Custodial legal assistance and notification of the right to silence in France: Legal cosmopolitanism and local resistance

Abstract

Until the enactment of the Law of 14 April 2011, suspects questioned by the police in France were entitled to meet their lawyer only once in the first 24 h of custodial interrogation and only for 30 min, and were not notified of their right to silence. Extrapolating from the exceptionalism of the pre-April 14 regime of custodial interrogation, this article challenges the position of the fast growing cosmopolitanism of modern legal systems and argues that when one moves from rough generalisations to specific contextual inquiries, a more nuanced picture of the cosmopolitan tendencies of modern legal systems may emerge. This article also demonstrates that legal cosmopolitanism can be a powerful force for legal reform. The April 14 legislation was introduced quickly as a result of the jurisprudence of the European Court of Human Rights against the backdrop of two-century incremental development of French criminal procedure in this domain. This contrast lends itself to translating the April 14 reforms as a result of cosmopolitan pressures coming from outside the national legal system rather than cosmopolitan attitudes spontaneously generated from within. The article illustrates that external cosmopolitan pressures go hand in hand with local resistance, that legal nationalism underpins local resistance and that resistance fluctuates depending on the institution at the receiving end of cosmopolitan pressures. It concludes that indigenous cosmopolitan attitudes, generated through a renewed emphasis on comparative law, can better accommodate resistance.