facing a profound reorganisation on a multicultural and multi-religious scheme, and it can actually be regarded as in the vanguard of institutional arrangements to recognise minority faiths. The legal obligation to grant new and minority religious identities an effectively equal treatment has expanded and intensifed the services which prison administration must provide for; in addition to a diet differentiated according to the different religious requirements, other crucial activities are the allocation of appropriate spaces to the specifc needs of different faiths, the access to religious books and literature and contact with spiritual guides and chaplains. The Prison Service Instruction 5/2016, dedicated to Faith and Pastoral Care for Prisoners, highlights both the goals and the procedures of multi-faith religious assistance prison authorities must achieve and implement, paying specifc attention to the provision food for religious festivals;51 the Prison Service Instruction 44/2010 also takes into account, among the many responsibilities of prison services with regard to nutrition, taking into account the “cultural, nutritional, and diversity needs” of prisoners.52 A last aspect which is worth mentioning is related to prison food as a space of participation and social reinsertion, also in the light of the obligation of

49 In other European countries no multi-confessional religious assistance is institutionally guaranteed. Although it does not necessarily imply for foreign prisoners or members of religious minorities not to be able to exercise their right to religious freedom at all, it is certainly relevant from a legal and institutional perspective, because it means that the prison system and law hasn’t been restructured in order to ensure the right to religious freedom and assistance to all faiths on an equal basis. The prison legal regimes of France, Italy, Germany, although different from one another, can be included within this group. 50 The Art. 13.1 of the 1998 Human Rights Act, dedicated to the “freedom of thought, conscience, and religion”, prescribes that “if a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right”. In 2011 the High Court held that disciplining a Muslim prisoner for failing to give a urine sample in a drugs test when he was in the midst of a voluntary fast was a breach of his right to manifest his religious beliefs, under ECHR Art. 9 (R (Imran Bashir) v. The Independent Adjudicator, HMP Ryehill and the Secretary of State for Justice [2011] EWHC 1108). In particular, His Honour Judge Pelling stressed that the prison authorities should have considered three questions: 1) are the prisoner’s rights under Article 9 engaged?; 2) if so, has there been an interference with those rights?; 3) if so, was the interference one that was both prescribed by law or necessary in the interests of public order, health or morals and proportionate to the end pursued? 51 Prison Service Instruction 05/2016, Faith and Pastoral Care for Prisoners, June 06, 2016 (reissued on September 06, 2016), Appendix Six – Guidance on Food for Religious Festivals, that stresses the important for the prisoners marking the festival “to have an opportunity to share food together communally as a faith group. This can help engender being part of a community, and encourage sharing and pro-social behaviour”, p. 32. 52 Prison Service Instruction 44/2010, Catering – Meals for Prisoners, September 28, 2010.

Food as punishment, food as dignity 139 prison administrations and other competent authorities to offer prisoners education, vocational training and work, in view of their full reintegration into society.53 From this perspective, food may turn into an opportunity of prison employment,54 as well as a sector of vocational training, with a view to prisoners’ social reinsertion.55

Food as an instrument of fght inside prisons Within the prison context food may be also understood as an instrument of fghting, with reference to hunger strikes and the many controversial legal aspects raised by forced feeding of prisoners staging a hunger strike.56 Throughout history prisoners have employed hunger strikes as a means of opposition to the authorities, for example in an attempt to negotiate with prison offcials or draw attention to inmates’ claims or causes.57 The practice of hunger strike as a collective instrument of fghting is well documented in anti-colonial movements (e.g. in Ireland since the 1920s, during the Algerian War in the 1950s–60s), within feminist struggles (e.g. the British “suffragettes” at the beginning of the 20th century), or in far-left groups (in Italy and Germany in the 1970s). In the context of “total institutions” such as prisons, asylums, and mental hospitals, concentration camps, hunger strikes assume specifc features and, unlike hunger strikes occurring within the “civil society”, they are offcially recorded and profled.58 As already mentioned, hunger strikes raise some diffcult questions from a legal perspective. The legal qualifcation of force-feeding of prisoners undergoing a hunger strike, and thus exposing themselves to the risk of death, represents a very delicate issue. In fact, a confict arises between opposing interests: on the one hand,

53 See Rule 4 of the Mandela Rules. Rules 96–98 deal with prison work and vocational training, while Rule 103 requires authorities to establish an equitable remuneration of the work of prisoners. 54 In many countries prisons have their own gardens and farms, where inmates may cultivate fruit, vegetables and herbs, or raise animals that are used in the institution’s food preparation and/or sold to other correctional facilities or markets in the community. 55 In Denmark, for example, there has been an expansion in the cookery training programmes that are available in some correctional institutions in recent years; these training programmes allow inmates to become certifed chefs and have demonstrated several positive outcomes also in terms of the overall prison authorities’ educational commitments and management goals, see ICF Consulting Services (2016: 3–9). 56 Food deprivation in the context of a hunger strike is legally different from voluntary fast as a ritual practice and, therefore, as a manifestation of religious beliefs, which may receive protection under international and/or constitutional norms on religious freedom. 57 Ohm (2007: 151). 58 Siméant (2009), observing that, at the beginning of the 20th century, the Irish nationalists and the British suffragettes inaugurated collective hunger strikes as a component of their demands and struggles inside prison, giving a political dimension to the long-standing practice of depriving oneself of food in prison.

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the concerns of prison authorities, which may be often conceptualised in terms of the State’s interests, and, on the other hand, the fundamental rights of prisoners engaging in the hunger strike. Among the frst interests, we can mention the duty of the State to keep the prisoners in its custody safe from harm and to render medical aid when necessary,59 as well as the State’s interest in maintaining an “effective criminal justice system”60 and, more generally, in preserving life, preventing suicide, and enforcing prison security, order, and discipline. As regards the human rights of prisoners, the protection of their personal freedom and right to privacy come into question, to the extent that the prisoner “can refuse to allow intrusion on his person, even though calculated to preserve his life”61, as well as their freedom of expression and the right to health, as the right to refuse medical treatment which may be needed from a self-induced hunger strike. By the way, in the majority of cases courts still give precedence to state and prison interests over inmates’ right to hunger strike, allowing force-feeding.62 Since 2005 the ECtHR has clarifed in which terms the confict between different rights and interests may arise: a measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. The same can be said about force-feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food. The [Court] must nevertheless satisfy [itself] that the medical necessity has been convincingly shown to exist[…]Furthermore, [it] must ascertain that the procedural guarantees for the decision to force-feed are complied with. Moreover, the manner in which the applicant is subjected to force-feeding

59 Supreme Court of Georgia (US), Zant v. Prevatte, 286 S.E.2d 715 (Ga. 1982). With the 1975 Tokyo Declaration the World Medical Association stated that, where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a decision, he or she shall not be fed artifcially (art. 5). 60 Supreme Court of New Hamsphire, In re Caulk, 480 A.2d 93 (N. H. 1984). 61 Zant, cit., 716–717. 62 Within US case-law, the 1987 Supreme Court’s Turner decision (Turner v. Safey, 482 U.S. 78, 89–91 [1987]) has proven to be an important benchmark in cases involving prison regulation challenges, also with regard to the confict between state interests and the prisoner’s right not to be force-fed to end his hunger strike. In Turner the Court introduced a test to determine when prison authorities have the right to infringe on the constitutional rights of inmates. The Turner test, in particular, requires that prison authorities show the infringement is “reasonably related” to “legitimate penological interests” in preventing prisoners from exercising their rights. A prison policy is considered to be reasonably related to legitimate penological interests when: (1) there is a “valid rational connection” between the prison regulation and the state interest put forth to justify it; (2) the prisoner is provided with “alternative means of exercising the right”; (3) the “impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally” is taken into account; and (4) there are (or there are not) “ready alternatives” for prison authorities.

Food as punishment, food as dignity 141 during the hunger strike shall not trespass the threshold of a minimum level of severity envisaged by the Court’s case-law under Article 3 of the [European] Convention [on Human Rights which prohibits torture and inhuman or degrading treatment].63 In 2009 the Strasbourg Court faced another, highly problematic, question related to prison hunger strikes. With Horoz v. Turkey, the Court had to determine if the death of a prisoner who was engaging in a hunger strike was the result of the prison authorities’ behaviour (thus entailing a violation of prisoner’s right to life) or, rather, the consequence of the hunger strike itself.64 The judges found it was impossible to establish a causal link between the State Security Court’s refusal to release the applicant’s son and the latter’s death, therefore excluding the violation of Art. 2 of the ECHR (right to life). As a matter of fact, the authorities had amply satisfed their obligation to protect Mr Horoz’s physical integrity, specifcally through the administration of appropriate medical treatment; indeed, they could not be criticised for accepting Mr Horoz’s clear refusal to allow any intervention, even though his state of health was life-threatening. A last aspect to be mentioned with regard to the management of mass hunger strikes is the use of force by prison authorities. In a case involving a security operation conducted by prison authorities in response to a mass hunger strike, for example, the applicants, who were among the organisers of the protest, complained of having been ill-treated during and after the security operation, and that the investigation into these allegations had been ineffective.65 The Court held that there had been a violation of Art. 3 of the ECHR (prohibition of torture), under both its substantial and procedural aspects. From a substantial perspective, the Court focused on the disproportionate and gratuitous character of the authorities’ intervention, which was taken with the aim of crushing the protest movement and punishing the prisoners for their peaceful hunger strike; in fact, the protests carried out by the prisoners had been confned to peaceful refusals to eat prison food, without a single violent incident being reported. Under the procedural aspect, the Court found that Art. 3 had been violated with regard to the investigation into the applicants’ allegations of ill-treatment, which had not been thorough or independent, had failed to comply with the requirement of promptness, and had lacked public scrutiny.

63 Nevmerzhitsky v. Ukraine, April 5th, 2005, para. 94–95. 64 Horoz v. Turkey, March 31st, 2009. The applicant was the mother of Muharrem Horoz, who had joined a hunger strike in order to protest against the so-called “F-type” prisons, which provided for one- to three-person cells instead of dormitories; the strike became a “death fast”, in which only sugared water and vitamins were accepted. The applicant complained, in particular, that the judicial authorities’ refusal to release her son, contrary to the opinion of the Institute of Forensic Medicine, had led to his death. 65 Karabet and Others v. Ukraine, January 17th, 2013.

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Bibliography Becci I. (2015) “European Research on Religious Diversity as a Factor in the Rehabilitation of Prisoners: An Introduction”, in I. Becci and O. Roy (eds.), Religious Diversity in European Prisons. Challenges and Implications for Rehabilitation, Springer: Cham. Bottiglieri M. (2015) Il diritto al cibo adeguato. Tutela internazionale, costituzionale e locale di un diritto fondamentale “nuovo”, POLIS Working Papers no. 222. Cancellieri A. and Ricca M. (2015) “Ubiquità planetaria nei condomini. Microspazi di convivenza, corologia interculturale e diritti umani”, CALUMET – Intercultural Law and Humanities Review, Aprile 4th, 2015, pp. 1–40. Delaney D. (2010) The Spatial, the Legal and the Pragmatics of World-Making: Nomospheric Investigations, Routledge: Abingdon. de Londras F. (2014) Revisiting the Five Techniques in the European Court of Human Rights, EJIL: Talk, Blog of the European Journal of International Law, December 12th, 2014 – Last Accessed January 8th, 2019, https://www.ejiltalk.org/revis iting-the-fve-techniques-in-the-european-court-of-human-rights/. Evans M. and Bicknell C. (2017) “Monitoring Prisons: The Increasingly Complex Relationship between International and Domestic Frameworks”, in T. Deams and L. Robert (eds.), Europe in Prisons, Palgrave Macmillan: London, pp. 11–35. Hostetter J. L. (2015) “Prison Food”, in K. Albala (ed.), The Sage Encylopedia of Food Issues, Sage: Thousand Oaks, CA. ICF Consulting Services (2016) Pilot Project Related to the Development of Evidence Based Strategies to Improve the Health of Isolated and Vulnerable Persons. Case Study Pilot 2: Danish Model on Food Systems in Correctional Facilities, (SANTE/2014/ C4/034), European Union. Jimenez Murguía S. (2018) Food as a Mechanism of Control and Resistance in Jails and Prisons. Diets of Disrepute, Lexington Books: Lanham, MD. Locchi M. C. (2018) “Religion Behind Bars in Europe: Comparative Remarks on Religious Rights of Prisoners”, Revista General de Derecho Público Comparado, 23, pp. 1–31. Marlow M. A., Luna-Gierke R. E., Griffn P. M. and Vieira A. R. (2017) “Foodborne Disease Outbreaks in Correctional Institutions—United States, 1998–2014”, American Journal of Public Health, (107)7, pp. 1150–1156. Miller I. (2016) A History of Force Feeding: Hunger Strikes, Prisons and Medical Ethics, 1909–1974, Palgrave MacMillan: Basingstoke. Naim C. (2005) Prison Food Law, Master’s Thesis, Harvard University, Last Accessed January 8th, 2019, https://dash.harvard.edu/bitstream/handle/1/8848245/ Naim05.html?sequence=2. Ohm T. M. (2007) “What They Can Do About It: Prison Administrators’ Authority to Force-Feed HungerStriking Inmates”, Washington University Journal of Law & Policy, 23, pp. 151–174. Prison Voice Washington (2016) Correcting Food Policy in Washington Prisons How the DOC Makes Healthy Food Choices Impossible for Incarcerated People & What Can Be Done, October 26th, 2016, Last Accessed January 8th, 2019, http://pri sonvoicewa.org/content/CorrectingFoodPolicy-2016-10-25.pdf. Rodley N. and Pollard M. (2011) The Treatment of Prisoners under International Law, 3rd edition, Oxford University Press: Oxford. Ruotolo M. (2014) Dignità e carcere, Editoriale Scientifca: Napoli.

Food as punishment, food as dignity 143 Ruotolo M. (2015) “La detenzione e i diritti dei detenuti come tema costituzionalistico”, Costituzionalismo.it, 2, 2015. Siméant J. (2009) La grève de la faim, Presses de Sciences Po, coll. “Contester”: Paris. Smoyer A. B. and Kjær Minke L. (2015) Food Systems in Correctional Settings A Literature Review and Case Study, World Health Organization – Regional Offce for Europe, Copenhagen. UN Committee against Torture (2014) Concluding Observations on the Third to Fifth Periodic Reports of United States of America, CAT/C/USA/CO/3-5. van Zyl Smit D. and Snacken S. (2009) Principles of European Prison Law and Policy. Penology and Human Rights, Oxford University Press, Oxford.

9

‘Elusive and fugitive’ – relationships between water, law, culture and survival Francine Rochford

The trajectory of change in water law follows political and cultural shifts, but not eagerly or closely. Lawyers’ instincts are to tame the concept of water; just as politicians – channelling societal pressure – attempt to govern actual water. The uncomfortable reality is that water requires compromise spatially, temporally and conceptually. In law it is most happily categorised as sui generis, changing its nature from public, to personal and potentially to an incident of real property. Culturally, it is also of its own type. Scarcity or overabundance of water demands that it be governed differently over time and depending on the nature of the geographical space. The critical relationship between water availability and plenty refocuses rapidly in its converse – water scarcity and famine. Taking an historical and comparative perspective, this chapter considers the pressures placed on the legal analysis of water law by geography, geology, culture, time, economics – even philosophy. It concludes that caution, compromise and a long gaze must be used to understand the nature of water, and the application of ideological fashion to water governance will not survive the next period of critical water shortage or excess. It will consider the current trend to marketise water resources, facilitating the trade and purchase of water without any necessity to consume it and the periodic failure of the market concept to contain the ferocity of water in its real and cultural incidents.

Introduction Pre-colonial and colonial attitudes to food in Australia focussed on water. The redistribution of water to enable the growth of food was a generally accepted attitude to politics of land settlement. Post-colonial attitudes, however, have challenged this universal view and the criticism of colonial water policy and the development of irrigation has become almost ubiquitous. This chapter will commence with an account of the centrality of water in culture, echoing or stemming from the centrality of water to survival. It will then outline the apparently stochastic development of irrigation in Australia, and align infrastructure development with social, cultural and meteorological events. It will also consider the use of law and legal forms to encourage irrigation growth along with a range of other land management requirements to encourage the growth of food.

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It will then elaborate on the critical perspectives that have overlaid the development of food production capacity, comparing it with colonial cultural perspectives. It will concentrate in particular on the accounts of Henry Lawson, a ‘Bush’ poet in colonial Australia, and later critics of the poet and of irrigation development. Writing in the years of the Federation drought and during the Australian Constitutional Conventions, Henry Lawson brought a bleak perspective on the Australian ‘Bush’ to an urban population. Rivers in their natural state sang ‘dirge’-like;1 farmers’ sons went to ‘battle’ against ‘Drought, the red marauder’,2 the eldest son spent himself on ‘barren soil’3 and farmers’ wives watched withered crops and dying milkers but were ‘past carin’’.4 The land ‘won’ ‘in twos and threes’5 though the ‘hump of toil’6 was not beautiful in Lawson’s eyes. Later critics describe his work as marked by ‘an environmental hatred’.7 This chapter considers Lawson’s perspective on the Australian landscape and his passion for ‘conservation’ of rivers for irrigation, which was a popular stance at the time of Australia’s Federation and resulted in massive infrastructure works to support irrigation. As popular opinion has shifted, however, policy and law have changed. Irrigation and food production are a lower priority then in colonial Australia, and the Australian landscape in its natural form is ascribed high environmental value. The legal landscape has followed this trend. For many living in the bush, however, Lawson’s picture of the landscape remains accurate and growing food in that landscape remains challenging and, occasionally, heartbreaking.

Water in culture Water resonates deeply in culture, even though those resonances may be unidentifed in cultural analysis. Conversely, culture affects the way we view water. Chamberlain notes that rarely in analyses and conversations about water are cultural, and in particular religious, dimensions brought to light. Yet for billions of the globe’s peoples,

1 Henry Lawson, The Song of the Darling River from Verses Popular and Humorous (Sydney: Angus and Robertson, 1900). 2 Henry Lawson, Andy’s Gone with Cattle from in the Days When the World Was Wide (Sydney: Angus and Robertson, 1900). 3 Henry Lawson, The Ballad of the Elder Son from When I was King and Other Verses Sydney (Sydney: Angus and Robertson, 1906). 4 Henry Lawson, Past Carin’ from in the Days when the World Was Wide (Sydney: Angus and Robertson, 1900). 5 Henry Lawson, How The Land Was Won from Verses Popular and Humorous (Sydney: Angus and Robertson, 1900). 6 Ibid. 7 Timothy Clark, ‘The Challenge of the Meta-Contextual: Henry Lawson’s “Telling Mrs Baker” (1901) and Some Animal Questions for Australia’, Oxford Literary Review 17 (2007).

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Francine Rochford their fundamental conceptions about the natural world and water are infuenced to some degree by religious considerations.8

Religion can infuence the attitude of people to the land, for instance. In the Christian Bible the direction to ‘[b]e fruitful and multiply, and fll the earth and subdue it; and have dominion over the fsh of the sea and over the birds of the air and over every living thing that moves upon the earth’.9 In Islam the natural resources of the whole world have been created for the sake of the righteous man.10 These passages have often been interpreted to allow the subjugation of nature for the purposes of the human population. Water is afforded symbolic signifcance in many religious and cultural contexts. In the Christian Bible ‘the Spirit of God was moving over the water’.11 Water is central to devotion.12 In the story of Noah foodwater was the agent of destruction and of cleansing13 but the relationship between water and food/life was also made clear.14 The lack of water is related to want, to death. Water is central both in sacred and profane connections. Water is both physical and spiritual nourishment: ‘If you are thirsty come to me and drink! Have faith in me, and you will have life-giving water fowing from deep inside you, just as the Scriptures say’. Similar centrality can be seen in the Quran. In Hinduism water is highly signifcant as a sign of cleanliness – both physical and spiritual – and sites of particular religious signifcance are located beside water. In Buddhism water is a sign of purity and clarity. Taking religion as a cultural construct we can, therefore, see the signifcance of water; taking religious texts as historical testaments to the preoccupations of previous generations we can similarly see the primacy of water to life. In the highly episodic Australian climate water attains particular cultural significance. In Aboriginal societies water was central to life and culture; to ‘Aboriginal people, lands and waters are in a continual and interconnected process of mutual transformation’, emphasising the changeability of the land through the water. Inevitably, human interaction with the environment in this context cannot attempt the ‘subjugation’ of the land and water to the needs of its human inhabitants. There is a ‘contingent relationship between human knowledge and activity, maintenance of water and land as place, and the actual realisation of myth’. The process of colonisation of Australia, however, acted upon the land and its people – indigenous and immigrant. For indigenous inhabitants the process of colonisation severed the relationship between the land (and water) and its people. For immigrants of the time, the cultural understandings of water in the

8 Gary Chamberlain, Troubled Waters: Religion, Ethics and the Global Water Crisis (Lanham, MD: Rowan and Littlefeld Publishers Inc., 2008), 3. 9 Genesis 1:28. 10 Qur’an 14:32–34. 11 Genesis 1:1–2. 12 Matthew 3:11. 13 Genesis 5:32–10:1. 14 Genesis 13:10.

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landscape did not survive the journey to the other side of the world. For the dislocated English immigrant the language of the Australian landscape was almost unreadable. The Irish left behind the ‘holy wells’15 and the cultural memories they evoked. English settlers left the generous rivers of England, with names that stretch into the past16 and [t]he landscape…organised around a process of defning areas associated with specifc natural resources. Many of our ancient rivers thus acquired their names through the need for huntergatherers and farmers to make practical sense of their environment.17 Watercourses shaped the settlement history of the English countryside,18 and farming in food prone areas and in boggy fens created highly diverse local cultures. Water was integral to – perhaps partially constitutive of – the culture of the colonisers as much as to the colonised – but it was harnessed to place. Land and water were integrally linked: wherever these natural water sources appear, we are likely to fnd remains of sacred areas, ranging from isolated votive deposits to monumental sanctuaries. Along roads, at river crossings, and along mountain passes, the presence of water reinforces the link between nature and the divine.19 Colonisers and colonised underwent displacement from these local, land-specifc cultures that created their disparate ways of seeing their environment. The way in which this displacement was managed – and is still being managed – is the cause of signifcant and increasing cognitive dissonance.

Taming water At settlement the English doctrine of riparianism applied to the Australian colonies. According to Parke B in Embrey v Owen20 ‘[t]he right to have a stream fow in its natural state without diminution or alteration is an incident to the property

15 Diarmuid Ó Giolláin, ‘The Fairy Belief and Offcial Religion in Ireland’, in The Good People: New Fairylore Essays, ed. Peter Narvaez (Lexington, KY: University Press of Kentucky, 1991), 199–214. 16 P. R. Kitson, ‘British and European River-Names’, Transactions of the Philological Society 94:2 (1996): 73–118. 17 Stephen Yeates, ‘River-Names, Celtic and Old English: Their Dual Medieval and Postmedieval Personalities’, Journal of the English Place-Name Society 38 (2006): 63, 79. 18 Andrew Sherratt, ‘Why Wessex? The Avon Route and River Transport in Later British Prehistory’, Oxford Journal of Archeology 15:2 (1996): 211–34. 19 Ingrid Edlund-Berry, ‘Hot, Cold, or Smelly: The Power of Sacred Water in Roman Religion, 400–100 BCE’, in C. E. Schultz and P. B. Harvey (eds.), Religion in Republican Italy (Cambridge: Cambridge University Press, 2006), 162. 20 (1851) 6 Exch 353, 367.

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and the land through which it passes’, and anyone with a right of access to that water could use it, but did not have property over it. Access to water fowing in a river was a usufruct attached to land. Where water was not in a defned watercourse (for instance, when formed an overland fow) the position could be summarised thus: At common law, the owner occupier of land had the right to take and use as his own water fowing on his land which did not fow beyond his land…water which fowed upon his land otherwise than in a regular or defned water course…water which rises on the land…and water which lay on the land as a result of rainfall.21 The Australian landscape, however, is famously unforgiving; recognised as largely arid but also subject to widespread fooding – it has a ‘high inter-annual variability of precipitation’.22 Watercourses are often ephemeral, and even the largest rivers can dry up completely. For settlers beyond the immediate environs of a reliable watercourse, agriculture could be marginal at best. As a consequence, the riparian system was ill-adapted to a growing colony and was largely abolished.23 Instead, water in waterways was vested in the state – for instance, in Victoria at the recommendation of a Royal Commission into Water Supply it was considered ‘essential that the State should exercise supreme control of ownership over all rivers, lakes, streams, and sources of water supply, except springs rising upon private lands’.24 It was also recommended that the State allow irrigators to use the water to enable the effective utilisation of the land. State policies encouraged population growth inland. However, from the outset settlement patterns in Australia have favoured the water-rich coastal areas. These have, in their turn, become water-scarce.25 Reduced infow in these coastal areas, along with the growing population, generate increasing demand. The increasing pressure on food production as a result of water scarcity at the end of the twentieth century26 echoes the pressure on

21 [2003] VSC 194 [75] (Gillard J). 22 K. Frenken and V. Gillet, ‘Irrigation Water Requirement and Water Withdrawal by Country’, Food and Agriculture Organization of the United Nations, 2012, available at: www.fao.org/ nr/water/aquastat/water_use_agr/IrrigationWaterUse.pdf. 23 S. D. Clark and I. A. Renard, The Framework of Australian Water Legislation and Private Rights, Vol. 1: The Framework of Australian Water Legislation and Private Rights (Melbourne: AWRC, 1972). 24 Royal Commission on Water Supply 1885 – First Progress Report Victoria, Vol. 2, Parliamentary Papers, 1885. 25 Michael G. Porter, David Downie, Helen Scarborough, Oz Sahin, and Rodney A. Stewart, ‘Drought and Desalination: Melbourne Water Supply and Development Choices in the Twenty-First Century’, Desalination and Water Treatment 55:9 (2015): 2278–95. 26 For an account of the impact of the 2001–2009 ‘Millennium Drought’ see Albert I. J. M. van Dijk, Hylke E. Beck, Russell S. Crosbie, Richard A. M. de Jeu, Yi Y. Liu, Geoff M. Podger, Bertrand Timbal, and Neil R. Viney, ‘The Millennium Drought in Southeast

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the developing colonies at the end of the nineteenth century – when a decadelong drought shaped water policy into the new century. However, responses to water pressure are markedly different and narratives surrounding food and water contrast sharply. The relationship between food and water formed the strongest narrative in the transition from the nineteenth to the twentieth century, whereas environmental concerns dominate the narrative in the transition from the twentieth to the twenty-frst. Prior to colonisation Aboriginal peoples in most parts of the country adapted to unreliable water sources by adopting a range of strategies, including nomadic practices. Relying on groundwater and unreliable surface water, supplemented by other environmental sources, water dominated the lived experience. Water can also be found in the roots of Hakea leucoptera, in the bodies of aestivating frogs (Cyclorana platycephala), which burrow underground during the hot summer months, and by watching other animals, such as kangaroos, digging for water.…When temporary water disappeared, desert people returned to the mikiri, or native wells – desert wells cared for by Aboriginal people.27 The sustainability of a population in any particular area was dictated by the reliability of the water source. With the larger population pressures of colonisation, the ephemeral and unreliable water sources dictated both the policy and practical directions of settlement. Lawson’s The Paroo describes an overland hunt for the Paroo River, which culminated in a dry ‘bridle track’: ‘no spot of damp – / No moisture to be seen there; / If e’re there was it left no sign / That it had ever been there’.28 Pearson’s account29 of the development of roads around the Paroo River in New South Wales demonstrates with stark emphasis the total reliance on water availability for development in Australia’s inland. The challenges of ephemeral watercourses and naturally occurring droughts and foods made permanent settlement for agricultural purposes highly problematic. The political imperative to ensure food security for the new colony and thus expand the population base was consistent with the political and social priorities of countries and colonies in similar states of development at the time (notably the United States). A notable example of the American infuence on the Australian political attitude to land and water was political desire to create a ‘desired cultural landscape and social class’

Australia (2001–2009): Natural and Human Causes and Implications for Water Resources, Ecosystems, Economy and Society’, Water Resources Research 49 (2013): 1040–57. 27 Leah M. Gibbs, ‘Just Add Water: Colonisation, Water Governance and the Australian Inland’, Environment and Planning A: Economy and Space 41 (2009): 2964–83, p. 2967. 28 Henry Lawson, The Paroo from Verses Popular and Humorous (Sydney: Angus and Robertson, 1900). 29 M. Pearson, Paroo Tracks: Water and Stock Routes in Arid Australia (Burwood, VIC: Australia International Council on Monuments and Sites, 1999).

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in the form of the Yeoman Ideal.30 This infuence continued with the post-war signifcance of decentralism, regionalism31 and the ‘grass-roots’ development of regional areas.32 From a cultural perspective, the ‘taming’ of water was a Christian imperative. This was not entirely a matter of ‘subduing’ the earth – it aligned with views of class and social mobility in Australia at the time of settlement, in which irrigation was a key part of the ‘social Christians’’ mission to create the ‘Kingdom of God on earth’ in the new millennium: irrigation slowly created an abundant new landscape over time, and this process was analogous to the way in which the millennium would be evolved through God-inspired social reform…irrigation itself was a way to engineer the millennium. By facilitating cooperation and a more equitable distribution of wealth, and by allowing for a more rational approach to land-use, irrigation would be both an agent and a metaphor for the creation of the Kingdom of God.33 The Australian inland is arid and episodic fow of rivers made them unreliable. To achieve ‘closer’ settlement river water would have to be ‘conserved’ in large dams for release in summer and in dry periods. Moreover, a series of channels would have to be constructed to move water from the immediate environment of the rivers to utilise more of the land. This development, too, was modelled upon the extensive activities of the Bureau of Reclamation in the United States, which was responsible for implementation of the policy of ‘homesteading’ in the Western states34 by ‘redeeming the deserts’.35 The mixed economic, social and cultural imperative of that policy is demonstrated by the contemporary explanation that [t]he object of the reclamation law is primarily to put the public domain into the hands of small land owners – men who live upon the land, support

30 Matthew Tonts, ‘State Policy and the Yeoman Ideal: Agricultural development in Western Australia, 1890–1914’, Landscape Research 27 (2002): 103–15. 31 M. C. Steiner, ‘Regionalism in the Great Depression’, Geographical Review 73 (1983): 430–46. 32 D. Ekbladh, ‘“Mr TVA”: Grass-Roots Development, David Lilienthal, and the Rise and Fall of the Tennessee Valley Authority as a Symbol for U.S. Overseas Development, 1933 – 1973’, Diplomatic History 26 (2002): 335–74; D. E. Voth, ‘A Brief History and Assessment of Federal Rural Development Programs and Policies’, University of Memphis Law Review 25 (1994–5): 1266. 33 Melissa Bellanta, ‘Engineering the Kingdom of God: Irrigation, Science and the Social Christian Millennium, 1880–1914’, Journal of Religious History 32:1 (2008): 1–15, p. 2. 34 The six Great Plains states from North Dakota south to Texas, the eight Intermountain West states, and the three West Coast states: 43 USC § 391 (2000). 35 D. Lampen, Economic and Social Aspects of Federal Reclamation (Baltimore, MD: The Johns Hopkins Press, 1930), 15, quoting the Globe-Democrat (St Louis), 1889.

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themselves, make prosperous homes, and become purchasers of the goods manufactured in the East and the cotton raised in the South. 36 A similar ‘small farmer’ or equity policy could be seen in Australian legislation designed to produce and support a population further from watercourses. The early ‘grants’ of land favoured larger landholders, typically wealthy or established. This effectively blocked access to water and blocked settlement beyond the rivers.37 The end of the gold rushes in some areas also created pressure for resettlement of miners and the consequent requirement for infrastructure.38 The parallel development of the Australian inland and the American western states underlines the shared colonial culture of the two countries, as well as the similar period of development. The most signifcant underlying driver in both countries was the necessity to produce food that would sustain a growing nation – and population growth was considered an imperative in both countries. This political imperative resulted in the creation of a legal and administrative infrastructure to build and maintain the physical capacity to grow food – by adding water.39

Governing water Australian water courses, which in many cases run episodically,40 are ‘managed’. The creation of dams, locks and weirs to ‘conserve’ water results in rivers running contrary to the natural (Australian) order – they now run ‘high’ in summer to enable irrigation, and ‘low’ in winter when rainfall is collected in large storages. In times of prolonged drought river management will have signifcant effects; during the Millennium Drought of 2001–2009: by design, river management avoided impacts on some categories of water users, but did so by exacerbating the impacts on annual irrigation agriculture and, in particular, river ecosystems. Relative rainfall reductions were amplifed 1.5–1.7 times in dryland wheat yields, but the impact was offset by steady increases in cropping area and crop water use effciency (perhaps partly due to CO2 fertilization). Impacts beyond the agricultural sector

36 F. H. Newell, ‘The Reclamation of the West’, Annual Report of the Smithsonian Institution, 1903, 828, quoted in Lampen, Economic and Social Aspects, above n. 41, 15, quoting the Globe-Democrat (St Louis), 1889, 49–50. 37 Peter Davies and Susan Lawrence, ‘A “Mere Thread of Land”: Water Races, Gold Mining and Water Law in Colonial Victoria’, Journal of Australian Colonial History 16 (2014): 165, 168. 38 Ibid. 39 Leah M. Gibbs, ‘Just Add Water: Colonisation, Water Governance and the Australian Inland’, Environment and Planning A: Economy and Space 41 (2009): 2964–83. 40 Michael G. Porter, David Downie, Helen Scarborough, Oz Sahin, and Rodney A. Stewart, ‘Drought and Desalination: Melbourne Water Supply and Development Choices in the Twenty-First Century’, Desalination and Water Treatment 55:9 (2015): 2278–95.

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The mixed impacts of the Millennium Drought were nevertheless benign relative to the massive social and economic disruption of the Federation drought, which took place on the cusp of Federation. Contemporary reports in 1893 starkly demonstrated the disparate weather patterns of the inland and the coastal regions: For the frst 3 months of this year the record of rainfall, foods, disastrous droughts, and bush fres in various parts of the continent…And what is most remarkable, the various conditions occurred at the same time – great foods and heavy storms on the coast of Queensland, and the northern districts of New South Wales, Brisbane, Ipswich, Maryborough, Gympie, and Bundaberg and a heavy fresh in the Fitzroy, with moderate inundations.… in the southern districts of New South Wales and Victoria extensive bush fres raged, while the western interior suffered from a severe and prolonged drought.42 The drying of the rivers – even major rivers such as the Murray and Darling rivers which are the primary contributors to the Murray-Darling Basin in South-East Australia – alongside massive inundation on the coast which, once it reached the river, fowed out to sea, was a major impetus for infrastructure development. From a political and social perspective, droughts set back colonial “progress” by starving enormous numbers of sheep and cattle and reducing wool and meat production, by devastating small-farmer agriculture and by drying the Murray-Darling river system whose waters and river trade were central to much of eastern Australia’s prosperity.43 The engineering solution was to ‘smooth’ the availability of water by the construction of massive dams over several decades. The Hume Dam across the Murray River creates a reservoir with a 3,036,500 megalitre (ML) capacity; Lake Eildon holds 3,334,158 ML and the Dartmouth Dam holds back 4,000,000 ML. A large number of smaller storages supplement these dams. By contrast,

41 van Dijk et al., ‘The Millennium Drought’, above n. 32. 42 W. Allen, ‘The Droughts and Floods of Australia, 1893’, Morning Bulletin (Rockhampton, Qld), 23 July 1895. 43 Don Garden, ‘The Federation Drought of 1895–1903, El Niño and Society in Australia’, in Common Ground: Integrating the Social and Environmental in History, eds. Geneviève Massard-Guilbaud and Stephen Mosley (Cambridge: Cambridge Scholars Publishing, 2010), 270–92, p. 271.

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the largest reservoir in the United Kingdom, the Kielder Water, has a nominal volume of 199,000 ML. Water availability was a signifcant political issue. As Wheeler notes, ‘[w]ater was one of the battlegrounds for the colonies and for keeping state sovereignty in the development of the Federation. VIC and NSW wanted water for irrigation development, SA primarily for transport’.44 Once the colonisation of Australia had been embarked upon, inland settlement was the natural political and social expedient. The necessity for the creation of reliable water sources is clear, and the highly episodic nature of Australian rainfall meant that the creation of enormous water storages to ‘conserve’ water (to stop it being ‘wasted’ by fowing out the sea) was a priority. Alongside these engineering projects, legislative measures were put in place to encourage closer settlement to enable food production. Thus, in Victoria a succession of Acts commenced with Sale of Crown Lands Act 1860 (Vic) (the Nicholson Act), the Sale and Occupation of Crown Lands Act 1862 (Vic) (the Duffy Act), the Amending Land Act 1865 (Vic) (the Grant Act), the Land Amendment Act 1869 (Vic), the Land Act 1884 (Vic), the Mallee Pastoral Leases Act 1883 (Vic), the Mallee Lands Act 1886 (Vic), the Settlement of Lands Act 1893 (Vic) and the Land Act 1898 (Vic), with the conditions of alienation including the clearing, fencing and erecting a dwelling. The legislative governance of water used similar ground rules: an 1882 amendment to the Water and Conservation District Act 1880 (Vic) enabled the creation of local ‘irrigation trusts’ to manage the provision of water to preserve life and increase agricultural yield.45 Certainly, up until the late 1960s and 1970s an attitude of expansionism occurred in relation to Australian land and water use. After that, however, a process of ‘winding back’ the process of settlement occurred, with a succession of Acts designed to mediate rural depopulation.46 This period also saw the growth of an Australian environmental movement – generally traced to the key case of Commonwealth v Tasmania (Tasmanian Dam case),47 in which the High Court’s interpretation of the Federal Government’s legislative power under s.51(xxxix) of the Constitution expanded Federal jurisdiction to intra-state environmental matters where a treaty or international agreement covered the area.48 More recently, the expanded jurisdiction has been used as the cornerstone of the Water Act 2007 (Cth), the legislative foundation for the Murray Darling Basin Plan which effectively mandates the return of water to the environment, generally at the expense of irrigators.

44 Sarah Ann Wheeler, ‘Insights, Lessons and Benefts from Improved Regional Water Security and Integration in Australia’, Water Resources and Economics 8 (2014): 57–78, p. 62. 45 D. Ingle Smith, Water in Australia (Melbourne: Oxford University Press, 1998). 46 F. Rochford, ‘Regional Adaptation in a Global Market – The Case of Water Infrastructure’, Australasian Journal of Regional Science 20 (2014): 91. 47 (1983) 158 CLR 1. 48 The extent of the legislative power to pass laws with respect to the environment where it was a matter of ‘international concern’ was subsequently reiterated and applied in Richardson v Forestry Commission (1988) 164 CLR 261, Queensland v Commonwealth (Tropical Rainforests Case) (1989) 167 CLR 232.

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Thus, over the years since Federation the attitude to the use of water in food production has changed markedly; from privileging farmers’ use of land and water to favouring the environmental use of water. This major cultural shift has been mediated by law just as the promise of settlement was mediated by law. The increasing dominance of the coastal demographic over the inland has created a parallel pressure to secure the supply of water to major urban centres. Australia has a small but growing population of over 24.5 million49 which is concentrated along the coast. The relatively benign climate and secure water of the coastal regions east of the Great Divide can cause a cultural disconnect between inland settlements and the coastal communities, amongst which many large Australian cities can be counted. Melbourne, Sydney and Brisbane and the growing peri-urban communities between those state capitals are all along the coast and east of the Divide. This refects international patterns, in which the majority of the population currently live in cities.50 Urban water use is rapidly growing: in 2003, 74% of the population of developed countries resided in urban areas and this percentage is expected to increase to 82% by 2030; in developing countries 42% of the population lived in urban areas with an expected increase to 57% by 2030.51 As a result of these dual demands on established water use – recognition of environmental and urban demands – irrigation water availability has simultaneously been reduced and has altered in character. As a result of the implementation of the Murray Darling Basin Plan, ‘sustainable diversion limits’ have been placed upon surface and groundwater areas across the Murray-Darling Basin – a Basin that traverses four states and one territory and covers 100 million kilometres inland of the Great Dividing Range, which cuts the Basin off from the heavily populated east coast. The implementation of the plan requires the recovery of water from consumptive uses and its return to the environment. The plan and its implementation have been heavily criticised, most recently by a South Australian Royal Commission52 which found that the environmentally sustainable level of take and an adjusted Sustainable Diversion Limit are inconsistent with the Water Act. A simultaneous process has been the conversion to new forms of governance of water as a resource. Whereas irrigation water had previously been ‘attached’ to land and not able to be traded, the increasing demand on water from other sectors and increasing infrastructure costs resulted in a massive policy change to introduce a ‘market’ for water. Water has been ‘unbundled’ into a number of water products. Water ‘shares’ can now be traded through brokerage frms, either

49 Australian Bureau of Statistics, “Australian Demographic Statistics”, 2017, available at: www .abs.gov.au/AUSSTATS/[email protected]/mf/3101.0. 50 G. D. Jenerette and L. Larsen, ‘A Global Perspective on Changing Sustainable Urban Water Supplies’, Global and Planetary Change 50 (2006): 202, pp. 202–3. 51 Ibid. 52 South Australia, Murray-Darling Basin Royal Commission, Report (2019).

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temporarily or permanently, but do not represent actual water but a ‘share’ of the airspace in a reservoir. As a result of these innovations water can now be detached from land – the land ‘dried off’ – or from an area altogether. The water ‘market’ is overseen by the Australian Competition and Consumer Commission.

Cultural critique Critiques of literature from the period of Australian settlement have recently engaged ‘contextual’ perspectives on the literature – typically from ecological perspectives. Broadly speaking, Australian and colonial literature is considered to perpetuate a mythology about the ‘Bush’ which simultaneously derides the natural environment (in favour of the creation of productive capacity) whilst idealising the characteristics of those capable of surviving that environment. Henry Lawson’s depiction of Australia in ‘Telling Mrs Baker’53 for instance, is said by modern critics to be marked by ‘an environmental hatred,’54 ‘not natural in any recognisable sense but a kind of waste dump’55 full of ‘nightmare images’.56 The characters in the story ‘deride’ nature, and that derision is said to be ‘legitimation’ of the colonial ‘duty’ to ‘redeem the land by making it ft for various forms of agriculture and settlement’.57 Similarly, in The Paroo River Lawson expresses his dislike of the dry country around the ephemeral Paroo River: Tis said the land out West is grand– / I do not care who says it, / It isn’t even decent scrub, / Not yet an honest desert; / It’s plagued with fies and broiling hot, / A curse is on it ever; / I really think that God forgot / The country round that river.58 Lawson describes the music of the Darling River as a ‘dirge’:59 ‘The skies are brass and the plains are bare, / Death and ruin are everywhere / And all that is left of the last year’s food / Is a sickly stream on the grey-black mud’. In his view, damming of the river to tame its foods and ameliorate its dry periods would translate the ‘dirge’ into a ‘hymn’. That Lawson shows ‘little effort to grasp the specifc ecology of these places’60 is clearly considered in a poor light by the modern critic. The critic derides the desire for something ‘more recognisably European, pastoral, pretty and proftable’.61

53 Henry Lawson, ‘Telling Mrs Baker’, in Joe Wilson and His Mates (Edinburgh: William Blackwood, 1901), 285–305. 54 Clark, ‘The Challenge of the Meta-Contextual’, 20. 55 Ibid., 21. 56 Ibid., 20. 57 Ibid. 58 Lawson, The Paroo from Verses Popular. 59 Lawson, The Song of the Darling River. 60 Clark, ‘The Challenge of the Meta-Contextual’, above n. 60, 21. 61 Ibid.

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Of course, this can be an issue for conservation values. There is a link, for instance, between the attractiveness of an animal and support for its conservation.62 This link is more pronounced amongst those most involved in environmental issue.63 An ‘ugly’ landscape is problematic for those seeking to protect the environment. To advocate for maintenance of a natural ecosystem which is not ‘attractive’ the value of the ‘specifc ecology’ of a landscape must be ‘sold’ or explained to have some inherent value. Much of the Australian inland is dry, with poor, scrubby vegetation. Much of the land lacks nutrient. The soil is shallow and fragile64 and the climate one of the most variable in the world. Flora and fauna have adapted to long periods of drought followed by massive fooding. This means that the farmer’s imperative to create a nutrient-rich soil irrigated regularly to grow a crop or feed animals capable of sustaining a large population is inevitably going to be, in places, incompatible with native fora and fauna. The desire of a township to have a regular water supply and to prevent fooding by regulating the river inevitably disadvantages river red gums or black box, which require regular fooding. There is no doubt that Australian food production will continue to be characterised by the ‘boom or bust’ cycles of the Australian climate, and the attempts to ameliorate these cycles to accommodate agriculture or domestic water security will have an effect on the environment: Water resource development in dryland rivers often leads to an increase in the frequency and duration of fow pulses, due to reduced foods and elevated base fows. This increase in the ‘bits in between’ natural boom or bust conditions may help to explain the observed decline in ecosystem health in dryland river systems with signifcant water resource development.65 Instead of harbouring a view of the landscape of an aesthete or an environmentalist, Lawson, like many of those working in that environment, valued the food production capacity of the land. He was considered the ‘Irrigator’s Poet’,66 writing in 1905 – around the time of the Federation drought, ‘The Songs of Irrigation’, that ‘The two most precious things for us / Shall still be wheat and water’. We’ve been drought-ruined in the West, / And ever in my dreaming / I see wide miles of waving crops / And sheets of water gleaming, / On plains

62 Anna Gunnthorsdottir, ‘Physical Attractiveness of an Animal Species as a Decision Factor for Its Preservation’, Anthrozoos: A Multidisciplinary Journal of the Interactions of People and Animals 14:4 (2001): 204–15. 63 Leonie Huddy and Anna H. Gunnthorsdottir, ‘The Persuasive Effects of Emotive Visual Imagery: Superfcial Manipulation or the Product of Passionate Reason?’, Political Psychology 21:4 (2000): 745–78. 64 P. Carberry, B. Keating, S. Bruce, and J. Walcott, Technological Innovation and Productivity in Dryland Agriculture in Australia, A Joint Paper Prepared by ABARE-BRS and CSIRO, Canberra, July, 2010. 65 Stuart E. Bunn, Martin C. Thoms, Stephen K. Hamilton, and Samantha J. Capon, ‘Flow Variability in Dryland Rivers: Boom, Bust and the Bits in Between’, River Research and Applications 22:2 (2006): 179. 66 Tim Bonyhady, The Colonial Earth (Melbourne: University Press, 2000), 300.

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where fortune died of thirst / When my brave father sought her, / I see the painted barges pass / Along the winding water.67 Of the Darling River, a major part of the Murray-Darling system, the periodic fooding and droughts meant, according to Lawson, that ‘the people never / Will see the worth of the Darling River’.68 Worth, on this view, was the capacity to maintain more than a scratch population. Critical to the river becoming worthwhile was, in Lawson’s view, the infrastructure to develop irrigation. Putting words into the voice of the Darling River Lawson pleas: ‘But in vain I have tried, ah! In vain I have tried / To show the sign of the Great All Giver, / The Word to a people: O! lock your river’.69 Engineers were, for Lawson, key to the survivability of the Australian inland for a settled community. It was ‘Australian Engineers’ who would ‘conquer the drought’.70 For Lawson, the engineering solution was also critical to closing the class divide between those who suffered the effects of the drought and those who did not – paralleling the modern division between the coastal urban and the inland rural communities: They must toil to save the gaunt stock in the blazing months of drought, / When the stinging, blinding blight is in men’s eyes – / On the wretched burnt selections, on the big runs further out / Where the sand-storm raises lurid to the skies. / Not to proft when the grass is waving waist-high after rain, / And the mighty clip of wool comes rolling in – / For the Wool-King goes to Paris with his family again / And the gold that souls are sacrifced to win.71

Conclusions Clark, analysing Lawson’s Telling Mrs Baker, describes one man’s ‘sordid defeat in farming practices that seem at odds with the actual landscape and climate’.72 Baker was an unfaithful alcoholic who had lost all of his sheep in a severe drought. He then went droving. It is likely that the drought was the Federation drought that characterised the decade prior to Federation; a drought which was the catalyst of the major engineering, legislative and social programmes that brought water to parts of Australia that had never had it in secure form. To summarise that story as a ‘sordid defeat’ in inappropriate farming methods in the Australian landscape and climate is to misjudge an entire rural population, and to forget that Australia had been ‘the major provider of wool and wheat to Britain (and sometimes the world) in the 19th century, with local well-being build on “the sheep’s

67 68 69 70

Lawson, The Water, 1905. Lawson, The Song of the Darling River, 1889. Ibid. Henry Lawson, Australian Engineers in When I Was King (Sydney: Angus and Robertson, 1904). 71 Henry Lawson, The Men Who Made Australia in Collected Verse, Vol. 2 (Sydney: Wentworth Publications, 1950), 7. 72 Clark, ‘The Challenge of the Meta-Contextual’, above n. 60, 24.

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back”’.73 Those still farming in the Australian environment can be forgiven for feeling mischaracterised by largely distant critics. Indeed, outside perspectives have noted that whilst ‘Americans mastered their environment…Australians were often compelled to retreat from their own’.74 Australia’s environment was/is ‘always too tough to leave any energy for the sheer joy of the struggle’.75 Critics have called Lawson’s attitude to the environment a ‘denigration’ and an ‘exaggeration of its ‘weirdness’ with the caveat that ‘the 1890s were both a time of drought and of economic depression’. Meanwhile, in 2019 the Darling River was dry at Bourke,76 and at Menindee massive fsh kills have occurred as a result of the deoxygenation of the water.77 Successive days of temperatures above 40 degrees Celsius – in Bourke there were twenty-one days in a row above 40 degrees in January – have increased the risk of bushfres to extreme evoking memories of the fatal ‘Black Saturday’ fres in 2009.78 Most of New South Wales and Queensland was in severe drought during 2018,79 but fooding in Queensland in February 2019 covered areas the size of New South Wales.80

73 Alastair Davidson, ‘Citizens and Pariahs: Australia Faces Globalisation’, in The Vocal Citizen, [Online], Labor Essays, eds. Glenn Patmore and Gary Jungwirth (2004), 180–94, https:// search.informit.com.au/documentSummary;dn=200402294;res=IELAPA [viewed 04 February 19]. 74 Henry S. Albinski, ‘Australia and the United States’, Daedalus 114:1 (1985) Australia: Terra Incognita?: 395–420, The MIT Press on Behalf of American Academy of Arts & Sciences Stable, https://www.jstor.org/stable/20024968, Accessed 4 February 2019. 75 Jeanne MacKenzie, Australian Paradox (London: MacGibbon and Kee, 1962), 104. 76 Halina Baczkowski and Anna Levy, ‘Murray-Darling Basin Cotton Irrigators Defend Water Usage, Put Blame Back on Government’, ABC News, 2 February 2019. 77 Sara Tomevska, ‘Darling River Water Quality Declines with 10,000 Native Fish Found Dead from Blue-Green Algae Bloom’, ABC News, 20 December 2018. 78 ‘Walhalla Blaze Destroys Gippsland Houses, as Hepburn Bushfre Closes Schools’, ABC News, 4 February 2019; Gary Hughes, ‘Black Saturday Bushfre Memories Still Haunting Survivors Forced to Rebuild Lives Over 10 Years’, The Australian, 2 February 2019. 79 Kate Doyle, ‘How Bad is the Drought and Why Has It Been So Dry?’, ABC News, 11 June 2018. 80 ‘Townsville Flooding Forces Hundreds to Evacuate, Leaves Police Clinging to Trees After Dam Gates Fully Opened’, ABC News, 4 February 2019.

10 Does the EU legislation on the protection of farm animals protect their welfare? Moa Näsström

Introduction Article 13 Treaty of the Functioning of the European Union (TFEU) states that: In formulating and implementing the Union’s agriculture…(and) internal market…policies, the Union, and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals.1 (emphasis added) Consequently, EU primary law recognises all animals as sentient beings. A sentient being is aware of its surroundings, what is happening to it, is able to learn from experience, and aware of sensations in their bodies; for instance, pain, heat, cold or hunger. Sentient beings also relate to other beings – including humans – and show awareness of their environment. While opinions differ regarding whether it means that animals’ welfare is an intrinsic value in itself,2 the fact remains that the animals’ sentience is legally recognised to matter and their welfare requirements must be considered. However, farm animals – which are covered by Article 13 TFEU – are simultaneously classed as tradable goods and thereby subject to Internal Market provisions and the Free Movement of Goods acquis. This dual classifcation, that of sentient animals and tradable goods creates an inherent tension as legislation applicable to goods are rarely appropriate to apply to sentient beings. Nonetheless, it is the legal framework which the animals are subject to. It should be noted, that would an issue arise where the Internal Market and Free Movement of Goods provisions are in confict with animal welfare provisions, case law indicates that the Internal Market provisions would triumph.3 The EU has chosen to regulate farm animals within the Goods provisions through the

1 Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C326/47, Article 13 (hereinafter TFEU). 2 L. Vilkka, The Intrinsic Value of Nature (Rodopi, 1997), 37. 3 C-1/96 R v. Minister of Agriculture Fisheries and Food ex parte Compassion in World Farming [1998] ECLI:EU:C:1998:113, C-5/94 R v. Ministry of Agriculture, Fisheries and Food, ex parte: Hedley Lomas (Ireland) Ltd. [1996] ECLI:EU:C:1996:205.

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use of directives and minimum harmonisation. The legislation applicable to farm animals on the farm are four4 Directives (98/58/EC, 1999/74/EC, 2007/43/ EC and 2008/102/EC) all of which have one conspicuous commonality; their titles all refer to laying down rules or standards for the protection of the farm animals – not their welfare. Yet, the EU present it as legislation regarding animal welfare on the farms.5 This raises the question as to whether the protection referred to in the titles of the Directives actually refer to protection, rather than welfare. This article explores the question of whether the EU legislation on the protection of farm animals actually do protect their welfare or not. This is answered by a discussion around the problem with the lack of a clear defnition of what the concept of animal welfare means, before a thematic examination of the legislation from a zoocentric perspective. A zoocentric perspective allows for an analysis of the legislation with an emphasis on how the animals perceive, interpret, and respond to their environment,6 as it is the legislation which regulates their environment. It should also be highlighted that this chapter addresses animal welfare, and not animal rights, as the author argues7 that welfare and rights are two inherently different concepts and topics.8

No defnition of animal welfare There is no legal defnition of the concept of animal welfare. Indeed the concept itself is fairly new as it did not gain momentum until the post-war era.9 The origin can be traced to the United Kingdom and a governmental proposal in 1965.10 However, it was not until 1979 when the Farm Animal Welfare Council (FAWC) released a press notice containing the frst written reference to the Five Freedoms. The Five Freedoms are: Freedom from Hunger and Thirst, Freedom from Discomfort, Freedom from Pain, Injury or Disease, Freedom to Express Normal Behaviour and Freedom from Fear and Distress. In time, these freedoms

4 There are also slaughter (Council Directive 93/119/EC) and transport (Council Regulation (EC) No 1/2005), but they do not concern the farm animals while they are on the farm. 5 European Commission, ‘Animal welfare on the farm’ (European Commission), https://ec .europa.eu/food/animals/welfare/practice/farm_en, accessed on 20 January 2019. 6 Vilkka, The Intrinsic Value of Nature, (n. 2) 37. 7 Longer discussion, see Moa Näsström, ‘Farm Animal Welfare in the European Union – A Critical Analysis’ (PhD Thesis, University of Leeds, 2016), at 1.2. 8 Selection of extensive literature: S.M. Wise, Rattling the Cage Toward Legal Rights for Animals (De Capo Press, 2014); J. Zeis, The Rights of Pigs and Horses (Blackwell Publishing Ltd., 2012); F. Bailey Norwood, J.L. Lusk, Compassion, by the Pound Economics of Farm Animal Welfare (OUP, 2011); M.C. Appleby, ‘Whom should we eat? Why veal can be better for welfare than chicken’ in M.C. Appleby, D.M. Weary, P. Sandøe (eds.), Dilemmas in Animal Welfare (CABI International, 2014), 6.3. 9 R. Garner, ‘Animal Protection and Legislation in Britain and the United States,’ The Journal of Legislative Studies 5(2) (1999): 92, 93–94. 10 J. Vapnek, M. ‘Chapman, Legislative and regulatory options for animal welfare’ (Food and Agriculture Organisation of the United Nations, 2010), 1.3.

Animal welfare in the EU 161 were recognised as being too narrow in their scope and subsequently, the EU’s Directorate General for Health and Food Safety (DG Santé)11 have expanded the freedoms to the following: • • • • •

Freedom from Hunger and Thirst requires that the animals have access to fresh water and a diet suited to maintain health and vigour. Freedom from Discomfort requires an appropriate environment with shelter and comfortable resting areas for the animals. Freedom from Pain, Injury, or Disease requires preventative measures or rapid diagnosis and treatment should the need arise. Freedom to Express Normal Behaviour requires facilities for the animal, and company of the animal’s own kind. Freedom from Fear and Distress requires conditions for and treatment of the animal, which avoid mental suffering.12

DG Santé actively promotes the expanded freedoms and has recognised it as defning the ‘ideal states of animal welfare’ and forming the basis of the EU’s policy on the matter.13 From a zoocentric perspective, is benefcial that DG Santé promotes the expanded freedoms, as they are considerably clearer than the original formulation. However, identifying the expanded freedoms as an ideal state of animal welfare raises alarm bells, particularly if they are to be used as the basis for the EU’s policy. These expanded freedoms, while admittedly more comprehensive than the original fve, are far from an ideal state of animal welfare and they have been criticised.14 Indeed, rather than being labelled as ideal, zoocentrically, it would be more appropriate to consider the expanded freedoms to be a ‘foor’, i.e. the absolute minimum level of animal welfare that is acceptable within the EU. Nonetheless, defning the concept of animal welfare is a diffcult task, and unfortunately, it does not help the lawyer who is searching for a defnition to look towards science. There is not one commonly established defnition of animal welfare within the feld of science either. Rather, there are numerous approaches or ‘schools of thought’ in the area. The main ones are: the physical approach, emotional welfare, natural behaviour, and the ethological approach.

The different welfare schools of thought The physical approach focuses solely on the physical wellbeing of the animal, that is to say, the animal’s functioning and its physical environment.15 Broom defnes

11 Previously DG SANCO, name changed in 2015. 12 European Commission Health & Consumer Protection Directorate-General, ‘Animal welfare factsheet’ (2007). 13 Ibid. 14 D.J. Mellor, ‘Updating animal welfare thinking: Moving beyond the “fve freedoms” towards “a life worth living”,’ Animals 6 (2016): 21. 15 Vapnek, ‘Chapman,’ (n. 10) 1.2.

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the welfare of an individual animal as its state in regards to its attempts to cope with its environment.16 The core of the approach is the idea that animals cope with the environment they fnd themselves in through a range of behavioural and physiological responses.17 Scientists adhering to this approach focus their research on measuring physiological responses and thereby assessing how it copes with its environment. This approach thus provides objective data for the assessment of how the animal is coping; however, there is a pronounced risk of false data – a heart rate increases both from stress (negative) and excitement (positive) causes.18 The beneft (for the farmer) is that the data can be used in selective breeding to optimise production levels/growth, thus maximising productivity, as the focus is on ‘biological ftness’. 19 The emotional welfare approach places the emphasis on feelings due to the underlying rationale that animals’ feelings are necessary to ensure their survival as their emotions have developed to protect their primary needs.20 Duncan argues that all living organisms have needs which must be satisfed in order to ensure the organism’s survival and higher organisms have feelings which motivate their behaviour to meet these needs.21 Emotional welfare is usually assessing the animals’ welfare by measuring their behaviour, paying particular attention to signs of fear or frustration. While there are benefts with this approach – none the least that it is necessary to consider the emotional welfare in order to fulfl the legal obligations humans have towards the animals, it is not problem free. A problem with this approach to measuring welfare is that such a method is inherently subjective in its nature, as it relies on human observations. Human observations can be compromised or skewed due to anthropomorphist infuences of the researcher, even on a subconscious level. Natural behaviour is an animal welfare theory which operates on the premise that animals fare well when they have the opportunity to perform their full range of behaviour and live according to their nature.22 According to this approach, natural behaviour refers to the observable actions and mannerisms of the animal

16 D.M. Broom, ‘Indicators of poor welfare,’ British Veterinary Journal 142 (1986): 524, pp. 524–26. 17 J.L. Barnett, P.H. Hemsworth, ‘Welfare monitoring schemes: Using research to safeguard welfare of animals on the Farm,’ Journal of Applied Animal Welfare Science 12 (2009): 120. 18 C.J. Hewson, ‘What is animal welfare? Common defnitions and their practical consequences,’ Canadian Veterinary Journal 44(6) (2003): 496, pp. 496–99; M. Dawkins, ‘The science of animal suffering,’ Ethology 144 (2008): 937. 19 B. Bock, H. Buller, ‘Healthy, happy and humane: Evidence in farm animal welfare policy,’ Sociologia Ruralis 53(3) (2013): 390, 394. 20 I.J.H. Duncan, Poultry Welfare: Science or Subjectivity? (Taylor & Francis Group, 2002); Hewson, ‘What is animal welfare?,’ (n. 19) 496–99. 21 I.J.H. Duncan, ‘A concept of welfare based on feelings,’ in G.J. Benson and B.E. Rollin (eds.), The Well-Being of Farm Animals: Challenges and Solutions (Blackwell, 2004), 95–101. 22 B.E. Rollin, Animal Rights and Human Morality (Prometheus Books, 1981), 54–57; M. Kiley Worthington, ‘Ecological, ethological and ethically sound environments for animals: Towards symbiosis,’ Journal of Agricultural Ethics 2 (1989): 323, pp. 323–47.

Animal welfare in the EU 163 combined with its environment.23Accordingly, natural behaviour pertains to different things for each species (due to their differences). The differences render the natural behaviour approach inherently complex. Nonetheless, in industrialised countries, the importance of animals’ ability to express their natural behaviour is a fervent opinion among the general public.24 Consequently, intensive husbandry systems are frequently severely criticised due to the impossibility for animals to behave naturally within them.25 One problem with this approach is that the ethos of natural behaviour (and living) would in some cases cause physical suffering; for example, the animal being cold in the winter or mental suffering due to being preyed upon – both of which would be acceptable.26 Indeed, it can even be interpreted to mean the way the animals behave in the wild, which would represent a life-and-death struggle for the animals’ survival on a daily basis.27 This is especially as modern farm animals have been ‘engineered’ in such a way that they would not survive in the wild on their own.28 It must be emphasised that natural behaviour is a separate concept from normal behaviour (one of the freedoms). The last of the main approaches is that of ethological needs based on research from the feld of applied ethology. The importance of ethological needs is recognised in EU legislation, but they are also vital for the welfare of animals. Like the natural behaviour approach, ethological needs are intrinsically complex due to their species-specifc nature. Due to the complexity of the approach, the most uncomplicated way of explaining it is by an example; the physiological need to feed and how it amounts to an ethological need. Contemporary farm animals are descendants of wild ancestors who spent the majority of their time foraging for food. Despite subjecting animals to numerous generations of selective breeding, physiological needs remain as core behaviour, unchanged and pronounced. The consequence of the wild ancestry, domesticated farm animals remain highly motivated – with a compelling need – to conduct foraging behaviour, despite food being readily available to them.29 Indeed, even if

23 W.M. Muir, H. Wei Cheng, ‘Genetic infuences on the behaviour of chickens associated with welfare and productivity,’ in T. Garndin, M.J. Deesing (eds.), Genetics and the Behaviour of Domestic Animals (Elsevier Inc., 2014), 317. 24 J.L. Barnett, P.H. Hemsworth, ‘Welfare monitoring schemes: Using research to safeguard welfare of animals on the farm,’ Journal of Applied Animal Welfare Science 12 (2009): 114, 120. 25 Vapnek, ‘Chapman,’ (n. 10) 1.2; C.J. Savory, ‘Laying hen welfare standards: A classic case of power to the people,’ Animal Welfare 13 (2004): 153, pp. 153–58; Hewson, ‘What is animal welfare?,’ (n. 19) 496–99. 26 D.M. Broom, ‘Animal welfare: An aspect of care, sustainability, and food quality required by the public,’ Journal of Veterinary Medical Education 37(1) (2010): 83, 86. 27 M. Dawkins, Animal Suffering: The Science of Animal Welfare (Chapman and Hall, 1980). 28 F. Bailey Norwood, J.L. Lusk, Compassion, by the Pound Economics of Farm Animal Welfare (OUP, 2011); M. Cole, ‘From “Animal machines” to “happy meat”? Foucault’s ideas of disciplinary and pastoral power applied to “animal-centred” welfare discourse,’ Animals 1 (2011): 83, 88. 29 C.C. Croney, S.T. Millman, ‘Board-invented review: The ethical and behavioural bases for farm animal welfare legislation,’ Journal of Animal Science 85 (2007): 556, 561; Jensen, Hur mår maten?, (n. 34) 42.

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the feed has been carefully composed in order to ensure that all physiological needs of the animals are satisfed, they will still have the need to forage.30 This need to forage amounts to an ethological need. One way of providing an outlet for foraging behaviour is environmental enrichment. However, it is essential that this enrichment must be suitable for the specifc purpose and of sufficient quantity. For example, if straw is provided to a sow to satisfy her strong nesting need, merely ‘some’ straw is not satisfactory, rather it must be suitable and of suffcient quantity to enable the sow to build something she would consider a nest.31 Ethological research has also shown that hindering the performance of the animals’ ethological needs leaves the animals emotionally distressed.32 The author acknowledges that all approaches have their own merits and faws. Therefore, it is argued that a combination of the benefcial aspects cancels out their individual faws and results in a workable, rounded defnition of animal welfare, thereby safeguarding the animals’ wellbeing. It is thus argued that: a defnition of animal welfare ought to consider the animal as a whole, rather than focusing on different aspects of its entity. Avoiding the narrow focuses of the physiological and the emotional approaches, by including them both, means they cancel out the others’ faws. Combining those two approaches with the recognition of the importance of enabling the animals’ natural behaviours, derived from their ethological needs, completes the rounded defnition.

EU Directives The four EU Directives concerning farm animals on the farm all indicate in their title that they aim to protect the animals yet, as noted in the introduction, the EU presents these Directives as the EU legislation on farm animal welfare. Whether the legislation refects the EU’s portrayal of them is the focus of this section as the zoocentric analysis. Arguably, the lack of a legal defnition of animal welfare is benefcial to the EU’s claim of the Directives being welfare ones. If there was a legal defnition along the lines of the rounded one this author advocates, the Directives would fall at the frst hurdle. None of the four Directives contain any reference to the animals’ emotional needs. Indeed, only two of the four approaches are explicitly referred to within the Directives: physiological and ethological needs.33 Considering the titles of the Directives and their inclusion of ‘protection’ rather than ‘welfare’, this is unsurprising.

30 Jensen, Hur mår maten?, (n. 34) 41. 31 Ibid. 32 Désiré, Boissy, Veissier, ‘Emotions of farm animals,’ (n. 32); H.H. Sambraus, ‘Applied ethology – It’s task and limits in veterinary practice,’ Applied Animal Behaviour Science 59 (1998): 39. 33 Directive 98/58 Article 4, Annex 7,11; Pig Directive (7) (2) (d); Broiler Directive Recital (2); Egg Directive Recital (3), Article 2 (2) (c) and Article 10.

Animal welfare in the EU 165 The complete omission of emotional welfare indicates that the sentience of the animals is not of prime concern – despite that primary law obliges the sentience to be fully considered. While the author acknowledges that all four Directives predate Lisbon and thus Article 13 TFEU, it is argued that the lack of amendments, to include emotional welfare, in the Directives since then provides a good indication on the importance attributed to that specifc welfare aspect by the legislators. A consequence of the omission of emotional welfare and natural behaviour, the focus of this analysis must rest on the physiological and the emotional welfare approaches, and the balance between them. From the brief summary of the welfare approaches above, it is clear that the physiological approach focuses on the physical wellbeing of the animal, which itself is wholly inadequate as a defnition of the concept of welfare. Thus, particular emphasis will be given as to whether the ethological needs are considered and if so, to a suffcient degree to be able to claim that these Directives indeed aim to protect the animals’ welfare. Upon analysing the four Directives, some common themes emerge regarding welfare consideration (or lack thereof). Rather than going through every single provision in each Directive, the approach in this chapter will be to analyse the provisions in a thematic order. Before embarking on the thematic analysis, it is appropriate to briefy discuss the concept of unnecessary pain (and suffering). This phrase is recurrent in some of the Directives34 and zoocentrically, it is of signifcant importance. Most importantly, Article 3 of Directive 98/58, which applies to all farm animals, with or without species-specifc Directives, obliges the owners/keepers of the animals are to take all reasonable steps to ensure their animals’ welfare and to avoid any unnecessary pain, suffering or injury. The phrase raises the question of whether pain, suffering or injury of the animals ever can be deemed as necessary. This provision is formulated in such a way that it is clearly anthropocentric. The legislators deemed that it is sometimes necessary for animals to experience pain, suffering, or injury for the beneft of humans. From a zoocentric perspective, such phrasing is unacceptable, as the Article approves the suffering of sentient beings for human gain. Indeed, zoocentrically speaking, the only acceptable pain, suffering, or injury would be as a direct result of medical treatment with the purpose of restoring the animal’s health, providing that the pain and suffering the treatment causes would be proportionate to the severity of the medical issue and not cause more pain or suffering than the original ailment.35 Additionally, it is worth highlighting the subjective nature of the concept of suffering, which is notoriously diffcult to determine scientifcally,36 therefore making the decision as to whether suffering is necessary highly arbitrary. The inclusion and usage of this phrase within the

34 Egg Directive Annex point 7; Directive 98/58 Article 3, Annex points 7, 14; Pig Directive; refers to pain, suffering and injury separately without the qualifcation of whether it is necessary. The Broiler Directive is completely silent on any reference to pain. 35 M. Radford, ‘“Unnecessary suffering”: The cornerstone of animal protection legislation considered,’ Criminal Law Review 1999 (1999): 702, 705. 36 M. Dawkins, ‘The science of animal suffering,’ Ethology 144 (2008): 937.

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Directives thus provide the frst indication that the welfare of the animal is not at the forefront of the purpose of the Directives. A second indication of this, is the fact that the Broiler Directive is completely silent on any reference to pain and only mentions suffering and injury once and in direct relation to injuries or health disorder, not in regards to the possibility of pain, suffering, or injury occurring from housing, management, or lack of physiological or ethological welfare.

Mutilations The frst of the thematic welfare issues is that of mutilations. Point 19 in the Annex of Directive 98/58 permits, pending adaptation of specifc provisions, that Member States’ national legislation permits ‘mutilations’. This provision is rather curious, as Article 3 of the same Directive obliges the Member States to ensure that owners or keepers take all reasonable steps to ensure that the welfare of animals under their care and to ensure that those animals are not caused any unnecessary pain, suffering, or injury. Reading the Annex provision in combination with Article 3 results in a clear contradiction. The idea that permitting mutilations somehow is in compliance with ensuring that animals are not caused unnecessary pains, suffering, or injury is nothing but bizarre. The reason for the peculiarity of the combined provisions is that scientists have proved beyond doubt that mutilations cause the animals’ pain and suffering.37 The presence of the qualifcation of ‘unnecessary’ is, from a zoocentric perspective, irrelevant. As discussed above, the only necessary pain or suffering is that related to medical treatment which the mutilations are not. As this is the oldest of the four Directives, there have been specifc provisions adopted since which apply to the concerned species. An analysis of the specifc provisions supports the claim that the mutilations are not medical treatment, and economic motivations are easily detectable in their formulation.

Egg Directive A year after the Directive 98/58, a Directive introducing minimum standards for egg-layers was passed (hereinafter, the Egg Directive).38 The Egg Directive,

37 For a small selection, see for example: N. Jäggin, S. Gerber, U. Schatzmann, ‘General anaesthesia, analgesia and pain associated with the castration of new-born piglets,’ Acta Veterinaria Scandinavica 48 (2006): 12; M. Hay, A. Vulin, S. Genin, P. Sales, A. Prunier, ‘Assessment of pain induced by castration in piglets: Behavioural and physiological responses over the subsequent 5 days,’ Applied Animal Behaviour Science 82 (2003): 201, pp. 201–18; M.J. Gentle, ‘Neuroma formation following partial beak amputation (beak-trimming) in the chicken,’ Research in Veterinary Science 41 (1986) 383, pp. 383–85; G.J. Noonan, J.S. Rand, J. Priest, J. Ainscow, J.K. Blackshaw, ‘Behavioural observations of piglets undergoing tail docking, teeth clipping and ear notching,’ Applied Animal Behaviour Science 39 (1994): 203; S.H. Gordon, D.R. Charles, Niche and Organic Chicken Production (Nottingham University Press, 2002), 207; D.B. Wilkins, ‘Animal welfare in Europe, European Legislation and concerns,’ Kluwer Law International 27 (1997): 24. 38 Egg Directive.

Animal welfare in the EU 167 being the frst to contain any specifc provisions on mutilations is rather brief on the matter. There is only one provision, located in the Annex, which states without prejudice to the provisions of point 19 of the Annex to Directive 98/58/EC, all mutilation should be prohibited.39 Consequently, mutilation is prohibited on an EU-wide scale when it comes to egg-layers. However, point 8 continues and states that the Member States may authorise beak trimming in order to prevent feather pecking and cannibalism. For this authorisation, there are only three criteria: it must be performed by qualifed staff, the chicks must be less than ten days old, and they must be intended for laying. A beak can be trimmed in two different ways: by placing the beak in a cutter which cuts off a third to a half of the upper and lower mandibles using a heated blade which simultaneously cauterises the stump.40 The other option is to cut a hole in the beak, using an infrared beam, which then causes the beak to drop off several days later.41 Any pain-relief is unusual as the prevalent theory is that the beak is made of horny material, thus lacking nerves, and therefore the chick does not feel any pain.42 Studies have disproven this theory, established that the beak does contain sensors, and that trimming provides prolonged periods of pain, a loss of touch, and temperature sensitivity.43 Despite the research fndings, beak trimming continues to be performed without any anaesthetic. Additionally, if the trimming is crude and the mandibles are very uneven, the bird will be hindered from feeding properly, and risk starving to death. Thus, from the physiological perspective, the exception which permits beak trimming has serious implications due to the causation of pain, as well as the additional welfare implications regarding the ethological needs. The mutilation is permitted as a way of preventing feather pecking (pulling feathers from other birds) and cannibalism. Yet, these undesirable vices do not randomly occur, they have underlying reasons. Feather pecking is painful for the victim, and if the pecking causes bleeding wounds it can escalate to cannibalism.44

39 Ibid., Annex 8. 40 A.F. Fraser, D.M. Broom, Farm Animal Behaviour and Welfare, 3rd edition (CABI Publishing, 1997), 383. 41 M.C. Appleby, J.A. Mench, B.O. Hughes, Poultry Behaviour and Welfare (CABI Publishing, 2004), 5.10. 42 Ibid., 5.10; Fraser, Broom, Farm Animal Behaviour, (n. 46) 383. 43 Wilkins, ‘Animal welfare in Europe,’ (n. 43); Fraser, Broom, Farm Animal Behaviour, (n. 46) 383; Gentle, ‘Neuroma formation following partial beak,’ (n. 43) 383–85; M.J. Gentle, E. Seawright, ‘The effects of partial beak amputation on circulating leucocytes in the domestic fowl,’ Medical Science Research 16 (1988): 145, pp. 145–46; J. Breward, M.J. Gentle, ‘Neuroma formation and abnormal afferent nerve discharges after partial beak amputation (beak trimming) in poultry,’ Experientia 41 (1985): 1132; Muir, Wei Cheng, ‘Genetic infuences,’ (n. 25) 330; J.J.V. Craig, W.M. Muir, ‘Selection for reduction of beak-inficted injuries among caged hens,’ Poultry Science 72 (1993): 411; J.V. Craig, W.M. Muir, ‘Group selection for adaptation to multiple-hen cages: Beak related mortality, feathering, and body weight responses,’ Poultry Science 75 (1996): 294. 44 M.J. Gentle, L.N. Hunter, ‘Physiological and behavioural responses feather removal in Gallus gallus domestics,’ Research in Veterinary Science 50 (1999): 9 5; Gordon, Charles, Niche and Organic Chicken, 207.

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The primary reason for these behaviours is the housing of egg-layers in barren environments, which hinder the birds from satisfying their ethological need to peck. However, there are other plausible causes, such as crowding, social disturbance, social learning, stress, boredom, excessive egg size, and insuffcient protein in the diet.45 Worth noting is that pecking has a social dimension to it as well, as pecking is how the social hierarchy is established among the fock.46 Nonetheless, the main reason remains the barren environment, due to the fact that the hens have an instinctive propensity to peck. This need stems from the fact that newly hatched chicks do not suckle and survive independent of the hen; however, they lack the innate ability to recognise food. Therefore, they peck small particles and learn to identify food among them, and shiny surfaces in order to learn to drink water.47 The importance of the instinctive pecking behaviour for poultry cannot be emphasised enough, as without this behaviour they would face certain death. Additionally, beak trimming also hinders the important ethological need of preening to be performed, which is necessary in order to maintain the birds’ plumage, and removing parasites from the feathers.48

The Broiler Directive The Broiler Directive’s (applicable to chickens raised for meat) Annex provision regarding mutilations provides an interesting parallel to the one in the Egg Directive. The Broiler Directive was introduced a decade later and is considerably more detailed in its mutilation provision. Annex I point 12 states that all surgical interventions which are not of a therapeutic or diagnostic purpose, and results in damage or loss of a sensitive part of the body, or alters the bone structure is prohibited. The degree of details in comparison is signifcant. It should, however, be highlighted that unlike for egg-layers, this provision means that broilers can be subject to surgery, albeit within the limitations of point 12. Arguably, one of the plausible ‘surgeries’ is castration, which may be permitted on a Member State level.

45 Appleby, Mench, Hughes, Poultry Behaviour, (n. 43) 5.10; B.O. Hughes, I.J.H. Duncan, ‘The infuence of strain and environmental factors upon feather pecking and cannibalism in fowls,’ British Poultry Science 13 (1972): 525 in B.O. Hughes and C.J. Savory, ‘Behaviour welfare,’ British Poultry Science 51(1) (2010): 13–14; C. Ekstrand, ‘Inhynsningssystem: Månge alternative,’ Forskningsnytt om Æekologiskt landbruk i Norden 4 (1996): 9–11; Gordon, Charles, Niche and Organic Chicken, (n. 43) 207. 46 Gordon, Charles, Niche and Organic Chicken, (n. 43) 206; Hughes, Duncan, ‘The infuence of strain,’ (n. 51) 14. 47 Appleby, Mench, Hughes, Poultry Behaviour, (n. 43) 3.5, 4.2., 4.7, 5.7; J.A. Hogan, ‘Development of food recognition in young chicks. I. Maturation and nutrition,’ Journal of Comparative and Physiological Psychology 83 (1973): 355, pp. 355–56; J.A. Hogan, ‘The development of a hunger system for young chicks,’ Behaviour 39 (1971): 128. 48 Appleby, Mench, Hughes, Poultry Behaviour, (n. 43) 4.11; R.S. Ostfeld, D.N. Lewis, ‘Experimental studies of interactions between wild turkeys and black legged ticks,’ Journal of Vector Ecology 24 (1999): 182.

Animal welfare in the EU 169 As in the Egg Directive, beak trimming is explicitly permitted if the Member State authorises it – but with an additional condition. Other possible preventative measures to prevent the pecking and cannibalism must frst be exhausted. This qualifcation on the permission has additional demands, the beak trimming may only be carried out after consultation by a veterinarian, by qualifed staff on chickens that are less than ten days old. If point 12 is complied with to the letter, the point of permitting beak trimming on broilers in a Member State is void. Broilers are bred for their high growth rate, and grow four times faster than egg-laying varieties and reach slaughter weight at around forty days.49 However, during the frst ten days of their lives, the broiler chicks are comparatively small – compared to their slaughter weight – and have a decent amount of space to move around in. As stocking density levels and boredom are two major reasons for feather pecking and cannibalism among broilers, these problems are unlikely to manifest at such an early stage of their lives. The reason being that due to their rapid growth, the stocking density is not high enough to create issues in the early stages of their lives. Additionally, as the chicks are still fully mobile at this stage (as their weight gain is yet to cause skeletal dysfunction and reduced mobility) they have plenty of litter to peck in. In addition to the occurrence of the unlikely problem, preventative measures must frst be taken and subsequently established to have failed, before the veterinarian can be consulted on the matter. The time scale is consequently doubtful.

The Pig Directive Recital 11 of the Pig Directive explicitly recognises that tail-docking and toothclipping/grinding are likely to cause immediate pain as well as some prolonged pain to the pigs. Castration is deemed likely to cause prolonged pain, particularly if it is performed by tearing of tissues. Indeed, those practices are therefore detrimental to the welfare of pigs, yet, they are permitted in the Annex.50 The Recital does call for laying down rules to ensure better practices, and one may then question why such a call is included in the Recital rather than seizing the opportunity and establishing better practice rules within the Directive. This is particularly worrisome as the Recital explicitly states that these mutilation practices are detrimental to the welfare, and is a further indication that perhaps the welfare of the pigs was not at the forefront of the drafting of this Directive. The list of permitted mutilations is rather extensive for pigs: docking part of the tail, uniform reduction of corner teeth (teeth-clipping), castration of male pigs, nose-ringing, and procedures carried out for therapeutic or diagnostic purposes.51 If relevant (Member State) legislation permits, procedures intended for

49 Appleby, Mench, Hughes, Poultry Behaviour, (n. 43) 2.9; P. Stevenson, ‘EU Directive on the welfare of meat chickens’ (Compassion in World Farming, 2007). 50 Pig Directive, Annex 1 Chapter 1 point 8. 51 Ibid.

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identifcation are also permitted by the Directive.52 Nose-ringing is only permitted in outdoor husbandry systems if national legislation allows it. The purpose of nose-ringing, the placement of a metal ring in the pig’s snout, is to limit damage to pasture caused by rooting. It is effective as the nose-ring discourages the pigs’ innate behaviour of rooting by causing them discomfort.53 The welfare impact of nose-ringing is that the pigs are effectively punished for behaving as pigs and thus, from a zoocentric and ethological perspective, permitting nose-ringing has a clear detrimental impact on welfare. The sub-group of pigs which are subject to most mutilations are piglets. There are divergent theories as to whether piglets feel pain: the prevalent theory has long been that they do not as their neuro-anatomy is not fully developed.54 Based on this theory, any mutilation performed should be performed as early as possible, preferably on day-old piglets, as they cannot feel pain and therefore no anaesthetics are necessary. However, more recent research questions this theory, and fndings have proved that piglets do feel pain from the time they are born. Accordingly, these mutilations cause stress and pain to the piglets and are detrimental to their welfare – regardless of when they are performed.55 Unfortunately, the do-not-feel-pain theory endures in the Pig Directive, as point 8 of the Annex requires that if castration or docking of tails is practised after the seventh day of life, it shall only be performed under anaesthetic and additional prolonged analgesia by a veterinarian. This provision implies that the piglets do not feel (any) pain or suffcient amount of pain to warrant a requirement of using anaesthetics until after the frst week (when the neuro-anatomy would be more developed.) In light of the research confrming that piglets do feel pain, this Annex provision becomes incompatible with Article 5 of the Pig Directive, as it requires amendment of the Annex on account of scientifc progress. Indeed, Recital 11 acknowledges the painfulness and the detrimental impact the mutilations have on the piglets’ welfare and calls for rules to be laid down to ensure better practices. Arguably the frst better practice ought to be to amend the Annex and require anaesthetics for all procedures, regardless of when they are performed, as we know that piglets do feel pain. The procedures performed on piglets are: teeth-clipping, tail-docking, and castration, all of which have considerable negative welfare impacts. Piglets are

52 A common way of identifying the pigs are ear notching, which is likely to cause fear, stress and potential pain. B. Puppe, M.-C. Meunier-Salaün, W. Otten, P. Orgeur, ‘The welfare of piglets,’ in L. Faucitano and A.L. Schafer (eds.), Welfare of Pigs from Birth to Slaughter (Wageningen Academic Publishers, 2008), 6.1. 53 A. Bassett, ‘Technical paper No. 16’ (Animal Welfare Approved, 2011); R. Bergeron, M.-C. Meunier-Salaün, S. Robert, ‘The welfare of pregnant and lactating sow,’ in L. Faucitano and A.L. Schafer (eds.), Welfare of Pigs from Birth to Slaughter (Wageningen Academic Publishers, 2008), 4.4. 54 S. Held, J.J. Cooper, M.T. Mendl, ‘Advances in the study of cognition, behavioural priorities and emotions,’ in J.N. Marchant-Forde (ed.), The Welfare of Pigs (Springer, 2009), 3.2.1.3. 55 Puppe, Meunier-Salaün, Otten, Orgeur, ‘The welfare of piglets,’ (n. 60) 6.1.

Animal welfare in the EU 171 born with fully erupted corner teeth, also known as ‘needle teeth’, which are necessary as the piglets in a lit are in competition over teat access.56 The needle teeth are closely related to the piglets’ survival instincts, as they are wholly dependent on the sow as a heat source and food in order to survive.57 However, the needle teeth risk causing facial lacerations on the fellow piglets and damaging the sow’s teats,58 a problem which is exacerbated by breeding larger litters, which increases the teat-rivalry among the piglets, as the number of teats remains unchanged.59 To prevent injuries, teeth-clipping is a common occurrence. Teethclipping entails reducing the needle teeth in a uniform manner by either clipping or grinding, and studies have shown that this causes discomfort, pain, and distress to the piglet.60 It is worth emphasising that teeth-clipping is undesirable for the individual piglet’s welfare, due to trauma and prolonged pain. However, if the collective welfare of the litter as a whole is prioritised, the situation changes. If all piglets in a lit have their teeth-clipped as a preventative measure, then their collective welfare increases due to the prevention of injuries. Thus, there are clear benefts and disadvantages of teeth-clipping, regardless of which, the fact that it is permitted without an anaesthetic before the seventh day of life remains a clear detriment to the piglets’ welfare. The Pig Directive also permits the practice of tail-docking, and due to the seventh-day rule, the docking is likely to be performed on piglets. Tail-docking entails the severance of the whole or part of the tail as a preventative measure to the vice of tail-biting. Tail-biting commonly occurs when pigs are reared in barren environments, as their innate investigatory behaviour must fnd an outlet, despite the lack of environmental enrichment.61 Tail-docking without anaesthetics is painful and distressing for the piglet and may lead to prolonged pain.62

56 D. Fraser, B.K. Thompson, ‘Armed sibling rivalry among suckling piglets,’ Behavioural Ecology and Sociobiology 29 (1991): 9. 57 R.B. D’Eath, S.P. Turner, ‘The natural behaviour of the pig,’ in J.N. Marchant-Forde (ed.), The Welfare of Pigs (Springer, 2009), 2.4.9., 2.5.5. 58 Held, Cooper, Mendl, ‘Advances in the study of cognition,’ (n. 60) 3.2.1.3. 59 M. Baxter, K.M.D. Rutherford, R.B. D’Eath, G. Arnott, S.P. Turner, P. Sandøe, V.A. Moustsen, F. Thorup, S.A. Edwards, A.B. Lawrence, ‘The welfare implications of large litter size in the domestic pig II: Management actors,’ Animal Welfare 22 (2013): 219. 60 G.J. Noonan, J.S. Rand, J. Priest, J. Ainscow, J.K. Blackshaw, ‘Behavioural observations of piglets undergoing tail docking, teeth clipping and ear notching,’ Applied Animal Behaviour Science 39 (1994): 203; J.S. Rand, G.J. Noonan, J. Priest, J. Ainscow, J.K. Blackshaw, ‘Oral administration of a 12% sucrose solution did not decrease behavioural indicators of distress in piglets undergoing tail docking, teeth clipping and ear notching,’ Animal Welfare 11 (2002): 395. 61 K. Breuer, M.E.M. Sutcliffe, J.T. Mercer, K.A. Rance, N.E. O’Connell, I.A. Sneddon, S.A. Edwards, ‘Heritability of clinical tail-biting in pigs and its relation to performance traits,’ Livestock Production Science 93 (2005): 87. 62 Noonan, Rand, Priest, Ainscow, Blackshaw, ‘Behavioural observations,’ (n. 43); L. Rydhmer, N. Lundheim, ‘Breeding pigs for improved welfare,’ in J.N. Marchant-Forde (ed.), The Welfare of Pigs (Springer, 2009), 9; H.B. Simonsen, L. Linken, E. Bindseil, ‘Histopathology of intact and docked pig tails,’ British Veterinary Journal 147 (1991) 407; Breuer, Sutcliffe,

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Before both teeth-clipping and tail-docking are permitted, other preventative measures must be taken such as the environment and stocking densities – which are both required to be changed before the procedure is performed. The last of the major mutilations performed on (male) piglets is castration. The seventh day of life rule applies, after which pain relief is required. There are two main reasons for castrating piglets: controlling aggressive behaviour towards other pigs (due to sexual development) and reducing the prevalence of boar taint in meat.63 It must be acknowledged that a reduction of aggressive behaviour has inherent welfare benefts; however, the expected diminished effect does not always follow64 and therefore the pain caused by castration becomes a major problem.65 Approximately 100 million piglets are castrated annually in the EU, the majority without any pain relief, consequently the welfare impact of castration is enormous.66 Most commonly, the method used is a surgical incision in the scrotum, revealing the testicles which are removed by tearing, cutting, or twisting of the spermatic cord.67 Despite being prohibited by the Directive, the tearing of tissues occurs.68 Numerous studies show that the piglets suffer considerable pain during the castration, and signs of which have been recorded up to six days after the castration, as well as an increase in mortality rates.69 There are

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Mercer, Rance, O’Connell, Sneddon, Edwards, ‘Heritability of clinical tail-biting,’ (n. 43); Jensen, Hur mår maten?, (n. 34) 42; Rand, Noonan, Priest, Ainscow, Blackshaw, ‘Oral administration,’ (n. 43). M. Hansson, N. Lundeheim, G. Nyman, G. Johansson, ‘Effect of local anaesthesia and/or analgesia on pain responses induced by piglet castration,’ Acta Veterinarian Scandinavica 53 (2011): 3; W.J.A. Boersma, J. Meulen, T.A. Niewold, ‘Balance between porcine disease and welfare,’ in J.N. Marchant-Forde (ed.), The Welfare of Pigs (Springer, 2009), 8.5.3. Studies show that taint can be detected in barrows as well, in one study as many as 31% of the barrows were tainted. L. Xue, G.D. Dial, ‘Raising intact male pigs for meat: Detecting and preventing boar taint,’ Swine Health and Production 5(4) (1997): 151, 154; C.A. Cowan, R.L. Joseph, ‘Production and quality of boar and castrate bacon. 2. Consumer and panel response to bacon and fat samples,’ Iranian Journal of Food Science and Technology 15 (1981): 105. EFSA, ‘Opinion of the scientifc panel on animal health and welfare on the request from the commission related to welfare aspects of the castration of piglets,’ EFSA Journal 91 (2004): 1; Hansson, Lundeheim, Nyman, Johansson, ‘Effect of local anaesthesia,’ (n. 69). EFSA, ‘Opinion of the scientifc panel,’ (n. 43); R. Horgan, ‘Piglet castration and EU animal welfare legislation,’ Acta Veterinaria Scandinavica 48 (2006): 52; Jäggin, Gerber, Schatzmann, ‘General anaesthesia, analgesia,’ (n. 43). Jäggin, Gerber, Schatzmann,’ Ibid. P. Stevenson, ‘Investor briefng no 1 – Farm animal welfare: The regulatory and policy landscape’ (Business Benchmark on Farm Animal Welfare, 2011), 6; EFSA, ‘Report and opinion of the scientifc panel on animal health and welfare on the request from the commission related to welfare aspects of the castration of piglets.’(EFSA, 2004); Horgan, ‘Piglet castration,’ (n. 43); Jäggin, Gerber, Schatzmann, ‘General anaesthesia, analgesia,’ (n. 43). J.J. McGlone, J.M. Hellman, ‘Local and general anaesthetic effects on behaviour and performance of two-, and seven-week-old castrated and uncastrated piglets,’ Journal of Animal Science 66 (1988): 3049; Hay, Vulin, Genin, Sales, Prunier, ‘Assessment of pain induced by castration,’ (n. 43); Hansson, Lundeheim, Nyman, Johansson, ‘Effect of local anaesthesia,’ (n. 69); S. Llamas Moya, L.A. Boyle, B.P. Lynch, S. Arkins, ‘Effect of surgical castration on

Animal welfare in the EU 173 non-surgical alternatives to conventional castration, such as immunocastration which has proved effective in inhibiting sexual development, thus reducing boar taint and aggression levels.70 . The underlying cause of boar taint is subject to debate: genetics, breed variations,71 and the aggression between pigs are some likely causes. Even the chemical compound of boar taint is debated, whether it is skatole and/or androstenone which causes the meat to be tainted has been subject to litigation between the EU Member States.72 However, one clear common denominator is that boar taint is signifcantly more prone to occur in intact boars, and one effective way to prevent it is to slaughter the boars before they reach puberty (at a lower weight). Indeed, EU law only requires that carcasses from intact boars, in excess of eighty kilograms73 are tested for boar taint.74 Such an approach would reduce the requirement to castrate as a preventative measure for boar taint, thus improving the welfare for millions of piglets annually.

Environmental enrichment The second theme of welfare issues of this analysis is that of environmental enrichment, or rather, the lack thereof. Environmental enrichment refers to changes (alterations or additions) to the physical and/or social environment of animals in husbandry systems which should enhance the animals’ welfare.75

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the behavioural and acute phase responses of 5 days-old piglets,’ Applied Animal Behaviour Science 111 (2008): 133; Ø.V. Sjaastad, K. Hove, O. Sand, ‘Physiology of domestic animals’ (Scandinavian Veterinary Press, 2003); Jäggin, Gerber, Schatzmann, ‘General anaesthesia, analgesia,’ (n. 43). EFSA, Ibid.; Horgan, ‘Piglet castration,’ (n. 43); Boersma, Meulen, Niewold, ‘Balance between porcine disease,’ (n. 43) 8.5.3; X.Y. Zeng, J.A. Turkstra, R.H. Meloen, X.Y. Liu, F.Q. Chen, W.M. Schaaper, H.B. Oonk, Z. Guo da, D.F. van de Wiel, ‘Active immunization against gonadotrophin releasing hormone in Chinese male pigs, effects of dose on antibody titer, hormone levels and sexual development,’ Animal Reproduction Science 70 (2002): 223. J.J. Babol, G. Zamaratskaia, R.K. Juneja, K. Lundström, ‘The effect of age on distribution of skatole and indole levels in entire male pigs in four breeds; Yorkshire, Landrace, Hempshire and Duroc,’ Meat Science 67 (2004): 351; Xue, Dial, ‘Raising intact male pigs for meat,’ (n. 70) 155. C-102/96 Commission of the European Communities v Federal Republic of Germany [1998] ECLI:EU:C:1998:529; C-445/06 Danske slagterier v Bundensrepublik Deutschland [2009] ECLI:EU:C:2008:464. Science suggests that the taint is particularly prominent in the growth period of 100–130kgs, thus making the requirement of testing carcasses 80kg and above cautious approach. Xue, Dial, ‘Raising intact male pigs for meat,’ (n. 70) 153. Directive 64/433/EEC of 26 June 1964 in health problems affecting intra-community trade in fresh meat (1964) OJ 121 repealed and replaced by Directive 2004/41/EC of the European Parliament and of the Council of 21 April 2004 repealing certain Directives concerning food hygiene and health conditions for the production and placing on the market of certain products of animal origin intended for human consumption and amending Council Directives 89/662/EEC and 92/118/EEC and Council Decision 95/408/EC [2004] OJ L157/33. F.E. Clark, ‘Cognitive enrichment and welfare: Current approaches and future directions,’ Animal Behaviour and Cognition 4(1) (2017): 52.

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The Egg Directive In January 2012 housing systems with conventional cages (a.k.a. battery cages) for egg-layers were banned throughout the EU, after a thirteen-year-long implementation phase.76 In regards to animal welfare, the banning of battery cages was a victory as they were wholly inadequate to meet the hens’ welfare needs. However, it was not a complete victory as so-called ‘enriched cages’ are still permitted.77 In spite of the restrictions a caged system has of movement, the enriched cages are a step in the right direction in regards to the ethological needs of the hen. Enriched cages are required to contain perches, nests, and litter,78 thereby providing enrichment which is a prerequisite for the satisfaction of the hens’ core ethological needs, albeit in a highly confned space. The provisions governing the housing systems which use enriched cages are highly detailed and include the minimum of a 750 cm2 area per hen, the minimum amount of perch per hen (15 cm), and regulating the number of drinking nipples per hen.79 Article 2(2)(c) defnes that the litter required is intended to enable the hens to satisfy their ethological needs. This is the only provision in the Egg Directive which explicitly provides an example of how the enrichment is intended to satisfy ethological needs.80 Thus, from an ethological perspective, the enriched cages are an improvement compared to battery cages, but there is still room for improvement. Alternative housing systems (i.e. non-caged, free-range systems) are addressed at length in Chapter I of the Directive. While ethological needs are not explicitly included in this chapter either, the litter requirement is far more specifc. In relation to the specifc cages it merely states that the hens must have (c) litter such that pecking and scratching are possible, while in the free-range systems the all laying hens must have (e) at least 250 cm2 of littered area per hen, the litter occupying at least one third of the ground surface. The difference is signifcant as the caged variety, in theory, can be legally satisfed by a very small amount of litter, too small to satisfy the ethological need. Alternative housing provisions also include requirements for nests (or group nests),81 perches82, and with specifc provisions for systems where the hens can move freely between levels. Lastly, if the hens have access to open runs, they have to be equipped with shelter from inclement weather and predators. Requiring shelter from weather and in particular predators are essential, as otherwise, it is unlikely that the hens will utilise the open runs to the full extent, as they are easily frightened.

76 77 78 79 80 81 82

Egg Directive, Article 5(2) – January 2012 and the Directive was passed in 1999. Ibid., Chapter III. Ibid., Article 6 (1) (b)–(d). Ibid., Article 6 (1) (a), (d), (3). The contrast with the reference to litter in the Broiler Directive, below, is interesting. Egg Directive, Article 4 (1) (1) (c). Ibid., Article (1) (1) (d).

Animal welfare in the EU 175 As noted above, perching is a fundamental ethological need for hens, which both enriched cages and alternative housing systems are required to satisfy; there must be perches available to the hens. However, there are more benefts to perching for egg-layers than ‘just’ the satisfaction of the ethological need. Modern hens intended for egg-laying have been selectively bred to maximise the number of eggs they lay. This puts a signifcant strain on the hens’ bodies, one specifc problem is that of calcium depletion. The shell of the eggs drains a lot of calcium from the hens, and in addition to ensuring they have a high level of calcium in their feed, environmental enrichment can help. Studies have shown that perching improves the bone strength in the hens, particularly in those who are housed in multi-levelled systems. Indeed, the perches’ provision in regards to alternative systems provides that the horizontal distance between perches must be at least 30 cm and the horizontal distance between the perch and the wall must be at least 20 cm.83 This stipulation is very important, as the specifc distances are intended to ensure that there is suffcient amount of space between and around the perches so that the hens are able to mount, dismount, and move between themselves in a safe manner. The importance of this is underlined as, due to their calcium depletion, egg-layers are prone to break their legs, particularly when misjudging distances to and between perches. However, it must be emphasised that despite the potential risk of fractures associated with perches, the overall impact on the hens’ (physiological and ethological) welfare, on balance, outweighs the fracture-risk. Overall, since the banning of battery cages, the ethological welfare of the hens is reasonably well-satisfed, especially in comparison to their broiler ‘cousins’; below follows an overview of how differently the broilers are treated in law, despite being the same species as the egg-layers and therefore having the same ethological needs.

The Broiler Directive Unlike for the egg-layers, there is no requirement laid down in the Broiler Directive requiring environmental enrichment. While the lack of nests (compared to egg-layers) is logical, the omission of requiring other kinds of enrichment is not. Most signifcantly, there is no mention of perches – despite the ethological importance of perching for birds. Perching, especially during the night, is the natural behaviour for broilers, and by not providing any perches, this behaviour is completely denied. However, there is arguably one reason for this as studies indicate that perches provided to broilers are generally unused.84 This does not detract from the

83 Ibid., Article (1) (1) (d). 84 Z. Kiyma, K. Küçükyilmaz, A. Orojpour, ‘Effects of perch availability on performance, carcass characteristics, and footpad lesions in broilers,’ Archives Animal Breeding 59 (2016): 19, pp. 19–25; N.F. LeVan, I. Estévez, W.R. Stricklin, ‘Use of horizontal and angled perches by broiler chickens,’ Applied Animal Behaviour Science 65 (2000): 65, pp. 349–65; R. PettitRiley, I. Estévez, ‘Effects of density on perching behavior of broiler chickens,’ Applied Ani-

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ethological need of the birds to use an elevated structure, it merely suggests that the perches are not ideal when it comes to broilers. One reason for this differing behaviour from broilers (compared to egg-layers) would be the difference in their physiology, or rather, lack of agility to mount perches.85 Broilers have been selectively bred to ensure the maximum yield in the white breast meat, and the contemporary broiler has eight times more breast meat than an egg-layer and grows four times faster86. The exceptional growth-rate means the birds reach slaughter weight (2.5kg) approximately forty-two days after hatching87. The growth rate is not without its consequences. It leads to metabolic disorders, musculoskeletal dysfunction, and reduced mobility.88 They gain muscle mass so rapidly that their skeletons cannot keep up, the effect of which is that the birds become incapable of supporting their own body mass89 and eventually they struggle to move around at all due to their weight.90 On occasions where broilers have used perches, the usage peak around four–fve years of age and then declined, likely due to their weight gain. Thus, due to this physiological aspect, studies indicate that raised platforms91 are more appropriate for broilers. Indeed, the raised platforms would mimic the elevation effect of the perching, provides environmental complexity, and improves their leg strength.92 In addition, there are physiological benefts to perching. Of particular importance is the effect perching has on strengthening the bones in the birds’ legs. Studies show that traditional perches strengthen egg-layers’ bones while providing raised platforms strengthens broilers’.93 The strengthening of leg-bones would have enabled the broiler to remain active for longer, thereby reducing the amount of time the birds have to sit or squat in their litter and the associated problems arising from that, such as hock burns and breast blisters.

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mal Behaviour Science 71 (2001): 127; N. Tablante, I. Estévez, E. Russek-Cohen, ‘Effect of perches and stocking density on tibial dyschondroplasia and bone mineralization as measured by bone ash in broiler chickens,’ Journal of Applied Poultry Research 12 (2003): 53. Pettit-Riley, Estévez, ‘Effects of density on perching behaviour,’ (n. 93); Eija Kaukonen, ‘Housing Conditions and Broiler and Broiler Breeder Welfare, the Effect of Litter Conditions on Contact Dermatitis in Broilers and Breeders and the Effect of Elevated Structures on Broiler Leg Health’ (PhD Thesis, University of Helsinki, 2017), 2.3.3. Appleby, Mench, Hughes, Poultry Behaviour, (n. 43) 1.3; D. Sainsbury, Poultry Health and Management, 4th edition (Blackwell Science Ltd., 2000), 5. Compassion in World Farming, ‘The life of: Broiler chickens’ (Farm Animal Welfare Compendium, 2013), 2; EFSA, ‘Scientifc opinion on the infuence of genetic parameters on the welfare and the resistance to stress of commercial broilers,’ EFSA Journal 8(7) (2010): 1666; Stevenson, ‘EU Directive on the welfare of meat.’ Appleby, Mench, Hughes, Poultry Behaviour, (n. 43) 1.2. Fraser, Broom, Farm Animal Behaviour, (n. 46) 382. Kaukonen, ‘Housing Conditions and Broiler,’ (n. 94) 2.2. Arguably raised platforms can be considered perches which can be defned as ‘elevated structures that birds can grasp with their feet and use to survey their environment from.’ Kaukonen, ‘Housing Conditions and Broiler,’ (n. 94) 2.3.3.; EFSA AHAW Panel, ‘Scientifc opinion on welfare aspects of the use of perches for laying hens,’ EFSA Journal 4131 (2015): 13, 4. Kaukonen, ‘Housing Conditions and Broiler,’ (n. 94) 7. Ibid.

Animal welfare in the EU 177 Having already touched upon the litter, it is worth explaining that the permanent access to dry and friable on the surface94 litter have a positive and a negative impact on their welfare. The positive is that the litter is absolutely essential, especially in the early stages of their lives, as the broilers need to peck to learn to identify food. Identifying food is especially important for broilers, as their selective breeding means they have an increased appetite. It is noteworthy though that there is no reference in the Broiler Directive to the ethological needs which can be satisfed by providing the birds with litter, unlike the Egg Directive where it is explicitly defned as a friable material which enables the hen to satisfy their ethological needs. Rather, specifc provisions to the litter require it to be dry and friable on the surface, and water spillage shall be minimised to ensure this, the fact remains that the litter is never changed during their lifespan. The Broiler Directive requires that after the fnal depopulation, all litter must be removed and clean litter provided. Effectively, this means that the broilers walk, sit, and lie on top of a litter which is accumulating their faeces, usually covering the litter completely. The faeces and their breakdown compounds (including ammonia) have a corrosive effect on skin and the broilers develop hock burns and breast blisters.95 This problem is well-known, as the ammonia concentration is regulated in detail in the Broiler Directive,96 and offcial veterinarians at slaughterhouse post-mortem inspections (in order to identify poor welfare conditions) include abnormal levels of contact dermatitis i.e. hock burns.97 Thus, while the litter is indispensable to enable their pecking behaviour it can also have a noticeable detrimental impact on their welfare, as a poorly managed litter commonly causes hock burns and breast blisters.

The Pig Directive In their natural environment, pigs spend a large portion of their time rooting in the ground and foraging for food. This results in an inherent and compelling need for pigs to investigate their surroundings.98 Consequently, pigs that are housed in a barren environment develop stereotypical behaviour99 which is harmful both to themselves and to their fellow pigs, the prime examples being tail-biting and chewing on house-fttings. Thus, environmental enrichment is necessary to stimulate the pigs, enable their compelling need, and therefore satisfy their ethological needs. The Pig Directive requires environmental enrichment by supplying manipulable material to the pigs, defned as: straw, hay, wood, sawdust,

94 Broiler Directive, Annex I point 3. 95 Kaukonen, ‘Housing Conditions and Broiler,’ (n. 94) 2.1.1.1; Fraser, Broom, Farm Animal Behaviour, (n. 46) 382. 96 Broiler Directive Annex II point 3 (a) – applicable to stocking densities of more than 33kg/ m² live weight. 97 Ibid., Annex III point 2. 98 Croney, Millman, ‘Board-invented review,’ 556, 561. 99 Stereotypical behaviour is an ethology term, defned as ‘behavioural patterns performed repetitively in fxed order with no apparent function’. Bergeron, Meunier-Salaün, Robert, ‘The welfare of pregnant,’ (n. 59) 2.1.

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mushroom compost, peat or a mixture of such.100 The Directive also stipulates that: pigs must have permanent access to a suffcient quantity of the material to enable proper investigation and manipulation activities.101 Enriching the environment by providing manipulable materials have numerous benefts for the pigs’ overall welfare. As the Directive requires that suffcient quantities are provided, manipulable materials become an effective way of satisfying the ethological compulsion to root and keeping the pigs stimulated, which results in a reduction in undesirable aggressive behaviour among the pigs. In addition to the general obligation applicable to all pigs, Article 3 (5) requires that the Member States ensure that sows and gilts have permanent access to manipulable materials at least complying with the relevant requirements [cited above]. Consequently, there is a double requirement to ensure that especially sows and gilts always have access to manipulable material. This is further emphasised in the Annex, as it contains an additional requirement that sows and gilts, in the week before the expected farrowing, must be given suitable nesting material in suffcient quantity.102 Unfortunately, the provision carries on and adds unless it is not technically feasible for the slurry system used in the establishment.103 The Annex provision, therefore, highlights two important aspects. The frst aspect is that for the welfare of sows and gilts it is essential that they can engage in nesting behaviour in the week leading up to farrowing, in order to satisfy their strong nesting need. However, to satisfy the nesting need, it is crucial that the material provided is suitable – and of a suffcient quantity – to enable the sow to build something she would consider a nest.104 The second aspect highlighted is a clear example of when provisions aimed to improve the welfare of the animals are negated by other interests, as the slurry system in the establishment is an exception to the obligation. This exemption disregards the strong, compelling ethological needs of the sow105 because of how the building and its slurry system was designed. The lack of nesting materials does not hinder the nesting behaviour from emerging, rather it is aimed towards the (unsuitable) alternative of pen (or crate) fttings.106

100 101 102 103 104 105

Pig Directive, Annex 1 Chapter 1 Article 4. Ibid. Pig Directive, Annex 1 Chapter 2 B 3. Ibid., Annex 1 Chapter 2 B. Jensen, Hur mår maten?, (n. 34) 41. P. Jensen, ‘Nest site choice and nest building of free-ranging domestic pigs due to farrow,’ Applied Animal Behaviour Science 22 (1989): 13; R. Weber, N.M. Keil, M. Fehr, R. Horat, ‘Piglet mortality on farms using farrowing systems with or without crates,’ Animal Welfare 16 (2007): 277, p. 277. 106 S. Jarvis, B.J. Van der Vegt, A.B. Lawrence, K.A. McLean, L.A. Deans, J. Chirnside, S.K. Calvert, ‘The effect of parity and environmental restriction on behavioural and physiological responses of preiparturient pigs,’ Applied Animal Behaviour Science 71 (2001): 203; B.I. Damm, K.S. Verstergaard, D.L. Schroder-Petersen, J. Ladevig, ‘The effects of branches on perpartum nest building in gilts with access to straw,’ Applied Animal Behaviour Science 60 (2000): 113; Weber, Keil, Fehr, Horat, ‘Piglet mortality on farms,’ (n. 122) 277; G.J. Lammers, A. De Lange, ‘Pre- and post-farrowing behaviour in primiparous domesticated pigs,’ Applied Animal Behaviour Science 15 (1989): 31; A.B. Lawrence, J.C. Petherick,

Animal welfare in the EU 179 Therefore this chapter argues that rather than permitting the slurry system exception, the Directive ought to require that the slurry system is constructed in such a way that it is always possible to provide nesting material.

Stocking density The fnal of the three thematic welfare issues which this chapter address are that of stocking density.

The Broiler Directive For broilers, one of the biggest welfare issues is the stocking density, i.e. the number of broiler chicks/m2. It is the common husbandry practice in intensive farming to rear broilers in densely stocked buildings.107 Article 3 (2) of the Broiler Directive states Member States shall ensure that the maximum stocking density in a holding…does not at any time exceed 33kg/m2. Establishing the stocking density limit in kg/m2 complicates the understanding of densely they are housed, especially for the lay-person. Offcial EU statistics show that broilers reared in intensive indoor systems have the average slaughter weight of 2.5kg.108 Using this information to calculate the limit in birds rather than kilograms, shows that around the time of the broilers approaching slaughter weight, the density limit is approximately 13.2 birds/m2. However, Article 3 (3) provides a derogation from Article 3 (2) and permits, if the owner or keeper complies with the requirements of Annex II (in addition to the obligatory Annex I) the stocking density may be higher. This higher density is specifed in Article 3 (4) to 39kg/m2, ergo 15.6 birds/m2.109 Additionally, the 39kg/m2 can be increased by a further 3kg/ m2 if the owner or keeper is also in compliance with Annex V.110 This additional derogation brings the total weight permitted up to 42kg/m2 or 16.8 birds/m2. While 16–17 birds/m2 is not a signifcant amount when the birds are young chicks, as the birds grow the effect of the permitted density increases and when the birds reach slaughter weight they are hard-pressed to move, due to the lack of space.111 In 2000 the European Union’s Scientifc Committee on Animal Health and Animal Welfare’s report found that

107 108 109 110 111

K.A. McLean, L.A. Deans, J. Chirnside, A. Vaughan, E. Clutton, E.M.C. Terlouw, ‘The effect of environment on behaviour, plasma cortisol and prolactin in parturient sows,’ Applied Animal Behaviour Science 39 (1994): 313. Fraser, Broom, Farm Animal Behaviour, (n. 46) 382; Sainsbury, Poultry Health and Management, (n. 95) 1. DG SANTE, ‘Overview report use of slaughterhouse data to monitor welfare of broilers on farm’ (Report (8999) MR 1, 2016). Broiler Directive, Article 3 (4). Ibid., Article 3 (5). A. Briese, J. Hartung, ‘How much foorspace needs a broiler chicken?’ (XV ISAH Congress, Vienna, July 2011), available at https://www.researchgate.net/publication/2697

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Moa Näsström It appears that at stocking densities above 25kg/m2 birds have to spend longer and move more close to feeders and drinkers in order to obtain enough food and water, but, especially in the latter stages of growth, their movements are also considerably restricted elsewhere and activity levels are lower.112

The 25kg/m2 or lower density would also enable major welfare problems related to behaviour and leg disorders to be largely avoided, while densities over 30kg/ m2 see a steep rise in the frequency of serious problems according to the same report.113 Despite this report, the Directive, adopted in 2007, permits signifcantly higher levels of stocking density. Consequently, the EU is aware that the higher stocking densities are likely to increase welfare problems of both an ethological and a biological nature. At high stocking densities, the crowding inevitably restricts the behaviour of the birds and impacts their overall welfare, as the conditions are so congested that it reduces the birds’ ability to move.114 Research has shown that, given the opportunity, broilers do move about extensively, especially if they have access to dustbathing substrates.115 In addition to the restrictions the stocking densities cause on large-scale locomotion, the stocking densities further imposes restrictions on the broilers’ small-scale locomotion, such as preening.116 The ability to preen is a comforting behaviour for the broilers, and a well-kept an indication of welfare, both of which are negated by the restrictions of the small-scale locomotion.117

The Egg Directive Contrasted to the broilers, whose space allotment is designated by kg/m2, the egg-layers’ space is regulated in cm2. In an enriched caging system, laying hens must have at least 750 cm2 of cage area each, 600 cm2 of which must be

112

113 114

115

116 117

64351_HOW_MUCH_FLOOR_SPACE_NEEDS_A_BROILER_CHICKEN, accessed on 11 January 2019. European Union’s Scientifc Committee on Animal Health and Animal Welfare, ‘The welfare of chicken kept for meat production (broilers)’ SANCO.B.3/AH/R15/2000 (March, 2000), 65, 66; J. Turner, L. Gracés, W. Smith, ‘The welfare of broiler chicken in the European Union’ (Compassion in World Farming Trust, 2005), available at https://www.ciwf .org.uk/media/3818904/welfare-of-broilers-in-the-eu.pdf, accessed on 11 January 2019. SANCO (n. 129) 66. Appleby, Mench, Hughes, Poultry Behaviour, (n. 43) 4.9; J.A. Mench, L.J. Keeling, ‘The social domestic birds,’ in L.J. Keeling and H.W. Gonyou (eds.), Social Behaviour of Farm Animals (CABI, 2009), 191–203; Sainsbury, Poultry Health and Management, (n. 95); C.A. Weeks, B.D. Danbury, H.C. Davies, P. Hunt, S.C. Kestin, ‘The behaviour of broiler chickens and its modifcation by lameness,’ Applied Animal Behaviour Science 67 (2000): 111. Dust bathing is important for the birds in order to maintain their plumage condition, and they are strongly motivated to dust bath. Appleby, ‘Whom should we eat?; Appleby, Mench, Hughes, Poultry Behaviour, (n. 43) 4.9, 4.12; R.R.C. Newberry, ‘Exploratory behaviour of young domestic fowl,’ Applied Animal Behaviour Science 63 (1999): 311. Appleby, Mench, Hughes, Poultry Behaviour, (n. 43) 4.9. Ibid., 4.11.

Animal welfare in the EU 181 `usable´118 and no cage shall be smaller than a total of 2000 cm2.119 In addition to the actual space allocation (equivalent to the Broiler stocking limits) is the minimum space requirement for each hen in regards to perches (15 cm/hen) and the feed trough must be at least 12 cm multiplied by the number of hens in the cage. While 750 cm2/hen may seem comparatively big to the broilers, the cm2 is deceptive to a degree. Converting the cm2 to m2 shows that one egg-layer is allocated a minimum of as 0.075 m2, a measurement which provides for a more exact comparison. It should be noted, that while 750 cm2 is a larger space than the minimum in a battery cage (550 cm2) it is still a small space. In alternative housing systems for egg-layers, those systems which are cage free, the stocking density must not exceed nine laying hens per m2 usable area.120 This density equates to 1111 cm2/hen in these housing systems – at the maximum density permitted. Compared to their caged counterparts, the hens housed in alternative systems have a notably larger space allowance each. Notably, the stocking density for egg-layers is only regulated by stipulating the minimum amount of space for each egg-layer. This regulatory approach results in a lack of an upper limit of the number of egg-layers which can be housed in one cage. Provided that each egg-layer has the minimum amount of space, it is possible to house a large colony of birds in one cage, which could cause welfare concerns.

The Pig Directive The stocking density limit applied to the housing of pigs depends on a few factors: the pigs’ weight and the category of pigs. It only applies to weaners or rearing pigs kept in groups (as suckling piglets are housed with the sow), while explicitly excludes gilts after service121 and sows.122 The Pig Directive contains a table which indicates the minimum space allowance (Article 3 (1) (a) Pig Directive): Live weight (kg)

m2

Not more than 10 More than 10 but not more than 20 More than 20 but not more than 30 More than 30 but not more than 50 More than 50 but not more than 85 More than 85 but not more than 110 More than 110

0.15 0.20 0.30 0.40 0.55 0.65 1.00

118 Egg Directive, Article 2 (2) (d) defnes; ‘usable area’ means: ‘an area at least 30 cm wide with a foor slope not exceeding 14%, with headroom of at least 45 cm. Nesting areas shall not be regarded as usable areas.’ 119 Egg Directive, Article 6 (1) (a). 120 Ibid., Article 4 (4). 121 Ibid., Article 2 (3): ‘gilt’ means a female pig after puberty and before farrowing. Author’s note: ‘After service’ refers to the period after impregnation, before farrowing. 122 Ibid., Article 3 (1) (a).

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As the table shows, the minimum space allowed for a weaner of up to 10kg is thus 0.15m2 and it increases in correlation to the weight gain up to the weight of 110kg or more, where the space allowed must be, at least, 1m2. The minimum unobstructed foor space permitted for gilts after service and sows are signifcantly bigger, with a minimum of 1.64m2 for gilts after service and 2.25 m2 for sows.123 Additionally, if sows and gilts are housed in groups from four weeks of servicing until one week before farrowing, the Pig Directive requires that the group pen must ‘have sides greater than 2.8 m in length.’124 While admittedly minimum space requirements for intensively reared pigs are better than no minimum standards, it must be emphasised that from the perspective of the pigs’ welfare, it is insuffcient. Pigs have strong, innate locomotion needs, which are restricted by such space allocations. It is only the most basic physiological needs which can be satisfed for a pig, heavier than 110kg, in the space of one-metre square.125 Only small-scale locomotion are satisfable in such a confned space, while it is impossible for the pigs to fulfl their large-scale locomotion needs due to the insuffcient space.126 Rather, this chapter argues that in order to satisfy their large-scale locomotion, pigs should be housed in large, enriched spaces to allow the satisfaction of their ethological need for locomotion and associated foraging.

Conclusion At this stage, it is worth highlighting that there are additional welfare issues within the Directives, but due to the spatial constraints, it is impossible to cover them all within this chapter. Consequently, the author has chosen to highlight those issues which have the most detrimental welfare on the animals’ ethological welfare, and to an extent, biological welfare. The biggest welfare issue in regards to the biological welfare of the broilers, pigs, and laying-hens are undoubtedly the permitted mutilations. These physically invasive procedures cause signifcant pain when performed and can lead to long-term pain for the animal. From a zoocentric perspective, the mutilations are indefensible. There is no objective reason as to why they should be permitted on a general level (providing that the stipulated conditions are adhered to). The general permission is problematic on its own merits, but when it is combined with the fact that the science rests upon is seriously outdated, it becomes a major welfare issue. Numerous studies, on pigs, broilers, and egg-layers have shown that these animals actually do feel pain from the earliest stages in life. Therefore the seven-day limit, after which anaesthetics must be used on piglets is highly detrimental to the piglets’ physiological welfare.

123 Ibid., Article 3 (1) (b). 124 Ibid., Article 3 (4). 125 N.E. O’Connell, ‘Housing the fattening pig,’ in J.N. Marchant-Forde (ed.), The Welfare of Pigs (Springer, 2009), 192, 193; Jensen, Hur mår maten?, (n. 34) Chapter 11. 126 O’Connell, ‘Housing the fattening pig,’ (n. 143) 193.

Animal welfare in the EU 183 Likewise, studies have shown that the beak of the egg-layers and broilers is sensitive, and trimming it causes (long-term) pain, which again, is detrimental to the physiological welfare. However, the beak trimming also has a serious impact on the birds’ ethological welfare, as it hinders them from performing their innate pecking behaviour. In addition to the unavoidable physiological welfare issues the mutilations cause, the general permission is misfortunate as one of the underlying reasons for performing them in the frst place, that of avoiding aggressive behaviour on other animals, can to a large extent be avoided by providing the animals with suffcient environmental enrichment and house them at a lower stocking density. Consequently, permitting mutilations on the animals must be concluded to be a failure of the Directives’ aim to protect the animals’ physiological and ethological welfare. When it comes to the other two themes addressed in this chapter, the environmental enrichment and the stocking density, the physiological welfare negation is smaller, compared to the mutilations. While there are some physiological issues arising, mainly from the lack of space to move around suffciently to satisfy their large-scale locomotion needs, the negative impact on the ethological needs is more obvious. The stocking density for both birds and the pigs have one thing in common, they are reared in dense facilities which inhibits their locomotion needs, both large-scale and small-scale. The obstacle to the small-scale locomotion is particularly noticeable when it comes to broilers, especially when stocked at the maximum density of 42kg/m2 when the birds are approaching slaughter weight. At that stage, the conditions are so crowded that they can barely move at all. Similarly, the stocking density greatly restricts the pigs’ ability to move freely. As pigs are animals who, in their natural environment, move over large spaces during their rooting and foraging for food, the confnement for the pigs have a signifcant detrimental impact on their ethological needs, which simply cannot be satisfed in such restricted spaces. Environmental enrichment provisions are wholly omitted in regards to the broilers, there are no provisions for elevated spaces which would permit them to satisfy their roosting need (and strengthen their leg bones). The contrast in environmental enrichment provisions between broilers and egg-layers is stark. This author questions the reason behind this, they are both sub-varieties of the same species, Gallus gallus domesticus, and therefore have the same ethological needs. Needs which are wholly disregarded for the broilers. The situation is moderately better for the egg-layers. Zoocentrically speaking, there has at least been attempts to improve the hens’ situation, by the banning of barren battery cages and requiring that both enriched cages and free-range housing contains some enrichment. However, keeping the focus on the hens’ needs, more could be done to ensure that their environment is enriched. Particularly, rearing systems with the enriched cages are problematic as they greatly restrict the hens’ ability to move. The Directive provisions regarding the environmental enrichment provisions for the pigs are prima facie adequate, as there are provisions of permanent access

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to manipulable materials. However, the requirement is negated to some extent, as the common material provided is straw. The straw can fall between the gap between the slates in the foor, and thus disappear. This particularly impacts weaners and rearing pigs, as there is no requirement for any of the surface available to them to have solid fooring. Additionally, the nesting material requirement for sows and gilts in the time leading up to farrowing, which is highly positive from a zoocentric perspective, contains a qualifer. It is only required, where the slurry system renders it possible. To allow that nesting material is withheld from sows and gilts in the weeks leading up to farrowing seriously negates their welfare during this period. The nesting material is essential for the outlet of the nesting behaviour, which manifests strongly at this point of time, and causes the sows and gilts distress. It is, from a zoocentric perspective, wholly inexcusable to permit that the nesting material is not provided due to the slurry system. Rather, the provision of the Directive should be of the opposite nature and require that the slurry system is constructed in such a way that it is always possible to provide suffcient quantities of nesting materials to enable the sows and gilts to build something they would consider a nest. Only then can their ethological needs be considered to be satisfed. This chapter therefore concludes and submit that the Directives does, to a large extent, perform an adequate function regarding protecting the animals’ physical needs, albeit with the exception of permitting the mutilations. However, it is also submitted that the Directives all fail in regards to protecting the animals’ welfare. The failure stems from the prevalent focus throughout the Directives on the animals’ biology and their physical needs, combined with a widespread disregard of their ethological needs. It is therefore concluded that while the EU Directives do physically protect the farm animals, the Directives fail to protect their ethological welfare needs.

Bibliography Legislation Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C326/47. Council Regulation (EC) No. 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 63/432/EEC and 93/119/EC and Regulation (EC) No 1255/97 [2005] OJ L3/1. Council Directive 93/119/EC of 22 December 1993 on the protection of animals at the time of the slaughter or killing [1993] OJ L 340/21. Council Directive 1998/58/EC of 20 July 1998 concerning the protection of animals kept for farming purposes [1998] OJ L221/23. Council Directive 2008/120/EC of 18 December 2008 laying down minimum standards for the protection of pigs (codifed version) [2009] OJ L47/5. Council Directive 1999/74/EC of 19 July laying down minimum standards for the protection of laying hens [1999] OJ L203/53.

Animal welfare in the EU 185 Council Directive 2007/43/EC of 28 June 2007 laying down minimum rules for the protection of chickens kept for meat production [2007] OJ L182/19. Directive 64/433/EEC of 26 June 1964 in health problems affecting intracommunity trade in fresh meat (1964) OJ 121 repealed and replaced by Directive 2004/41/EC of the European Parliament and of the Council of 21 April 2004 repealing certain Directives concerning food hygiene and health conditions for the production and placing on the market of certain products of animal origin intended for human consumption and amending Council Directives 89/662/ EEC and 92/118/EEC and Council Decision 95/408/EC [2004] OJ L157/33.

Cases C-1/96 R v. Minister of Agriculture Fisheries and Food ex parte Compassion in World Farming [1998] ECLI:EU:C:1998:113. C-5/94 R v. Ministry of Agriculture, Fisheries and Food, ex parte: Hedley Lomas (Ireland) Ltd. [1996] ECLI:EU:C:1996:205. C-102/96 Commission of the European Communities v Federal Republic of Germany [1998] ECLI:EU:C:1998:529. C-445/06 Danske slagterier v Bundensrepublik Deutschland [2009] ECLI:EU:C:2008:464.

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Mellor D.J., ‘Updating animal welfare thinking: Moving beyond the “fve freedoms” towards “a life worth living”.’ Animals 6 (2016): 21. Millman S.T., Duncan I.J.H., Stauffacher M., Stookey J.M., ‘The impact of applied ethologists and the International Society for Applied Ethology in improving animal welfare.’ Applied Animal Behaviour Science 86 (2004): 299. Newberry R.C., ‘Exploratory behaviour of young domestic fowl.’ Applied Animal Behaviour Science 63 (1999): 311. Noonan G.J., Rand J.S., Priest J., Ainscow J., Blackshaw J.K., ‘Behavioural observations of piglets undergoing tail docking, teeth clipping and ear notching.’ Applied Animal Behaviour Science 39 (1994): 203. Ostfeld R.S., Lewis D.N., ‘Experimental studies of interactions between wild turkeys and black legged ticks.’ Journal of Vector Ecology 24 (1999): 182. Pettit-Riley R., Estévez I., ‘Effects of density on perching behavior of broiler chickens.’ Applied Animal Behaviour Science 71 (2001): 127. Radford M., ‘“Unnecessary Suffering”: The cornerstone of animal protection legislation considered.’ Criminal Law Review 1999 (1999): 702. Rand J.S., Noonan G.J., Priest J., Ainscow J., Blackshaw J.K., ‘Oral administration of a 12% sucrose solution did not decrease behavioural indicators of distress in piglets undergoing tail docking, teeth clipping and ear notching.’ Animal Welfare 11 (2002): 395. Sambraus H.H., ‘Applied ethology – It’s task and limits in veterinary practice.’ Applied Animal Behaviour Science 59 (1998): 39. Savory C.J., ‘Laying hen welfare standards: A classic case of power to the people.’ Animal Welfare 13 (2004): 153. Sjaastad Ø.V., Hove K., Sand O., Physiology of Domestic Animals (Scandinavian Veterinary Press, 2003). Simonsen H.B., Linken L., Bindseil E., ‘Histopathology of intact and docked pig tails.’ British Veterinary Journal 147 (1991): 407. Tablante N., Estévez I., Russek-Cohen E., ‘Effect of perches and stocking density on tibial dyschondroplasia and bone mineralization as measured by bone ash in broiler chickens.’ Journal of Applied Poultry Research 12 (2003): 53. Ventura B.A., Siewerdt F., Estévez I., ‘Access to barrier perches improves behaviour repertoire in broilers.’ PLoS One 7(1) (2012): e29826. Available at https://jo urnals.plos.org/plosone/article/fle?id=10.1371/journal.pone.0029826&type =printable, accessed on 15 January 2019. Weber R., Keil N.M., Fehr M., Horat R., ‘Piglet mortality on farms using farrowing systems with or without crates.’ Animal Welfare 16 (2007): 277. Weeks C.A., Danbury B.D., Davies H.C., Hunt P., Kestin S.C., ‘The behaviour of broiler chickens and its modifcation by lameness.’ Applied Animal Behaviour Science 67 (2000): 111. Wilkins D.B., ‘Animal welfare in Europe, European legislation and concerns.’ Kluwer Law International 27 (1997): 24. Xue J.L., Dial G.D., ‘Raising intact male pigs for meat: Detecting and preventing boar taint.’ Swine Health and Production 5(4) (1997): 151. Zeng X.Y., Turkstra J.A., Meloen R.H., Liu X.Y., Chen F.Q., Schaaper W.M., Oonk H.B., Guo da Z., van de Wiel D.F., ‘Active immunization against gonadotrophin releasing hormone in Chinese male pigs, effects of dose on antibody titer, hormone levels and sexual development.’ Animal Reproduction Science 70 (2002): 223.

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Books Appleby M.C., ‘Whom should we eat? Why veal can be better for welfare than chicken,’ in Appleby M.C., Weary D.M., Sandøe P. (eds.), Dilemmas in Animal Welfare (CABI International, 2014). Appleby, M.C., Mench, J.A., Hughes B.O., Poultry Behaviour and Welfare (CABI Publishing, 2004). Bailey Norwood F., Lusk J.L., Compassion, by the Pound Economics of Farm Animal Welfare (OUP, 2011). Bergeron R., Meunier-Salaün M.-C., Robert S., ‘The welfare of pregnant and lactating sow,’ in Faucitano L., Schafer A.L. (eds.), Welfare of Pigs from Birth to Slaughter (Wageningen Academic Publishers, 2008). Boersma W.J.A., Meulen J., Niewold T.A., ‘Balance between porcine disease and welfare,’ in Marchant-Forde J.N. (ed.), The Welfare of Pigs (Springer, 2009). Dawkins M., Animal Suffering: The Science of Animal Welfare (Chapman and Hall, 1980). Duncan I.J.H., Poultry Welfare: Science or Subjectivity? (Taylor & Francis Group, 2002). Duncan I.J.H., ‘A concept of welfare based on feelings,’ in Benson G.J., Rollin B.E. (eds.), The Well-Being of Farm Animals: Challenges and Solutions (Blackwell, 2004). D’Eath R.B., Turner S.P., ‘The natural behaviour of the pig,’ in Marchant-Forde J.N. (ed.), The Welfare of Pigs (Springer, 2009). Fraser A.F., Broom D.M., Farm Animal Behaviour and Welfare, 3rd ediktion (CABI Publishing, 1997). Gordon S.H., Charles D.R., Niche and Organic Chicken Production (Nottingham University Press, 2002). Held S., Cooper J.J., Mendl M.T., ‘Advances in the study of cognition, behavioural priorities and emotions,’ in Marchant-Forde J.N. (ed.), The Welfare of Pigs (Springer, 2009). Jensen P., Hur mår maten? Djur hållning och djurskydd i Sverige (Natur & Kultur, 2012). Mench J.A., Keeling L.J., ‘The social domestic birds,’ in Keeling L.J., Gonyou H.W. (eds.), Social Behaviour of Farm Animals (CABI, 2009). Muir W.M., Wei Cheng H., ‘Genetic infuences on the behaviour of chickens associated with welfare and productivity,’ in Garndin T., Deesing M.J. (eds.), Genetics and the Behaviour of Domestic Animals (Elsevier Inc., 2014). O’Connell N.E., ‘Housing the fattening pig,’ in Marchant-Forde J.N. (ed.), The Welfare of Pigs (Springer, 2009). Petherick J.C., Rushen J., ‘Behavioural restriction,’ in Appleby M.C., Hughes B.O. (eds.), Animal Welfare (CABI Publishing, 1997). Puppe B., Meunier-Salaün M.-C., Otten W., Orgeur P., ‘The welfare of piglets,’ in Faucitano L., Schafer A.L. (eds.), Welfare of Pigs from Birth to Slaughter (Wageningen Academic Publishers, 2008). Rollin B.E., Animal Rights and Human Morality (Prometheus Books, 1981). Rydhmer L., Lundheim N., ‘Breeding pigs for improved welfare,’ in Marchant-Forde J.N. (ed.), The Welfare of Pigs (Springer, 2009). Sainsbury D., Poultry Health and Management, 4th edition (Blackwell Science Ltd., 2000).

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Vilkka L., The Intrinsic Value of Nature (Rodopi, 1997). Wise S.M., Rattling the Cage Toward Legal Rights for Animals (De Capo Press, 2014). Zeis J., The Rights of Pigs and Horses (Blackwell Publishing Ltd., 2012).

PhD Theses Eija Kaukonen, ‘Housing Conditions and Broiler and Broiler Breeder Welfare, the Effect of Litter Conditions on Contact Dermatitis in Broilers and Breeders and the Effect of Elevated Structures on Broiler Leg Health’ (PhD Thesis, University of Helsinki, 2017). Moa Näsström, ‘Farm Animal Welfare in the European Union – A Critical Analysis’ (PhD Thesis, University of Leeds, 2016).

Publications Bassett A., ‘Technical paper No. 16’ (Animal Welfare Approved, 2011). Briese A., Hartung J., ‘How much foorspace needs a broiler chicken?’ (XV ISAH Congress, Vienna, July 2011). Available at https://www.researchgate.net/public ation/269764351_HOW_MUCH_FLOOR_SPACE_NEEDS_A_BROILER _CHICKEN, accessed on 11 January 2019. Compassion in World Farming, ‘The life of: Broiler chickens (Farm Animal Welfare Compendium, 2013). DG SANTE, ‘Overview report use of slaughterhouse data to monitor welfare of broilers on farm’ (Report (8999) MR, 2016). European Commission Health & Consumer Protection Directorate-General, ‘Animal welfare factsheet’ (2007). European Commission Health & Consumer Protection Directorate-General, ‘The welfare of chickens kept for meat production (broilers)’ (2000), DG SANCO.B.3/ AH/R15/2000. European Commission, ‘Animal welfare on the farm’ (European Commission). https://ec.europa.eu/food/animals/welfare/practice/farm_en, accessed on 20 January 2019. European Union’s Scientifc Committee on Animal Health and Animal Welfare, ‘The welfare of chicken kept for meat production (broilers)’ SANCO.B.3/AH/ R15/2000 (March, 2000). Stevenson P., ‘Investor briefng no. 1 – Farm animal welfare: The regulatory and policy landscape (Business Benchmark on Farm Animal Welfare, 2011). Turner J., Gracés L., Smith W., ‘The welfare of broiler chicken in the European Union’ (Compassion in World Farming Trust, 2005). Available at https://ww w.ciwf.org.uk/media/3818904/welfare-of-broilers-in-the-eu.pdf, accessed on 11 January 2019. Vapnek J., Chapman M., ‘Legislative and regulatory options for animal welfare’ (Food and Agriculture Organisation of the United Nations, 2010).

Part III

Consumer protection aspects

11 Intellectual property law Europe adopts a European patent with unitary effect and Unifed Patent Court Alice Pezard

The European Union recently adopted a European patent with unitary effect and a Unifed Patent Court. The new mechanism is the result of a great number of compromises between Member States and is considered too complex by some. Nevertheless, it is essential within a globalized industrial economy and will reinforce legal certainty as well as competitiveness with our American and Asian partners. Among other topics, all the litigations concerning Food, Recipes and Wine are concerned.

A legal and economic revolution An ambitious regime To date, there exists side by side in each of the twenty-eight Member States of the European Union both the European patent introduced by the Munich Convention (EPC) of October 5, 1973,1 and thereafter issued by the European Patent Offce (EPO) and the national patent issued by the industrial property institute of competent jurisdiction. Hence, twenty-eight national courts are called upon to adjudicate the validity of patents as well as their enforcement in deciding infringement cases. It goes without saying that legal uniformity is lacking and that such a setup has disastrous economic consequences. Following in the footsteps of the Court of Appeals for the Federal Circuit, established in Washington D.C. in 1982, Europe, after some forty years of diplomatic discussions, has only just adopted a European patent with unitary effect and a Unifed Patent Court. The event is worthy of some acclaim. Admittedly, the new system is far from optimal but it will contribute to the so very slow process of building the common European market while allowing the latter to reach the level of the American, Chinese and Japanese markets. Paradoxically, the European industrial and legal sectors affected by this ambitious new regime remain timid and reserved in accepting it. Thankfully, the regime can

1 The European Patent Convention, signed in Munich on October 5, 1973, is a treaty to which thirtyeight States, among which all Member States of the European Union (with the exception of the latter), are today parties.

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no longer be challenged and it is now up to all stakeholders to make it as effcient as possible.

A historical choice Two regulations of the European Union were passed on December 17, 2012, under the procedure for enhanced cooperation. The frst (1257/2012) concerns the creation of unitary patent protection and the second (1260/2012) concerns applicable translation arrangements. Spain and Italy are not parties to this enhanced cooperation. The Agreement on a Unifed Patent Court, to which are appended the articles of the Court, was signed in Brussels on February 19, 2013, by 25 Member States. Spain and Poland did not sign. The Unifed Patent Court will have jurisdiction to adjudicate cases concerning patents with unitary effect as well as current European patents. In order to complete the legal framework, the European Commission proposed, on July 29, 2013, to update the provisions of the Union governing jurisdictional rules in connection with the Unifed Patent Court as well as the terms in accordance with which the regulation’s provisions apply in the context of relations between Member States parties to the Agreement on a Unifed Patent Court, and those Member States that are not parties (EU Regulation No. 1215/2012), the so-called “Brussels 1” Regulation. This proposal by the Commission is part of a series of measures recently approved and aimed at guaranteeing a form of protection by unitary patent within the common market (IP/11/470). The draft procedural rules of the Unifed Patent Court2 is currently being prepared by a group of experts appointed by the European Commission. In its current state, the draft is only available in English.

Unitary patent Issuance and applicable law The patent with unitary effect, which will have the same effects in all States of the European Union (except currently in Spain and Italy, due to language problems), will be issued by the EPO and be governed by the laws of the Member State where the applicant shall have his or her domicile or primary place of business upon the date of fling (in the event of several applicants, the laws of the frst registered applicant shall prevail). This rule shall apply both to the ownership of the patent and to its protection. National laws are made uniform. A few national specifcities remain, for instance in the defense sector.

2 The group of European experts includes two French experts, Mtres Pierre Véron and Alice Pezard, attorneys.

Intellectual property law 195 The EPO shall levy annual dues, which will be allocated among the EPO and Member States. The new patent is not a new title of industrial property, nor is it a unitary European patent for the States of the Union. It is rather the already existing European patent that henceforth shall have unitary effect for such States or for some among them. The mechanism for issuance, cancellation or revocation results from the EPC and national laws rather than the law of the Union (see p. 199). It is no doubt regrettable that European marks, designs, models or plant variety rights represent independent rights within the European Union. An analogous approach would have been more appropriate (except for the United Kingdom). A more community-based project, of which France was very supportive, had to be abandoned. In order to favour the domestic market, it would therefore have been preferable to provide for two patents, that of the Union and that of the EPC, rather than one adaptable patent, very much dependent on the EPO.

Language of patent and translations A provisional mechanism for patent language is imposed: For a maximum period of twelve years, the patent holder shall provide a translation in English if the patent is in French or German, and if the patent is in English, a translation in a European Union language. The transitional period should come to an end as soon as it will be possible to produce high quality automatic translations in all offcial languages of the European Union.

Scope of patent The territorial scope of the European patent with unitary effect may be applied for in respect of all contracting States of the Munich Convention, or for several or any one of them. The patent holder of the States referred to shall have the same rights as those that would be granted to it under a national patent. The unitary patent shall have the same effects in all States of the European Union (except currently for Spain and Italy, experiencing language problems). It shall be limited, transferred, revoked and shall expire within the States. An exception remains for mandatory licenses pursuant to domestic law.

A unifed Court A complex organization Local and regional divisions Each Member State may have one or more local divisions, up to a maximum of four. Several Member States may join together to create a regional division.

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For example, France, the United Kingdom, the Netherlands, Belgium and Italy are contemplating a single local division, whereas Germany is considering four (Düsseldorf, Mannheim, Munich and Hamburg). Regional divisions are expected to cover Sweden, Denmark and Finland, as well as Bulgaria, Romania, Greece and Cyprus. France could create a regional division with Portugal.

Central division The Central Division or Court of First Instance will based in Paris, with two sections in London and Munich. The president will be a French magistrate, honorary or active. The secretariat will be based in Munich. The London section will deal with basic daily necessities, including pharmaceutical products, chemical products and metallurgy, the Munich section will deal with mechanical products, lighting, heating, arms and blasting. The Paris Central Division will deal with industrial and transportation techniques, textile, paper, fxed constructions, physics and electricity. Jurisdictional issues are likely to arise. The registry will be based in Munich. It is very unfortunate that it was not decided to concentrate all litigation in Paris. Germany was not opposed to the idea, but such a simplifed project was unacceptable to the United Kingdom.

Court of Appeal The Court of Appeal will be based and have its registry in Luxembourg. The mediation and arbitration centre will be shared between Lisbon and Ljubljana. Budapest will host the judge training centre. Training sessions have already taken place in Crakow and Lisbon. No recourses are available. Jurisdictional assistance may exist.

Technically and legally qualifed judges The new court will be made up of legally qualifed as well as technically qualifed judges. Each local division will comprise three jurist judges, including one national if less than ffty cases are heard per year and two nationals if more than ffty cases are heard per year. A regional division shall be made up of two legally qualifed judges, two nationals from the concerned Member States and one from a non-concerned State. A technically qualifed judge may be appointed to complete the local or regional division.

Intellectual property law 197 The Central Division shall be made up of three judges, including two legally qualifed judges of different nationalities and one technically qualifed judge. All presidents shall be legally qualifed judges. The Court of Appeal shall be made up of fve judges, three legally qualifed judges of different nationalities and two technically qualifed judges. A Consultation Committee composed of judges specialised in patents of invention and practitioners in the feld of patent litigation with recognised qualifcations shall prepare a list of candidates. Mastery of patent litigation and science is indispensable as is that of foreign languages, including fuency in English. Member States are immediately requested to prepare magistrates for the activities of this Court. France will, it is to be hoped, be particularly active in reinforcing the intellectual property hub, which has been based in Paris for some years. Obviously, the numerous and highly qualifed German judges have a clear advantage. Based on this list, an Administrative Committee will appoint judges. As a frst step, judges, who will be appointed for a renewable six-year term, may practise part-time. A constant risk that is likely to arise is that in a State like France, judges, who have many national duties, will have insuffcient time to adequately address their European mandate. It is to be hoped that the majority of judges will be appointed full-time. The Consultation Committee should be vigilant in this respect. A Provisional Consultation Committee3 has already established a list of judges likely to be of interest to the Unifed Court and is contemplating supplementary legal and linguistic training for these candidates

Procedural rules In light of the adoption of Germany’s change of orientation, whereby a distinction should be drawn between the judge responsible for the validity of a patent and the judge responsible for patent infringement, the local or regional division has discretionary authority to adjudicate an infringement action, to refer the counterclaim for revocation or the whole case to the Central Division.

Jurisdiction The Court has jurisdiction to deal with infringement and validity of European patents as well as the rights of unitary effect of SPCs, related rights based on European law, foundational texts and national law. With respect to infringement, the division of competent jurisdiction may be that of the locus of the infringement, the domicile of the defendant, or that chosen by the parties.

3 The Committee is composed of counsel from appeal courts: United Kingdom, Sweden, Germany, the Netherlands, Italy, France.

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The solution is unclear where it results from the choice of Germany’s change of orientation, which draws a distinction between the judge responsible for a patent’s validity and the judge responsible for infringement, a system which does not exist in certain Member States such as France. The local division or regional division has discretionary authority to: • • •

Adjudicate an infringement action and counterclaim for revocation (with the assistance of a technically qualifed judge). Refer the counterclaim for revocation to the Central Division and decide the infringement action. With the parties’ consent, refer the case to the Central Division.

The Central Division’s jurisdiction covers the following: • • • •

Applications for revocation of a patent. Certain counterclaims for revocation. Non-infringement declarations. Infringement actions with the parties’ consent.

The Unifed Court has no jurisdiction in the following circumstances: • • • • •

Actions pertaining to national patents. Actions pertaining to the patent holder. Actions pertaining to compensation of employee inventors. Claims in connection with contracts. Claims of unfair competition.

Some may fnd this regrettable. The Court of Appeal has the same jurisdiction as the Central Division. Actions for provisional and protective measures and injunctions may be brought by the parties before the jurisdiction of their choice. Written proceedings are strictly regulated: two briefs per party, followed by oral proceedings of a maximum (in principle) of one day, which shall include the parties’ arguments. Procedure as it relates to awards of damages is separate and is time-barred after fve years following the date the patent holder became aware of the infringement.

Language of proceedings In local or regional divisions, the language of proceedings is the national language or one of the three offcial languages of the EPO: English, German, French. Before the Central Division, the patent language is the only one applicable. On appeal, the language shall be that of the frst instance, namely the language of the patent.

Intellectual property law 199 Representation shall be by an attorney from a Member State, a specialized European attorney. At the hearing, the attorney may be assisted by a patent attorney. These representatives are protected by “legal privilege”.

The role of the Court of Justice of the European Union (ECJ) This very controversial topic remains very sensitive. The United Court may refer a preliminary question to the ECJ.

Compatibility of a European Patent Court with European Union Law The issue of the interpretation and scope of rights conferred by patent and infringement was the subject of a long and arduous controversy. Is the issue one of an international treaty or does the ECJ have direct jurisdiction? In other words, more pragmatically speaking, is patent law to become an aspect of European Union law? If international law were to prevail, the impact of preliminary issues would be reduced. It is no secret that our British partners are very suspicious of ECJ decisions, especially in the feld of industrial property. It follows that they have always sought to keep patent law separate, notably the defnition of infringement, scope of patents with equivalence, double therapeutic use…which do not exist in European Union law, contrary to certain topics dealt with in directives, such as biotechnology. Called upon in accordance with Section 218 (11) TFEU on July 6, 2009, by the Council of the European Union for an opinion on the draft international agreement creating a European and EU Patent Court, the ECJ rendered Opinion 1/09 on March 8, 2011, in which it found that the envisaged Agreement was not compatible with the provisions of European Union law inasmuch as the draft provides for exclusive European jurisdiction over preliminary rulings, withdrawing same from national jurisdiction. Consequently, national jurisdictions may no longer participate in the proper application and uniform interpretation of Union law as well as the protection of rights conferred to individuals by such juridical order. The ECJ also points out that if a decision of the European and Community Patent Court were to breach European Union law, it could not be the subject of infringement proceedings nor could it give rise to any fnancial liability on the part of one or more Member States. As a consequence of this negative opinion and in a radical and very un-European manner, the Council of Europe suggested, on June 29, 2012, to exclude to a large extent the CJEU from the process and in so doing remove Sections 6 to 8 of the proposed Regulation on the creation of unitary patent protection, which was to be passed by the Council and the European Parliament.

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Sections 6 and 7 defned the contents of the exclusive right of the patent holder by specifying the right to prevent direct (s. 6) and indirect (s. 7) use of the invention. Section 8 set out the limits of this exclusive right and restricted its scope. The suggestion, initiated by Great Britain, was rejected by the European Parliament, deeming that the ECJ would only have a very minimal role henceforth and that the European Union Patent would lose some of its importance, at the very least with regards to uniform legal interpretation.

Jurisdiction of Court of Justice of the European Union A compromise was found. From now on, there are multiple orders of reference: EPC, European Union law and national laws. The system is quite easy to fnd fault with! Indeed, the sections were not cancelled but rather replaced by a reference mechanism. Sections 5 to 7 of Regulation No. 1257/2012, as adopted, refer to national laws. Under Section 5, the European patent provides the patent holder with uniform protection but jurisdictional and conficts of law rules refer to national laws. Pursuant to Point 3 of Section 5, acts against which a patent provides protection are those defned in the law applicable to European patents with unitary effect in accordance with Section 7. Section 7 provides that the European patent with unitary effect can be likened to a national patent of the Member State where the applicant had its domicile or principal place of business on the date of the application for the European patent. Differences remaining between defnitions of the concepts of domicile and place of business will make it easy for well-advised patent applicants to anticipate forum shopping to the detriment of legal certainty. Some authors have vigorously criticised the lack of realism of the Legislator, who seems content with compromises that are unambitious and contrary to stated goals.4 The European Parliament could limit potential harm by legislating advisedly in regard to such concepts. It is certain that as soon as the Unifed Patent Court will apply European Law in its totality and comply with its preponderance, the CJEU will have jurisdiction over substantive issues of law solely dealt with in European regulations; the Unifed Court will cooperate with the CJEU to ensure uniform interpretation of European Law. The decisions of the CJEU are binding on the Unifed Court. It is also very probably that judges, often more pragmatic than the Legislator, will decide on the manner in which to reinforce legal certainty for the parties before them.

4 Recueil Dalloz 2013, p. 520: Le brevet européen à effet unitaire: un volapük intégré? JeanChristophe Galloux, Professor at the Université de Paris II, President of IRPI.

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A very different system from that of the United States The European Patent Court’s purpose is to unify case law in Europe in the footsteps of the American Court in the United States. Although the objective of both jurisdictions is similar, the internal organization implemented to this end differs. The system overseas is more similar to the traditional mechanism proposed in Brussels approximately ten years ago, under the name European Patent Law Agreement or EPLA, which included a European Patent Court of First Instance and a Court of Second Instance.

Jurisdiction of the Court of Appeals for the Federal Circuit The United States Federal Court of national jurisdiction hears appeals from decisions by the 94 United States District Courts, decisions by the Merit Systems Protection Board for former servicewomen and servicemen, the United States Court of Federal Claims and the United States International Trade Commission as well as decisions on the validity of patents from the United States Patent and Trademark Offce (PTO). Hence, its jurisdiction is not exclusively devoted to patents and marks. It also covers sophisticated consumer litigation and complex specifc litigation (railways, agriculture or international trade, among others). Appointed by the President of the United States, the Justices of the Court, who are often jurists and have very diversifed expertise, hear cases in panels of three or more. They are approximately twenty in number and are assisted by numerous highly trained staff. The decisions of the Court may be appealed to the Supreme Court.

American case law In connection with patents, the decisions of the Federal Court deal with validity and infringement. As is the case everywhere in Europe, novelty and inventiveness of claims are mandatory criteria. Case law is more or less equivalent on both continents, except on the issue of “business methods”, in respect of which American institutions are very favourable and much more so than European institutions until very recently. Topics as controversial as the patentability of life forms are thankfully dealt with alike. Concerning the patentability of genes, the United States Supreme Court recently contradicted the Federal Court of Appeal in that it had admitted their patentability, in line with French case law.5 The dissenting opinion was the same in both systems.

5 June 13, 2013. United States Supreme Court: Association for Molecular Pathology v. Myriad Genetics.

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Short-term perspectives Coming into force of the new mechanism The Commission encourages Member States to promptly ratify the Agreement on a Unifed Patent Court and to complete preparatory work for the implementation of this court. The coming into force of the new patent is subject to the coming into force of the Unifed Court. It is diffcult to forecast a precise date. Although 2017 has often been mentioned, this seems premature. 2018 would be more probable, in light of the fact that two new recourses before the ECJ were brought by Spain on March 22, 2013, (C–146/13 on the absence of a legal basis for the regulation and C–147/13 on linguistic discrimination) and rejected. Two previous applications before the ECJ fled by Spain and Italy on the same grounds were dismissed.6 The date is set for the third month following the fling of the 13th instrument of ratifcation of the Agreement, on condition that Great Britain, France and Germany have ratifed. A large number of countries have already ratifed but Brexit is a key point. Great Britain has an uncertain approach concerning the controversial ratifcation. Very recently, a German person has introduced a case before the ECJ. A Preparatory Committee was set up along with subcommittees: • • • • •

Germany presides the legal subcommittee, The United Kingdom presides the informatics subcommittee, Luxembourg presides the implementation committee, Hungary presides the human resources committee, and France presides the budget committee.

The European Commission forwarded the seventeenth draft establishing the Rules of Procedure in its English version to the Implementation Committee of the Court, which is online on the website www.unifed–patent–court.org. Costs before the Unifed Court will not be negligible, as procedural costs are based on the value of the litigation beyond a set threshold and judicial costs are to be borne by the losing party and capped except if inequitable. Applicants may also be required to post a guarantee. Costs of international proceedings for SMEs may also be very high. The timing of the proceedings, if well circumscribed, may however be a factor for success. In the immediate term, what is truly at stake is the creation of a frst-rate court. All participants in the industrial property system in Europe, and more specifcally in the French community, very much involved in the creation of the Central Division in Paris, are aware of the diffculties, as the system is admittedly somewhat complicated. These participants have been working hard for several years in order that the initial decisions, impatiently awaited by the United States and our Asian partners,

6 Recourses brought by Italy and Spain (C-274/11 and C-295/11).

Intellectual property law 203 have a positive impact on the European economy and be suffciently attractive to cause businesses to quickly abandon national jurisdictions in favour of the Unifed Patent Court. European or foreign businesses will beneft from increased competitiveness to the extent that the protection of their investments in research and innovation will be extended on a European scale. However, national courts will maintain their exclusive jurisdiction for national patents, for European patents in Spain and Poland, as well as within Member States that have not ratifed the Agreement, in addition to the opt-out mechanism explained below. In France, an association was formed on January 24, 2013, the Union pour la Juridiction Unifée du Brevet [Union for a Unifed Patent Court], the purpose of which is to represent associations and organizations active in the feld of industrial property in order to encourage public authorities to establish the Central Division and a local division in Paris. The United Kingdom ratifed the UPC Agreement on April 26, 2018. In Germany, the Parliament passed the bill required for UPC ratifcation on 27 November 2020. Currently, UPC is opposed to Brexit casualties and the German Constitutional Court put the ratifcation on hold on December 18, 2020, because of two complaints fled against new German UPC legislation. The ambitious project now appears all but dead. Perhaps a UPC will rise from the ashes. Hope or illusion?

The opt-out system This topic remains very sensitive. During an opt-out period of seven years, an applicant or holder of a traditional European patent may disclaim the exclusive jurisdiction of the Unifed Court. The objective of a unifed court comparable to that of the Federal Patent Court in Washington or the Japanese court will initially only be partially reached, and forum shopping will not be completely eliminated. The seven-year transitional period of the Unifed Patent Court is no doubt too long. During this period, in respect of the traditional European patent, national courts will still have jurisdiction alongside the Unifed Patent Court. In the future, the applicant or holder of a traditional European patent or SPC may disclaim the exclusive jurisdiction of the Unifed Patent Court by notifying the registry no later than one month prior to the end of the transitional period. Some may fnd this opt-out procedure unfortunate. Patents, even of questionable merit, will thus subsist in some States instead of being cancelled through a centralized procedure, a situation which unfortunately may represent an advantage for “patent trolls”, so harmful to innovation. In this new context and with continued effort, France can become a world leader of industrial property from both an economic and legal point of view. One need only believe it is possible!

12 La procédure participative avec avocat, un nouveau mode de règlement amiable des litiges au service du consommateur ? Sylvie Bissaloué English abstract Over the years, the protection granted to the French consumer has continued to grow. As the balance of power between individuals and retail professionals became clearer, the legislator found it useful to guarantee access to basic necessities through a set of consumer rules that derogate from common law. Thus, the framing of the contractual relationship by the obligation of information and advice, the prohibition of so-called abusive clauses and certain commercial practices…and the consecration of the “right to a fresh start” for the consumer experiencing fnancial diffculties through the possibility that it is henceforth recognized to beneft from a consumer credit, or a procedure of over-indebtedness of individuals were the frst and most visible measures. For some years now, it has been the turn of confict management to adapt to consumer needs. Newborn among amicable proceedings, the participatory procedure is one of the privileges recently devolved to the legal profession. Borrowing much from the US collaborative procedure, it requires the parties to negotiate in the presence of their respective lawyers to reach an amicable solution to the dispute between them. This is not without raising questions. Indeed, is this procedure really new? More importantly, is it relevant to consumer law disputes?

Introduction Au fl des années, la protection accordée au consommateur français n’a cessé de s’accroître. Tandis que se précisait le rapport de force entre particuliers et professionnels de la grande distribution, le législateur a jugé utile de garantir l’accès aux produits de première nécessité à travers un ensemble de règles consuméristes dérogeant au droit commun. Ainsi, l’encadrement du lien contractuel par l’obligation d’information et de conseil, la prohibition des clauses dites abusives et de certaines pratiques commerciales…et la consécration du « droit à un nouveau départ » pour le consommateur connaissant des diffcultés fnancières à travers la possibilité qui lui est dorénavant reconnue de bénéfcier d’un crédit à la consommation, ou d’une procédure de

La procédure participative avec avocat 205 surendettement des particuliers ont été les premières mesures les plus visibles1. C’est depuis quelques années, au tour de la gestion des confits de s’adapter aux besoins du consommateur. Depuis l’ordonnance no 2015–1033 du 20 août 2015 relative au règlement extrajudiciaire des litiges de consommation, les professionnels ont l’obligation de garantir aux consommateurs l’accès à une procédure amiable pour résoudre le confit qui les oppose. Depuis l’entrée en vigueur du texte, les professionnels se sont très vite organisés. Des grands groupes comme la BNP Paris Bas, EDF ou encore la Banque Populaire ont ainsi mis en place chacun, des médiateurs indépendants chargés de recueillir les plaintes des clients et de tenter un règlement amiable. Certaines professions ont choisi de recourir à des médiateurs interprofessionnels. Au sein de la profession d’avocat, un Médiateur national de la profession établi à Paris a été désigné pour tous les barreaux. Le choix est ainsi donné au client entre les procédures traditionnelles permettant de saisir le Conseil de l’ordre ou la Cour d’appel des plaintes formulées à l’encontre des avocats, et le recours au médiateur de la consommation qui connait également des litiges liés au paiement des honoraires. Dans une hypothèse comme dans l’autre, les frais de procédure sont à la charge du professionnel. Les taux de succès de ces nouvelles procédures sont édifants. Le bâtonnier de Lyon, en 2016, fait ainsi état de 60% de succès relatif aux confits entre avocats et clients. 30% ont conduit à la réduction d’honoraires. 3% au rejet des demandes. 153 ordonnances de conciliation ont été rendues et 70% d’entre elles ont été confrmées par la Cour d’appel de Lyon. Quand bien même la médiation soit expressément visée par l’ordonnance de 2015, il n’est pas exclu que la procédure de règlement amiable préalable exigée par le texte prenne d’autres formes. Nouveau-né des procédures amiables, la procédure participative est l’un des privilèges récemment dévolus à la profession d’avocat2. Empruntant beaucoup

1 La procédure de surendettement vise pour le débiteur qui connaît des diffcultés à honorer son passif, à obtenir de la commission de surendettement, un rééchelonnement ou des remises totales ou partielles de sa dette dans le cadre d’un plan de surendettement (C. consom. art. L 733-6). La possibilité qui lui dorénavant reconnue de bénéfcier d’un crédit à la consommation, d’une procédure de surendettement des particuliers est entendue de façon large par les Juges. La Cour de cassation a ainsi considéré dans un arrêt de 2018 qu’une saisie sur rémunérations, même justifée, pouvait provoquer une situation de surendettement, Cass. 2e civ 12-4-2018 no17–14.126 F-PB, note sous Lextenso Éditions Francis Lefebvre, La Quotidienne, avr. 2018. V. V. Vigneau, G.-X. Bourin, and C. Cardini, Droit du surendettement des particuliers, 2e édition (Droit & professionnels, 2012). 2 V. J. Bonnard, Les nouveaux privilèges des avocats : fducie, convention de procédure participative, acte privé contresigné, https://halshs.archives-ouvertes.fr/fle/.../Les_nouveaux_pr ivilA_ges_de_l_avocat.rtf. Il est vrai qu’avec autant de dirigeants politiques et parlementaires, issus du milieu des avocats d’affaires haut de gamme, l’adoption d’avantages corporatifs est devenue une simple formalité (en 2011 : 39 avocats à l’Assemblée nationale, 18 au Sénat).

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à la procédure collaborative américaine, elle oblige les parties à négocier en présence de leurs avocats respectifs afn de parvenir à une solution amiable au litige qui les oppose3. Bien évidemment, cette procédure est encouragée par le Conseil National des Barreaux de France et proposée souvent en premier lieu par les avocats en toute matière, y compris dans les litiges consuméristes. Certains la référence d’ailleurs sur leur site internet. Ce qui n’est pas sans soulever des interrogations. En effet, cette procédure est-elle vraiment nouvelle ? Plus important encore, est-elle adaptée aux litiges relevant du droit de la consommation ?

Une procédure sans trop d’originalité En dépit de son caractère nouveau, la procédure participative présente beaucoup des similarités avec les autres modes de règlement amiable (A). Les quelques spécifcités qui la caractérisent peinent à en faire une procédure originale susceptible de se distinguer dans les litiges relevant du droit consumériste (B).

Des effets juridiques proches de ceux des clauses de règlement amiable Créée par la loi du 22 décembre 2010, relative à l’exécution des décisions de justice, aux conditions d’exercice de certaines professions règlementées et aux experts judiciaires, la procédure participative est défnie à l’article 2062, alinéa 1er du Code civil français comme « une convention par laquelle les parties à un différend s’engagent à œuvrer conjointement et de bonne foi à la résolution amiable de leur différend ou à la mise en état de leur litige »4. Par cette procédure, la profession d’avocat voit son ascendance confrmée sur le marché du droit collaboratif. Le monopole qui lui est ainsi reconnu ressemble fort à celui à de l’acte privé contresigné consacré quelques mois plus tard par la Loi No2011-331 du 28 mars 2011 portant modernisation des professions judiciaires ou juridiques5.

3 C’est à l’Avocat américain, Stuart Webb, qu’on attribue la paternité de la pratique du droit collaboratif en 1990 dans l’état du Minnesota aux États-Unis. L’approche innovatrice qu’il propose au client mis au premier plan a conquis les juristes américains d’abord, et ensuite ceux du Canada, si bien qu’un groupe de droit collaboratif s’est créé au Québec en 2002. Cette procédure qui est reprise ici en droit français sur recommandation en 2008 de la Commission Guinchard, dans le cadre d’une volonté politique de déjudiciarisation du contentieux familial (V. sur la question O. De Mattos, Une nouveauté : la convention de procédure participative, Cah. Dr. Entr., no1, janv. 2011, art. 17 ; E. Defers, Le droit collaboratif en droit de la famille et au-delà, JCP G, 2010, 710 ; J. P. Tricot, Chr. De droit des modes amiables de règlement des confits, Rev. L’arb. 2011, no1, p. 207, no1). 4 Article 2062, al. 1er, C. civ. 5 L’acte sous-seing privé contresigné par un avocat se situant à mi-chemin entre l’acte sousseing privé et l’acte notarié. Transposé à l’article 66-3-1 de la Loi du 31 déc. 1971 portant réforme de certaines professions judiciaires et juridiques, l’acte sous-seing privé contresi-

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Un mode contractuel de règlement des confits. Aux termes de l’article 2064 du Code civil, « Toute personne, assistée de son avocat, peut conclure une convention de procédure participative sur les droits dont elle a la libre disposition, sous réserve des dispositions de l’article 2067 ». Au demeurant, la formulation de cet article permet d’exclure les questions relatives à l’état et à la capacité des personnes. Cette exclusion implicite fait échos au droit commun des contrats et obligations dont les articles 6 et 1162 du Code civil interdisent toute convention en ce domaine. L’article 2067 du Code civil insiste particulièrement sur la possibilité de recours à la procédure participative en matière de divorce : « Une convention de procédure participative peut être conclue par des époux en vue de rechercher une solution consensuelle en matière de divorce ou de séparation de corps ». En pratique, c’est d’ailleurs dans ce domaine qu’on relève le plus de recours à la procédure. L’exception qu’apporte l’article 2067 à l’article 2064 du Code civil permet à nombre de cabinets d’avocats, dits de proximité, de maintenir leur activité à travers le nouveau divorce par consentement mutuel. Ceci étant, l’alinéa 2 de l’article 2067 souligne qu’en cas d’échec de la procédure participative en matière de divorce ou de séparation de corps, l’article 2066 n’est pas applicable. Il en résulte que la demande en divorce ou en séparation de corps présentée à la suite d’une convention de procédure participative doit être formée et jugée suivant les règles prévues au titre VI du livre Ier relatif au divorce6. Mais si le marché du divorce reste le domaine privilégié de la procédure participative, le recours à cette procédure ne fait pas exception en matière consumériste. En effet, cas de diffculté, le premier réfexe du consommateur est de faire une réclamation auprès du professionnel. Selon que la diffculté persiste ou pas, le professionnel lui propose une procédure amiable qui devrait leur permettre de négocier le différend qui les oppose sans avoir recours au juge. À l’instar des autres modes de règlement amiable des différends, la procédure participative se place en amont de l’instance judiciaire. Elle est soumise au principe de la liberté contractuelle, dans la limite posée à l’article 2063 du Code

gné par un avocat confère également aux avocats le pouvoir d’établir des actes à l’effcacité juridique renforcée. En effet, en contresignant un acte sous-seing privé, l’avocat atteste avoir éclairé pleinement là, ou les, parties qu’il conseille sur les conséquences juridiques de cet acte d’une part. Il atteste également de l’origine de l’acte et de la vérifcation de l’identité et de la signature des parties tant à leur égard qu’à celui de leurs héritiers ou ayants cause. Il est également prévu que, sauf dérogation expresse, les parties à l’acte contresigné par l’avocat seront dispensées des formalités de la mention manuscrite lorsque celle-ci est normalement exigée par la loi (par exemple à l’occasion d’un engagement de caution). Avec de telles garanties, l’acte sous-seing privé contresigné par un avocat vient ainsi concurrencer l’acte notarié. (Fricero, Poivey-Leclerc, and Sauphanor, Procédure participative assistée par avocat (Lamy AxeDroit, 2012). 6 S. Sauphanor, La convention de procédure participative : aspects pratiques, Gaz. Pal. 18 janv. 2011, p. 10.

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civil. Le consommateur et le professionnel fxent librement la règle du jeu, délimitent le périmètre de leur litige, les pièces à communiquer à l’adversaire, ou encre le recours ou non à un tiers. Les parties peuvent très bien décider dans une procédure participative de soumettre un point de litige à la médiation ou la conciliation7.

Un domaine entendu largement. Avant la modifcation opérée par la Loi no2016-1547 du 18 novembre 2016 de modernisation de la justice du XXIe siècle, la convention de procédure participative ne pouvait être conclue qu’à l’occasion d’un différend qui n’avait pas encore donné lieu à la saisine d’un juge. Cette restriction avait pour conséquence de rendre la procédure encore plus rigide qu’elle ne l’était déjà. La réécriture de l’article 2062 ouvre dorénavant le recours à la convention de procédure participative à toute les phases de la procédure, y compris après la saisine du juge. L’objet de la procédure est également entendu largement puisque le législateur l’envisage aussi bien pour la résolution amiable du différend que pour la mise en état du litige8. La procédure participative produit également les mêmes effets que les clauses de conciliation et de médiation. C’est le cas notamment de la fn de non-recevoir et la suspension de la prescription, conséquences de la stipulation d’une clause de règlement amiable dans le contrat9. En effet, tant qu’elle est en cours, la convention de procédure participative rend irrecevable tout recours au juge pour qu’il statue sur le litige (C. civ., art. 2065). Cette irrecevabilité ne s’applique toutefois pas aux saisines visant à obtenir du juge qu’il prononce des mesures d’urgences ou des mesures conservatoires.

7 L. Benraïs, C. Butruille-Cardew, N. Fricero, B. Gorchs-Gelzer, and G. Payan, Le guide des Modes Amiables de Résolution des Différends (MARD), Dalloz 2017, 3E édition, p. 27 et s. 8 La “mise en état” est la phase de la procédure écrite au cours de laquelle se déroule l’instruction de la cause sous le contrôle et la direction d’un Magistrat du siège appelé, devant le Tribunal de grande instance, le “juge de la mise en état” et devant la Cour d’appel. « La procédure de mise en état a pour but de permettre au tribunal de rendre son jugement après avoir pris connaissance de l’ensemble des arguments des parties ainsi que des pièces sur lesquelles celles-ci se fondent ». V. D. Reins, La procédure de mise en état, https://www.village-justice.com/articles /Procedure-mise-etat,17620.html. 9 Depuis un arrêt du 14 février 2003 il est désormais acquis que le contrat peut créer une telle irrecevabilité : la sanction du défaut de mise en œuvre d’une clause de conciliation ou de médiation préalable à la saisine du juge constitue une fn de non-recevoir qui s’impose aux juges si les parties l’invoquent. (Cass. Ch. Mixte, 14 févr. 2003, no00-19. 423, D. 2003 ; 1386, note P. Ancel and M. Cottin ; Ibid., 2480 obs. T. Clay ; RTD civ. 2003. 294, obs. J. Mestre and B. Fages ; Ibid., obs. R. Perrot ; JCP 2003. I. 128, note L. Cadiet). Et alors que certains arrêts avaient retenu que cette fn de non-recevoir pouvait être régularisée en cours d’instance (V. notam., Com. 16 déc. 2010, no09-71.575), un arrêt de chambre mixte du 12 décembre 2014 avait clairement écarté cette possibilité de régularisation (Cass., ch. mixte, 12 déc. 2014, no13-19. 684).

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L’issue de la procédure. Les parties qui, au terme de la convention de procédure participative, parviennent à un accord réglant en tout ou partie leur différend peuvent soumettre cet accord à l’homologation du juge (C. civ., art. 2066, al. 1er). À l’instar de la médiation et de la conciliation, et à la différence d’une décision de justice, la convention de procédure participative n’a pas force exécutoire10. Les parties ou leurs avocats doivent pour ce faire, solliciter l’homologation de la convention par le juge. Le succès de la procédure met ainsi fn au litige. Toutefois, l’inexécution de la convention par l’une des parties autorise l’autre à saisir le juge pour qu’il statue sur le litige. La sanction de l’inexécution de la convention de procédure participative n’est donc pas d’ordre contractuel, mais d’ordre procédural. Lorsque les parties ne parviennent pas à un accord, elles peuvent toujours soumettre leur litige au juge (C. civ., art. 2066, al. 2). Dans ce cas, elles sont dispensées de la conciliation ou de la médiation préalable le cas échéant prévue.

Quelques spécifcités sans trop de conséquence Avant 2015, l’ancien alinéa 2 de l’article 2064 du Code civil français excluait du domaine de la convention de procédure participative, les questions relatives aux litiges nées à l’occasion d’un contrat de travail soumis aux dispositions du Code du travail entre les employeurs, ou leurs représentants, et les salariés qu’ils emploient. N’étaient ainsi concernés par cette exclusion, que les litiges individuels (et non collectifs) du droit du travail. Cela permettait de distinguer la procédure participative de la conciliation et de la médiation. Mue par une volonté d’encourager le règlement amiable en toute matière, le législateur a supprimé cette restriction. Aujourd’hui, le domaine de la procédure participative est largement entendu par le législateur français. Ce qui explique que ce soit surtout sur son aspect procédural que la procédure participative se distingue le plus des autres modes amiables de règlement de confits.

Un processus très encadré Le régime de la procédure participative avec avocat est fxé par les articles 2062 et suivants du Code civil. C’est l’article 2063 du Code civil qui énonce les mentions obligatoires que doit contenir la convention de procédure participative. Selon ses termes, ladite convention est contenue dans un écrit qui à peine de nullité précise son terme,

10 La médiation est régie par les articles 2044 à 2058 du Code civil et par les dispositions d’une ordonnance no2011-1540 du 16 novembre 2011 transposant en droit interne français la directive 2008/52/CE du Parlement européen et du Conseil du 21 mai 2008 sur certains aspects de la médiation en matière civile et commerciale.

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l’objet du différend, ainsi que les pièces et informations nécessaires à la résolution du différend, de même que les modalités de leur échange. L’intention des parties doit ainsi se matérialiser à travers l’objet de la convention. Il s’agit d’un contrat sur la procédure que les parties concluent pour encadrer la négociation destinée à parvenir à une solution de leur litige11. La durée de ce contrat est d’ailleurs bien règlementée. Ainsi qu’en fait déjà état l’article 2062 alinéa 2, la convention participative est conclue une durée déterminée. Ce qui lui vaut le qualifcatif de « pacte de non-agression à durée limitée »12. Enfn, l’obligation faite aux parties de transmettre les pièces sur lesquelles elles fondent leurs prétentions répond à l’exigence de bonne foi dans la procédure, énoncée à l’article 2062 du Code civil. Elle permet aux protagonistes et à leurs avocats de négocier en toute transparence et d’apprécier les chances de succès d’une action en justice en cas d’échec des négociations. Cela explique également que le texte impose aussi d’échanger « le cas échéant, les actes contresignés par avocats que les parties s’accordent à établir, dans des conditions prévues par décret en Conseil d’État » (article 2063, 4o du Code civil). La procédure participative se démarque également des autres modes amiables de règlement de différend, lorsqu’il s’agit d’apprécier les conséquences de l’échec de sa mise en œuvre. Aux termes de l’article 2066 al.2 du Code civil, « Lorsque, faute de parvenir à un accord au terme de la convention conclue avant la saisine d’un juge, les parties soumettent leur litige au juge, elles sont dispensées de la conciliation ou de la médiation préalable le cas échéant prévue ». L’échange de pièces ayant préalablement eu lieu dans le cadre de la procédure participative, le juge tranchera le litige suivant une procédure accélérée et simplifée qui prendra en compte les échanges intervenus au cours des négociations. On remarque ici une différence fondamentale avec les procédures de conciliation et de médiation dans lesquelles la confdentialité empêche de communiquer au juge la substance des échanges intervenus lors des négociations. Enfn, l’autre point fondamental de rupture réside dans la présence d’avocats. En effet, en cas de procédure participative, le consommateur comme le professionnel doit obligatoirement se faire assister par un ou plusieurs avocats. On ne peut nier le fait que toutes ces exigences apportent une vraie prévisibilité à la procédure participative. Il s’agit là d’un progrès dans le régime actuel des clauses de règlement amiable auxquelles il était reproché de manquer de précision. Pour autant, ce progrès est non seulement à relativiser notamment au regard du fait que sur bien de points, le régime de la procédure participative est identique à celui des autres clauses de règlement amiable, mais surtout parce que les singularités qui la caractérisent ne sont pas appropriées à tout litige, et plus particulièrement aux litiges consuméristes.

11 F. G’Sell, Vers la justice participative ? Pour une négociation à l’ombre du droit, D. 2010, p. 2450. 12 H. Poivey-Leclercq, La convention de procédure participative, “Un pacte de non-agression à durée déterminée”, JCP G, no4, 24 janvier 2010, 70.

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Un intérêt insuffsant dans les litiges consuméristes Malgré les efforts opérés par le législateur ces dernières années, la procédure participative présente des singularités procédurales inappropriées aux litiges consuméristes. C’est le cas de la rigidité qui la caractérise (A) et de son coût relativement élevé (B).

La rigidité de la procédure participative Le but affché du législateur en consacrant la convention de procédure participative est de développer les modes alternatifs de règlement des confits. Cette bonne foi n’occulte cependant pas l’avantage corporatif que le dispositif apporte à la profession d’avocat, et à contrario le coût supplémentaire que cela représente pour le consommateur.

La présence obligatoire de l’avocat, un frein pour le consommateur Le règlement amiable est un marché en pleine expansion qui, récemment encore, échappait aux avocats. Avec la loi du 22 décembre 2010, le législateur « confe la convention de procédure participative aux seuls avocats, sans même que ses auteurs justifent les raisons juridiques ou humaines de ce choix »13. Pourtant comme l’avocat, le notaire ou encore le conseil juridique disposent de compétences juridiques et techniques susceptibles d’être valorisées dans la procédure participative. En effet, dans une procédure participative, le rôle de l’avocat n’est pas différent de celui de conseil juridique ou de rédacteur d’acte. Sa présence permet de sécuriser les négociations et d’équilibrer les rapports de force14. C’est certain qu’un consommateur qui négocie seul contre un grand groupe comme Microsoft, n’aura pas la même assurance et n’aboutira pas au même résultat que s’il est assisté par un tiers averti qui défend ses intérêts. Mais c’est tout aussi vrai que pour le consommateur il n’existe que peu de différences à être assisté par un avocat, par un notaire, par un expert-comptable ou même par un représentant syndical comme c’est encore possible en droit du travail. L’acte d’avocat créé dans le cadre de cette réforme renforce le monopole de ce dernier sur les autres corporations. Il vise à valoriser les compétences rédactionnelles de l’avocat. Sans être doté de la force obligatoire de l’acte notarié, il garantit au client une conservation pendant une durée minimum de 10 ans. Nous ne nions pas que cette sécurité qui en résulte est au mieux des intérêts du consommateur. Mais elle a non seulement un prix, mais en plus, n’est pas sans inconvénient. En effet, comme le médiateur ou le conciliateur, le statut de l’avocat dans la procédure est celui d’un tiers susceptible de faciliter les négociations et de

13 V. Jérôme Bonnard, Les nouveaux privilèges des avocats : fducie, convention de procédure participative, acte privé contresigné, https://halshs.archives-ouvertes.fr/fle/.../Les_nouvea ux_privilA_ges_de_l_avocat.rtf. 14 Sur le rôle de l’avocat, H. Ader et al., Règles de la profession d’avocat, 15e édition, “Dalloz Action”, 2016, no 621.21 s.

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sécuriser l’accord fnal. Pour autant, au regard des attaches qu’il a avec son client, on ne peut exiger de l’avocat qu’il soit neutre et indépendant. L’avocat a des pouvoirs plus limités que ceux du médiateur ou du conciliateur. Contrairement à ses derniers, l’avocat en principe ne conseille qu’une seule des parties, à savoir son client. De même, à défaut d’accord entre les parties, le médiateur leur propose une solution pour régler le litige, ce qui n’est pas le cas de l’avocat dans une procédure participative.

Le peu de fexibilité qu’autorise la convention de procédure participative Loin d’être des atouts, les spécifcités attachées de la procédure participative représentent davantage de freins à son recours dans le règlement des litiges relevant du droit de la consommation. En effet, l’objet du différend doit être indiqué ab initio dans la convention de procédure participative. Ce qui fge le litige et interdit de négocier sur autre chose que les positions initiales des parties au risque de conduire à la nullité de la convention. Or, une solution amiable pérenne n’a de chance d’être trouvée que si elle peut englober l’intégralité des points d’opposition des parties. Ce qui justife qu’en pratique lors des discussions, l’objet du différend initial évolue souvent. Ensuite, le principe d’un échange des informations pertinentes et leur consignation dans la convention constitue une garantie importante de la sincérité et de la fabilité des discussions. Mais il oblige les parties à trier les informations à communiquer, et donc à prendre position avant tout échange. Peut-on œuvrer de bonne foi à la résolution d’un différend en ne communiquant que les seules pièces choisies ? Par ailleurs, le fait d’imposer une durée à la procédure exige une prévisibilité temporaire qui peut être diffcile d’atteinte. En effet, quelle est la durée opportune qu’il convient de donner à une procédure participative de négociation avec avocat ? Peut-on envisager un prolongement ultérieur de cette durée notamment par le biais d’un avenant ? Sur ce dernier point et en guise de début de réponse, un parallèle peut être fait avec l’arbitrage dont la durée initiale, dans le silence de la convention, est de 6 mois avec possibilité de prolongation (article 1446 du Code de procédure français). Enfn le législateur français prévoit que sauf accord contraire des parties, les constatations du médiateur et les déclarations recueillies au cours de la médiation ne peuvent être divulguées aux tiers ni invoquées ou produites dans le cadre d’une instance judiciaire ou arbitrale. La seule exception est lorsque la révélation est faite pour des raisons impérieuses d’ordre public ou si elle est nécessaire à la mise en œuvre des accords issus de la médiation15. Contrairement à la médiation,

15 J. Landel, La médiation des litiges de la consommation : un nouveau déf pour les assureurs, Revue générale du droit des assurances, déc. 2015 – no12 – p. 538, RGA.

La procédure participative avec avocat 213 la procédure participative n’est pas soumise au principe de la confdentialité. Ce qui la rapproche davantage d’un acte de procédure que d’un processus16. Enfn, la confdentialité et de l’engagement pris par l’avocat de se désister en cas d’échec font la force du droit collaboratif17. Privée de ces deux éléments, la convention participative perd quelque part de sa compétitivité. Ces points soulignent une des faiblesses de la procédure participative. Mais encore, il ne s’agit pas des seules.

Un coût relativement supérieur aux enjeux des litiges consuméristes Le coût de la procédure participative est également un élément dissuasif pour le consommateur. En effet, la procédure participative, comme les autres MARD, a pour objectif de faciliter le règlement des litiges en évitant l’implication du juge.

Un rapport avantage-prix en défaveur de la procédure participative En effet, un traitement défectueux ne peut qu’aggraver l’insatisfaction du consommateur et attiser le confit. Contrairement au procès dans lequel on cherche à tout prix à emporter la conviction du juge, les MARD permettent de raisonner sur les intérêts18. Replacées au centre du règlement du confit, les parties travaillent en équipe avec leurs avocats à rechercher une entente mutuellement acceptable19. Comme les autres procédures amiables, la procédure participative est ainsi tournée vers la recherche d’une solution qui préserve la relation entre consommateur et professionnel. En tant que tel, le professionnel peut très bien envisager la stipulation d’une clause de procédure participative dans un contrat qui le lie au consommateur en lieu et place d’une clause de médiation ou encore de conciliation.

16 V. sur la différence entre ces MARD, H. M. M. Salah, Médiation, conciliation, transaction, Jugement sur accord-Parties : essaie de défnition, in Médiation en matière civile et commerciale, dir. Filali Osman (Bruyant, 2012), p. 88. 17 Dans le système anglophone où la procédure collaborative a d’abord vu le jour avant d’inspirer le droit français, l’avocat qui assiste son client dans une procédure collaborative doit prendre l’engagement de se désister en cas d’échec des négociations. Cet engagement n’est pas sans conséquence. En effet, de peur de perdre l’honoraire de résultat (si celui-ci a été prévu) ou plus grave, de perdre le dossier, l’avocat s’investira davantage dans le succès des discussions. L’inconvénient ici est que l’avocat sera tenté de pousser son client à accepter un arrangement qui n’est pas dans son intérêt (V. C. Kessedjian, Le droit international collaboratif (IREDIES Éditions A. Pedon, 2016), p. 46 et s. 18 Bolze, Le procès, un risque à éviter : les modes alternatifs de règlement des litiges (RGDA, 2010), p. 481. 19 Les méthodes utilisées sont celles de la négociation raisonnée que Roger Fisher and William Ury décrivent dans le célèbre “Harvard Negociation Project” (V. Rogers Fisher and William Ury, “Getting to Yes”, Houghton Mifin, 1981 – Comment réussir une négociation, Le Seuil, cit. par T. Garby, Ibid., p. 18).

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Mais en pratique, le choix d’une procédure amiable s’examine en fonction de son coût et des résultats escomptés. Pour le consommateur le recours à une procédure participative n’est nullement avantageux. Le processus est coûteux puisque les honoraires de l’avocat ainsi ceux du tiers s’il y en a, sont à sa charge. Le consommateur pour qui l’enjeu économique du contentieux est faible préfère en général se tourner vers la médiation. Le procédé est peu coûteux, sinon même qu’il est gratuit pour le consommateur. En effet, la loi de 2015 permet de mettre le coût de la médiation à la charge du professionnel. La convention de procédure participative est un contrat solennel dont les conséquences sont similaires à celles des autres clauses amiables de règlement de confit. Comme ses dernières, l’autonomie de la clause de recours à une procédure participative par rapport à la convention principale peut s’envisager20. La conséquence en sera que la clause survivra à l’anéantissement de la convention qui la contient21. La différence ici réside dans le fait qu’en cas d’échec partiel ou total de la procédure participative, une passerelle vers la saisine simplifée de la juridiction permettra un traitement accéléré de l’affaire étant donné que les observations et pièces des parties fgurent déjà dans l’acte de saisine. Ce qui n’est pas le cas en cas d’échec de la médiation ou de la conciliation. Ceci étant, contrairement au professionnel qui pourrait voir un atout dans le temps que ce traitement accéléré du dossier peut permettre de gagner, pour le consommateur cela ne fait généralement aucune différence.

La médiation, une procédure concurrentielle Au contraire de la procédure participative, la médiation présente un intérêt particulier en même temps qu’une certaine spécifcité pour le consommateur. Ceci pour un certain nombre de raisons : en plus d’être encadrée, la procédure offre des garanties telles que la confdentialité, la transparence, l’effcace des négociations due au pouvoir modérateur du médiateur et l’équitabilité de la décision elle aussi liée aux mêmes raisons. Ici également le consommateur a la possibilité de se faire représenter par un avocat comme en matière de procédure participative, ou de se faire assister par une personne de son choix. Les frais de conseil sont toutefois à sa charge. Le législateur s’est évertué à promouvoir la médiation dans les différends consuméristes. En plus des médiateurs corporatifs, le consommateur peut également se référer gratuitement à des médiateurs sectoriels de la consommation.

20 Sur l’autonomie des clauses de conciliation et de médiation, v. Cass. Ch. Mixte, 14 févr. 2003, no00-19. 423, op.cit. ; Civ. 1ère, 8 Avr. 2009, no08-10.866, D.2009. 1284, obs. X. Delpech ; Civ. 2e 16 déc. 2010, no09-71.575, D. 2011. 172; RTD civ. 2011. 170, obs. R. Perrot. 21 V. A. Etienney, Menace sur les clauses ayant vocation à survivre à la résolution du contrat, D. 2012, p. 1219.

La procédure participative avec avocat 215 De même, dans les litiges liés au commerce en ligne, le Règlement de l’Union européenne (UE) no 524/2013, 21 mai 2013 relatif au règlement en ligne des litiges de consommation a prévu des procédures de médiation en ligne gratuite permettant d’assurer une solution rapide et peu coûteuse aux litiges de consommation et de désengorger les tribunaux. En défnitive, la procédure participative présente bien de vertus, notamment dans les litiges entre professionnels où l’objectif est de protéger, à tout prix la valeur de l’entreprise et les rapports entre actionnaires et partenaire22. Il va de soi dans ce type de litige qu’une entreprise prendra en compte les conséquences commerciales, y compris l’atteinte à la réputation et l’image de marque de la société, en cas de succès de l’action en justice. La procédure participative est également fort présente en droit de la famille où elle a d’ailleurs donné naissance au divorce par consentement mutuel23. Mais disons-le clairement, elle présente peu d’intérêt dans les litiges consuméristes.

22 C. Boillot, La convention de procédure participative, Rev. Lamy dr. Aff. 2011, no58, p. 55. 23 V. Larribau-Terneyre, Nouvel essor pour les modes alternatifs et collaboratifs de règlement des litiges en matière familiale, Dr. fam. 2012. Chron. 13.

13 Product liability from a comparative perspective What kinds of protection? Domitilla Vanni di San Vincenzo

Background This research aims to analyse English and Italian rules in matters of product liability exploring differences and analogies between the two considered legal systems. Since the Donoghue v Stevenson case (1932) in English law and the Saiwa case (1964) in Italian law, both House of Lords and Court of Cassation judgments confrm the extraordinary relevance of food in opening up new frontiers of liability. This connection between food and tort law may originate from the deep link existing between food and human life in its different aspects so that both in common law and in civil law systems it is to be presumed that damages deriving from defects in the packaging of food – jeopardizing human health – in the past have attracted Courts’ attention and have become the way through which tort law has broadened its frontiers, increasing the instruments of legal protection and anticipating European Directive 1985/374 in the matter of defective product liability. The research discloses that the current legal framework in this area is fragmented and rather unsatisfactory and that signifcant differences between national consumer laws in the jurisdiction of the trader and the consumer may deter them from transacting across borders. The sometimes fragmentary and overly detailed nature of EU legislation points to the need for regulatory reforms in parallel with the introduction of a new legal structure. In the meantime the comparison between the different liability regimes in both the considered legal systems has become a useful testbed to verify the validity of the dichotomy between strict and fault liability.

Introduction: the European framework The theme of liability for defective products develops within an advanced stage of industrialization and production on a large scale. In particular, the need to protect consumers from purchasing and using unsafe products arises with the emergence of social instances aimed at safeguarding the weakest subjects of the economic cycle1.

1 M. Dougan and E. Spaventa, Social Welfare and EU Law (Hart Publishing, 2005).

Product liability: a comparative perspective 217 The Italian case law, in this regard, in the last decades has built an articulated protection system for injured parties, applying alternatively the general clause of art. 2043 Civil Code or the specifc provisions of art. 2050 Civil Code on “dangerous activities”, creating a system of presumptions that facilitates the proof of damage and its connection to the use of the defective product. In this context, minor importance has been attributed to contractual liability, given its limited scope for acting only in relation to the parties of the sale contract, that is to say, of the exclusive retailer, and not of the person who produced the goods, because any contractual protection cannot be recognized to the third party. Similarly in English common law the “privity of contract” doctrine historically excluded the access to contractual remedies for third parties2: so negligence has flled up the lack of consumer protection3 until the European legislator intervention. The frst “input” for enhancing consumer protection for defective products comes from the European framework: the European Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations, and administrative provisions of Member States concerning liability for defective products4 introduced a third kind of liability, i.e. the strict liability5, as an alternative regime which exempts the consumer from showing the manufacturer’s fault once it has been shown that the product was defective. According to the EC Directive the claimant has only to prove that the product was defective. If he succeeds in doing so, the manufacturer cannot escape liability by proving he was not negligent6. This means that the tortfeasor is liable for the damage caused unless he can prove that his conduct was suffciently careful. It is interesting to note that the European legislative rules in this matter neither in Italian law nor in English common law did not replace the existing remedies on the basis of the general legislative provisions7 or deriving from the principles of common law8, but they operate alongside them, identifying a sectoral and residual discipline, whose actual use is let to the discretion of the injured party.

2 See Winterbottom v Wright (1842), Exch. of Pleas., 10 M&W 109. 3 Firstly Donoghue v Stevenson [1932] AC 562, in which House of Lords frstly recognized the ginger-beer manufacturer’s liability towards the last consumer as a form of violation of an “implied” duty of care (tort of negligence), applying Winfeld’s theory about the extraordinary amplitude of law of tort. P. H. Winfeld, The Province of the Law of Torts (Cambridge University Press, 1931). 4 It has been transposed in Italy by D. P. R. 24 May 1988 n. 244 and in the United Kingdom by the Consumer Protection Act 1987. 5 The development of strict liability has been related to the widespread availability of liability insurance. As argued by A. Deakins and B. Markesinis, Tort Law (Clarendon Press, 2003), p. 3, . 6 Athough he has a limited number of other defences, including the development risk defence, and may invoke contributory negligence of the victim; see C. Van Dam, European Tort Law (Oxford University Press, 2005), p. 1410. 7 In Italy the Civil Code rules about contractual or civil liability. 8 I.e. Contractual liability and tort of negligence.

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Again, in the context of defective product liability, there was a subsequent and fundamental intervention by the European legislator aimed at enhancing the functioning of internal market by reaching a high level of consumer protection in the feld of Sales Law9. The measure in question was the Directive 1999/44/EC of the European Parliament and Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees10. The Directive 1999/44 focused on the principle of conformity of goods as laid down in the contract and highlighted the lack of conformity, in which conceptually all the defects of the goods are included, introducing four different remedies (repair, replacement, price reduction, and rescission of the contract), which must be used in two different stages as the last two remedies can be used only if the frst two remedies fail.11 The issue of product safety, however, does not complete the matter of responsibility. Responsibility, in fact, constitutes a remedy following the emergence of the defect or the occurrence of the harmful event. The same social instances that led to the producer’s responsibility claim that systems should be adopted to prevent the marketing of defective and potentially harmful products. Closely linked to responsibility is the question of prevention, that is, the control systems need to minimize the possibility of placing on the market a product without the conventionally acceptable guarantees and safety conditions. In the area of prevention, a fundamental role has been played by the European institutions, which obliged the introduction for our disposition provisions aimed at ensuring safety standards. This is, in the frst instance, to achieve a high level of protection of the health and safety of consumers, as specifed in art. 152 and 153 of the EC Treaty. In other respects, the rules on product safety contribute to promote a fair competition between companies whose products must comply with the general safety conditions in order to be legally marketed, ensuring that the safety and the quality of products are in themselves legally protected values. In this context, in addition to specifc provisions in the various specifc products sectors, the European legislator frstly adopted Council Directive 92/59/EEC of 29 June 1992 on general product safety, and after, in the interest of major clarity, Directive 2001/95/EC of the European Parliament and the Council of 3 December 2001 on general product safety.12 Directive 2001/95/EC is intended to ensure that products placed on the market are safe (Article 1). To reach this scope it introduces a general safety requirement for all products placed on the market, or otherwise provided or made available to consumers, under reasonably foreseeable conditions. The Directive directly imposes the Member States to ensure product safety and to determine

9 C. M. Bianca and S. Grundmann, eds., EU Sales Directive (Intersentia, 2002), p. 25. 10 The Directive 1999/44/EC – which covers only sales of movables from professional suppliers to consumers – has been transposed in Italy by Legislative Decree no. 24 which introduced the art. 1519 bis and followings of Civil Code. 11 Bianca and Grundmann, EU Sales Directive, p. 69. 12 In the Italian system, Directive 2001/95/EC on General Product Safety has been implemented by Legislative Decree no. 172/2004.

Product liability: a comparative perspective 219 the sanctions for infringements. The Directive doesn’t delete the residual and framework discipline, and is applied in the absence of specifc provisions on product safety or when there are gaps in such sectoral legislation. Its application does not affect Directive 85/374 / EEC on liability for defective products (Article 17). Given that, it is well understood that consumer protection is not completed within the scope of possible remedies, both in contract or in tort, if the damage has already been caused because of the lack of general safety requirements: frst of all, an adequate prevention system designed to prevent the placing on the market and the circulation of defective products is required. From this perspective, the civil and criminal liability system is a residual and complementary instrument compared to an ex ante intervention; and the two profles can be read together. Wanting to bring the security theme under the name of global product quality, responsibility and prevention are two faces of the same unifed security concept.

The Italian system: the Court of Cassation case law The Italian case law, before D.P.R. 24 May 1988 n.224, developed on the basis of presumptions regarding the defects of the goods. Moreover the criterion of joint responsibility is based on art. 2055 c.c. if the production process of the good has been divided into several different phases. So the damage deriving from defective products was exclusively restored by ex art. 2043 c.c. or ex art. 2050 c.c., applied in the specifc hypothesis of “dangerous” activities. However art. 2043 c.c. imposed to the injured party the burden to show not only the damage but also the causal link that connects the producer’s conduct to the damage. The burden of proof represents an actual obstacle to the producer’s responsibility. Actually, this limit has been overcome by resorting to the presumptive criteria of art. 2727 ss. civil code. By using the simple presumption criteria, it is possible to start from a known fact to an unknown one. To be banned is only a praesumptio de praesumpto, not being able to exploit a presumption as a known fact and to give rise to another presumption.13 Firstly in the Saiwa case,14 the Court of Cassation, after excluding the dealer’s liability for health damage caused to a married couple by eating spoiled biscuits, as the product came out already packaged from the factory, considered the manufacturer liable for the alteration of cookies because of the manufacturer’s negligent behavior on the basis of a presumption, in the absence of the proof of the seller’s fault in preservation of the goods or in placing the product on the market after the expiry date.

13 In this sense also recently the Court of Cassation stated in the decision of 20 November 2018 n. 29828. 14 Court of Cassation 25 May 1964, n. 1270.

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According to the Court of Cassation in Saiwa case, it is legitimate to connect the defect of the product to the negligence of the manufacturer through a logical-presumptive process, remitted to the discretion of the judge. The unknown fact – i.e. the producer’s negligence – must not appear as the only possible cause of the known facts – i.e. the alteration of the biscuits : it is suffcient that it results from them, according to id quod plerumque accidit.15 Again on the basis of art. 2043 Civil Code, particularly on the principle of neminem laedere, in another decision16 the Court of Cassation considered the manufacturer and distributor of a bottled drink liable for the damage caused by the outbreak. Concurring with non-contractual liability, a distributor’s contractual liability under art. 1218 c.c. was considered by the Court confgurable for having provided a defective product. The Court excluded the liability of the distributor and the manufacturer of the goods from liability under art. 2050 c.c., waiting for the non-confgurability of a dangerous activity in re ipsa, or liability ex art. 2051 c.c., given the lack of effective availability of the res by the distributor. In another decision,17 in a case of explosion of a defective bottle, the Court of Appeal considered only the producer responsible. At the basis of the decision, the Court put the results of a technical product inquiry, whereby the cause of the bottle explosion in the fermentation process was the insuffcient pasteurization of the juice and the not hermetic closure of the bottle. According to the judges, this check excludes any responsibility of the distributor who, after the juice has been prepared and packaged, simply imported, purchased, and sold. Finally, regards the profle of the absence of a hermetic closure (attributable to the producer but detectable by the importer and the retailer), the judges pointed out that the actual causal incidence of this element must be proven in the verifcation of the harmful event so that the joint responsibility of the distributors themselves with the manufacturer can be established. Particularly important in the manufacture of a defective product by several subjects is the judgment of the Court of Cassation of 9 June 1986.18 On the basis of art. 2055 cc, in cases where the production process of a particular good had been involved in several different stages, the Court of Cassation asserted the joint and several liability of all those who had diligently contributed to the manufacture of a defective product. In particular, the Court considered the purchaser of a defective piece of work to be responsible for the damage to the product resulting from the use of the fnal product for the sole reason that the defect is attributable to the supplier of others pieces. According to the Court of Cassation, the person who assembles the goods has the duty to check the purchased item and therefore

15 In the same sense recently in the Court of Cassation, 25 September 2018, n. 22571, it has been said that . 16 Court of Cassation, 27 February 1980, n.1376. 17 Court of Appeal of Rome 30 July 1992. 18 The Court of Cassation of 9 June 1986, n. 3816.

Product liability: a comparative perspective 221 is not liable only if the piece has been destined by the producer for an atypical and unpredictable use, after it was assembled.

The Italian legislation implementing Directive 85/374 EEC: the D.P.R. 24 May 1988 no. 244 on product liability and the Legislative Decree 6 September 2005, no. 206 i.e. the Consumer Code The D.P.R. 24 May 1988 n. 244 implemented in the Italian system the Directive 85/374/EEC on defective product liability19. The provisions contained in the D.P.R. 24 May 1988 n. 244 were after transposed into Title II “Responsibility for Defective Product Damage”, arts. 114– 127 of the Consumer Code. The concept of the security of goods is well-mentioned in Italian Consumer Code, which aims at harmonizing and coordinating the rules on consumer protection. Its regulatory scope extends beyond the sale contract moment, embracing all stages in which the consumer is involved in legal relationships with the subjects of the production and the distribution chain of goods and service. As already said, in current Italian legislation, the defective product protection may arise in both non-contractual liability and contractual liability. The two forms of protection are not excluded, but combine among themselves in the perspective of a greater and wider consumer protection. In fact, there is no form of exclusion of residual remedies when choosing the way to invoke some protection. The provisions on liability for defective products (Article 127 and Article 135 Consumer Code) do not exclude or limit the rights attributed to the consumer by other provisions of the law. The concrete way of protection is therefore left to the consumer’s discretion and to the evaluation of the single case. The Aquilian and contractual liability profles may cross; in this respect, the system outlined in the sectoral rules appears to be inspired by the principle of effective protection. Given that, there are still missing issues, such as the possibility of outlining a non-seller’s contractual liability. The European discipline therefore did not delete previous case law, but it stays alongside it, taking advantage from the results achieved in this matter. On the other hand, it should be noted that the sectoral discipline regarding the producer’s liability has no retroactive effect, so that for damages occurred before d.P.R. 24 May 1988 n. 224 the general provisions contained in the Civil Code only apply .

19 The d. P. R. n. 244/1988 was subsequently amended by Legislative Decree no. 25, which has adopted the innovations in the Community Directive contained in Directive 1999/34/ EC, extending the scope of Directive 85/374/EEC to agricultural materials (such as meat, cereals, fruit and vegetables) and hunting products, eliminating any possibility of derogation in this regard.

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Called to respond for defective product damage is frst and foremost the manufacturer. The responsibility of the latter is, alongside, the position of the supplier who has distributed the goods. According to art. 114 of the Consumer Code the manufacturer is liable for damage caused by defects in the product. On the basis of Art. 115, par. 1, of the Consumer Code a product is “any movable property, even if incorporated into other movable or immovable property, including energy”; while ex art.115, par. 2 bis, the producer, in this sense, for the purpose of applying the special liability discipline, is the one who produced the fnal product or a part of it. The provisions of Directive 85/374/EEC, as amended by Directive 1999/34/EC, help to clarify the concept of producer. According to art. 3 of Directive 85/374/EEC, the term “producer” means the manufacturer of a fnished product, the producer of a raw material or the manufacturer of a component part, and any person who, by his or her own name, brand or other distinctive sign on the product, is the producer of the product. As a correction to Directive 1999/34/EC, by eliminating the original restrictions on agricultural products, the farmer, the fsherman, and the hunter must also be considered a producer. In the event of a competition of several subjects in the realization of the goods, the principle of solidarity of all those who have contributed to the realization of the defective good must be considered. According to art. 121 of the Consumer Code, in fact, if more people are responsible for the same damage, all are solely obliged to pay compensation. Further profle is the internal relations between the managers. To this end, the second paragraph of Article 123 of the Consumer Code provides, according to the ordinary rules of passive solidarity, that the person who has compensated the damage can act against other parties to the extent determined by the magnitude of the risk attributable to each individual and by the extent of the consequences that have arisen. In doubt, the obligation takes place in equal parts. The Court of Milan has in this respect affrmed the joint liability of the manufacturer-designer and the company who has been involved in the assembly, on which it is in charge of doing so “according to the art”, adapting the intervention to the contingent conditions occurring from time to time. From a probative point of view, the discipline provides for a precise allocation of the burden of proof. The damaged party must prove the defect, damage, and the causal connection between defect and damage (Article 120, frst paragraph, Consumer Code). Therefore, he must not prove the producer’s fault for the existence of a specifc defect in the good. In this sense, the injured party must prove – in the event of a damage attributable to the defective product – that the product did not present the safety that can legitimately be expected on the basis of the criteria laid down by the same discipline (Article 117 consumer code). In addition, the standard provides that when it is probable that the damage is caused by a defect in the product, the judge may order the costs of technical advice to be anticipated by the manufacturer. Once proof of such items is provided, it is up to the manufacturer to prove that the good was not defective.

Product liability: a comparative perspective 223 From a theoretical point of view, we can doubt that manufacturer’s responsibility represents a liability hypothesis, or if it is no longer appropriate to set up a simple reversal of the burden of proof in the present case. In support of the thesis of objective liability, the non-contractual liability of the producer is not based on fault but on the causal connection of the damage taking into account the presence of a defect in the product. Once the damaged product has been tested as a consequence of the defect of the product purchased, it is up to the manufacturer or supplier to demonstrate the existence of a suitable fact to exclude liability. In particular, the second paragraph of Art. 120 states that the producer must prove the facts which may exclude liability under the provisions of art. 118 Consumer Code.

The English system : the common law and the Consumer Protection Act 1987 In the English system the emergence of a body of “product liability” is comparatively recent,20 arising from the EC Directive 85/374 and to the Consumer Protection Act 1987 which transposed the directive in National law. Before it, the Sale of Goods Act 197921 allowed a consumer who was injured or whose property was damaged by a product that he had bought to be able to bring an action against the retailer for damages for breach of contract.22 Contractual remedies were also limited in the sense that they normally lie against the retailer who sold the product and not against the manufacturer who was liable for its defective state. Previously, starting from Donoghue v. Stevenson23 , in 1932 the House of Lords recognized the possibility of an action in negligence against the manufacturer by the fnal consumer of the defective product. The issue was whether a duty of care was owed by a manufacturer to fnal consumers. The preliminary issue of whether a manufacturer owed a duty of care to immediate contractual partners had been answered long before.24 This view is the starting point of any consideration also today in the three common law jurisdictions (England, Ireland, and Scotland). The common law basis of relationships between contract and tort is very different from that of continental systems. It depends on whether the requirements for breach of a duty of care are fulflled. If so, the breach of duty is actionable in either contract or tort. Whether that duty is contractual or non-contractual is merely incidental.25

20 Markesinis and Deakins, Tort Law, p. 603. 21 S. Whittaker, Liability for Products (Oxford University Press, 2005). 22 The doctrine of privity of contract prevents an action for contract damages brought by a third party even though it might be entirely foreseeable that a defective product would cause harm, for example, to a member of the purchaser’s family, or to an employee. 23 [1932] AC 562. 24 In Winterbottom v Wright (1842) 10 M & W 109, 115: . 25 C. Von Bar, The Common European Law of Torts, Vol. I (Oxford University Press, 2003), p. 484.

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The real difference is that tort liability lets the consumer the already mentioned diffculties of proving the manufacturer’s fault. So also in English law EC Directive 85/374 and the Consumer Protection Act 1987 – well-examined before – played a decisive role in opening new frontiers of consumer’s protection, introducing a form of “strict liability” not just upon the manufacturers but upon all those present in the supply chain. This choice seems to reproduce in English law a model of extended liability borrowed largely from USA law,26 justifed by effciency-based considerations of economic analysis. Under the Consumer Protection Act 1987 liability for defective products is strict but – as under American law – this does not mean absolute or automatic liability. The boundaries to the producer’s liability are set by the concept of “defect” contained in section 3 of the Act,27 by the duties which are implicit in this defnition, and by the defense. So in this area also in the UK the principles of common law tort of negligence overlap with stricter forms of liability. The different sources of protection – contractual or not contractual liability – have not been unifed yet in a single body of discipline. So, as in Italy, consumers can use alternative and possibly cumulative bases for an action in damages for a defective product.28

Conclusive remarks As already underlined, the European legislation introduced in matter of defective product liability did not delete all the previous rules, aiming to introduce a minimum harmonized protection of the main guarantee profles. Therefore, consistently, as affrmed in Italy by art. 135 Consumer Code, the provisions do not exclude or limit the rights which are attributed to the consumer by other rules of

26 In the USA in the early 1960s emerged the principle of strict liability in tort for harm caused by a defective product. In Henningsen v Bloomfeld Motors Inc. [161 A 2d 69 (1960)] the Supreme Court of New Jersey enlarged the scope of the transmissible warranty of quality by reference to general considerations of public policy. The action, against both the manufacturer and the retailer, was initiated by the wife of the purchaser of a Chrysler Plymouth car who was injured while driving it. There was no evidence of any negligence. The court offered a public policy justifcation for the imposition of strict liability without regard to privity. This judgment led to the belief that the basis of liability should lie not in contract but in terms of liability in tort. 27 Three are the kinds of possible defects: 1. Those occurring at the design stage; 2. Those occurring in the process of manufacturing itself; (as in Donghue v Stevenson) 3. Those deriving from a failure to give adequate warnings or instructions about the product (as in Vacwell Engineering v BDH Chemicals [1971 1 QB 88]). 28 About other forms of liability, as joint liability recently Supreme Court of UK in Sea Shepherd v Fish & Fish Ltd (2015) UKSC 10; (2015) WLR 694. reversed a decision by the Court of Appeal holding the appellant (UK registered charity) liable to the respondent as a joint tortfeasor, extending the use of test for joint tortfeasorship, based on three elements: 1. To assist the commission of tort by another person; 2. To pursue a common design; 3. An act is done which is, or turns out to be, tortious.

Product liability: a comparative perspective 225 the legal order. In addition, as far as not covered by the title, the provisions of the Civil Code relating to a sale contract shall apply. The outlined framework, despite its limitations, is an important achievement for effective consumer protection. The analysis of case law shows that the harmonized discipline works, that complaints are increased at an European level and that these generally have a positive outcome. Despite this, the system cannot be said to be perfect yet and requires some adjustments which can be discovered only by the analysis of practical human experience. So defective product liability can represent an opportunity for tracing clearer borders between strict and fault liability. It has been well said29 that the dichotomy between negligence and strict liability is outdated. Both Legislators and Courts in every legal system look for the right balance by mixing negligence and strict elements fne-tuning this mix by shifting the burden of proof from the claimant to the defendant. So there aren’t two tracks, negligence and strict liability, but a broad road with several lanes, containing different mixes of elements of both.

29 Van Dam, European Tort Law, p. 264.

Index

abstractionism 84, 87, 98–99 Acadie française 24 acculturation juridique 42 Act on Bills of Exchange and Cheques (1924) 65 Afrique occidentale 22 agriculture 148, 151–152, 155–156, 159, 201 Amending Land Act 1865 (Vic) (the Grant Act) 153 American Civil Liberties Union (ACLU) 115 American Civil War 85 American Medical Association (AMA) 116 Americanization 72, 94 analogy 2, 12; broccoli 19; food 13 andouille 22 Anglicization 71, 86, 89 Anglophone 72–73; commerce 93; economism 94; elements 73; fellowship 100; global law 96–97; law 71–73, 76, 83–84, 88, 93–96, 98–99; legal abstraction 84; legal culture 4; legal development 71; legal methods 71, 73; legal traditions 98; obscure 81; perspective 94; realm 72, 84; rule 82; tradition 98 animal 149, 156, 159–166, 182–183; biology 184; emotional distress 164; emotional needs 164; ethological needs 164, 182; farm 4, 159–160, 163–165, 184; feelings 162; health 165; mutilation 183; natural behaviour 164–164; physical needs 4, 184; physiological needs 164; rights 160; sentience 159, 165; social environment 173; survival 163; welfare 4, 159–166, 173–174, 178, 183–184; wellbeing 164–165

annexing powers 49, 52–54, 63–65 arbitration 93–94, 196 Armitage, David 83, 92 Arnold, Mathew 91 Atakapa-Ishak 23, 33 atomizing of families 71–72 Austin, John 84–85, 87, 99 Austrian Civil Code 52 avocat 204–207, 209–215 Babington, Anthony 77, 99 Bacon, Francis 80–81 Baker, J. H. 77, 81 Bell, Duncan 87 Bellomo, Manilio 76 Benthamite: chrestomathy 86; fact 96; valuation 87 Benton, Lauren 88 bijuridisme 41-42 bilinguisme 24, 30 Blackstone, William 85 Bossowski, Franciszek 55 bouillon 22 boundaries 224; imperial 85 Brancaforte, Elio 101 Breyer, Stephen 98 British Empire 85 Buddhism 100, 136, 146 Buzan, Barry 93 Cadiens 33 Cajuns 33 Calvin, John 79, 92, 99 Calvinism 78–82, 98; Oriental 100 Canadian Correctional Service 119 Caplan A. 115 Car, Stanisław 50, 52–56 Carty, Anthony 100 case law 5, 118, 121, 127–128, 135–136, 141, 159, 201, 221, 225;

228

Index

American 201; Court of Cassation 219; English 15; French 201; Italian 5, 217, 219; reasoning 2, 12 chaudron 44–45 Christendom; Latin 78, 92; medieval 76 citrouille 43 Ciorap v. Moldova 121 civil code 3, 21, 52–60, 63–66, 219; French 6, 48; Louisiana 4, 21; Polish 52, 55, 57, 60, 66 Civil Law Commission 55 Civil Law Section 53 Coburn, Tom 18 Code civil français 206, 209 Code civil de Louisiane 23–24, 31, 36– 37; du Bas-Canada 41; du Québec 42 Code Napoléon 22–23, 29, 34 codifcation 3, 21, 23, 26, 29–31, 32, 37, 41–42, 45, 54, 56–58, 61–65; body 62; civil 55–57; efforts 57–58; future 55; initiatives 58; national 6, 48, 59; need for 58; original 65; Polish 66; strategies 6, 48; ultimate 51; work 61, 62–64 Codifcation Commission 50, 54, 56, 60, 62–66 cognitive: assimilation 97; dissonance 147; methods 95 Cohen, Benjamin 94 Coke, Edward 81, 99 collegiality 94, 98 Colley, Linda 82 colonial: anti- 139; attitudes 144; Australia 145; cultural 151; cultural perspectives 145; duty 155; literature 155; offces 83; policy 83; post- 144; practice 85; pre- 144; progress 152; rule 83; territories 5; water policy 144 commerce 5, 78; constitutional 20; e- 5; exclusive 86; international language of 94; interstate 19; modern 84; vocabulary of 94; see also Anglophone Commissioner of Correction v. Coleman 114 Committee for the Prevention of Torture and Inhuman and Degrading Treatment (CPT) 132, 134 common sense 80, 85, 87–88, 100–101 Common Law 21, 23–24, 26–30, 32–36, 39–40, 42; en anglais 42; en français 42 Commonwealth v Tasmania (Tasmanian Dam case) 153

conciliateur 211 conciliation 205, 208–209, 213–214 confict 75, 96, 108, 116, 129, 139, 140, 159; fratricidal 85; legal 87; management 204; of law 55, 65, 200; religious 79; state 93 Confucianism 100–101 Congress of Lawyers and Economists (1920) 53, 55, 57, 63 consommateur 204–205, 207–208, 210–211, 213–214 consumer protection 3, 217–219, 221, 225 Consumer Protection Act (1987) 223–224 contre-acculturation 42,44 convention de procédure participative 207–209, 211–212, 214 Convention for the Protection of Human Rights and Fundamental Freedoms (1953) 132 Copyright Law (1926) 65 Coquillette, Daniel 82, 98 corporatizing of labor 71–72 Cosgrove, Richard 87 Counihan, Carole 74 court: administration of 77; Admiralty 87; American 201; Californian Supreme 117; Chancery 77; citizen 85; civilian 87; Columbia District 116; common law 81; Community Patent 199; Connecticut Superior 115; Connecticut Supreme 117; District 19, 113; Equity 87; European Patent 199, 201; federal 114, 118, 201; Federal Patent 203; Florida Appeal 117; Georgia Supreme 117; guild 77, 98; High 82, 88, 153; independence of 78; Israeli District 114; Israeli Supreme 113–114; Italian Supreme 111; Japanese 203; judicial 119, 121; lower 14; national 193, 203; of Appeal 196–198, 201, 220; of Cassation 216, 219–220; of First Instance 196, 201; of law 82; of Second Instance 201; Royal 77, 79, 81; Seventh Circuit Appeal 130; state 117–118; State Security 141; Strasbourg 141; Superior 114, 119; Supreme 114, 201; system 77; Unifed 197–198, 200, 202–203; Unifed Patent 7, 193–194, 200, 202–203; United 199; United States

Index 2; United States District 201; United States Federal 201; United States Supreme 20, 88, 201; Wisconsin Appeal 121; see also European coutumes africaines 33 coutume de Paris 23, 25, 41 Covenant Federalism 92 Crevettes 22 crisis 71; global 72–73; of health 73; of human obesity 72–73; worldwide 72 Croly, Herbert 92 Cromwell, Oliver 91 Crystal, David 93, 98 cuisine 39–47 culinary: achievements 1; honors 1; ingredients 4; metaphors 4, 39; origins 1; practices 11; processes 1 cultural 145; analysis 145; ancestry 90; backgrounds 18; bias 96; civilizations 100; construct 146; contexts 146; critique 155; decline 71–72; disconnect 154; elements 74; ethno- 136; events 144; identity 7, 136; imperative 150; incidents 6, 144; landscape 149; memories 147; milieu 96; mix 3, 21; multi- 138; needs 138; perspectives 145, 150; restraints 98; shifts 144, 154; signifcance 146; tradition 92, 131; understandings 146; unity 92; values 56 culture 6, 11, 16–18, 71, 74, 91–92, 94, 98, 133, 137, 144, 147; access to 80; American 91; ancestral 91; architectural 81; centers of 85; common 18; food 72; global level of 73; indigenous 74, 83; judique 40, 42, 47; land-specifc 147; legal 4–5, 39, 88; local 71–72, 147; national 74, 92; of consumption 94; popular 94; previous 18; traditional 71–74; water in 144–146; world 96; see also colonial Cut, Cap, and Balance Act (2011) 18 Cutler, Claire 84, 94 Declaration of Malta 119–120 Declaration of Tokyo 107, 115, 119 defective: bottle 220; goods 222; piece of work 220; product damage 222; product liability 216, 218, 221, 224–225; product protection 221; products 216–224; state 223; vehicles 16

229

deprivation 109, 135; food 130, 135 Dewey, John 90–91 Dhiab v. Obama 116 Diamond, Alan 84 Dicey, Albert Venn 87 diffusion 16–17, 56 digeste 31–33, 35 dignity 128; human 6, 108, 130, 133–134; of prisoners 6, 112–113, 133 Directive: Broiler 166, 168, 175, 177, 179; Egg 166, 169, 174, 177, 180; European Union 5, 164, 184, 216–217; Pig 169–170, 177, 181–182 disorder: behaviour 180; health 166; leg 180; mental 109; metabolic 176; post-traumatic stress 15 disputes 12, 58, 77, 93; consumer law 3, 204; political 58, 65; settlement of 3 Domański, Ludwik 52–53, 57–61, 64 Donoghue v. Stevenson 216, 223 droit civil 39–40, 42, 47; en anglais 42; en français 42; en langue anglaise 36 droit collaboratif 206, 213 droit Français 23, 25–26, 29-30, 34, 36; espagnol 26, 29–30; Québécois 39–40, 45; Romain 23, 26, 28, 30 droits coutumiers autochtones 43 drought 145, 149, 152, 156–158; millennial 145, 152, 156–157; Millennium 151–152; prolonged 151–152; severe 157–158 Duguit, Léon 59 Dupuy, Jean-Pierre 96 Dworkin, Ronald 96 economism 83, 97–98; see also Anglophone economy 66; European 203; industrial 7, 193; national 19; of food prison 129 education 82, 86, 139; civic 81; innovations 89; legal 85, 87; liberal 89; mode of 91 Edwards, Laura 85 eggshell skull: case 14–16; doctrine 14; personality 15 Eisenstein, Elizabeth 78 Eliot, Charles W. 89 elites 55; legal 49, 57–58, 60, 62, 64–65; Polish 50, 52, 56; political 50

230

Index

Empire 79, 83, 100; British 85; consolidation of 100; Continental 83; Germanic 92; modern 92; Persian 75; philosophic 100; world 92 emprunt 42, 43 enforcement 83, 93, 193; equal 97 Enlightenment 5, 100; ideals 88; Scottish 85; values 80 environmental enrichment 164, 171, 173, 175, 177, 183 epidemic; of human obesity 72–73; potential 110 Equality Act 138 ethological needs 4, 163–165, 167, 174–175, 177–178, 183–184 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1989) 132 European Convention on Human Rights (ECHR) 110, 121, 137, 141 European Court of Human Rights (ECtHR) 3, 110, 121, 130, 132–133, 135–136, 140 European Court of Justice (ECJ) 5, 199–200, 202 European Patent Offce (EPO) 193–195, 198 European Prison Rules 133 expert-comptable 211 Farm Animal Welfare Council (FAWC) 160 fasting 2, 20, 106, 119 Feldman, Stephen 86 Fielding, Henry 20 Five Freedoms 160; Discomfort 160–161; Express Normal Behaviour 160–161; Fear and Distress 160; Hunger and Thirst 160–161; Pain, Injury or Disease 160 force-feeding 2–3, 7, 106–117, 119–122, 130, 139–140 Free Movement of Goods 159 Frye, Richard 75 Geertz, Clifford 74, 100 Giddens, Anthony 92 Gilmore, Myron 79 global: age 5, 71, 73; authority 96, 98; crisis 72–73; decline 72; developments 101; epidemic 73; existence 95; governance 71–72,

95–97; idea of rule of law 4; law 71–72, 94–99; legal doctrine 65; level of culture 73; multitude 97; order 94–95; population 101; product quality 219; project 71–72; public 95–97; rule 96; science of law 60; structure 98; tendency to homogenize 66; view 94; way of life 95 globalization 4, 72, 74, 95, 98, 101; hegemon of 73; industrial economy 7, 193 Glorious Revolution (1688) 81, 98 Gołąb, Stanisław 53 Golden Age of Fraternalism 87 gombo 21–22, 24, 32–33, 37 Gordon, Robert 88 governance 73, 76, 89, 92–93, 154; basis of 80; British 82; centralized mode of 5; Christian 79; regimen of 101; structures of 81; water 6, 144, 153; see also global grande distribution 204 gumbo 1, 3–4, 11, 21 Habermas, Jurgen 72, 92, 99 Hadot, Pierre 75, 101 Hallaq, Wael 100 Hamdam v. Rumsfeld 116 Hawkins, Hugh 89 Hay, Douglas 82 Herczegfalvy v. Austria 121 Hill v. Dept. of Corrections 120 Holmes, Oliver Wendell 86–89 Honneth, Axel 96 Horoz v. Turkey 141 Horwitz, Morton 85–86 House of Lords 82, 88, 98, 216, 223 Human Rights Act 138 humanism 78–79, 81–82; Erasmian 80, 100 hunger strike 2–3, 7, 106–115, 117–122, 131, 139–141 hybridité 32 immigration 46 Imperium 76, 83 Indian Contract Act (1872) 87 innovation 78, 84, 89, 92–93, 99, 155, 203; education 86, 89; law 86, 99; philosophical 76; technical 82 integrity 3, 57, 117, 121; ethical 119–120; medical 120; national 59; physical 2, 106, 108–110, 121, 141

Index Internal Market provisions 159 International Council of Nurses 116 International Covenant on Civil and Political Rights 132 International Covenant on Economic, Social, and Cultural Rights 132 International Criminal Tribunal for the former Yugoslavia (ICTY) 121 internationalism 93–94 Ireland v. the United Kingdom 130 Irish Republican Army (IRA) 107, 130 Islam 100, 146 Israel Medical Association (IMA) 113–114 Italian Consumer Code 221 Jacobsen, Kathryn 72 Jakóbski v. Poland 136 Joerges, Christion 97 Judicature Acts (1873) 87 Junius, Franciscus 79 Juris Diversitas 11, 16; General Conference 1; symbol of 21 jurisdiction 1–2, 5, 7, 72, 77–78, 87, 153, 194, 196–201, 203, 216, 223; assistance 196; competent 193, 197; enlarged 81; European 199; exclusive 203; Federal 153; national 199, 201, 203; regional 79 jurisprudence 76, 77, 85 jurists 77, 85, 101, 201; Civilian 81; Galician 62; Polish 57 jus commune 76–77 Kelly, Lynne 100 Kennedy, David 99 Kimball, Bruce 86, 90, 99 knowledge 5, 62, 74, 76, 78, 91, 95, 99, 136; academic 5; basic 94; continuum of 76; deeply imbued 74; divided 88–90, 98; embedded 71, 75; embodied 73–74; foundational 76; human 146; instilled 95; legal 60, 89; shared 91; specifc 62; structured 95; universality of 90 Kostal, R. W. 84 Lambropoulos, Vassilis 94 Land Act 1884 (Vic) 153 Land Act 1898 (Vic) 153 Land Amendment Act 1869 (Vic) 153 Langdell, Christopher Columbus 86–87, 89–90

231

Lawson, Henry 145, 149, 155–158 lawyers 2–3, 5, 51–52, 55, 57, 59, 61–63, 85, 99, 113, 144, 204; army 113; citizen 85; international 66; Lviv 62; maritime 87; Polish 51, 61, 66; Royal Court 77; scholarly 77 League of Nations 93 Lebvre, Lucien 78 legalism 71, 79, 99 legislation 4, 6, 50, 54, 63–64, 109, 113, 159–160, 164, 169; analysis of 63, 160; Australian 151; civil 49, 55; effective 53; European Union 4–5, 160, 163–164, 216, 224; international 127; Italian 221; national 127, 166, 170; penal 53; penitentiary 111; sectoral 219 lemon laws 16 Lesaffer, Randall 76, 80 liability 217, 219–220, 223; absolute 224; automatic 224; civil 219; contractual 217, 220–221, 223–224; criminal 219; defendant’s 15; discipline 222; extended 224; fault 216, 225; fnancial 199; frontiers of 216; hypothesis 223; joint and several 36, 220, 222; non-contractual 221; objective 223; product 5, 216–219, 221, 223–225; regimes 216; strict 217, 224–225; theme of 216; tort 5, 224; vicarious 15 liberty 6, 59, 127 Litowitz, Douglas 100 Louisiane 22-37 Lowe, Robert 84 Lumann, Niklas 95 Lustig, Robert 73 Machiavellian humanism 79, 82 Maine, Henry 84, 99 maïs 43 Maitland, F. W. 86 Makowski, Waclaw 49–51, 56, 61, 63 Malbouffe 46 Mallee Lands Act 1886 (Vic) 153 Mallee Pastoral Leases Act 1883 (Vic) 153 Marek, Zygmunt 50, 54, 61 Martines, Lauro 78 May Coup (1926) 58 McNabb v. Dept. of Corrections 120 médiateur 205, 211–212, 214 médiation 205, 208–209, 210–214

232

Index

medical: aid 140; assistance 110; care 108, 134–135; complicity 116; doctrine 108; ethics 115, 120; experts 120; feld 111; integrity 120; interventions 108; issues 165; licenses 115; necessity 110, 121, 140; need 121; professional 110, 119; services 121; supervision 112; treatment 108, 113, 115, 117–118, 140–141, 165–166 metaphor 2, 7, 11, 18, 150; cake 13; culinary 4, 39; fast food 66; food 2, 4, 7, 12, 16–19; melting-together 18; mouth-watering 1; potfood 17–18; powerful 3, 21; tasty 11 Metcalf, Thomas 83, 86, 89 Micklethwait, John 84, 94 Minister of Safety & Security v Sibili 15 Ministry of Justice 49–51, 61 Misa, Thomas 78 Mississipi 24–25 mixité 32–33, 39–47 Modârcă v. Moldova 133 Moore, William 87 moral 6, 84, 136; consequence 74; context 88; idea of discipline 129; non- 79, 87; philosophy 85, 88; preaching 82; public 108; questions 78; resistance 130 Muller, Detlef 91 mutilation 166–170, 172, 182–184 Napoleonic Code 52–53 national codifcation 6, 48, 59 National Federation of Independent Business v Sebelius 20 negligence 217, 220, 223–225; victim of 14 Negri, Antonio 97 Nelson, Eric 79 Newton, Isaac 82 nomic setting 127–128 Norman Conquest (1066) 76 notaire 211 Nouvelle-France 40 Nouvelle-Orléans 23–26, 28–29, 37 Nussbaum, Martha 97 nutraloaf (nutriloaf) 130 nutrition 6, 73, 112, 119, 132–135, 138; adequate 130, 135; diet 7; habits of 4; service 6, 129; sources of 72; supplements 115; understanding of 127; value 133

Obamacare Act 19–20 obesity 4; human 72–73; incidence of 72; increase of 72; morbid 71, 73; spread of 72 obligation d’information 204 okra 22 Oleson, Alexandra 89 Ong, Walter 80, 96 oracular authority 94 Organization of Health Care Services in Prisons 119 Örücü, Esin 16 pacte de non-agression 210 Parczewski, Alfons 57–60, 64 Parliament 82; alliance 82; European 132, 199–200, 218; High Court of 82, 88; response 61 particularism: district 54–55, 64–66; legal 50 patent 194–195, 199–203; adaptable 195; applicants 200; attorney 198; European 7, 193–195, 197, 200, 203; holder 195, 198, 200; infringement 197; inventions 7, 197; language of 195, 198; law 199; litigation 197; national 193, 195, 198, 200, 203; revocation of 198; scope of 195, 199; trolls 203; unitary 194–195, 199; validity of 193, 197–198, 201 persona fcta 84, 98 philosophy 6, 76, 78, 90, 144; American 90; moral 85, 88; of action 91; of Common Sense 80; of pragmatism 91; of ultimate values 90; popular 92; practical 90; serious 90 Piketty, Thomas 101 plantes indigènes 40, 43–44 pluralisme 42 pluralisme juridique 33 Pocasovschi and Mihaila v. the Republic of Moldova and Russia 134 Pohlman, H. L. 88 Pollock, Frederick 87 Poovey, Mary 83, 96 Porterhouse steak 18–19 positivism 3, 21, 84–85 Posner, Richard 88 post-annexation 49, 53–54, 60, 63, 65 Potter, Harry 78 Pottier, Johan 73 pragmatism 90–92, 98; see also philosophy

Index principle 66, 81, 84–85, 92, 94–95, 97, 101, 108, 111, 113, 121, 140, 198; abstract 83; bioethical 108; common 75; common sense 85, 88; concrete 60; fxed 91; ideological 91; legal 62; limiting 19; of civil law 66, 83; of common law 217; of conformity of goods 218; of effective protection 221; of equality 80; of inalienability 111; of inviolability 110; of medicine 140; of neminem laedere 220; of non-discrimination 138; of perfectability 80; of prisoner autonomy 122; of rationalism 52; of reason 80–81; of solidarity 222; of stare decisis 12; philosophical 76; question of 73; rational 93; religious 80; Roman–Dutch law 17; Romanist 77; theological 76; universal 75–76, 83, 92–93, 100 prison food 6, 127–129, 135–136, 138, 141 Prison Service Chaplaincy 138 Prison Service Instruction 138 Prison Voice Washington 129 Prisoners (Temporary Discharge for Ill Health) Act (1913) 106 procédure amiable 205, 213–214; collaborative 206; participative 204–215 product: liability 5, 216, 218, 221, 223–225; safety 218–219 production 83, 93, 162; food 71, 145, 148, 153–154, 156; industrial 92; meat 152; methods 93; wealth 5, 71, 101; wine 1; wool 152 produits de première nécessité 204 Professionnel 205, 207–208, 213–215 Palmer, Francis 98 punishment 6, 127, 129–130; cruel 134; degrading 107; harsh 80; unusual 134 Québec 24, 36–37, 40–42, 45–47 Quinn, Malcolm 96 Radding, Charles 76 RAND Corporation 106 Ratner-Rosenhagen, Jennifer 90 réception 42 Recopilacion de las Indias 25 règlement amiable 204–211; amiable des différends 207

233

re Lilly 120 reality 51, 55, 57, 63–64, 80, 95–97; changing 64; conception of 91; economic 66; electronically mediated 97; existential 101; immersive 95; legal 2; uncomfortable 144; worldwide 1 reasoning 12, 84, 86, 111; case law 2, 12; complex 73; judicial 12; legal 2 reconstruction 86; American 85; constitutional 85; fundamental 83; project of 85 regulation 5, 64, 109, 135, 194, 199–200, 202, 217; civil law 64; code 56, 63; European 200; internal 128; long distance 83; of corporations 94; uniform legal 59 religious: agnostic 79; anti- 80; assistance 137; belief 7, 79; belonging 136; books 138; considerations 146; confict 79; contexts 146; demands 137; dimensions 76, 145; diversity 138; faith 81; festivals 138; fgure 79; freedom 136, 138; identity 7, 136, 138; legal systems 18; literature 138; -motivated dietary requirements 136–137; multi- 138; non- 80; pluralism 137; requirements 138; rituals 137; rule 99; signifcance 146; structures 89; texts 146 resources 94; food 72; human 202; natural 146–147; water 1, 6, 144 Ringer, Fritz 89 Roman Code of Justinian 75 Rosenblatt, Jason 79 Rousseau, Jean-Jacques 80 roux 21–22 Royal Courts of Justice 77, 79; Treasury 77; Will 77 rules 1, 3–4, 6, 39, 48–49, 54, 77, 79, 99, 112–113, 122, 128, 153, 160, 169–170, 194, 218, 221, 224; authority to 100; basis 82; centralized form of 76; colonial 83; confict-oflaw 55; consumer 204; European Prison 133; facets of 99; global 96, 101; imperial 83, 99–100; inherited 4, 39; instruments of 72, 83, 99; international 119, 122; jurisdictional 194; law 200; legal 71, 84, 86, 89, 95; legislative 217; mechanism of 82; military 83; Nelson Mandela 133; Norman 76; normative 3; of

234

Index

law 4, 73, 87, 96, 98, 101; of passive solidarity 222; procedural 194, 197, 202; sectoral 221; seventh-day 171–172; structure of 83; theocratic 79, 81; see also Anglophone Russian Penal Code (1903) 53 safety 1, 111, 218, 222; conditions 218; consumer 218; food 135; product 218–219; public 136; reasonable 134; requirement 218–219; standards 218 Sale and Occupation of Crown Lands Act 1862 (Vic) (the Duffy Act) 153 Sale of Crown Lands Act 1860 (Vic) (the Nicholson Act) 153 Schake, Kori 85 Schlosser, Eric 73 Secretary of State for the Home Dept. v. Robb 119 security 1, 122; concept 219; food 149; homeland 113; importance of 118; of goods 221; operation 141; prison 118, 140; theme 219; water 156 Seeley, J. R. 83 self-: annihilation 111; conscious 88; control 71, 74; cook facilities 129; cultivation 91; determination 106, 108, 110, 118–119, 128; existent 96; expression 109; induced hunger strike 140; inficted 109–110; interest 75; regulating 96; reliance 71, 74; starvation 108 Settlement of Lands Act 1893 (Vic) 153 Seventh Circuit Court of Appeals 130 Singletary v. Costello 117 Slobodian, Quinn 101 social 58; apparatus 51; caste 88; change 91; class 149; coexistence 111; context 97; currents 52; de-contextualizing 96; development 51, 62–63; dimension 168; disruption 152; distinction 99; disturbance 168; doctrines 60; environment 173; equity 72; events 144; expedient 153; fact 88; forms 63; freedom 59; harm 55; hierarchy 86, 168; imperative 150; learning 168; life 56–58, 65; milieu 96; mobility 150; modernization 51; order 57; perspective 152; policy 60; priorities 149; processes 127; programmes 157; rank 99; reforms 57, 150; reinsertion 138–139; relations 59–60; sciences

51, 62, 127; signifcance 49; solidarity 59; spheres 59; structure 56, 58; system 57; ties 97; transformations 63; welfare 59 socialist 58–60 society 6, 12, 15, 48, 57, 60–61, 63, 122, 139; civil 139; democratic 136; free 127; heterogeneous 18; homogeneous 18; peaceful 12; polarized 58; Polish 6, 48, 53, 57, 59; traditional 74; wealthy 59; wellbeing of the 59 sources du droit 33 sucre 45 Spanish colonization 3, 21 Stern, Philip 86 stocking density 169, 179–181, 183 Sutton, Matthew 90 tail-docking 169–172 Territoire d’Orléans 26, 29 territorial: domains 80, 93; extra- 84, 94; limits 84; scope 195; state 80 theory 13, 61, 63, 76, 106, 162, 167, 170, 174 Thompson, E. P. 82 Thor v. Superior Court 117 Tiger, Michael 78, 81 tort 219, 223; claim 15; -feasor 217; law 5, 216, 224; liability 5, 224 torture 79, 107, 116, 121–122, 130, 141; complicity in 116; critics 116; for heresy 79; for witchcraft 81; pro- 116; prohibition 110, 141; waterboarding 116 trade 1, 6, 78, 81, 83–84, 87, 89, 93, 100, 144, 152; food 1; guilds of 5, 77, 86; international 201; legal 86, 98–99; monopoly of 77 trademarks 1 tradition juridique 40-41 traduction 23, 35–38 Treaty of Riga (1921) 56 Treaty of the Functioning of the European Union (TFEU) 159, 165, 199 Treaty of Westphalia (1648) 79–81, 92 tribus indiennes 33 Tulloch, Hugh 86 UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984) 132

Index unifcation 51, 55, 61, 64–66; amendments 54; foundations of 51; issue of 51; legal 50, 56; problem of 51; process of 56; programme 49, 55 United Nations 93, 121 United States: District Court of Florida 19, 201; Supreme Court 20, 88, 201 Universal Declaration of Human Rights 132 utilitarian 78, 86–88, 90–91 vegetarianism 7, 46, 136 Viroli, Maurizio 79 Walker, Samuel 13 Warden v. Saia 114 White Anglo-Saxon Protestant (WASP) 88 Water Act (2007) 153–154 Water and Conservation District Act 1880 (Vic) 153 wealth 59, 77–78, 88, 99; accumulation of 92; aggregation of 83–84, 97; collective 98; distribution of 150; heritable 98; inherited 82; landed 81; maritime 81; merchant 82; monetary 81; production 5, 71, 101 welfare 114, 121, 160–162, 164–165, 169–171, 173, 175, 177–178,

235

180, 182, 184; animal 4, 159–161, 163–166, 173–174, 178, 184; benefts 172; biological 182; collective 171;concept of 165; concerns 181; conditions 177; consideration 165; detrimental 182; emotional 161–162, 165; ethological 166, 175, 182–184; impact 170, 172; implications 167; indication of 180; issues 173, 179, 182; needs 4, 174; physiological 182– 183; problems 180; requirements 159; social 59; thematic 166 Wendt, Alexander 93, 97 Wiley, Andrea 74 Williams, Raymond 94 Wilson v Birt 14 Wisconsin Court of Appeal 121 World Health Organization (WHO) 72 World Medical Association (WMA) 107, 114–115, 119–120, 140 World War I 51, 63, 65–66 World War II 66 Yates, Frances 101 Zant v. Prevatte 117 Zoll, Fryderyk 55 Zoroaster 75 Zoroastrianism 100