Robert Badinter: Homage to a Visionary Advocate Across the Atlantic

By Isabelle Raquin

Robert Badinter, a French lawyer, politician, and author, widely known across the Atlantic for his powerful advocacy and activism against the death penalty, died last week in France. Here in the United States, his death has largely gone unnoticed outside of the capital defense community. Still, there are few, if any, in France who do not recognize his name and mourn the loss of his voice. As the homages have poured in over the last several days, I wanted to share my thoughts as a French native and attorney about the legacy of a man whose accomplishments in the fields of human rights and civil liberties demonstrate the full potential of the art of advocacy.

Robert Badinter’s legacy as an advocate is reminiscent of Justice Joseph Story’s sage advice to an advocate, “Strike but few blows, but strike them to the heart; All scattered fires but end in smoke and noise– … So you may reach the loftiest heights of fame, And leave, when life is past, a deathless name.”  Badinter understood the power of an idea—even one as unpopular in France at the time as opposition to the death penalty—that appealed to the universality of human rights.  Badinter’s advocacy gained force because he connected his arguments to fundamental truths, such as Fyodor Dostoyevsky’s insight that a society should be judged not by how it treats its outstanding citizens, but by how it treats the people who commit crimes. 

Robert Badinter was a passionate criminal defense lawyer and appellate lawyer who was taught in the 1950s by the best of the Paris Bar “to defend a man who has killed or stolen because they are first of all a man.” In the 1970s, he took on the representation of the most desperate and unpopular cases fighting for clients facing a death sentence. In a notorious case, he represented a defendant charged with the kidnapping and murder of an 8-year-old child.  Badinter made the case not about his client’s guilt but against the inhumanity of the death penalty which France still employed.  He built the profound conviction that state-sanctioned homicide was indefensible. 

In 1981, he became the French justice minister who led the effort to abolish the death penalty against popular support still favoring capital punishment. For him, “a country passionate about freedom cannot retain the death penalty as part of its laws.” Once the law abolishing capital punishment passed, Badinter told his colleagues that “tomorrow, thanks to you, France’s justice will no longer be a justice that kills.” As Justice minister, Badinter also abolished special courts that operated outside the normal framework of the law, passed reforms to improve living conditions in prison, decriminalized same-sex relations, and created a citizen’s right to a direct referral to the European Court of Human Rights. 

For the next decade from 1986 to 1995, Badinter worked as the president of France’s Constitutional Council, one of France’s three supreme courts. The Council’s main mission is to rule on whether proposed statutes conform with the Constitution, after they have been voted by Parliament and before they are signed into law by the President of the Republic. In March 1989, Badinter proposed that citizens be able to appeal to the Constitutional Council, through a jurisdictional filter, if they felt that their fundamental rights had been infringed upon by the law. This proposal was later accepted in 2008 and became the “Priority Question of Constitutionality” which now forms 80 percent of the decisions published by the Council.

Following his role as president, Badinter served in the French Senate from 1995 to 2011. His lifelong fight became the universal abolition of the death penalty for which he was relentless. In 2015, for example, Robert Badinter joined the amicus brief to the United States Supreme Court in support of the petition for certiorari in the case of Moore v. Texas, arguing that the death execution following prolonged incarceration on death row violates the 8th amendment. https://www.scotusblog.com/wp-content/uploads/2016/04/Intl-Human-Rights-Institutes-et-al-Amicus-Brief.pdf

In addition to his public functions at France’s highest institutions, Badinter was a teacher, a writer, a mentor, and someone who impacted and inspired generations of judges and attorneys. France’s current Minister of Justice, Mr. Éric Dupond-Moretti, said “[Mr. Badinter] leaves a void that matches his legacy: immeasurable.”