The new French revolution

The investigative magistrates have the power to destroy reputations

PICTURE A new French revolution in which the revolutionaries wear black robes, white gloves and black hats shaped like camembert cheeses.

The most dynamic force in French society in the 1990s is not political or intellectual but judicial. A handful of investigating magistrates have become the new public heroes, the new media stars.

From the illegal funding of political parties; to the pillaging of state enterprises; to drug-taking in the Tour de France; to the operation of prostitution rackets for the rich and famous, the magistrates have dragged into the light a series of illicit practices which were long suspected but never challenged.

Amongst those publicly accused, but in many cases not yet charged, are two former prime ministers, a former foreign minister who now heads France's supreme constitutional body, the Mayor of Paris, scores of other ex-ministers and senior businessmen, including the former heads of Elf, Alcatel, Paribas and Credit Lyonnais, and hundreds of small-town mayors, MPs and local politicians and officials.

Those already disgraced and convicted include the former mayors of Lyons and Grenoble, the former treasurer of the Socialist Party and France's best known TV news presenter. It is even suggested that the president may be the next to be "mis en examen", or placed under formal investigation.

Some French commentators - not all of them apologists for wrong-doers - suggest that the United States should count itself lucky to have only one independent special prosecutor in Kenneth Starr. France has 600 of them and they are not special but permanent.

The investigating magistrate or juge d'instruction has no equivalent in the British legal system. His or her job is to examine all sides of the most complex criminal cases - everything from the byzantine finances of the Gaullist party to the accident which killed Diana, Princess of Wales - before a decision is taken on whether to bring formal charges. Once a case is given to them, they have considerable powers: powers to search, to subpoena, to question under oath, to imprison for up to six months without trial; powers to humiliate and to destroy reputations.

Juges d'instruction are a class apart. They go through their own separate training school and on formal occasions they don the uniform described above. (More typically they are seen wearing a thrusting leather jacket or a smart trouser-suit beside some hand-cuffed notable on the TV news.)

Their names - Renaud Van Ruymbeke, Eric Halphen, Eva Joly, Laurence Vichnievsky, Patrick Desmure, Herve Stephan - have become almost as well known in France as the politicians themselves.

The fact that there is a disproportionate number of foreign-sounding names on the list of the most aggressive magistrates suggests to some people that there is a foreign plot to destroy the French way of business and politics. In fact, all are as French as Jean-Marie Le Pen or Zinedine Zidane, with one curious exception. Eva Joly, the nemesis of the former Socialist foreign minister, Roland Dumas, first came to France as a Norwegian au pair.

But why is all this happening now? What does it all mean? Is this a sign of France growing up; of France becoming more like other western democracies (not necessarily the same thing)? Or is this a paroxysm of priggishness which will end in public revulsion against the excesses of an overweening judicial system, as has happened in Italy, and up to a point, in the US?

Alain Minc, a right-wing intellectual (no longer a contradiction in terms in France) analyses the phenomenon in a brilliant, short book, Au Nom de la Loi (In the Name of the Law), published by Gallimard. He argues that France, almost without realising it, has undergone in the last eight years its most complete revolution since the abolition of the monarchy and the creation of the First Republic in 1792.

For 206 years, he says, France, has been founded, not on law, but on the sovereign power of the people, which is most often expressed, in practice, by elites ruling in the people's name). France has been a democracy, but a kind of autocratic democracy in which the state - although not always the governments of the day - had great and untramelled power. Those who served the state, politicians and bureaucrats, came to regard themselves as the incarnation of the people's sovereignty; and above the law.

Judges and the courts were formally independent but actually submissive. They rarely challenged state decisions or sought to bring to account state servants. They were also servants - and treated as servants - of the state power.

As a result, Minc says, French law was a guideline, rather than a rule; it applied to some, but not all. "Like other Latin countries, we have long functioned with an Official Law which was quite different from the Applied Law, a state of affairs which has long astonished the Anglo-Saxons.... In this respect , France was more like India than the United States."

This was true of party-political funding, where parties got away for years with what amounted to embezzlement of public funds and demanding kick-backs on public contracts. It was true of the large, publicly-owned companies, such as the oil firm Elf, which became a play-ground of self- enrichment for the bosses, justified by dubious, clandestine activities on behalf of the state. It was true of the Tour de France, where drug taking was rampant, frowned upon, but necessary to survive the two-week race and mostly ignored until this year.

Similar attitudes can be seen right through French society, from nursery schools to behaviour at traffic lights. France is a country where strict rules are irregularly applied, to the bafflement of foreigners.

No longer? Minc half-bemoans, half-approves the fact that France in the 1990s has slid "surreptitiously" towards an "Anglo-Saxon situation" where laws are applied systematically. The courts and, especially the investigating magistrates, have asserted as never before the unbending, impartial force of the law. But why? Or, rather, why now?

Minc and other commentators offer a menu of reasons. The post 1980s triumph of the market has forced back the power of the state. The law has stepped into the vacuum, as the only way to control the excesses of the free enterprise jungle. Secondly, the fact that European Union law takes precedence over national law and politics has further weakened the state, and curbed its old amorphous influence. It has boosted the power of law, and lawyers, of all kinds in France.

Thirdly, there is a generational change to a group of younger magistrates and judges, partly influenced by the "clean hands" judicial campaign in Italy. Fourthly, the Mitterrand years brought an egregious fashion for idealistic talk and corrupt behaviour which revolted judges and public alike. Fifthly, a growing public anger against the "elites" has made it impossible for the politicians to curb the powers and zeal of the magistrates, despite five attempts in the last 10 years.

Much of the effect, says Minc, has been good. Many of the abuses and the corrupt individuals flushed out by the magistrates deserved to be flushed out. He is not, however, the only one to fear that the process is getting out of hand.

There is a danger of an endless legal terror, in which all politicians and senior businessmen are candidates for the judicial tumbrels. The definition of "abuse of corporate funds" is now being interpreted so loosely by French courts that defence lawyers say that almost every businessman in France is at risk.

Some investigating magistrates encourage a cult of personality. They blatantly defy the rules of confidentiality under which they are supposed to work. They leak to the press details of unproved accusations against celebrities; and they ensure that television crews are present whenever they raid politicians' offices.

Like in the Starr-Lewinsky-Clinton case in the US, this turns, at worst, into an irresponsible judicial-media conspiracy to smear the powerful. The French media, not known for its own investigative prowess, gratefully scoops up the crumbs dropped from the magistrates' tables. The more thoughtful end of the press has only just started to complain about the abuse of judicial power. As Minc says, the danger is that one unaccountable elite will be replaced with another, not for the first time in French history.

On other hand, few people want to go back to the old system of approximate application of laws and impunity in high places. Minc's book is a plea for a re-founding of French democracy, accepting the new Anglo-Saxon power of the law in French lives, but making all elites, both the political and the legal, more directly accountable to the French people.

Seen from a foreign vantage-point, the new French revolution should mostly be applauded. France will become - indeed, is becoming - easier to deal with politically and commercially; less baffling to foreigners; less controlled by tentacular elites; less moved by mysterious forces and vanities which do not always serve its own long-term interests. Lionel Jospin may go down as the first able, rather dull, representative of this post-revolutionary France.

Will such a France also be less French, less baroque, less exceptionel, more boring? That is quite likely.