Trust, the Keepers of the Temple and the Merchants of Law : the riddle of the Fiducie
This thesis is concerned with the 1992 attempt to legislate for the introduction into the French civil code of a "trust-like" device, the Fiducie. Through a study of the 1992 Bill's Fiducie, it is hoped to contribute to a socio-theoretical understanding of the workings of French legal culture, in the specific context of this recent confrontation with the common law trust. On the basis of the works of Foucault, Lenoble and Ost, French legal culture will be theoretically constructed as an epistemic entity shaped by two types of discourses: the juridical discourse of sovereignty and the discourse of Governmentality. In the light of the works of Bourdieu and Dezalay, it will be argued that these discourses are connected to the conflictual dynamics of societal fields, identified as the juridical field and the field of Governmentality. As a result of the operation of the juridical discourse of sovereignty, the Fiducie cannot reproduce the dual ownership structure of the trust. This is due in particular to the symbolic potency of the principle of absolute ownership, a product of the juridical discourse of sovereignty. This discourse forms the basis of the French epistemic tradition and is rooted in struggles amongst lawyers for the symbolic authority of law. The second epistemic level relevant to our study is identified as Governmentality, a discourse concerned with the construction of the proper objects, means and ends of government, understood in the broad Foucauldian sense. The Fiducie 's limitations as regards tax planning result from the fiscal provisions of the Bill and the impossibility to fragment ownership rights. Such limitations illustrate the imperative of surveillance in French Governmentality. But the Bill also reflects a contradictory tension towards a more liberal understanding of the Fiducie as a flexible and almost unregulated contractual device destined to compete with the trust on the global market. The conflicting tensions apparent in the legislative formulation of the Fiducie echo struggles within the juridical field and in the governmental field. These struggles involve an emerging elite of international legal experts seeking a dominant position internationally and within their own national fields. On the basis of this analysis, it will be possible to formulate a number of concluding hypotheses as to the reasons for the 1992 Bill's failure and its possible future revival.